Amicus Curiae Brief — Paty v. Napeahi

Bupreme Court, U.S.

. FILED

No. shite AUG 23 199)

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

-

WILLIAM F. PATY, Director, Department of Land and

Natural Resources, State of Hawaii,

Petitioner,

VS.

MERVIN NAPEAHI, individually and on behalf of

all those similarly situated,

Respondent.

*

Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Ninth Circuit

¢

BRIEF OF THE STATES OF ALABAMA, ALASKA,

IDAHO, INDIANA, MISSOURI, NEVADA,

OKLAHOMA, OREGON, AND WYOMING,

AS AMICI CURIAE IN SUPPORT OF PETITIONER

¢

FRANKIE SuE Devt Para*

Attorney General of Nevada

Mark P. GHAN

Deputy Attorney General

State of Nevada

*Counsel of Record

for Amici Curiae

Capitol Complex

Carson City, Nevada 89710

(702) 687-4170

Other Counsel Listed on

Following Page

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Counsel for Amici Curiae (continued from front cover)

James H. Evans SusAN BrRIMER LOVING

Attorney General of Attorney General of

Alabama Oklahoma

State House 112 State Capitol

11 South Union Street Oklahoma City, Oklahoma

Montgomery, Alabama 36130 73105

(205) 261-7305 (405) 521-6246

Cuartes E. Core Dave FROHNMAYER

Attorney General of Alaska Attorney General of Oregon

Department of Law Justice Building

P.O. Box K Salem, Oregon 97310

Juneau, Alaska 99811 (503) 378-4401

(907) 465-3600 —

Larry ECHOHAWK Attorney General of

Attorney General of Idaho Wyoming

Statehouse, Room 2310 123 Capitol State Building

Boise, Idaho 83720 Cheyenne, Wyoming 82002

(208) 334-2400 (307) 777-7841

Lintey E. PEARSON

Attorney General of Indiana

219 State House

Indianapolis, Indiana 46204

(317) 232-6201

WILLIAM L. WEBSTER

Attorney General of

Missouri

P.O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

TABLE OF CONTENTS

Page

ee i

SE EY EME REED 5 soe cote cece ccc cescace ii

INTEREST OF THE AMICI CURIAE............... 2

REASONS FOR GRANTING THE WRIT ........... 7

A. Certiorari Should Be Granted to Correct the

Court of Appeals’ Substantial Expansion of

5 in i beso 0s census iv sese. 8

B. Certiorari Should Be Granted to Correct the

Court of Appeals’ Substantial Erosion of the

EER ee 12

C. Certiorari Should Be Granted to Correct the

Court of Appeals’ Novel Enforcement of State

Admission Acts Through the Civil Rights Act

a 14

Ne Peal bhi Sed ks 00s ede vt ccneccees 16

ii

TABLE OF AUTHORITIES

Page

CAasEs:

Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam) .... 12

Allen v. Wright, 468 U.S. 737 (1984) ............00005. 9

ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989)..... 5, 9-10

Bell v. City of Kellog, 922 F.2d 1418 (9th Cir. 1991)....12

Bender v. Williamsport Area School District, 475 U.S.

a Ti 5 thin 6 4's ate MOS ER ee Me Ad Ov ene «0's 8

Burford v. Sun Oil Co., 319 U.S. 315 (1943) .......... 16

Cammack v. Waihee, 932 F.2d 765 (9th Cir. 1991) ..... 12

Florida Dep’t of State v. Treasure Salvors, Inc., 458

ore a eee errr ry Sree ee 14

Hawaii Housing Authority v. Midkiff, 467 U.S. 229

MGA caa kes ase dh eae A Ces SAR ROS be 8 14

Heckler v. Chaney, 470 U.S. 821 (1985) ............... 11

Keaukaha Panaewa Community Association v. Hawai-

ian Homes Commission, 739 F.2d 1467 (9th Cir.

