FOX, Justice.
[¶ 1] Solvay Chemicals, Inc. (Solvay) appealed the Department of Revenue's (DOR) assessment of the taxable value of soda ash produced at its Sweetwater County trona mine to the Wyoming Board of Equalization (Board). Solvay disputed the calculations the DOR used to determine the amount of the deduction for bagging some of the soda. After the contested case hearing, the Board requested supplemental briefs to address a question of statutory construction that had not been raised by either party, and the Board ultimately decided that the issue was not the amount Solvay was entitled to deduct for bagging costs, but rather, whether it was entitled to any bagging deduction at all. The Board concluded that the issue disputed by
[¶ 2] One issue raised by the parties is dispositive: Whether the Board acted without observance of the procedure required by law when it based its order on an issue not contested or addressed by either party during the contested case hearing.
[¶ 3] Solvay mines trona ore from its mine in Sweetwater County, Wyoming, and then processes it as soda ash and other products. Solvay sells the majority of its soda ash in bulk, and transports it to the customer by rail or truck. A small amount of Solvay's soda ash is bagged and provided to customers in that form, at a higher charge. Solvay incurs increased costs for the bagging, and it historically deducted those costs from the sales value for tax purposes. Solvay's practice was to report the taxable value of its bagged product based on the bulk product value. But, after an audit of Solvay's 2010-2012 production and tax payments, the Department of Audit (DOA) rejected Solvay's approach and instead arrived at a lower bagging deduction, based on its calculation of Solvay's actual bagging costs. The DOR adopted the DOA's calculations and issued its final determination assessment notice of additional severance tax due, notifying Solvay of an additional $24,524 due in severance taxes, and interest in the amount of $13,160.
[¶ 4] The primary issue identified in Solvay's Notice of Appeal was "Solvay believes DOR and DOA may not have properly valued a portion of Solvay's trona/soda ash production known as `bagged product.'" In its Preliminary Statement, Solvay again summarized its contention as "DOR's and DOA's valuation of Solvay's `bagged product' is erroneous." The DOR agreed, identifying the first issue of fact and law in its Preliminary Statement as "Did the [DOR] correctly value the bagged sales of soda ash in accordance with the law?" The correct valuation of Solvay's deduction for bagging soda ash to determine taxable value continued to be the central issue identified by both parties in their pre-hearing filings, at the hearing, and in the parties' post-hearing briefs and proposed findings of fact and conclusions of law.
[¶ 5] Nearly five months after the hearing, the Board, in its Order for Supplemental Briefing, signaled that it did not consider the calculation of the deduction for Solvay's bagged product to be the issue; instead, the Board ordered the parties to submit briefs answering its questions on statutory interpretation regarding an entirely different methodology. The Board ordered the parties to submit supplemental briefs on these issues:
[¶ 6] The parties agreed that the statutes were unambiguous, so the first issue was not in dispute. As to the second question, a brief discussion of the statutory interpretation issue is necessary to set the stage. Wyo. Stat.
[¶ 7] Section (b)(ii) adopts an "industry factor" test whose objective was to standardize the deductions for all trona companies and simplify what had been complicated calculations by the producers, the DOA, and the DOR. Up until the Board's Order for Supplemental Briefing, Solvay and the DOR had agreed that Solvay was entitled to a deduction for bagging costs under (b)(iv), in addition to the "industry factor" deduction at (b)(ii). The DOR's new position, in response to the Board's Order for Supplemental Briefing, was that Solvay was entitled to no additional deductions for bagging costs under (b)(iv), because "a more reasoned (and legally accurate) approach is to consider any and all incurred bagging expenses to be encompassed within the scope of the 32.5% industry factor" at (b)(ii) (a single valuation method). Solvay continued to argue that section 303(b)(iv) allowed it to deduct the costs of bagging, in addition to the industry factor deduction at 303(b)(ii) (multiple valuation methods), and it urged the Board to order the DOR to apply its approach to calculating those costs. Solvay filed a response brief, in which it strenuously objected to the DOR's new position, as well as to the timing of raising the new approach.
