Jacobs Ranch, L.L.C. v. Smith

*860OP ALA, J.,

dissenting.

¶ 1 The court upholds groundwater legislation enacted in 20031 as free from state and federal constitutional taint. I recede from today’s pronouncement for two reasons: (1) there is here no record trail that the disposi-tive threshold issue of standing was ever considered and expressly passed upon in advance of the statute’s judicial testing for constitutional orthodoxy, and (2) the court’s opinion impermissibly extends the text and outer sweep of the challenged statute before subjecting its expanded contours to constitutional testing. In this public-law controversy I would first afford the trial court its missed opportunity to cure the deficiency (in the record) by exploring and deciding the standing issue before any other issue is reached on review.

*861I

THE COURT HAS FAILED TO DIRECT THAT A TRIAL COURT’S DISPOSITION OF THE THRESHOLD STANDING ISSUE BE SECURED BEFORE THE GROUNDWATER LAW IS TESTED FOR CONSTITUTIONAL ORTHODOXY

¶ 2 We cannot reach the alleged infirmity of the challenged 2003 groundwater legislation in advance of a showing that the trial court considered and passed upon two separate challenges to the plaintiffs’ standing.2 These challenges were made at different stages of summary process. The first was pressed at the pre-intervention stage when the defendants (Water Board and Duane Smith) moved to dismiss.3 The second was interposed by the intervenors.4

*862¶ 3 Standing, which presents here a threshold question, cannot be “ ‘inferred argumentatively from averments in the pleadings’ 5 but rather ‘must affirmatively appear in the record.’ ”6 Because standing will not be presumed from a silent record, we look to the paper trail of a meaningful nisi prius inquiry that would reveal the issues of law or fact, or both, that were inquired into and resolved below. There must be a record trail of an express judicial finding of standing in a judge-signed journal entry.

¶ 4 There is here absolutely no paper trail of any kind that informs us of the decisional process employed in disposing of the standing issue. The trial court may have indeed denied the dismissal quest, but its order does not squarely and expressly address itself to the standing challenge.7 There is no express mention in the order disposing of the first challenge that affirmatively deals with that issue or enlightens us on whether standing presents an issue of law or fact, or both. In none of the trial court’s orders is there an entry that addresses itself to the second standing challenge.8 In short, there is no record trail shedding any light on the judicial inquiry conducted below into the standing issue and into the extent of that inquiry with respect to either facts .or law.

¶ 5 The court appears to regard as amply sufficient a trial court’s implied disposition of the standing issue in contrast to an express on-the-record decision that would give an appellate court some insight into the nature and extent of the conducted inquiry. There is here no need for today’s rush to judgment in advance of proper standing resolution.9 This court should not be reaching any of the pressed constitutional issues without first being assured of an affirmative on-the-record trial-court decision in response to a standing challenge. Because the two consecutive challenges made below to plaintiffs’ standing present, on this record, an unresolved threshold issue, the cause should be remanded for an in-depth inquiry and determination by the first-instance court.

V 6 The requirement of standing is at the heart of the court’s inquiry into its power to *863entertain the litigation before it.10 It closely follows an inquest into its own jurisdiction. To accept as a sufficient record the tersely worded entries in the memorials, as the court does today, would relegate the mandatory standing inquiry to the exclusive concern of the trial courts and leave nothing for reviewing tribunals but to rubber stamp the lower court’s decision in cases, such as this one, in which the presence of standing appears to be satisfied only to the court of first instance. I would not abdicate this court’s reviewing responsibility by accepting as final and irreversible the trial court’s resolution of that threshold issue.

¶ 7 Standing must be satisfied whether the parties call it to the court’s attention or not.11 Even if the parties fail to raise the issue, standing’s factum cannot be drawn from vacuity. The court has an obligation to pursue the inquiry sua sponte until it is satisfied that the plaintiffs meet the law’s test. In the absence of a re-inquiry into standing on an adequate record, I cannot and do not join today’s pronouncement insofar as it resolves constitutional attacks in advance of strict necessity.12 Moreover, when resolving a question of public law, it is this court’s duty to invoke sua sponte the correct legal norms that are dispositive of the issues pressed on review.13

¶8 In short, the microscopic nisi prius record references the court is relying on today fall short of satisfying the unique nature of the question we are obliged to inquire into before passing on the constitutional orthodoxy of the statutes attacked for fundamental-law infirmity. The record trail relied on by the court today does not afford the means of discharging our duty to revisit the factum of standing.