ELS G CNEL CEN AV 5 Kd SIRS ERMRRSEREG DME Te He woe as 2

Linda R.S. v. Richard D., 410 U.S. 614 (1973)......... 11

Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478

et Ba ae eee a re eee 6

Napeahi v. Paty, 921 F.2d 897 (9th Cir. 1990)..... passim

Ngirangas v. Sanches, 110 S. Ct. 1737 (1990).......... 15

Oberlander v. Perales, 740 F.2d 116 (2d Cir. 1984)..... 15

ili

TABLE OF AUTHORITIES - Continued

Oregon ex rel. State Land Board v. Corvallis Sand &

A Be ek vy ere 6, 13

Papasan v. Allain, 478 U.S. 265 (1986)........... 5, 12-13

Pennhurst State School & Hospital v. Halderman, 465

A A isbn SAGA Kaos donde SkeR SORES e PANS als 13

Phillips Petroleum Co. v. Mississippi, 484 U.S. 469

eT rr Terr re Te eeye re ree re reer eye 6, 13

Price v. Akaka, 915 F.2d 469 (9th Cir. 1990),

amended, 928 F.2d 824 (9th Cir. 1991), pet. for cert.

filed, No. 90-1941 (U.S. 9th Cir. June 19, 1991)....2, 8

Price v. State of Hawati, 764 F.2d 623 (9th Cir. 1985),

cert. denied, 474 U.S. 1055 (1986).............---. 2, 8

Price v. State of Hawaii, No. 90-15117 (9th Cir. as

I TH Sy TED oc iv ce scaecncictvsccnes 2, t2

Railroad Comm’n of Texas v. Pullman Co., 312 U.S.

OT eee CTT CEE TC CEE TIT EEL 16

Simon v. Eastern Kentucky Welfare Rights Org., 426

ck 0 Pn ere re rr rere rere ee 5, 9

Suter v. Artist M., No. 90-1488 (U.S. cert. granted

I 50 hy wns ss cab Shs ce ge nos 2, 16

Utah Division of State Lands v. United States, 482

I asin cuss crak nse kd vevedacnssns 6, 15

oo Re ee 10

Whitmore v. Arkansas, 110 S. Ct. 1717 (1990).......... 9

Wilder v. Virginia Hospital Association, 110 S. Ct.

I 5 506 65 aa ak SRE a elee Se ERE 1, 14, 15

Oe

iv

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTIONAL PROVISIONS:

U.S. Gusiet, se Bl era aes und Zz, 5, 7, Fila

U.S. Const. Eleventh Amend. ............... 5, 7, 12-13

STATUTES:

The Civil Rights Act of 1871, 42 U.S.C. § 1983

(ROGED ..... <.00.00n0 vk tees Cee ne ee eee eens passim

The Ohio Admission Act, 2 Stat. 173 (1802).......... 4

The Indiana Enabling Act, 3 Stat. 289 (1816)......... 4

The Mississippi Enabling Act, 3 Stat. 346 (1817)...... 4

The Illinois Enabling Act, 3 Stat. 428 (1818).......... 4

The Alabama Enabling Act, 3 Stat. 489 (1819)........ 4

The Missouri Enabling Act, 3 Stat. 545 (1821)........ 4

The Act to Supplement the Arkansas Admission

Act, 5 Deak. Ti Gees ex eeka eines ae eka se neee dees 4

The Act to Supplement the Iowa and Florida

Admission Act, 5 Stat. 789 (1845).................. 4

The Joint Resolution for the Annexation of Texas,

DS Stat. THF CUM <iccn see nae aks ede eek ean eswes a

The Wisconsin Enabling Act, 9 Stat. 56 (1846)........ 4

The Wisconsin Admission Act, 9 Stat. 56 (1846)...... 4

The Minnesota Enabling Act, 11 Stat. 166 (1857)...... 4

The Kansas Admission Act, 12 Stat. 126 (1861)....... 4

The Nebraska Enabling Act, 13 Stat. 47 (1864)........ 4

TABLE OF AUTHORITIES - Continued

Page

The Colorado Enabling Act, 18 Stat. 474 (1875)....... 4

The North Dakota-South Dakota-Montana-Wash-

ington Enabling Act, 25 Stat. 680 (1889)............ 3

The Wyoming Admission Act, 26 Stat. 222 (1890)..... +

The Idaho Admission Act, 26 Stat. 216 (1890)........ 3

The Utah Enabling Act, 29 Stat. 107 (1894)........... 4

The Nevada Enabling Act, 31 Stat. 32 (1899)......... 3

The Oklahoma Enabling Act, 34 Stat. 267 (1906)...... 4

The Arizona-New Mexico Enabling Act, 36 Stat.

a Geen eh io Nn eden see e sees ey’ 3

The Alaska Admission Act, 72 Stat. 339 (1958)....... 3

The Hawaii Admission Act, 73 Stat. 4 (1959).... passim

Court RuLEs:

8 Gs Se er ear eee 1

No. 90-1937

«

In The

Supreme Court of the United States

October Term, 1991

“

WILLIAM F. PATY, Director, Department of Land and

Natural Resources, State of Hawaii,

Petitioner,

VS.

