MILES v. IDAHO POWER CO.

JOHNSON, Justice.

ON REHEARING

This case involves an agreement between the State of Idaho and Idaho Power Company (Idaho Power), commonly referred to as the Swan Falls Agreement (the agreement). The agreement and the subsequent implementing legislation attempted to resolve concerns over competing water rights in and around the Snake River. In brief, the agreement provided for the subordination of certain water rights claimed by Idaho Power to those of subsequent upstream users. The implementing legislation provided, among other things, that the Idaho Public Utilities Commission (IPUC) when "setting or reviewing the revenue requirement of any utility... shall accept [the agreement] as reasonable and in the public interest for all purposes... ." 1985 Idaho Sess. Laws ch. 14, § 3, p. 20. The appellant, Harold C. Miles, filed a declaratory judgment action on behalf of himself and all similarly situated Idaho Power ratepayers, seeking to have part of the implementing legislation declared unconstitutional.

This appeal followed an order of the district court dismissing the case pursuant to I.R.C.P. 12(b)(6) (1980) for failure to state a claim upon which relief could be granted. The district court did not reach the merits of Miles' challenge, finding instead that Miles lacked standing and that the controversy was not ripe for judicial resolution. Our standard for reviewing a Rule 12(b)(6) dismissal is the same as our summary judgment standard. Tomchak v. Walker, 108 Idaho 446, 700 P.2d 68 (1985). The nonmoving party is entitled to have all inferences from the record viewed in his favor and only then may the question be asked whether a claim for relief has been stated.

We affirm the decision of the trial court, but on different grounds. We hold that the controversy is justiciable. We reject respondents' arguments regarding the political question, standing and ripeness doctrines. We also hold that the implementing legislation is not violative of the equal protection clause or due process clause of the fourteenth amendment to the Constitution of the United States. We decline to address the appellant's argument that the legislation violates the state constitution's proscription against special legislation because that question was not presented to the district court below.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

This is another case involving water rights in the Snake River at Swan Falls. A complete and extensive discussion of the history of this controversy is included in Idaho Power Company v. State, 104 Idaho 575, 661 P.2d 741 (1983).

To avoid multiple litigation between itself and thousands of water-permit holders of water rights in the Snake River, Idaho Power sought a compromise with the State. The ensuing discussions between the parties resulted in the agreement. Subsequently, our legislature enacted legislation to implement the agreement. See 1985 Idaho Sess. Laws, ch. 14-17; ch. 18, §§ 1, 3, 4; ch. 162, 204, pp. 20-31, 437, 514. The purpose of the agreement was to resolve the continuing controversies surrounding water rights on the Snake River. The agreement, among other things, called for Idaho Power's claim to Snake River water rights for its Swan Falls hydroelectric facility of 8,400 c.f.s. (measured at the Murphy gauging station) to be subordinated down to an average daily flow of 3,900 c.f.s. from April 1 to October 31, and of 5,600 c.f.s. from November 1 to March 31. The purpose of the agreement concerning subordination was to make available more water for future appropriators and to assist in the expansion of other beneficial uses of the water in the Snake River. See I.C. § 42-203B (Supp. 1988). The focus of this litigation is on sections 2 and 3 of S.B. No. 1005, (the implementing legislation), enacted by the legislature and signed into law by the governor in 1985. 1985 Idaho Sess. Laws, ch. 14, §§ 2 and 3, p. 20, (not codified). These sections limit the jurisdiction of the IPUC by prohibiting it from considering whether Idaho Power could have protected its water rights and hydroelectric generation in a manner inconsistent with the agreement. They also required the IPUC, when reviewing revenue requirements of Idaho Power, to accept the agreement as reasonable and in the public interest.

Sections 2 and 3 read as follows:

Miles is a customer and ratepayer of Idaho Power. He brought a complaint in district court pursuant to the Uniform Declaratory Judgment Act, I.C. §§ 10-1201 to 10-1217 (1979) challenging the constitutionality of the implementing legislation. Specifically, the complaint alleged that the legislation precludes the IPUC from taking into account, when setting the rate base for Idaho Power, the company's diminished water rights and resulting reduced value of Idaho Power's generating facilities on the Snake River. Consequently, Miles alleged in his complaint "the combined effect of the `Swan Falls Agreement' and the `Swan Falls Legislation' is that the ratepayers will be required to pay rates for electricity to Idaho Power on a rate base (for facilities) that no longer exists or is substantially diminished in value, thus constituting a deprivation of property without due process of law and without just compensation."