¶ 9 Confronted, as we are, by the record’s total silence, I would reverse summary judgment and (a) give both parties an opportunity to re-present the unresolved threshold issue and secure its meaningful disposition upon full inquiry and (b) afford the trial court the opportunity to cure the deficiency now in the record by expressly reaching and deciding the plaintiffs’ standing in advance of resolving all other issues.

II

TODAY’S PRONOUNCEMENT IMPER-MISSIBLY STRETCHES THE STATUTE’S TEXT THAT IS TO BE TESTED FOR CONSTITUTIONAL FLAWS

¶ 10 I strongly reject today’s judicial stretching of the text of the challenged groundwater legislation. An appellate court commits grave error by extending the scope of the law to a statewide dimension without any warrant in its language and then testing it for the presence of constitutional flaws.14

*864¶ 11 The statute does not appear to apply beyond a single aquifer — the Arbuckle-Simpson Groundwater Basin.15 Its terms target only “sensitive sole source” groundwater basin.16 At the time of the statute’s passage, the Arbuckle-Simpson was the only major groundwater basin in the state which had been designated as a sole-source aquifer.

¶ 12 Today’s search for constitutional orthodoxy attributes to the challenged statute a general application to all aquifers (in the state) by invoking no more than pure thin air for the pedestal of the statute’s textual extension.

Ill

SUMMARY

¶ 13 I would counsel the court to defer its pronouncement until the standing issue has been thoroughly explored and decided below. Standing has been raised by the defendants and intervenors, but there is no clear record trail of its nisi prius disposition which would inform us about that issue and would tell us whether it poses an issue of fact or law, or both. An affirmative decision on standing’s presence cannot be drawn by implication or from mere silence, but must be shown by an affirmative on-the-record ruling.

¶ 14 I would not make today’s pronouncement on the several important constitutional challenges in reliance upon a judicial stretching of the statute’s text that is facially confined to a single aquifer.

. The challenged groundwater legislation is 82 O.S.Supp.2003 §§ 1020.9A, 1020.9B, 1020.9(A)(1)(d), (2)(d).

. Standing must be predicated on cognizable economic harm. Public Service Co. of Oklahoma v. Northeastern Oklahoma Elec. Co-op., Inc., 2002 OK 29, ¶ 6, 49 P.3d 80, 82; Oklahoma Gas & Elec. Co. v. Oklahoma Elec. Coop., Inc., 1973 OK 158, ¶ 12, 517 P.2d 1127, 1132. The plaintiff must show that he in fact suffered injury to a legally protected interest. A person who seeks to invalidate a statute as unconstitutional must establish standing by showing that the legislation sought to be invalidated detrimentally affects his/ her interest in a direct, immediate and substantial manner. Public Service Co. of Oklahoma v. Northeastern Oklahoma Elec. Co-op., Inc., supra at ¶ 6, 49 P.3d at 82; Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1237; Independent School Dist. No. 9 v. Glass, 1982 OK 2, 639 P.2d 1233, 1237; Matter of Estate of Doan, 1986 OK 15, ¶ 7, 727 P.2d 574, 576.

. The defendants moved for dismissal on three grounds: (1) the case does not present a justicia-ble controversy and is not ripe; (2) the plaintiffs fail to state a claim against Duane Smith upon which relief can be granted; (3) Roos Resources, Inc. lacks standing to challenge SB288. .They urged plaintiffs’ claim was premature because (a) the legislation had not yet become effective, (b) the temporary permits' revalidation would not occur until six months later, at which time the plaintiffs may not even hold temporary permits or choose to revalidate them and (c) plaintiffs did not allege there were any actual contracts for the sale of groundwater which would be impacted. The trial court heard the defendants’ motion on 25 September 2003; the order denying the dismissal quest was entered 6 October 2003 (see infra note 7). It makes no explicit mention of the challenge to standing.