[¶ 8] The Board heard oral argument on the new issue. Solvay again objected to the substance and the procedure of the DOR's new approach. At that hearing, the Board chairman expressed his concerns about the Board's jurisdiction in light of the DOR's new assessment.
[¶ 9] The Board apparently resolved those jurisdictional concerns to its satisfaction, and in its Findings of Fact, Conclusions of Law, Decision and Order, it concluded that Solvay was not entitled to any deduction for bagging soda ash, and it held that the parties' dispute "over how to calculate an additional processing deduction ... is moot in light of our determination that the [DOR] and Solvay initially misinterpreted the underlying valuation methodology." It ordered that the DOR's audit assessment was "reversed and remanded to the [DOR] for reassessment in
[¶ 10] Solvay timely petitioned for review of the Board's action, the district court granted the parties' joint motion to certify the case to the Wyoming Supreme Court, and this Court accepted the certified case pursuant to W.R.A.P. 12.09.
[¶ 11] Judicial review of administrative actions is generally governed by Wyo. Stat. Ann. § 16-3-114(c), but "[w]hether a court or agency has jurisdiction to decide a particular matter is a question of law, subject to de novo review." Exxon Mobil Corp. v. Wyo. Dep't of Revenue, 2011 WY 161, ¶ 24, 266 P.3d 944, 951 (Wyo. 2011) (citing Dir. of the Office of State Lands & Invs., Bd. of Land Comm'rs v. Merbanco, Inc., 2003 WY 73, ¶ 7, 70 P.3d 241, 246 (Wyo. 2003)).
[¶ 12] The Board of Equalization is created by the Wyoming Constitution, which requires the legislature to "provide by law for a state board of equalization," Wyo. Const. art. 15, § 9, and describes the Board's duties as "to equalize valuation on all property ... and such other duties as may be prescribed by law." Wyo. Const. art. 15, § 10. Historically, the Board performed valuation functions, but in 1991, the legislature separated the Department of Revenue and Taxation from the Board and assigned "the valuation of property for tax assessment" to the DOR instead of the Board. Union Pac. Res. Co. v. State Bd. of Equalization, 895 P.2d 464, 466 (Wyo. 1995) (UPRC II). The Board "became an independent quasi-judicial organization with constitutional and statutory duties to equalize valuation and decide disagreements regarding statutory provisions affecting the assessment, levy and collection of taxes." Id. (quoting Union Pac. Res. Co. v. State, 839 P.2d 356, 363 (Wyo. 1992) (UPRC I)).
[¶ 13] Although the Board is a quasi-judicial body, the DOR's contention that "the Board should be treated in the same manner as any other judicial body when construing statutes affecting the assessment, levy and collection of taxes" is incorrect. The Board is not, in fact, like any other judicial body; rather, it is a creature of the legislature. "An administrative agency is limited in authority to powers legislatively delegated. Administrative agencies are creatures of statute and their power is dependent upon statutes, so that they must find within the statute warrant for the exercise of any authority which they claim." Exxon Mobil Corp, 2011 WY 161, ¶ 24, 266 P.3d at 951 (quoting Amoco Prod. Co. v. Wyo. State Bd. of Equalization, 12 P.3d 668, 673 (Wyo. 2000) (Amoco III) (citations omitted)). "A corollary of the rule is that, when a statute provides a particular manner in which a power may be executed, the agency may not exercise its power in a different way. Any action taken by an agency without authority is ultra vires and void." Horse Creek Conservation Dist. v. State ex rel. Wyo. Attorney Gen., 2009 WY 143, ¶ 30, 221 P.3d 306, 316 (Wyo. 2009) (citations omitted). See also Nancy D. Freudenthal & Roger C. Fransen, Administrative Law: Rulemaking and Contested Case Practice in Wyoming, 31 Land & Water L. Rev. 685, 687 (1996). A series of cases delineating the Board's adjudicatory authority illustrate this point.