Miles included the following illustration in his complaint:

He also alleged:

Miles requested that the district court declare that:

Idaho Power and the State brought a motion to dismiss pursuant to I.R.C.P. 12(b) for failure to state a claim on which relief could be granted. After a hearing, the trial court issued an extensive memorandum decision which dismissed Miles' claims. Without discussing the merits, the trial court considered "the case or controversy requirements" of the standing, ripeness and political question doctrines. The trial court concluded that Miles lacked standing, because he only stated a generalized grievance suffered by all Idaho Power ratepayers, and that the issue was not ripe for adjudication because Miles was not presently being deprived of any protectable property interest. The court ruled that no political question was presented because of our holding in State AFL-CIO v. Leroy, 110 Idaho 691, 718 P.2d 1129 (1986). Relying on the lack of ripeness and standing, the trial court determined that it did not have to rule on the merits and rendered summary judgment in favor of the defendants and ordered dismissal. Miles moved the court to alter or amend the judgment. The motion was denied. This appeal followed.

II.

JUSTICIABILITY.

Miles' request for relief is in the form of a declaratory judgment. A prerequisite to a declaratory judgment action is an actual or justiciable controversy. Harris v. Cassia County, 106 Idaho 513, 681 P.2d 988 (1984). Justiciability is generally divided into subcategories — advisory opinions, feigned and collusive cases, standing, ripeness, mootness, political questions, and administrative questions. 13 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction, § 3529 (2nd ed. 1984). Three categories considered by the district court and implicated in this appeal are the political question, standing and ripeness doctrines.

A. Separation of Powers.

The respondents argue that the agreement, having been endorsed by the executive and legislative branches of this state's government, is an improper subject for judicial review. The argument is akin to the political question abstention doctrine of the federal court system, which is outlined in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). However, the issue is more correctly viewed under the doctrine of separation of powers, which is embraced in art. 2, § 1 of the Idaho Constitution. The question is whether this Court, by entertaining review of a particular matter, would be substituting its judgment for that of another coordinate branch of government, when the matter was one properly entrusted to that other branch. Diefendorf v. Gallet, 51 Idaho 619, 638, 10 P.2d 307, 315 (1932); cf. Ransom v. Garden City, 113 Idaho 202, 743 P.2d 70 (1987). In deciding such questions, we have relied upon the considerations described in Baker v. Carr. See, e.g., Idaho State AFL-CIO v. Leroy, 110 Idaho 691, 718 P.2d 1129 (1986).

In Gallet, a challenge had been made to the governor's finding that "an extraordinary occasion" existed and his invocation of the power to convene the legislature in special session pursuant to art. 4, § 9 of the Idaho Constitution. We were urged to hold that no such emergency existed and that the governor's convocation was contrary to law. After noting that the Idaho Constitution expressly left the responsibility and discretion with the governor for determining the existence of "extraordinary occasions," we declined the invitation to second-guess his decision:

Gallet, 51 Idaho at 638, 10 P.2d at 315, quoting Utah Power & Light Co. v. Pfost, 52 F.2d 226, 231 (D.Idaho 1931).

Similarly, in Leroy we were asked to review a legislative declaration of emergency pursuant to art. 3, § 22 of the Idaho Constitution. After noting the "textually demonstrable constitutional commitment" of this power to the legislature, and the "lack of judicially discoverable and manageable standards" for resolving the problem of what conditions must exist to constitute a "case of emergency," we said:

Leroy, 110 Idaho at 698, 718 P.2d at 1136.

Here, the advisability of the agreement is not a proper subject for judicial deliberation. The question involves "an initial policy determination of a kind clearly for nonjudicial discretion." Baker v. Carr, 369 U.S. at 217, 82 S.Ct. at 710. Determining how our scarce water resources will best serve the state, whether by increased agricultural use or increased power generation use, is a matter peculiarly within the legislative and executive branches. The executive branch, by entering into the agreement, and the legislative branch, by enacting implementing legislation, have each given approval to the water rights subordination plan. Both branches have declared that

1985 Idaho Sess. Laws, ch. 14, § 1.

Clearly then, it would be inappropriate for this Court to second-guess the merits of the agreement.