. Municipalities and Citizens For The Preservation Of The Arbuckle-Simpson Aquifer (CAPSA) were granted leave to intervene 3 October 2003. Standing was affirmatively challenged in the in-tervenors' answers and was clearly implicated in a response to the plaintiffs’ motion for summary judgment. The Intervenors/municipalities' answers to plaintiffs' petition state as an affirmative defense:

The Plaintiffs lack standing to bring this cause of action
AFFIRMATIVE DEFENSES* * *
17. Plaintiff Jacobs Ranch, LLC is an improper party and has no standing to bring this action in that Jacob’s Ranch, LLC holds no permits issued by the Defendant, OWRB nor does it own any land based on which it can apply for an OWRB permit.
Plaintiff Roos Resources, Inc. is an improper party and has no standing to bring this action because it holds no permits issued by Defendant OWRB.
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26. Since Plaintiffs are either permit holders or not qualified to become applicants for Ar-buckle-Simpson ground water permits, Plaintiffs lack standing to assert Senate Bill 288 is unconstitutional with respect to applicants for groundwater permits.

CAPSA's cross motion for partial summary adjudication states:

12. Plaintiffs' twelfth statement of fact is objected to as incorrect and misleading and is denied. Plaintiffs’ own papers show that Plaintiffs do not hold temporary, revocable permits to use groundwater for various municipal and light industrial purposes. Instead, Exhibits B and I to the Plaintiffs motion indicate that only Jacobs Enterprises holds interest in any temporary permits. It appears from the Plaintiffs own papers that they do not hold an interest in any of the permits that are claimed to have been interfered with.
Plaintiffs have made and can make no demonstration that they will suffer economic injury as a result of the implementation of S.B. 288. The regulation of the use of ground water does not constitutionally infringe-upon landowners’ vested property rights.
As even the Plaintiffs acknowledge, they must first obtain a permit from the Oklahoma Water Resources Board before using water for any hon-domestic purpose. Though it is claimed, some, if not all of the Plaintiffs actually do not own a permit to use groundwater from the Arbuckle Simpson Aquifer nor do they have any contract to sell the water to anyone.

Even though intervenors made this assertion in the context of pressing another theory, in public-law litigation this court is duty-bound to supply the correct legal norm. If this fact issue be resolved in intervenors' favor, it would be dispos-itive of plaintiffs’ claim for declaratory relief. *862Amos v. Spiro Public Schools, 2004 OK 4, ¶ 7, 85 P.3d 813, 816.

. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 608, 107 L.Ed.2d 603 (1990) (quoting Grace v. American Central Ins. Co., 109 U.S. 278, 284, 3 S.Ct. 207, 210, 27 L.Ed. 932 (1883)).

. FW/PBS, Inc. v. City of Dallas, supra note 5, 493 U.S. at 231, 110 S.Ct. at 608 (quoting Mansfield C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884)).

. The trial court’s order states:

Having considered Defendants’ Motion to Dismiss and Brief in Support, Plaintiffs’ Brief in Opposition to Motion to Dismiss, and Defendants’ Reply Brief in Support of Defendants' Motion to Dismiss, and the additional arguments presented by respective counsel at the hearing, the Court HEREBY ORDERS AND DECREES that Defendants’ Motion to Dismiss is DENIED.

. Even if the trial court’s order had specifically dealt with the standing issue, there is no legal ground for prohibiting later-included parties from challenging standing as an affirmative defense. They are entitled to a "full and fair opportunity” to litigate this threshold issue before a decision on the merits.