MERVIN NAPEAHL, individually and on behalf of

all those similarly situated,

Respondent.

“

Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Ninth Circuit

.

BRIEF OF THE STATES OF ALABAMA, ALASKA,

IDAHO, INDIANA, MISSOURI, NEVADA,

OKLAHOMA, OREGON, AND WYOMING,

AS AMICI CURIAE IN SUPPORT OF PETITIONER

¢

The States of Alabama, Alaska, Idaho, Indiana, Mis-

souri, Nevada, Oklahoma, Oregon, and Wyoming, as

Amici Curiae, and pursuant to this Court’s Rule 37.5, file

this Brief in Support of the Petition for Certiorari filed by

the Director of the Department of Land and Natural

Resources, State of Hawaii.

¢

INTEREST OF THE AMICI CURIAE

The Amici States have an abiding interest in this case

arising out of their concern that the United States Court

of Appeals for the Ninth Circuit, in a series of recent

cases,! has unduly expanded the reach of the federal

courts’ Article III power, and of the Civil Rights Act of

1871, 42 U.S.C. § 1983, in holding that private individuals

may sue in federal court to redress what they consider to

be violations of various restrictions placed on state lands,

conveyed to the State of Hawaii upon admission to the

Union, by the Hawaii Admission Act.

While each State’s admission or enabling act has a

unique history, many of these founding documents con-

tain language that is similar to that relied upon by the

Court of Appeals in this case to generate federa! “rights”

enforceable in private suits under 42 U.S.C. § 1983. In the

Ninth Circuit alone, for example, public land trust provi-

sions are set forth in the admissions acts of at least seven

1 See, e.g., Keaukaha Panaewa Community Association v.

Hawaiian Homes Commission, 739 F.2d 1467 (9th Cir. 1984); Price

v. State of Hawaii, 764 F.2d 623 (9th Cir. 1985) (dictum), cert.

denied, 474 U.S. 1055 (1986); Ulaleo v. Paty, 902 F.2d 1395 (9th

Cir. 1990) (dictum); Price v. Akaka, 928 F.2d 824 (9th Cir. 1991),

pet. for cert. filed, No. 90-1941 (U.S. filed June 19, 1991); Napeahi

v. Paty, 921 F.2d 897 (9th Cir. 1990), pet. for cert. filed, No.

90-1937 (U.S. filed June 18, 1991); see also Price v. State of

Hawaii, No. 90-15117 (9th Cir. July 11, 1991), as amended (9th

Cir. Aug. 8, 1991). As pointed out by the petition, this case,

along with that in No. 90-1941, are the first in which the Ninth

Circuit, except in dictum, has expanded the enforceability of

§ 5(f) of Hawaii’s Admission Act beyond cases involving only

the Hawaiian Home Lands governed by the more partic-

ularized requirements of § 4 of the Hawaii Act.

States, in addition to Hawaii. These provisions state vari-

ously that certain public lands are to be granted “for the

support of the public schools,” see § 6(f) of the Alaska

Admission Act, 72 Stat. 339, 341 (1958), or “for the sup-

port of common schools,” see §§ 24, 28, of the Arizona-

New Mexico Enabling Act, 36 Stat. 557, 572 (1910); § 4 of

the Idaho Admission Act, 26 Stat. 215 (1890); §§ 10-13 of

the North Dakota-South Dakota-Montana-Washington

Enabling Act, 25 Stat. 676, 679-80 (1889); § 7 of the Nev-

ada Enabling Act, 13 Stat. 30, 32 (1864); or “for the use of

schools,” see § 4 of the Oregon Admission Act, 11 Stat. 383

(1859). The Acts also provide lands for various other

public purposes.? The admission acts of States

2 See, e.g., § 6(a) of the Alaska Admission Act, 72 Stat. at

340 (lands “[flor the purposes of furthering the development of

and expansion of communities”); § 25 of the Arizona-New

Mexico Enabling Act, 36 Stat. at 573 (lands for “university

purposes” “penitentiaries,” “insane asylums,” “school and asy-

lums for the deaf, dumb, and the blind,” “miners’ hospitals,”