However, the question now before the Court is not whether the agreement is wise policy. Rather, the question before this Court is whether the implementing legislation violates the due process and equal protection guarantees of our constitution and of the United States Constitution. Gallet and Leroy are therefore distinguishable from the instant case, because here it is alleged that constitutionally protected rights have been invaded and that the legislature has acted in contravention of the state and federal constitutions.

Passing on the constitutionality of statutory enactments, even enactments with political overtones, is a fundamental responsibility of the judiciary, and has been so since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1813). See, e.g., Heller v. Cenarrusa, 106 Idaho 586, 682 P.2d 539 (1984) (equal protection); and Bint v. Creative Forest Products, 108 Idaho 116, 697 P.2d 818, appeal denied, 474 U.S. 803, 106 S.Ct. 35, 88 L.Ed.2d 28 (1985) (due process). Furthermore, we are not precluded from reviewing the constitutionality of a proposed course of action merely because both the executive and legislative branches happen to concur in supporting it. Constitutional rights, as well as this Court's duty to faithfully interpret our constitution and the federal constitution, do not wane before united efforts of the legislature and the governor.

Therefore, we are not precluded from reviewing this appeal.

B. STANDING.

The district court held that Miles lacked standing because he alleged only a generalized grievance, not particular to himself, but shared alike with the public. The district court, relying on Greer v. Lewiston Golf & Country Club, Inc., 81 Idaho 393, 342 P.2d 719 (1959) and Bopp v. City of Sandpoint, 110 Idaho 488, 716 P.2d 1260 (1986), ruled that a ratepayer, when using a declaratory judgment action to challenge the validity of a statute, must allege an interest other than one which is common to all other similarly situated ratepayers, namely, to all ratepayers of the same utility.

The doctrine of standing focuses on the party seeking relief and not on the issues the party wishes to have adjudicated. Valley Forge College v. Americans United, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). While the doctrine is easily stated, it is imprecise and difficult in its application. O'Hair v. White, 675 F.2d 680 (Former 5th Cir.1982). However, the major aspect of standing has been explained:

Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978).

Thus, to satisfy the case or controversy requirement of standing, litigants generally must allege or demonstrate an injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury. Id. at 79, 98 S.Ct. at 2633.

In some cases even though a plaintiff has shown or alleged an "injury in fact," standing is denied because of other factors. For example, the United States Supreme Court has held that "when the asserted harm is a `generalized grievance' shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction." Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975).

A central foundation of the Idaho Declaratory Judgment Act is the requirement of adverse parties. Whitney v. Randall, 58 Idaho 49, 70 P.2d 384 (1937). For the parties to be in an adversarial position, they must have such a personal stake in the outcome of the controversy that a meaningful representation and advocacy of the issues is ensured. The two leading cases on generalized standing in Idaho are Greer and Bopp.

In Greer, taxpayers and citizens of the city of Lewiston brought a declaratory judgment action challenging a city ordinance disannexing the Lewiston Golf and Country Club. The Court did not reach the merits, holding the plaintiffs did not have an interest particular to themselves, but instead had an interest shared by the public generally. The Court further ruled that the plaintiffs' personal rights were not affected and therefore they could not maintain a declaratory judgment action. Finally, the Court noted that the taxpayers' proper remedy was by way of referendum, as provided in the city charter.

In Bopp, the plaintiff, a citizen of the city of Sandpoint, brought a declaratory judgment action seeking to have a city ordinance vacating a public right-of-way over a bridge declared invalid. We held that the plaintiff could not contest the validity of the ordinance because he did not own any property adjacent to the bridge, and therefore, did not suffer a special or peculiar injury to himself. Any injury was one generally shared by all residents of the city of Sandpoint.

Greer and Bopp stand for the proposition that a citizen and taxpayer may not challenge a governmental enactment where the injury is one suffered alike by all citizens and taxpayers of the jurisdiction. In those situations the proper forum to reshape the challenged governmental policy is the political arena through the voting process. The parties aggrieved by the policy stand on equal footing with the voting populace and can attempt to influence public opinion and bring about change. This is the essence of a democratic form of government.