[¶ 14] In UPRC II, UPRC petitioned the Board to declare the point of valuation to determine taxable value for oil and gas production, and the Board declined to exercise jurisdiction. 895 P.2d at 465. At the time, the DOR was still considering changes to valuation for the tax years in question. Id. at 466. The court affirmed the Board's decision, holding that "it would be infringing upon the administrative function specifically assigned to the [DOR] if it offered the relief claimed by UPRC." Id. at 467. The court there rejected UPRC's argument that the language of Wyo. Stat. Ann. § 39-1-304(a)(iv) provided the Board with broad authority to "`[d]ecide all questions that may arise with reference to the construction of any statute affecting the assessment, levy and collection of taxes.'" Id. at 467 n.1, 468.
[¶ 15] The court reminded the Board of the limitations on its authority in Basin Electric Power Cooperative, Inc. v. Department of Revenue, 970 P.2d 841 (Wyo. 1998). There, the parties settled an appeal of the DOR's electric utility appraisal. The Board then entered
[¶ 16] In Antelope Valley Improvement and Service District v. State Board of Equalization, 4 P.3d 876 (Wyo. 2000), we further clarified the distinction between the Board's regulatory and adjudicatory functions, and the limits to the Board's actions in its adjudicatory role. We emphasized the Board's "separate and distinct role as an appellate body," id. at 877, holding that when the Board functioned in its adjudicatory capacity, "it is not a proper party to an appeal" of its decisions. Id. at 878. The court recognized that the Board, when acting in its regulatory capacity, would be a proper respondent in an appeal, but it rejected the Board's argument that "its statutory and constitutional duty to equalize taxation throughout the state" gave it an interest in the appeal of the decisions it makes in its adjudicatory capacity. Id.
[¶ 17] In Amoco III, the court considered the limits of the Board's authority in the context of a decision it made in its adjudicatory capacity. Amoco appealed the DOR's determination of the amount it owed for taxes, interest, and penalties on natural gas production. Id., 12 P.3d at 671. After a contested case hearing, the Board ordered the parties to submit additional briefing with their calculations for tax, interest, and penalties. Id. Amoco and the DOR had agreed that actual costs of production should be relied on instead of a twenty-five percent allowance; they only disputed which costs should be utilized. Id. at 673. "
Id. at 674. We have adhered to the distinction in subsequent cases. See Amoco Prod. Co. v. Dep't of Revenue, 2004 WY 89, ¶ 22, 94 P.3d 430, 439 (Wyo. 2004) ("The legislature has developed a framework in which valuation is the unique function of the [DOR]."); see also Wyo. Dep't of Revenue v. Qwest Corp., 2011 WY 146, ¶ 22, 263 P.3d 622, 629 (Wyo. 2011) (quoting Amoco III, 12 P.3d at 674). Amoco III and its progeny are indistinguishable from this case.
[¶ 18] Here, Solvay and the DOR agreed that bagging costs should be deducted pursuant to Wyo. Stat. Ann. § 39-14-303(b)(iv); they only disagreed on the calculation of those costs. The DOR issued its final determination assessment notice (Final Determination), and Solvay timely appealed that Final Determination, pursuant to Chapter 2 of the Board's rules (procedure for contested cases). Both parties identified the issue before the Board as the
[¶ 19] Just as in Amoco III,
12 P.3d at 674.
[¶ 20] The Board here recognized that "the [DOR] could not, after the hearing, supplant, negate or materially modify the audit assessment with an alternative decision to be applied in the present appeal." The only way for the DOR to change the decision appealed would have been for it "to withdraw its audit assessment and issue a revised assessment, or otherwise obtain Solvay's consent to such change."
