SILAK, Justice, concurring and dissenting.

I concur in the Court's opinion, but I respectfully dissent from Part VI.

When considering a party's entitlement to attorney fees under the private attorney general doctrine this Court considers: (1) the strength or societal importance of the policy vindicated by the litigation; (2) the necessity for private enforcement and the magnitude of the resultant burden on the plaintiff; and (3) the number of people standing to benefit from the decision. Miller v. Echo Hawk, 126 Idaho 47, 49, 878 P.2d 746, 748 (1994); Hellar v. Cenarrusa, 106 Idaho 571, 577-78, 682 P.2d 524, 530-31 (1984).

The Court's opinion concludes that respondent has not satisfied the first half of the second element, the necessity for private enforcement. Specifically, the Court states ". . . there is no evidence to support the trial court's finding that these agencies chose not to seek to have the ordinance declared invalid." The record in this case establishes that neither the state nor the federal government joined in this suit. The federal government did not file this action and did not enter it even as an intervenor, although its amicus brief to this Court stated that the United States had a "strong interest" in seeing the ordinance declared invalid. Compare Miller, 126 Idaho at 48, 878 P.2d at 747 (Attorney General filed complaint in intervention asking for judicially imposed reapportionment plan). The record also shows that the Idaho Attorney General issued an opinion concluding that the State Land Board was not bound by the county ordinance, but the state of Idaho did not participate in this suit to invalidate the ordinance.

The record in this case contains the representation of counsel for respondents that the present suit was the only one of its type pending at the time the case was argued to the district court, although counsel acknowledged that a New Mexico case had been filed since then. The attorney for Boundary County did not dispute this assertion. I would accept these statements of counsel as a stipulation, particularly since the County itself, in its appellate briefing, did not raise the issue that the district court was erroneous in concluding that "[n]umerous agencies who are very much aware of this ordinance and for their own purposes . . . chose not to seek . . . public enforcement of it. . . ."

The facts before the district court in Miller were the same as before the district court here: no governmental agency had in fact brought a court action over this issue of public importance. I therefore submit that the Court here should have followed the precedent of Miller and found no abuse of discretion by the district court in concluding that private attorney general fees should be awarded to plaintiffs.

SCHROEDER, Justice, concurring in part, and dissenting in part.

I concur in that portion of the Court's opinion which reverses the award of attorney fees. I dissent from the Court's determination that one of the plaintiffs has standing and the determination that this case is ripe for determination.

I. CONSTRUCTION OF IDAHO'S UNIFORM DECLARATORY JUDGMENT ACT

The Declaratory Judgment Act is remedial in nature. Its purpose is to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations, and is to be liberally construed. I.C. § 10-1212; Idaho Mut. Benefit Ass'n v. Robison, 65 Idaho 793, 154 P.2d 156 (1944); State ex rel. Miller v. State Bd. of Educ., 56 Idaho 210, 52 P.2d 141 (1935). Idaho's Declaratory Judgment Act is to be interpreted and construed so as to effectuate its general purpose to make uniform the laws of the states which enact it and to harmonize, as far as possible, with federal declaratory judgment laws and regulations. I.C. § 10-1215.

II. FACTS RELEVANT TO STANDING AND RIPENESS

The Court has determined that one of the twenty-one named plaintiffs has standing to pursue this action. To evaluate this determination it is helpful to analyze the factual background and the nature of the claim made by the one person determined to have standing.

Since adoption of the ordinance in 1992 the County has taken no steps to enforce it beyond sending requests to the federal, state, and county agencies requesting them to comply. Various officials of the state and federal agencies replied that the ordinance had no effect in terms of their exclusive authority to manage public lands under their control. The ordinance states that, "Boundary County shall enforce compliance with this Interim Land Use Plan," but the ordinance does not include a specification of fines or imprisonment as authorized by Section 31-714 of the Idaho Code. The Commissioners have taken oaths that they do not intend to seek enforcement by fines or penalties. Neither the state nor federal government is a party to this action, although they are the entities to which the ordinance is directed. The federal government appeared as amicus curiae but not as a party.

The societies that have challenged the ordinance have suffered no actual harm beyond discomfort that the ordinance remains on the books.