This is not the case here. The parties allegedly injured by the agreement are the ratepayers and customers of Idaho Power, and not the general populace of the state of Idaho. This is more than a generalized grievance. It is a specialized and peculiar injury, although it may affect a large class of individuals. The political process obviously will be more unkind to injured ratepayers seeking to change legislation affecting the whole state of Idaho than to injured citizens and taxpayers. When the impact of legislation is not felt by the entire populace, but only by a selected class of citizens, the standing doctrine should not be evoked to usurp the right to challenge the alleged denial of constitutional rights in a judicial forum.

Nevertheless, the respondents urge us to invoke the doctrine because of the large class of Idaho Power ratepayers. They argue that Miles, as only one of thousands of customers, suffered a generalized injury, which, when compared to the benefits the compromise afforded to all of the people of Idaho is de minimis and insubstantial. This may be true, but we fail to see how this factor requires a dismissal upon lack of standing. "To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody." United States v. SCRAP, 412 U.S. 669, 687-88, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973). This statement is particularly true here. There is no question that the agreement impacts Idaho Power ratepayers. The State and Idaho Power, as part of their agreement, have pledged "actively and in good faith" to recommend and support the implementing legislation. Idaho Power ratepayers are therefore the group most adverse to the agreement, not Idaho Power or the State. Because of that fact, and the fact that Miles challenges the implementing legislation as a ratepayer, and not as a taxpayer, we hold that Miles has standing to pursue his remedy in the courts.

Finally, all parties, including the district court, appear to concede that Miles could have raised his complaint before the IPUC and argued before the IPUC that as a result of the agreement his rates were too high. Subsequently, after a commission ruling, Miles could then bring an appeal to this Court pursuant to I.C. § 61-627, and raise the constitutional issues. See I.C. § 61-629. Requiring Miles to begin this case anew before the IPUC and to then appeal from the decision of the IPUC would waste not only the resources of the judiciary, but also the IPUC's resources. The challenge is not to rate setting by IPUC, but to the implementing legislation, which directed the IPUC to accept the agreement as reasonable and in the public interest. Courts are generally a proper forum in which to challenge legislative enactments. The legislature has not attempted to remove from the jurisdiction of our trial courts challenges to IPUC-related legislation. See Idaho Const. art. 5, § 2. But see Idaho Const. art. 2, § 1 and art. 5, § 20. Therefore, initiation of the instant case in district court was not improper. We will not protract this action longer by requiring Miles to go to the IPUC and begin anew.

C. RIPENESS.

Harris v. Cassia County held that a declaratory judgment action must raise issues that are definite and concrete, and must involve a real and substantial controversy as opposed to an advisory opinion based upon hypothetical facts. Ripeness asks whether there is any need for court action at the present time. In this case, the district court ruled that Miles' claims were not ripe because he was not presently being deprived of any protectable property interest. The district court reasoned that ratepayers do not have a constitutionally protected property interest in the assets of their utilities, and therefore, that no controversy will exist until the IPUC, acting pursuant to the implementing legislation, either grants a rate increase request to Idaho Power, or denies a rate decrease request to a ratepayer. We perceive that the trial court simply held that the alleged injury is too remote and uncertain to justify present adjudication.

Fundamentally, the complaint attacks a statute which dictates to an agency a certain course of action. There is no reason to believe that the IPUC will fail or refuse to follow the mandates of the statute when faced with a request either to increase rates or to decrease rates. If we were to dismiss this action for lack of ripeness, Miles could simply request a rate reduction before the IPUC. The IPUC, relying on the statute, would be required to deny the decrease, precipitating an appeal by Miles to this Court pursuant to I.C. § 61-627. No new facts would be introduced and the legal issues presented would be unchanged from the present challenge. The only contingency here is whether Miles would pursue his claim before the IPUC. Miles has prosecuted his claim in the district court and this Court with vigor. We can only assume that he would also proceed likewise before the IPUC. If the IPUC denied his requests for a rate reduction, Miles would be back before us presenting the same issue, not brought into sharper focus by being sidetracked to an administrative body. Deferring adjudication would add nothing material to the resolution of the legal issues presented, and it would, in fact, delay implementation of the agreement. "Generally, in determining whether to grant a declaratory judgment, the criteria is whether it will clarify and settle the legal relations at issue, and whether such declaration will afford a leave from uncertainty and controversy giving rise to the proceeding." Sweeney v. Am. Nat'l Bk., 62 Idaho 544, 115 P.2d 109 (1941). Here, nothing can be gained by delaying adjudication of the issue. It is clear that this issue will be before us either now or in the future, and a declaration now of the various rights of the parties will certainly afford a relief from uncertainty and controversy in the future. "Since we are persuaded that `we will be in no better position than we are now' to decide this question, we hold that it is presently ripe for adjudication." Duke Power Co. v. Carolina Env. Study Group, 438 U.S. at 82, 98 S.Ct. at 2635.