[¶ 21] The DOR also relies on the "decide all questions" language at Wyo. Stat. Ann. § 39-11-102.1(c)(iv) to claim that the Board has broad authority when acting in its adjudicatory capacity. That reliance is misplaced. As the court held in Exxon Corp. v. Board of County Commissioners, Sublette County, 987 P.2d 158, 163 (Wyo. 1999), construing the predecessor to § 39-11-102.1(c), the statute separately addresses the Board's adjudicatory and regulatory functions. In Exxon Corp., Sublette County challenged Exxon's production valuation under Wyo. Stat. Ann. § 39-1-304(a)(xiv) (repealed, 1998 Wyo. Sess. Laws ch. 5, § 4), which provided:
987 P.2d at 163 (emphasis in original). Exxon argued that Sublette County had missed the time to appeal the valuation certification for the years at issue, and should not be permitted to use Section 14 to bypass the contested case time limitations. Id. The court rejected that argument, holding that subsection (a) was "part of the Board's adjudicatory function, i.e., that subsection gives the Board the power to hear appeals. [Section 14], on the other hand, is more closely aligned with the Board's regulatory function." Id. The court explained that the Section 14 procedure did not fall under the Board's rules governing contested cases (Rules of Practice and Procedure Before the Wyoming State Board of Equalization, ch. 2, § 5(a)), but rather under Chapter 4 (Board Examination Procedures, Ad Valorem Tax), and therefore the 30-day time limit for appeals did not govern. Id., 987 P.2d at 163-64. See also In re Bd. of Cty. Comm'rs, Sublette Cty., 2001 WY 91, ¶ 15, 33 P.3d 107, 113 (Wyo. 2001).
[¶ 22] Section 14 is not at issue in the present case (it now appears as Wyo. Stat. Ann. § 39-11-102.1(c)(x) (LexisNexis 2017)), but the same distinction between the Board's adjudicatory function described in the introductory paragraph, and the regulatory function described in most of the following subparagraphs, applies here. The "[d]ecide all
[¶ 23] The relevant language of Wyo. Stat. Ann. § 39-11-102.1(c), now relied on by the DOR and the Board as authority to decide matters beyond the DOR's valuation decision appealed by Solvay, tracks the language of § 39-1-304(a) (repealed, 1998 Wyo. Sess. Laws ch. 5, § 4). It states:
(Emphasis added.)
[¶ 24] We find, as the court did in Exxon, 987 P.2d 158, that the Board's adjudicatory functions are described in the initial paragraph of subsection (c). Subsections (c)(iii) and (iv) are directed to the Board's regulatory function to equalize values.
[¶ 25] In addition, the "[d]ecide all questions language" at (c)(iv) is only triggered either upon application of any person adversely affected, or in performing equalization functions. Neither of those prerequisites exists here. The Board was not performing equalization functions, and there was no application by a person adversely affected to
[¶ 26] In its zeal to correct what it saw as an incorrect application of the law, the Board abandoned the established procedural rules in tax appeals.
Airtouch Commc'ns, Inc. v. Dep't of Revenue, 2003 WY 114, ¶ 12, 76 P.3d 342, 348 (Wyo. 2003) (quoting Colo. Interstate Gas Co. v. Wyo. Dep't of Revenue, 2001 WY 34, ¶¶ 9-11, 20 P.3d 528, 531 (Wyo. 2001) (citations omitted)). The Board ignored the presumption that the DOR's valuation was valid, accurate, and correct; it ignored its duty to weigh the evidence presented by the parties and determine if they had met their respective burdens; and it ignored its task to determine whether there was sufficient evidence to support the chosen method of appraisal.
[¶ 27] The Board's authority is limited to "review[ing] final decisions of the [DOR] upon application of any person adversely affected." Wyo. Stat. Ann. § 39-11-102.1(c). On remand, the Board must review the final decision made by the DOR and adjudicate the dispute between DOR and Solvay regarding the valuation of the bagging deduction. In
[¶ 28] The Board had the authority to adjudicate the dispute between Solvay and the DOR, and not to arrive at its own valuation by questioning the statutory approach the parties had agreed upon. We therefore reverse the decision of the Board, and remand for proceedings in accordance with this opinion.
BOOMGAARDEN, Justice, dissenting, in which DAVIS, Chief Justice, joins.