“normal schools,” “state charitable, penal, and reformatory

institutions,” and “agricultural and mechanical colleges”);

§§ 10 and 11 of the Idaho Admission Act, 26 Stat. at 216 (lands

for “an agricultural college,” “a scientific school,” “normal

schools,” “the insane-asylum located at Blackfoot,” “the State

University at Moscow,” “the penitentiary located at Boise

City,” “other State, charitable, educational, penal, and reforma-

tory institutions”); §§ 14 and 17 of the North Dakota-South

Dakota-Montana-Washington Enabling Act, 25 Stat. at 680-81

(“university purposes,” “school of mines,” “normal schools,”

“agricultural colleges,” “reform school,” “deaf and dumb asy-

lum,” and “charitable, educational, penal, and reformatory

institutions”); §§ 9, 10 of the Nevada Enabling Act, 13 Stat. at

32 (“a penitentiary or state prison,” and “public roads, con-

structing ditches or canals, to effect a general system of irriga-

tion of the agricultural land in the state”).

outside of the Ninth Circuit admitted after the formation

of the Union also make grants of lands for certain pur-

poses.

The decision of the court below in Napeahi v. Paty, 921

F.2d 897 (9th Cir. 1990), authorizes any private citizen

who invokes 42 U.S.C. § 1983 to sue the officers of the

State of Hawaii in federal court for a determination

whether particular lands, which the private parties do not

own and do not claim any specific part of, fall within the

corpus of “trust” lands conveyed to Hawaii on its admis-

sion to the Union, and, if so, for an “appropriate remedy”

if Hawaii's officials have improperly granted those lands

to private parties. The Amici States are gravely concerned

that the failure by this Court to reverse the judgment of

3 See § 7 of the Ohio Admission Act, 2 Stat. 173, 175 (1802);

§ 6 of the Indiana Enabling Act, 3 Stat. 289, 390-91 (1816); § 5 of

the Mississippi Enabling Act, 3 Stat 346, 347 (1817); § 6 of the

Illinois Enabling Act, 3 Stat. 428, 430-31 (1818); §§ 6-7 of the

Alabama Enabling Act, 3 Stat. 489, 491 (1819); § 5 of the

Missouri Enabling Act, 3 Stat. 545, 547 (1821); §§ 1-4 of the Act

to Supplement the Arkansas Admission Act, 5 Stat. 58 (1836);

§ 6 of the Act to Supplement the lowa and Florida Admission

Act, 5 Stat. 789 (1845); § 2 of the Joint Resolution for annexing

Texas to the United States, 9 Stat. 797-98 (1845); § 7 of the

Wisconsin Enabling Act, 9 Stat. 56, 58 (1846); § 2 of the Wiscon-

sin Admission Act, 9 Stat (1848); § 5 of the Minnesota

Enabling Act, 11 Stat. 1 7 (1857); § 3 of the Kansas Admis-

sion Act, 12 Stat. 126-27 (1861); § 7 of the Nebraska Enabling

Act, 13 Stat. 47, 49 (1864); § 7 of the Colorado Enabling Act, 18

Stat. 474, 475 (1875); §§ 4-11 of the Wyoming Admission Act, 26

Stat. 222, 223-24 (1890); §§ 6-12 of the Utah Enabling Act, 29

Stat. 107, 109 (1894); §§ 7, 8, and 34 of the Oklahoma Enabling

Act, 34 Stat. 267, 272, 273, 283 (1906); §§ 7-10 of the Arizona-

New Mexico Enabling Act, 36 Stat. 557, 562-65 (1910).