III.

CONSTITUTIONALITY.

A. DUE PROCESS.

Miles contends that the agreement and related legislation violate the due process provisions of the fourteenth amendment to the United States Constitution. The fourteenth amendment, section one, provides in part:

Specifically, he argues that the effect of the agreement and the implementing legislation will require him and other ratepayers to pay rates based on the value of property not used in the production of electricity, since the IPUC will be deprived of jurisdiction to lower those rates when presented with a valid complaint. Miles contends that the due process clause of the fourteenth amendment is violated in two ways: (1) the implementing legislation requires the payment of the excessive rates which amounts to a taking of property without just compensation; and (2) the ratepayers are not afforded a procedure in which to challenge the action of the legislature.

At the heart of Miles' attack is an assumption that ratepayers have a protected property interest in the rates they pay to their utilities. Stated another way, Miles contends that the effect of the agreement and the implementing legislation will be to take from him, in the future, money that he will be required to pay for increased rates for electricity. It is this assumption upon which we must focus our initial inquiry.

The requirements for the establishment of a constitutionally protected property interest are set forth in the oft-quoted passage of Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972):

Id. at 576-77, 92 S.Ct. at 2708-09.

See Harkness v. City of Burley, 110 Idaho 353, 715 P.2d 1283 (1986). Roth discussed property rights in relation to the notice and hearing requirements of procedural due process. However, we are convinced that the same determination of property applies to the taking issue raised by Miles. See Royster v. Bd. of Trustees of Anderson Cty. Sch., 774 F.2d 618 (4th Cir.1985), cert. denied, 475 U.S. 1121, 106 S.Ct. 1638, 90 L.Ed.2d 184 (1986) (school superintendent's constitutionally protected property interest in his contract was satisfied by full compensation due under contract after his removal without a hearing). Thus, our determination now centers on whether Miles has a sufficient "property" interest or "legitimate claim of entitlement" in electrical rates so as to invoke the protection of the due process clause of the constitution.

Roth, 408 U.S. at 577, 92 S.Ct. at 2709.

Miles argues that I.C. § 61-523 gives ratepayers a protected property interest. This section states:

We have never interpreted this statute to hold that it gives a ratepayer an entitlement to utility service at the lowest possible rates. The statute simply gives the IPUC the power to determine the value of the utility's property. The agreement does not alter this power of the IPUC. In any event, the legislature has plenary power over IPUC jurisdiction and can limit its authority. As we have stated in many instances: "The Idaho Public Utilities Commission has no authority other than that granted to it by the legislature. It exercises a limited jurisdiction, and nothing is presumed in favor of its jurisdiction." Idaho State Homebuilders v. Washington Water Power, 107 Idaho 415, 418, 690 P.2d 350, 353 (1984). Generally, the commission may consider all relevant criteria when setting rates, but the legislature can define what are relevant criteria. Grindstone Butte v. Idaho P.U.C., 102 Idaho 175, 181, 627 P.2d 804, 810 (1981).