The Court has concluded that only one of the individual plaintiffs has standing. Out of the mass of speculative injuries alleged, this case hangs on Dan Krmpotich's assertion as a commercial guide that, "If Boundary County succeeds in enforcing the ordinance to eliminate any further wilderness and open the roadless areas up to roading and logging, I shall lose a very substantial portion of my existing available open space usable for high quality recreation related to wildlife and wild lands." (Emphasis added to the portion of the affidavit omitted from the Court's opinion.) Contained within the statement is the non sequitur, that elimination of further wilderness will cause the loss of existing open space. The rest of the sentence concerns opening roadless areas up to "roading and logging." Section 6 of the ordinance is the only section which deals with timber and wood products, and it contains no mandatory provisions. Section 6 outlines policies which could be pursued with or without an ordinance. There is no provision in the ordinance that mentions roadless areas as such. Nothing in the ordinance threatens the plaintiff any more than living in a world where things may change. No road is ordered. One can only speculate what piece of land or what hypothetical road is supposedly implicated. The statement in Section 7 A.3 that there shall be no wilderness areas designated in Boundary County is clearly nothing more than a statement of policy with no indication of any means of enforcement. The plaintiff only alleges speculative financial loss. Saying that Mr. Krmpotich is an expert who can express an opinion takes the standing issue nowhere. When read in context the opinion is without foundation. The underlying concept of allowing an expert to state an opinion is that the opinion will assist the fact finder. In this case the Court has no need for an expert opinion on the effect of this ordinance. The Court has the ordinance and can evaluate the facts. The facts get no better by surrounding them with a so-called "expert opinion." This theory of finding standing through an "expert opinion" is a creation of this Court, not asserted by any party. Out of the twenty-one named plaintiffs this case stands on an opinion without a foundation to support its weight.

The Commissioners have sworn that they do not intend to enforce the ordinance by fines or penalties. This is consistent with the County's position that the ordinance defines policy but does not order the federal and state governments to do anything contrary to their exclusive authority. Additionally, it is clear that neither the state nor federal agencies intend to comply with the ordinance if the County attempts to enforce any provisions intruding in their areas of responsibility.

III. THE PLAINTIFFS LACK STANDING

The standing question bears close affinity to questions of ripeness — whether the harm asserted has matured sufficiently to warrant judicial intervention. Warth v. Seldin, 422 U.S. 490, 499 n. 10, 95 S.Ct. 2197, 2205 n. 10, 45 L.Ed.2d 343 (1975). "[T]here is a close relationship between ripeness and standing, especially where standing is questioned because the anticipated injury is too remote." Montague v. Meese, 683 F. Supp. 589, 591 (N.D.Tex. 1988). "The Article III doctrines of standing and ripeness are often analytically intertwined. A given anticipated injury may be characterized as nonjusticiable because it is too remote to be ripe for review on one hand, or too remote to constitute the requisite concrete harm to satisfy the injury-in-fact requirement of standing." Allendale Leasing, Inc. v. Stone, 614 F. Supp. 1440, 1447 n. 4 (D.R.I. 1985), aff'd, 788 F.2d 830 (1st Cir. 1986) (citing 13 Charles A. Wright, Arthur R. Miller Edward H. Cooper, Federal Practice and Procedure, § 3531.12 (2d ed. 1984); Johnson v. Stuart, 702 F.2d 193, 196 (9th Cir. 1983); Young v. Klutznick, 652 F.2d 617 (6th Cir. 1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1430, 71 L.Ed.2d 650 (1982); Commonwealth Edison v. Train, 649 F.2d 481, 483-84 (7th Cir. 1980); Pence v. Andrus, 586 F.2d 733, 736-39 (9th Cir. 1978)).

The doctrine of standing focuses on the party seeking relief and not on the issues the party wishes to have adjudicated. Miles, 116 Idaho at 641, 778 P.2d at 763, states:

The essence of the standing inquiry is whether the party seeking to invoke the court's jurisdiction has "alleged such a personal stake in the outcome of the controversy as to assure the concrete adversariness which sharpens the presentation upon which the court so depends for illumination of difficult constitutional questions." As refined by subsequent reformation, this requirement of "personal stake" has come to be understood to require not only a "distinct palpable injury" to the plaintiff, but also a "fairly traceable" causal connection between the claimed injury and the challenged conduct. (Citations omitted.)