the Court of Appeals could lead other panels within the

Ninth Circuit to expand the seach of § 1983 to similar

suits against other States, based on their admission or

enabling acts, and could encourage the remaining courts

of appeals to extend § 1983 in a similar way vis a vis the

States within their purview. _

The Amici States are concerned that the Ninth Circuit

has fundamentally misunderstood the reach of Article III

and § 1983 on at least three major fronts. First, given that

the private Respondent in this case, like the citizens of

those States with analogous restrictive conditions in their

Admission and Enabling Acts, has no specific entitlement

to any distribution of public trust land, Respondent lacks

Article III remedial standing to invoke the jurisdiction of

the federal courts on the equitable claims which he seeks

to litigate in this case. See Simon v. Eastern Kentucky

Welfare Rights Organization, 426 U.S. 26 (1976). Indeed,

four Justices have already expressed their views that

Article III standing is lacking in just such suits. ASARCO,

Inc. v. Kadish, 490 U.S. 605, 614 (1989) (Kennedy, J., joined

by Rehnquist, C.J., Stevens, and Scalia, JJ.).

Second, irrespective of whether other grounds would

oust “breach of trust” suits in federal court, the judgment

below raises serious concerns under the Eleventh

Amendment. While it would appear that, in light of this

Court’s decision in Papasan v. Allain, 478 U.S. 265 (1986),

and related Eleventh Amendment principles, sovereign

immunity would foreclose any remedy, the Ninth Circuit

has opened the door to federal suits for “breach of trust”

regarding lands conveyed on admission to the Union. The

Amici States have serious concerns over such a develop-

ment, and for this additional reason ask that certiorari be

granted.

Third, the Ninth Circuit has fundamentally misap-

plied this Court’s doctrines that permit federal statutes to

be enforced in limited circumstances under 42 U.S.C.

§ 1983. Particularly where, as here, it is dubious whether

Respondent’s claim that the Hawaii director has improp-

erly managed state land “arises under” federal law in any

sense, see Merrell Dow Pharmaceuticals, Inc. v. Thompson,

478 U.S. 804, 814-15 & n.12 (1986), the decision below

inverts this Court’s commitment to the defense of State

prerogative with respect to lands conveyed to the States

upon admission to the Union. Compare Phillips Petroleum

Co. v. Mississippi, 484 U.S. 469 (1988); Utah Division of

State Lands v. United States, 482 U.S. 193 (1987); Oregon ex

rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S.

363 (1977). Amici submit that, because of the broad dis-

cretion conveyed to Hawaii by the “public use” require-

ment of § 5(f) of its Act, and the very limited avenue for

judicial review Congress provided with respect to claims

for breach of trust under that section, namely a “suit by

the United States,” the court of appeals erred in deter-

mining that Congress had not disallowed § 1983 as a

remedy when it admitted Hawaii to the Union. Wilder v.

Virginia Hospital Association, 110 S. Ct. 2510, 2517 (1990).

In filing this Brief in support of Hawaii, the Amici

States do not suggest that, in Hawaii and elsewhere,

proper management of state lands is an unimportant

matter. Rather, to the contrary, precisely because such

management is critical to the independence of the States,

the Amici States submit that such issues as have been

brought to the lower federal courts by respondent ought

to be litigated in the state courts and agencies which

Hawaii — and all other states — provide.

Accordingly, because this case raises questions that

go to the basic structure of relations between the States

and the federal courts, and, if not reviewed, threatens to

burden Hawaii and perhaps other States with litigation

that improperly seeks to intrude on matters left to the

States and their own courts and administrative agencies,

this Court should grant the writ of certiorari sought by

the Hawaii Director of Lands and Natural Resources.

Given the relatedness of the issue whether a State’s

admission act may be enforced pursuant to 42 U.S.C.

§ 1983 to the issues pending in Suter v. Artist M., No.

90-1488 (U.S. cert. granted May 13, 1991), the Court may

wish to hold the petition here pending a decision in Suter

v. Artist M.