Our research has disclosed no case law that supports Miles' proposition of an entitlement to the lowest possible rates. In fact, there is contrary authority to suggest that ratepayers do not have a property interest protected by the due process clause in the rates paid for electricity. See City of Pittsburgh v. Pennsylvania Pub. Utils. Comm'n, 187 Pa.Super. 341, 144 A.2d 648 (1958); Georgia Power Project v. Georgia Power Co., 409 F.Supp. 332 (N.D. Ga. 1975) (applying Georgia law); and Public Service Co. v. Public Utilities Comm'n, 653 P.2d 1117 (Colo. 1982). As the court stated in Georgia Power Project:

409 F. Supp. at 340-41.

Miles has asked us to adopt the rationale of State ex rel Knight v. Public Service Comm'n, 161 W.Va. 447, 245 S.E.2d 144 (1978). In Knight the West Virginia court concluded that "there is a common law right to reasonable rates from any monopoly created by the state, and this right, having existed before the adoption of our constitution, would be encompassed within the concept of property protected by W. Va. Const., art. 3, § 10." 245 S.E.2d at 149. We reject this concept of property for Idaho. I.C. § 73-116 states:

Through the implementing legislation the legislature has prescribed factors that the IPUC may not consider in setting rates for electricity sold by Idaho Power. In Grindstone Butte we acknowledged that the legislature has the power to circumscribe the authority of the IPUC to consider "all relevant criteria" in setting rates. 102 Idaho at 181, 627 P.2d at 810. Property interests are defined by state law. Roth, 408 U.S. at 577, 92 S.Ct. at 2709. To the extent that there is any property interest in reasonable rates in Idaho, it is subject to the limitations placed on it by the legislature.

B. EQUAL PROTECTION.

Miles argues that the implementing legislation violates the equal protection clause of the fourteenth amendment to the United States Constitution. Of the three categories of equal protection analysis, "strict scrutiny" clearly does not apply. The legislation implicates neither a suspect classification nor a fundamental right. Arguably, the intermediate standard — "means focus" — applies since the implementing legislation can perhaps be characterized as discriminatory on its face or blatantly discriminatory. See Gen. Telephone Co. v. Idaho Public Util., 109 Idaho 942, 946, 712 P.2d 643, 647 (1986); Jones v. State Bd. of Medicine, 97 Idaho 859, 555 P.2d 399 (1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977). Under this intermediate standard of judicial scrutiny, the right to equal protection of laws is not violated if the classification "substantially furthers some specifically identifiable legislative end." Jones, 97 Idaho at 867, 555 P.2d at 407. The lowest level of scrutiny — "rational basis" — requires only that the classification be rationally related to legitimate governmental objectives. Tarbox v. Tax Comm'n, 107 Idaho 957, 960, 695 P.2d 342, 345 (1984). Under this minimal standard, "[a] statutory discrimination will not be set aside if any statement of facts may be reasonably conceived to justify it." Jones, 97 Idaho at 866, 555 P.2d at 406, quoting McGowan v. Maryland, 366 U.S. 420, 425-56, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961).

We will not split hairs deciding whether the legislation at issue falls within the intermediate or lowest level of judicial scrutiny because we find that the legislation satisfies the requirements of the intermediate test. Thus, the requirements of the rational basis test are a fortiori fulfilled. The water of this arid state is an important resource. Not only farmers, but industry and residential users depend upon it. Facilitating the settlement of competing claims to our scarce supply of water is an important governmental objective. It is important that at this very moment an unprecedented judicial proceeding is underway to adjudicate all the water rights to the Snake River. The agreement and the implementing legislation is likewise important to this state because it settles a major and long-standing dispute over a significant volume of water. The legislation is substantially related to the objective of settling adverse claims to water. It "substantially furthers some specifically identifiable legislative end," and therefore does not violate the right to equal protection of the laws.

IV.

CONCLUSION.

For the foregoing reasons we find the present action justiciable. We hold that the implementing legislation does not violate the due process or equal protection guarantees of the United States or Idaho's constitutions. We do not address whether the implementing legislation was special legislation in violation of our constitution, since this question was not before the trial court.

The district court's dismissal of Miles' declaratory judgment action is affirmed.

No costs or attorney fees on appeal.

WALTERS, J., Pro Tem., concurs.

BAKES, C.J., specially concurs.

SHEPARD, J., sat, but did not participate in the opinion due to his untimely death.

BAKES, Chief Justice, concurring specially:

The majority opinion concludes that there was no violation of the equal protection clause under any of the three standards for equal protection analysis: (1) "strict scrutiny," (2) "means-focus," and (3) "rational basis." I agree that applying any of those three standards in this case would result in affirming the district court's decision.