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. (quoting Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 79, 98 S.Ct. 2620, 2633-34, 57 L.Ed.2d 595 (1978)).

Miles focused on whether the grievance was too generalized to confer standing and reasoned that if the case were dismissed for lack of a concrete injury-in-fact, Miles would undoubtedly go before the Public Utilities Commission, lose, and appeal to the Supreme Court anyway. Miles, 116 Idaho at 642, 778 P.2d at 764. Although the challenged law had not as yet been applied, and no injury had as yet been suffered, the threat of injury was not conjectural.

The plaintiffs rely upon Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir. 1992), for the proposition that the fact that an alleged injury is merely threatened rather than actual does not, alone, defeat a claim of standing. Idaho Conservation League in turn cites Oregon Envtl. Council v. Kunzman, 817 F.2d 484 (9th Cir. 1987), and Heckler v. Mathews, 465 U.S. 728, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984). However, reliance upon this line of authority is misplaced, because these cases deal with instances in which there has been a procedural injury due to an agency's failure to follow a statutorily mandated procedure. That is not the situation in this case.

In Idaho Conservation League, the Ninth Circuit found that "the alleged procedural failure in the EIS (the actual, present harm) . . . `create[s] a risk that environmental impact will be overlooked.' (in the future)." 956 F.2d at 1514 (quoting Oregon Envtl. Council, 817 F.2d at 491). The district court had ruled that the harmful effect of the challenged action was too remote to sustain standing because the plan at issue did not propose any specific development. The Ninth Circuit Court rejected this argument, holding that in procedural injury cases:

The standing examination . . . must focus on the likelihood that the defendant's action will injure the plaintiff in the sense contemplated by Congress.

Viewed in this light, and whether or not it is irrevocable, the Service's decision is harmful for standing purposes. The ICL's complaint is that the faulty EIS has made possible development that wilderness designation would have prevented. Pursuant to NEPA and the NFMA, these are injuries that we must deem immediate, not speculative. Indeed, short of assuming that Congress imposed useless procedural safeguards, and that wilderness designation is a superfluous step, we must conclude that the management plan plays some, if not a critical, part in subsequent decisions.

More importantly perhaps, if the agency action only could be challenged at the site-specific development stage, the underlying programmatic authorization would forever escape review. To the extent that the plan pre-determines the future, it represents a concrete injury that plaintiffs must, at some point, have standing to challenge. The point is now, or it is never.

Id. at 1516 (footnotes omitted).

In Oregon Envtl. Council, the Ninth Circuit addressed the issues of ripeness and standing. The court found that the plaintiffs' challenge of an EIS was ripe for review because the agency's action was clear and final. 817 F.2d at 492. Concerning standing, the Ninth Circuit cited 13 Charles A. Wright, Arthur R. Miller Edward H. Cooper, Federal Practice and Procedure § 3531.4 at 434-37 (2d ed. 1984) in support of its rule that where a procedural injury is alleged, a contingent risk of injury meets the "injury in fact" requirements of standing. Id. at 491-92. In turn Wright's Federal Practice and Procedure cites to cases where the plaintiffs alleged a present procedural misstep which resulted in a lost opportunity for a future benefit, or where the risk of future harm was so great that it amounted to a present injury. See Rockford League of Women Voters v. United States Nuclear Regulatory Comm'n, 679 F.2d 1218, 1221-22 (7th Cir. 1982); Dimarzo v. Cahill, 575 F.2d 15, 18 (1st Cir. 1978) (per Bownes, J.), cert. denied sub nom. Hall v. Dimarzo 439 U.S. 927, 99 S.Ct. 312, 58 L.Ed.2d 320.

Other cases relied upon by the plaintiffs also involve an allegation of a present, procedural flaw in a statutorily mandated process. See Sierra Club v. Marita, 46 F.3d 606 (7th Cir. 1995); Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 698, 133 L.Ed.2d 655 (1996).