[¶ 29] I disagree with the majority that the Wyoming Board of Equalization (Board) exceeded its authority when it interpreted Wyo. Stat. Ann. § 39-14-303(b) (Lexis Nexis 2017) to disallow Solvay Chemicals, Inc. (Solvay) a separate bagging cost deduction. For the reasons stated below, I would accept the parties' request that we decide the issue of statutory interpretation as it applies to bagging cost deductions.
[¶ 30] The majority framed the dispositive issue as one raised by the parties: "Whether the Board acted without observance of the
[¶ 31] The Board often is tasked with interpreting tax valuation statutes in both adjudicatory
[¶ 32] After the close of evidence, the Board identified specific statutory interpretation questions to be answered before it could apply the statute to the evidence presented. The Board requested that the parties brief the following, summarized issues: (1) whether relevant parts of trona valuation statutes, Wyo. Stat. Ann. §§ 39-14-301 and -303 are ambiguous;
[¶ 33] To the extent the majority's test for when the Board has authority to interpret Wyo. Stat. Ann. § 39-14-303(b) in its adjudicatory capacity is even stricter than described above and requires any statutory interpretation issue to be articulated with precision in an adversely affected person's appeal to the Board, the majority's limitation on the Board's power contradicts clear statutory language and purpose, violates established administrative law principles, and discounts important practical considerations. In determining whether the legislature vested the Board with authority to interpret Wyo. Stat. Ann. § 39-14-303(b) in this case, we must consider: (1) the statutory language of Wyo. Stat. Ann. § 39-11-102.1(c), without resorting to subtle and forced construction to limit its operation; (2) the purpose of that provision pertaining to the function of and duties imposed on the Board; and (3) practical considerations. See Bd. of Comm'rs of Weston Cty., 20 Wyo. 259, 123 P. 72, 74 (1912); Sheridan Cty. Comm'n v. V.O. Gold Props., LLC, 2011 WY 16, ¶ 15, 247 P.3d 48, 53 (Wyo. 2011); see also Roberts Dairy v. Billick, 861 N.W.2d 814, 817 (Iowa 2015). My conclusion the Board is vested with interpretation authority is consistent with the statute, our precedent, and is supported by important practical considerations.
[¶ 34] In listing the Board's primary constitutional and statutory duties, the legislature mandates that the Board shall review "final decisions of the [DOR] upon application of any interested person adversely affected." Wyo. Stat. Ann. § 39-11-102.1(c). Then, in prescribing more specific duties, the text provides: "In addition, the [B]oard
[¶ 35] It is axiomatic that an administrative agency, including a quasi-judicial administrative body like the Board, is generally clothed with the power and duty to interpret the statutes it executes, not just through rulemaking, but also through the exercise of its adjudicative powers.
[¶ 36] The majority's conclusion that — 102.1(c)(iv) "is more closely aligned" with the Board's regulatory duty to equalize values and that "[s]ubsections (c)(iii) and (iv) are directed to the Board's regulatory function to equalize values," is unsupported by statutory language and structure. Wyo. Stat. Ann. § 39-11-102.1(c)(i) through (xvi) are neither as clearly distinguished or as neatly aligned to regulatory or adjudicatory responsibilities as the majority suggests. After generally describing the Board's equalization and appellate, or adjudicatory, functions in the introductory portion of Wyo. Stat. Ann. § 39-11-102.1(c), the legislature assigned specific additional duties to the Board in -102.1(c)(i) through (c)(xvi) in no particular order or arrangement. Sometimes those subsections segregate and sometimes they combine the Board's internal administration, equalization, adjudicatory, enforcement, and rulemaking responsibilities. For example, Wyo. Stat. Ann. § 39-11-102.1(c)(i) addresses the Board's administrative and practice and procedure
[¶ 37] Moreover, the "may arise" language found in -102.1(c)(iv) modifies "questions ... with reference to the construction of any statute affecting the assessment, levy and collection of taxes," not the context (adjudicatory -102.1(c)(iv)(A) or regulatory — 102.1(c)(iv)(B)) in which the question comes to the Board. The phrase "may arise" therefore cannot support the specificity requirement in the majority's conclusion that "there was no application by a person adversely affected to decide the question that the Board ultimately decided." Consequently, the Board did not impermissibly expand its adjudicatory authority when it concluded Solvay was entitled to the industry factor under Wyo. Stat. Ann. § 39-14-303(b)(ii), but not entitled to a separate bagging cost deduction under -303(b)(iv).