I write to point out only that I don't believe that the complaint in this case properly raises an equal protection argument and thus there is really no need to analyze this case under any of the three standards set out above. The decisions of the United States Supreme Court and the Courts of Appeals make it clear that when a state statute or state action is attacked on the ground that it denies equal protection under the fourteenth amendment to the United States Constitution, the courts must make a three-part analysis to determine (1) whether the law treats the plaintiff differently than others, (2) whether the plaintiff is "similarly situated" to those others, and only then determine whether (3) the different treatment is justified under the appropriate applicable standard — "strict scrutiny," "means-focus," or "rational basis." Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966); Desris v. City of Kenosha, Wisconsin, 687 F.2d 1117 (7th Cir.1982). Miles' complaint has not properly raised an equal protection claim. While the Court's opinion points out, ante at 637, 778 P.2d at 759, that Miles is "similarly situated" to the other ratepayers because he is one, the agreement between the State of Idaho and Idaho Power Company does not treat Miles any differently than it does any other ratepayers. Accordingly, in my view, there is no equal protection issue raised in this case and it is unnecessary to make either a "strict scrutiny," "means-focus," or a "rational basis" analysis.

BISTLINE, Justice, concurring and concurring in result.

I concur in the reasoning and result of the majority opinion, Parts I and II. As to the constitutional arguments contained in Part III, I concur only in the result, but not in the rationale or analysis of that section.

The majority totally mischaracterizes the critical point in Miles' constitutional argument. Justice Johnson writes the following: "At the heart of the Miles' attack is an assumption that ratepayers have a protected interest in the rates they pay to their utilities." 116 Idaho at 643, 778 P.2d at 765. "Miles argues that I.C. § 61-523 gives ratepayers a protected property interest." 116 Idaho at 644, 778 P.2d at 766. "Our research has disclosed no case law that supports Miles proposition of an entitlement to the lowest possible rates." 116 Idaho at 644, 778 P.2d at 766.

Miles' brief in support of his petition for rehearing objected to the majority's creation of this straw man:

Petitioner's Brief in Support of Rehearing, pp. 2-4.

Stated succinctly the key issue unaddressed by the majority is this — if ratepayers can be required by this state's legislature to pay a rate on a plant that is not used and useful, has an unconstitutional taking occurred?

I have no argument that the legislature, having created the Idaho Public Utilities Commission, may limit its jurisdiction and may define the relevant criteria for rate making. Unlike the majority, however, I recognize that despite the plenary power of the legislature over the IPUC, the legislature cannot act unconstitutionally even if in concert with, as here, the executive branch and a state-regulated monopoly. This point was well-stated in a recent opinion of our nation's highest court:

Duquesne Light Co. v. Barasch, ___ U.S. ___, 109 S.Ct. 609, 618-19, 102 L.Ed.2d 646 (1989) (emphasis added).

The legislature, nor any other branch of government, may not take private property for public use without paying just compensation. U.S. Const., 5th Amend.; Idaho Const., art. 1, § 14. See, State ex rel. Andrus v. Click, 97 Idaho 791, 554 P.2d 969 (1976).

However, the respondent's brief on rehearing, authored by Chief Deputy Attorney General John McMahon, is persuasive of the likelihood that a "taking" has not occurred in this case. The $14 million figure advanced by Miles is derived from a study produced at the University of Idaho. This study was countered by another emanating from Boise State University. Each study is based upon certain assumptions.

The Chief Deputy Attorney General's brief points out that several key assumptions of the University of Idaho study may not be realistic:

McGrath study, Appendix A, p. 15 (emphasis added).

McGrath, Appendix A at 10 (emphasis added).

Respondent's Brief on Rehearing, 38-41.

In addition, respondent's brief details several benefits accruing to the rate payers as a result of the Swan Falls legislation:

Respondent's Brief on Rehearing, 24-28.

With admitted high regard for the capabilities of the author of the foregoing, and being well aware of the research and study made in making that fair and dispassionate presentation, presently I am not persuaded that a "taking" has occurred as claimed. Therefore, I concur only in the result reached by the majority in its holding that the Swan Falls legislation survives constitutional scrutiny.