The facts of this case are more like the facts in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ( Defenders). In that case, the plaintiffs alleged a procedural default. However, the United States Supreme Court concluded that the citizen suit provision of the Endangered Species Act does not confer a procedural right in all persons to have the Executive observe the procedures required by the act. Defenders, 504 U.S. at 573, 112 S.Ct. at 2143. In a pair of footnotes, the Defenders Court stated: "The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy." Id. at 572 n. 7, 112 S.Ct. at 2142 n. 7; and an individual can enforce procedural rights "so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing." Id. at 573 n. 8, 112 S.Ct. at 2143 n. 8. Nevertheless, the Supreme Court concluded that Defenders was not such a case. Consequently, because the plaintiffs' alleged injury was based on the fact that the plaintiffs might, at some as-yet-undetermined point in the future, want to view certain endangered species in their overseas habitat, the Supreme Court concluded that the alleged injury was too remote or speculative to confer standing. "Such `some day' intentions — without any description of concrete plans, or indeed any specification of when the some day will be — do not support a finding of the `actual or imminent' injury that our cases require." Defenders, 504 U.S. at 564, 112 S.Ct. at 2138.

Furthermore, the Supreme Court held that when:

a plaintiff's asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction — and perhaps on the response of others as well. The existence of one or more of the essential elements of standing "depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or predict;" and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but is ordinarily "substantially more difficult" to establish.

504 U.S. at 562, 112 S.Ct. at 2137 (citations omitted) (emphasis in original).

The claim by the plaintiffs does not involve a procedural injury. The claim is simply that the substance of the ordinance violates the U.S. and Idaho Constitutions and laws made pursuant to those constitutions. Further, this case falls within the reasoning of Defenders that "when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but is ordinarily `substantially more difficult' to establish." 504 U.S. at 562, 112 S.Ct. at 2137 (quoting Allen v. Wright, 468 U.S. 737, 758, 104 S.Ct. 3315, 3328, 82 L.Ed.2d 556 (1984).

On numerous occasions courts have held that a plaintiff lacks standing because there is no credible threat of enforcement of the challenged law. Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC, 962 F.2d 27, 35 (D.C. Cir. 1992); United Transp. Union v. I.C.C., 891 F.2d 908 (D.C. Cir. 1989), cert. denied, 497 U.S. 1024, 110 S.Ct. 3271, 111 L.Ed.2d 781 (1990); Western Mining Council v. Watt, 643 F.2d 618, 624-27 (9th Cir. 1981), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981); Johnson v. Stuart, 702 F.2d at 194-95; Pence v. Andrus, 586 F.2d at 736-39 (per Wright, J.).

This case is on all fours with Washington Wilderness Coalition v. Walla Walla County, CS-94-312-AAM E.D.Wash. (1995) (an unreported memorandum decision on summary judgment), aff'd, 74 F.3d 1247 (9th Cir. 1996). In that case, the United States District Court for the Eastern District of Washington considered a challenge to an ordinance similar to the one at issue here:

First, plaintiffs do not gain standing by asserting that the ordinances restrain government employee actions, which restraint threatens harm to public lands and natural resources. The harmful government employee action is merely hypothetical; the only named government employees attest that they have not changed their actions in response to the ordinances. Presumably, plaintiffs argue that other government employees without Berlier and Tu's principles would follow the ordinances. Argument is not enough. Without proving that a government employee has (or threatens to) delay environmental assessment or similar conservation action because of the ordinances, plaintiffs have not shown that the environment will suffer. Plaintiffs therefore fail to prove the first element of standing, actual harm, for this theory.