[¶ 38] Considering the scope and arrangement of the remaining subsections of Wyo. Stat. Ann. § 39-11-102.1(c), subsections (c)(vi) and (c)(xv) address both equalization and adjudication. Subsection -102.1(c)(viii) addresses adjudication in contested case hearings under the Wyoming Administrative Procedure Act. Subsections -102.1(c)(ix) through (c)(xiv) address administrative, equalization, and enforcement responsibilities, and — 102.1(c)(xv) provides the Board with subpoena power in each of the adjudication, enforcement, and equalization contexts. Finally, — 102.1(c)(xvi) specifically authorizes the Board to promulgate rules "governing procedures for board proceedings, including those related to its responsibility to equalize values, and its own internal affairs." Given the integrated nature of the additional Board duties listed in Wyo. Stat. Ann. § 39-11-102.1(c)(i)-(xvi), it cannot be said that -102.1(c)(iv) is more closely aligned with the Board's regulatory duty to equalize values and thus the Board may only exercise its statutory authority to decide
[¶ 39] Our precedent is not to the contrary. For example, in Union Pacific Resources Company v. State Board of Equalization, 895 P.2d 464, 465-68 (Wyo. 1995), the Court agreed with the Board that the taxpayer was advocating the use of -102.1(c)(iv)'s predecessor, Wyo. Stat. Ann. § 39-1-304(a)(iv) (repealed,
[¶ 40] Similarly, the Board's statutory construction in this case is easily distinguished from the Board's unauthorized, investigative factfinding into the DOR's methods of appraising rural electric cooperative utilities struck down in Basin Electric Power Cooperative, Inc. v. Department of Revenue, 970 P.2d 841 (Wyo. 1998). Here the Board did not question the DOR's appraisal methods or deduction calculations. Rather, the Board undertook to answer a threshold question of law related solely to whether the legislature intended to afford a bagging cost deduction in addition to the industry factor deduction.
[¶ 41] The dispositive statutory construction issue in this case also is easily distinguished from the holding in Antelope Valley Improvement and Service District v. State Board of Equalization, 4 P.3d 876, 878 (Wyo. 2000), where we held that the Board, "is not a proper party to an appeal" of its decisions when it has functioned as an appellate body. Solvay asked us to review the Board's appellate decision in this case; the Board acknowledged its appellate role and has asserted no interest as a respondent in this appeal. The holding in Antelope Valley therefore does not apply.
[¶ 42] Nor do the limitations on the Board's authority discussed in Amoco Production Company v. Wyoming State Board of Equalization, 12 P.3d 668 (Wyo. 2000) (Amoco III), apply in this case. As illustrated below, in Amoco III the deductibility of certain processing costs was a question of fact; here, whether the statute allows a separate bagging cost deduction is a question of law.
[¶ 43] In Amoco III, we looked at whether the Board invaded the DOR's statutory authority, id. at 672-74, not whether the Board is statutorily authorized to interpret valuation statutes in the first instance. We concluded in Amoco III that the Board failed to act in accordance with law when it departed from its appellate review of the DOR's decision by arriving at its own valuation methodology. Id. at 673. The DOR and Amoco had agreed that the "actual costs" methodology should be used to determine Amoco's processing cost allowance, but they did not agree on what costs to use in the formula. Id. at 673. Rather than giving appropriate deference to the DOR's methodology and deciding which party used the right costs, the Board ruled that Amoco must use the "hypothetical twenty-five percent processing cost allowance" methodology. Id. at 672. It was in that specific context that we concluded the Board had usurped the valuation function of the DOR. Id. at 674. Otherwise, we were careful in Amoco III not to divest the Board of its prerogatives in the resolution of issues relating to allowable deductions, so long as the Board's decision is "in accordance with applicable law." Id.