REASONS FOR GRANTING THE WRIT

Although the Ninth Circuit’s analysis in this case is

devoted mainly to deciding whether the District Court

properly determined that the beachfront land dredged by

the Waikoloa Beach Resort was owned by the State of

Hawaii, and thus should not have been certified to the

private owners of the Resort, the Court of Appeals’ judg-

ment is premised upon at least three fundamental deter-

minations, each of which warrant review and reversal by

this Court. In light of the limitations of Article III of, and

the Eleventh Amendment to, the Constitution, as well as

the doctrines that limit enforcement of federal statutes

via 42 U.S.C. § 1983, the judgment of the Court of

Appeals threatens a fundamental restructuring of major

doctrines which limit the authority of the federal courts

over state land use matters. This Court should accord-

ingly grant the writ to correct the numerous conflicts

between the judgment below and this Court’s precedents

delineating the limits of federal power.

A. Certiorari Should Be Granted to Correct the

Court of Appeals’ Substantial Expansion of

Article III Standing.

Although the issue was not addressed by the parties

at the court of appeals stage, the Ninth Circuit under-

stood that it had “a special obiigation to ‘satisfy itself not

only of its own jurisdiction, but also that of the lower

courts in a cause under review,’ ” Bender v. Williamsport

Area School District, 475 U.S. 534, 541 (1986). In conclud-

ing, however, that Respondent “Napeahi, as a native

Hawaiian and beneficiary of this public trust, does have

standing to enforce its provisions,” 921 F.2d at 901 n.2,

Pet. App. 7, the Ninth Circuit adopted a theory of Article

III standing that has been long rejected.

The Ninth Circuit’s standing analysis, as Petitioner

demonstrates, see Pet. at 18, derives from that court’s

conclusion in an earlier case, Price v. Hawaii, 764 F.2d 623

(9th Cir. 1985), cert. denied, 474 U.S. 1055 (1986), which

had stated, in dicta, that a native Hawaiian litigant could

meet Article III’s requirements even if native Hawaiians

“have no right to any trust funds.” Id. at 630, cited and

quoted in Price v. Akaka, 915 F.2d 469 (9th Cir.), Pet. App.

44, cited in turn in Napeahi v. Paty, 921 F.2d 897 (9th Cir.

1990), Pet. App. 7.

This theory of Article III standing, however, has been

rejected by this Court, at least as early as Simon v. Eastern

Kentucky Welfare Rights Org., 426 U.S. 26 (1976). In Simon,

this Court concluded that plaintiffs who alleged that they

were being injured by the Government’s wrongful failure

to deny tax exemptions to certain private hospitals did

not sufficiently allege a “case” or “controversy” with the

Government in that the denial of the tax benefits (the

requested relief) would not give rise to a sufficient likeli-

hood of redress to the injury actually suffered by the

Plaintiffs. In this case, because Hawaii would be free

under its Admission Act to deny respondent any benefit

from the parcel at issue, it is just as, if not more, specula-

tive to assert that any relief that might lead to striking

down the shoreline certification in this case would benefit

this particular plaintiff. See also Whitmore v. Arkansas, 110

S.Ct. 1717, 1725 (1990); Allen v. Wright, 468 U.S. 737, 751,

760-61 (1984). Therefore, in this case where only equitable

relief is sought, there is no Article III] power.

At the very least, this Court should grant the Petition

in light of the Article III analysis of the four-Justice

opinion in ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989),

which states:

[E]ven if invalidation of the state law would

create increased revenue for the school trust

funds in the near future, an issue much disputed

here, the allegations of economic harm rest on

the same hypothetical assumptions as the tax-

payer claims. If respondents prevailed and

10

increased revenues from state leases were avail-

able, maybe state taxes would be reduced, or

maybe the State would reduce support from

other sources so that the money available for

schools would be unchanged. Even if the State

were to devote more money to schools, it does

not follow that there would be an increase in

teacher salaries or benefits. These policy deci-

sions might be made in different ways by the

governing officials, depending on their percep-

tions of wise state fiscal policy and myriad other

circumstances. Whether the association’s claims

of economic injury would be redressed by a

favorable decision made by independent actors

not before the courts and whose exercise of

broad and legitimate discretion the courts can-

not presume either to control or to predict. We

have much less confidence in concluding that

relief is likely to follow from a favorable deci-

sion here than we had in cases like Allen v.

Wright, 468 U.S. 737 (1984), and Simon v. Eastern

Kentucky Welfare Rights Organization, 426 U.S: 26

(1976), where standing was found to be lacking

because the probable response of private indi-

viduals to explicit tax incentive was judged to

be too uncertain to satisfy . . . federal standing

requirements.