Slip op. at p. 18 (footnote omitted). The court also held that the plaintiffs did not have standing based on one plaintiff's claim that the ordinance "chilled" his wilderness advocacy efforts. The court based this conclusion on the fact that: (1) the plaintiff failed to allege any specific restraint on his advocacy activities, and (2) because more than one year had passed without any attempt to enforce the ordinance and the ordinance was not directed at the actions of private individuals. The plaintiff had failed to demonstrate that his fear of enforcement was reasonable. Id. at p. 21-22

IV. RIPENESS AND DECLARATORY JUDGMENTS

In Miles v. Idaho Power, 116 Idaho 635, 778 P.2d 757 (1989), this Court departed from a long line of Idaho case law which held that until a challenged law is applied, the issue of the law's validity is not ripe for review. See State ex rel. Andrus v. Click, 97 Idaho 791, 797 n. 3, 554 P.2d 969, 975 n. 3 (1976) (where there's no application for a permit, nor determination that a mining operation is not in the public interest, the Supreme Court would not determine whether challenged provision empowering Board to so decide was unconstitutional); State v. Standlee, 96 Idaho 165, 168, 525 P.2d 360, 363 (1974) (where there's been no application for parole and thus no denial, challenge to statute providing no release of violent offenders until a third of their sentence is served is premature); State v. Clark, 88 Idaho 365, 377, 399 P.2d 955, 962 (1965) (person can only challenge constitutionality of statute when and only insofar as it is being or about to be applied to his disadvantage); Schmidt v. Village of Kimberly, 74 Idaho 48, 62-63, 256 P.2d 515, 524 (1953) (question of constitutionality of ordinance can only arise out of attempt to enforce the regulation; therefore, the issue is premature where the challenged ordinance does not provide any method or procedures to compel compliance); Idaho Mut. Benefit Ass'n v. Robison, 65 Idaho at 803, 154 P.2d at 161 (where no penalties are yet imposed, question of whether penalties authorized by statute are unconstitutional is not properly before the Supreme Court); Twin Falls Canal Co. v. Huff, 58 Idaho 587, 592, 76 P.2d 923, 925 (1938) (one not injured or in immediate danger of injury through enforcement cannot question constitutionality of statute). See also United Mercury Mines Co. v. Pfost, 57 Idaho 293, 296, 65 P.2d 152, 153 (1937) (injunction to restrain enforcement of law improper where defendants denied they intended to enforce law until issue of enforcement funding resolved).

Miles held that a ratepayer's constitutional challenge of a state law implementing a water rights subordination agreement between Idaho Power and the State was ripe for review, although the challenged statute had not yet been applied. 116 Idaho 635, 778 P.2d 757. In reaching this conclusion the Court reasoned that there was no reason to believe the Idaho Public Utilities Commission (IPUC) would not implement the statute. If the action were dismissed for lack of ripeness, Miles could simply request a rate reduction before the IPUC which would then be required to deny Miles' request pursuant to the challenged statute, which denial Miles would then appeal. Thus the Court reasoned no new facts would be developed in the interim, and the legal issues would be unchanged from the appeal that was pending. Dismissal of the appeal would delay implementation of the agreement, and nothing would be gained by delaying adjudication of the issue. "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." Miles, 116 Idaho at 643, 778 P.2d at 765 (citing Duke Power v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 82, 98 S.Ct. 2620, 2635, 57 L.Ed.2d 595).

In Duke Power, the U.S. Supreme Court held that the plaintiffs' constitutional challenge of the Price-Anderson Act was ripe for judicial review, despite the fact that no nuclear accident had yet occurred, and such an occurrence would eliminate much of the scientific uncertainty surrounding the subject. 438 U.S. 59, 98 S.Ct. 2620. The Court reasoned that the plaintiffs would suffer immediate injury to their environment if the proposed nuclear power plants were built; the occurrence of a nuclear accident would not significantly advance the Court's ability to deal with the legal issues presented; and, delayed resolution would frustrate one of the key purposes of the challenged act — elimination of doubts concerning the scope of private liability in the event of a nuclear accident. Id.

The phrase "we will be in no better position later than we are now," quoted in Duke Power (and consequently, in Miles), is taken from the Blanchette v. Connecticut Gen. Ins. Corp., 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), in which the U.S. Supreme Court held that a constitutional challenge to the conveyance provisions of the Regional Rail Reorganization Act (Rail Act) was ripe for review, despite the fact that no conveyance had taken place. In Blanchette, 419 U.S. at 143, 95 S.Ct. at 358, the Court reiterated its earlier holdings regarding adjudication of a statute's constitutionality before it has been applied. See Carter v. Carter Coal Co., 298 U.S. 238, 287, 56 S.Ct. 855, 862, 80 L.Ed. 1160 (1936) (where inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect); Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663-64, 67 L.Ed. 1117 (1923) ("One does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough."). The court then concluded that because delay in adjudicating the issue of the Rail Acts validity would create serious risk that later consideration of the issue would be too hasty to afford protection of rights or too late to prevent irreparable harm the matter was ripe for review. Blanchette, 419 U.S. at 144-45, 95 S.Ct. at 359.