[¶ 44] Amoco III would govern this case if the Board had preferred Solvay's "bulk product" methodology or fashioned a bagging cost deduction methodology of its own rather than considering the DOR's "actual cost" methodology presumptively valid, see infra n.14. But that is not what happened here. Instead of second-guessing the DOR's bagging cost deduction methodology or choosing another methodology, the Board turned to the governing statute and ruled that the legislature did not intend to provide Solvay a separate bagging cost deduction at all. The Board's disapproval of the DOR's assessment to the extent it allowed any separate processing deduction for bagging costs, and its order remanding the assessment to the DOR, is entirely consistent with Amoco III and is in accordance with applicable law. We must apply language from Amoco III and other cited cases in the context of the specific issues considered and decided in each case. To confuse the boundaries of the Board's statutory authority recognized in those cases with the Board's duty and authority to interpret the
[¶ 45] An administrative agency, including a quasi-judicial administrative body like the Board, is bound to follow its governing statutes. Thunder Basin Coal Co., 896 P.2d at 1339 (citing Fullmer, 858 P.2d at 1124). Accordingly, if the legislature did not intend to provide a separate bagging cost deduction under Wyo. Stat. Ann § 39-14-303(b)(iv), the DOR cannot give Solvay a bagging cost deduction. Nor may the Board or this Court afford the DOR any deference in its decision to allow such a deduction. Thunder Basin Coal Co., 896 P.2d at 1339; see also In re Discipline of Cook, 2007 WY 178, ¶ 9, 170 P.3d 122, 124 (Wyo. 2007) (citing Caldwell v. Cummings, 2001 WY 106, ¶ 11, 33 P.3d 1138, 1142 (Wyo. 2001)). To the extent the majority holds the Board is prohibited from engaging in statutory interpretation unless the precise issue of interpretation is raised by the parties, it has never been held that an incorrect interpretation can make into law that which never was law.
[¶ 46] The key consideration is: Why would this Court force a construction of Wyo. Stat. Ann. § 39-11-102.1(c) to restrict the Board's statutory construction authority where, as here, the Board serves an appellate function,
[¶ 47] Courts and agency bodies with appellate functions have the power to review matters not raised below, though they may choose to exercise such power sparingly. See, e.g., MaineGeneral Med. Ctr. v. Shalala, 205 F.3d 493, 500 (1st Cir. 2000) (citations omitted); 2 Am. Jur. 2d Administrative Law § 350 (Aug. 2018 update). There are good reasons why the relation between the Board as an appellate body and the DOR as a factfinding body should be at least as flexible as that between the Court and the Board. Most notably, allowing the Board to consider a dispositive interpretation issue in the first instance furthers the purposes of utilizing agency expertise and promoting judicial efficiency, with little risk. Just as the Board affords no deference to the DOR with regard to an erroneous statement of the law, neither will this Court defer to the Board if it errs in stating the rule of law. If the Board's conclusion that Wyo. Stat. Ann. § 39-14-303(b)(iv) does not allow a separate bagging cost deduction is incorrect, we must correct it. See Union Pac. R.R. Co. v. Wy. State Bd. of Equalization, 802 P.2d 856, 860-61 (Wyo. 1990).
[¶ 48] If, as the majority concludes, the Board is prohibited from construing tax valuation statutes when adjudicating appeals from DOR decisions, "persons adversely affected" may avoid raising those statutory issues in their notices and pleadings on which they do not believe they will prevail. Under the majority's view, unless the parties noticed and pled a disputed statutory construction issue with particularity, the Board would have to perpetuate an incorrect statutory interpretation until reversed on judicial review or by regulatory action.
[¶ 50] For all the foregoing reasons, I conclude the Board did not exceed its authority when it interpreted Wyo. Stat. Ann. § 39-14-303(b) to disallow Solvay a separate bagging cost deduction. This Court should review that interpretation and consider the merits of this case as the parties requested.