.The prudential rule of necessity, adhered to by all state and federal courts, commands that constitutional issues not be resolved in advance of strict necessity. This sine qua non principle of constitutional judicature is plainly ignored and patently offended today. In re Snyder, 472 U.S. 634, 642-43, 105 S.Ct. 2874, 2880, 86 L.Ed.2d 504 (1985); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936)(Brandeis, J., concurring); State ex rel. Fent v. State ex rel. Okla. Water Res. Bd., 2003 OK 29, ¶ 12, 66 P.3d 432, 439.

"Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.... A closely related principle is that constitutional rights are personal and may not be asserted vicariously.... These principles rest on more than the fussiness of judges. They reflect the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws. Constitutional judgments ... are justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court.” Broadrickv. Oklahoma, 413 U.S. 601, 610-11, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973)(emphasis added, citations omitted).

. Standing inquiry must be affirmatively resolved at nisi prius to ensure that the litigation was properly brought before the trial tribunal. Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, ¶ 1 n. 1, 890 P.2d 906, 910-11; Oklahoma Public Employees Ass'n v. Oklahoma Dept. of Central Services, 2002 OK 71, ¶ 21, 55 P.3d 1072, 1081; see also Dover Historical Soc. v. City of Dover Planning Com’n, 838 A.2d 1103, 1110 (Del.Supr.2003).

. Matter of Estate of Doan, supra note 2, at ¶ 7, at 576.

. Ashwander v. Tennessee Valley Authority, supra note 9, 297 U.S. at 347, 56 S.Ct. at 483 (Brandeis, J., concurring); Broadrick v. Oklahoma, supra note 9, 413 U.S. at 610-11, 93 S.Ct. at 2915.

. Burdick v. Independent School Dist. No. 52 of Oklahoma Cty., 1985 OK 49, ¶ 8, 702 P.2d 48, 54; McCracken v. City of Lawton, 1982 OK 63, ¶ 9, 648 P.2d 18, 21; Application of Goodwin, 1979 OK 106, ¶ 2, 597 P.2d 762, 764. In public-law litigation, into which this appeal falls, this court rather than the parties may choose sua sponte the issues dispositive of the appeal. Amos v. Spiro Public Schools, supra note 4, at ¶ 7, at 816.

Standing may be raised sua sponte in a public-law controversy as an issue at any stage of the judicial process by any party or by the court. Hendrick v. Walters, supra note 2, 865 P.2d at 1236. Once raised it must be resolved in advance of the trial court's decision on the merits. Oklahoma Public Employees Association v. Oklahoma Dept. Of Central Services, supra note 10, at ¶ 21, 55 P.3d at 1080; Toxic Waste Impact Group, Inc. v. Leavitt, supra note 10, at ¶ 9, 890 P.2d at 911.

.This court may not, under the guise of construction, extend, enlarge or otherwise change the terms of a statute. Where the statute is plain and unambiguous, there is no room for judicial construction that would extend its ambit beyond the scope of the plain and unambiguous lan*864guage. Hammock v. U.S., 2003 OK 77, ¶ 10, 78 P.3d 93, 97; Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 15, 16 P.3d 1120, 1125-26; Sisney v. Smalley, 1984 OK 70, ¶ 17, 690 P.2d 1048, 1051.

. The contested groundwater law affects the plaintiffs' present right to withdraw water from the Arbuckle-Simpson Groundwater Basin for municipal or public water supply use outside of the five counties overlying the groundwater basin.

. The challenged legislation imposes two mora-toria (a) one on the Oklahoma Water Resources Board's issuance of temporary permits for the withdrawal of groundwater for municipal or public water supply use outside of any county overlying a "sensitive sole source” groundwater basin and (b) the other on municipalities and other political subdivisions (located outside of any county overlying that basin) contracting to transport water from a sole-source aquifer for municipal or public-water supply use. The term "sensitive sole source groundwater basin or sub-basin” is defined by the legislation as any major groundwater basin that has been designated as a sole-source aquifer by the United States Environmental Protection Agency (EPA). 82 O.S.Supp. 2003 §§ 1020.9A, 1020.9B, 1020.9(A)(1)(d). At the time of the contested law’s passage, the Ar-buekle-Simpson was the only major groundwater basin in the state which had been designated by the EPA as a sole-source aquifer.