This Court's prior decisions and the relevant federal cases establish that the validity of a law which has not yet been applied or enforced is ripe for adjudication provided: (1) it is inevitable that the law will be applied, or delay in consideration will create a risk of irreparable harm, and (2) further development of the facts will not clarify the legal issues.

Boundary County argues that the challenged provisions of the ordinance are merely statements of policy and expressions of the desires of the County and do not change existing law and related rights, though the language often appears mandatory. The Commissioners have not sought to enforce the ordinance since its passage in 1992 and do not intend to seek enforcement of the ordinance by fines or penalties. As a consequence, Boundary County maintains that harm has neither occurred nor will occur to the plaintiffs or their rights.

The plaintiffs maintain that further factual development will not advance legal analysis and resolution of the constitutional issues raised, and that passage of the ordinance has led to confusion and uncertainty as to their legal rights and relations. If the suit is dismissed for lack of ripeness, the plaintiffs argue that the issue is bound to arise at some point in the future because at least seven Idaho counties have passed similar ordinances and numerous others are considering such action.

The district court reasoned that the suit involves actual and existing facts which threaten and endanger the rights of one or more of the plaintiffs, and that a declaratory judgment on the ordinance's validity would clarify and settle the legal relations in issue.

As this Court noted in State v. Rhoades, 119 Idaho 594, 809 P.2d 455 (1991):

Declaratory judgments by their very nature ride a fine line between purely hypothetical or academic questions and actually justiciable cases. Many courts have noted that the test of justiciability is not susceptible of any mechanistic formulation, but must be grappled with according to the specific facts of each case.

Id. at 598, 809 P.2d at 459.

V. THE PRESENT CONTROVERSY IS NOT RIPE FOR DETERMINATION

This case is similar to the facts in United Mercury Mines Co. v. Pfost, where the defendants, who would be charged with enforcing the challenged law, stated that they had no intention of enforcing the law unless and until enforcement funding was appropriated. 57 Idaho at 296, 65 P.2d at 153. The Court in United Mercury Mines stated, "under no consideration should a legislative act be declared unconstitutional upon such a state of facts." Id. See also Twin Falls Canal Co., 58 Idaho at 592, 76 P.2d at 925 (one not injured or in immediate danger of injury through enforcement cannot question constitutionality of statute).

The averments of threatened harm in this case are comparable to those rejected by the U.S. Supreme Court in Defenders, 504 U.S. 555, 112 S.Ct. 2130. "Such `some day' intentions — without any description of concrete plans, or indeed even any specification of when the some day will be — do not support a finding of the `actual or imminent' injury that our cases require." 504 U.S. at 564, 112 S.Ct. at 2138.

Miles, 116 Idaho 635, 778 P.2d 757, read together with the preceding authority, requires as an element of a declaratory judgment that there be no doubt that the law will be enforced or that delay in consideration will create a risk of irreparable harm. In this case the record is to the contrary. Years have passed, and there has been no effort to enforce the ordinance. The Commissioners swear it will not be enforced by fines or penalties. The record does not show that delay in consideration will create a risk of irreparable harm. The case is not ripe for adjudication in a declaratory judgment action for these reasons. Additionally, in light of the Commissioners' position that the ordinance is a statement of policy rather than an attempt to compel the state and federal governments to do things they are not otherwise required to do by their own laws, it is clear that only a real controversy between the County and an actual aggrieved party would focus and clarify the legal issues. Thus, the case is not ripe for judicial determination.

VI. CONCLUSION

The controversy in this case is not ripe for adjudication. None of the plaintiffs has standing. There has been no shown need for this lawsuit which has cost the plaintiffs, the county, amicus and this Court considerable time and/or expense. The path to speculative lawsuits may have been opened.