concurring and dissenting.
This court has articulated our reluctance to treat with constitutional questions unless that is absolutely necessary. Marion v. City of Lander, Wyo., 394 P.2d 910 (1964), cert, denied 380 U.S. 925, 85 S.Ct. 929, 13 L.Ed.2d 810, reh. denied, 380 U.S. 989, 85 S.Ct. 1352, 14 L.Ed.2d 283 (1965). It is not necessary to invoke any constitutional principle to decide this case, and consequently it is inappropriate to conclude that the Board of Control denied due process to the petitioners by failing to apply the preponderance of evidence standard. That simply was a mistake of law which flowed from the initial mistake by the Board of Control in assuming that it was in the posture of a reviewing body rather than recognizing that its duty was to conduct the contested case hearing required by the Wyoming Administrative Procedure Act, § 16-3-101, et seq., W.S.1977, in accordance with the provisions of § 41-3-911(c), W.S.1977.
If we turn to the applicable provision of the Wyoming Administrative Procedure
*1185Act, § 16-3-108(a), W.S.1977, we find that it provides in pertinent part as follows:
“In contested cases irrelevant, immaterial or unduly repetitious evidence shall be excluded and no sanction shall be imposed or order issued except upon consideration of the whole record or such portion thereof as may be cited by any party and unless supported by the type of evidence commonly relied upon by reasonably prudent men in the conduct of their serious affairs. * * * ” (Emphasis added.)
In Steadman v. Securities and Exchange Commission, 450 U.S. 91,101 S.Ct. 999, 67 L.Ed.2d 69, reh. denied 451 U.S. 933, 101 S.Ct. 2008, 68 L.Ed.2d 318 (1981), § 7(c) of the federal Administrative Procedure Act, 5 U.S.C. § 556(d), was construed by the Supreme Court of the United States. In pertinent part § 7(c) of the federal Administrative Procedure Act provides:
“ * * * A sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative and substantial evidence. * * * ” 5 U.S.C. § 556(d)
This language is substantially similar to the language found in the Wyoming Administrative Procedure Act, § 16-3-108(a), W.S.1977, and the Supreme Court of the United States held that in adopting that language Congress intended to provide a preponderance of the evidence standard in contested case hearings before an administrative agency. The Court examined the legislative history relating to the statute and concluded that the language was “intended to establish a standard of proof and that the standard adopted is a traditional preponderance of the evidence standard.” Steadman v. Securities and Exchange Commission, supra, 101 S.Ct. at 1008.
In Bender v. Clark, 744 F.2d 1424 (10th Cir.1984), the Tenth Circuit Court of Appeals considered an instance in which a contested case hearing was not required but rather an informal hearing was held. That Court concluded that when an agency elects to hold a hearing the proper standard of proof must be used, and adopted the standard of preponderance of the evidence.
“It is well settled that where Congress has failed to establish the degree of proof required in an administrative proceeding, the judiciary is the traditional, and the most appropriate, forum to prescribe the standard. [Citations omitted.] Hence, we must determine the appropriate standard of proof required in an administrative proceeding conducted to decide whether a particular tract subject to federal oil and gas leasing is within a KGS.
“The traditional standard required in a civil or administrative proceeding is proof by a preponderance of the evidence. [Citations omitted.]” Bender v. Clark, supra, 744 F.2d at 1429.
This holding was consistent with Stead-man v. Securities and Exchange Commission, supra (see n. 22). It also is compatible with Davis, Administrative Law Treatise, Evidence, § 16.9 (1979). As one encyclopedia expresses the concept:
“As a general rule the comparative degree of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding — that is, a preponderance of the evidence.” 2 Am.Jur.2d, Administrative Law, § 392 at 199 (1962). (Footnote omitted.)
On the basis of these authorities I am prepared to agree that in a contested case hearing before an administrative agency in the state of Wyoming the standard for the burden of proof is a preponderance of the evidence.
I would leave the matter at that and simply require upon remand that the Board of Control impose the burden upon the Willadsens of establishing the interference with their water right by a preponderance of the evidence. That burden is appropriately placed upon the one who is challenging a decision before an administrative agency. See Pan American Petroleum *1186Corporation v. Wyoming Oil and Gas Commission, Wyo., 446 P.2d 550 (1968).
I would hold that, without invoking any constitutional premise, the Board of Control committed an error of law in requiring any higher standard of proof than that of a preponderance of the evidence with respect to the Willadsens. Recognizing, as I have indicated, that this error probably followed from the error in concluding that the matter was before the Board of Control for review rather than a contested case hearing, I believe it is appropriate to furnish the Board of Control with guidance in proceeding with any further hearings in this case.
With this exception I concur with the opinion of the majority, and I certainly agree as to the disposition of the case on the merits.