490 U.S. at 614-15 (quoted at Pet. 18-19).

Amici submit that the views of the four Justices in

ASARCO correctly define “the proper - and properly

limited — role of the courts in a democratic society,” Warth

v. Seldin, 422 U.S. 490, 498 (1975), and the writ should

issue to make this clear.

Additionally, as Petitioner points out, this case raises

an even further threat to Article III principles. This is so

11

because for any real relief to issue for Respondent here, it

would be necessary for the federal courts to issue a

directive to the Hawaii Attorney General, in essence, to

prosecute a suit for ejectment against the present occu-

pants of the beachfront.

More than fifteen years ago, this Court specifically

rejected the proposition that Article III standings lies for

this:

The Court’s prior decisions consistently

hold that a citizen lacks standing to contest the

policies of the prosecuting authority when he

himself is neither prosecuted nor threatened

with prosecution. See Younger v. Harris, 401 U.S.

37, 42 (1971); Bailey v. Patterson, 369 U.S. 31, 33

(1962); Poe v. Ullman, 367 U.S. 497, 501 (1961).

Although these cases arose in a somewhat dif-

ferent context, they demonstrate that, in Ameri-

can jurisprudence at least, a private citizen lacks

a judicially cognizable interest in the prosecu-

tion or nonprosecution of another.

Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); see

generally Heckler v. Chaney, 470 U.S. 821, 831 (1985)

(whether to initiate affirmative litigation is a matter “gen-

erally committed to an agency’s absolute discretion” (cit-

ing decisions dating to the Confiscation Cases, 7 Wall. 454

(1869))). For this additional reason the Court should grant

review in this case.4

4 Although the fact that further proceedings remain before

a final judgment issues is a factor that would counsel denying

the writ if there were an opportunity to re-present this thresh-

hold issue to the lower courts, it is apparent that the Ninth

(Continued on following page)

12

B. Certiorari Should Be Granted to Correct the

Court of Appeals’ Substantial Erosion of the

Eleventh Amendment.

Even if Article III were not a bar to the suit below, the

lower court’s allowance of continued litigation of “breach

of trust” claims is contrary to this Court’s elaboration of

the limits imposed on federal jurisdiction by the Eleventh

Amendment. Although the amencment was apparently

not raised as a bar in the Court of Appeals, that fact does

not prevent this Court from granting relief to the Hawaii

Director. See Alabama v. Pugh, 438 U.S. 781, 782 n.1 (1978)

(per curiam); cf. Ohio Civil Rights Comm'n v. Dayton Chris-

tian Schools, 477 U.S. 619, 625-26 (1986) (failure to assert

abstention defense in the court of appeals not determina-

tive of issue in this Court, so long as issue was properly

preserved in the District Court).

Amici submit that the injunctive and declaratory

remedies prayed for by Respondent in this case are

exactly the sort of relief of “breach of trust” that this

Court previously held was impermissible in Papasan v.

Allain, 478 U.S. 265 (1978). There, claims that Mississippi

(Continued from previous page)

Circuit is firm in its rejection of the threshold arguments which

Petitioner and Amici endorse. See, e.g., Cammack v. Waihee, 932

F.2d 765, 770 n.9 (9th Cir. 1991) (citing Bell v. City of Kellogg, 922

F.2d 1418 (9th Cir. 1991) (rejecting Justice Kennedy’s ASARCO

views pending clarification from this Court)); Price v. State of

Hawaii, No. 90-15117 (9th Cir. July 11, 1991) (chastizing Hawaii

for seeking to raise threshold matters).

13

had allegedly misused public trust lands and was obli-

gated, in some fashion, to “make whole” the lost trust

corpus, were held barred by the Eleventh Amendment.

Particularly where the private parties have been dis-

missed from this action, the remedies sought in this case

“would only affect the State,” and therefore are precisely

the sort of “one-time restoration” that Papasan held was

improper under the Eleventh Amendment. Certiorari

should thus issue.

Even with Papasan’s concerns put to one side, the

Amici States are fundamentally concerned that the fed-

eral courts’ entry into the essentially state questions con-

cerning accreted or eroded lands runs afoul of the

admonishment in Pennhurst State School & Hospital v.

Halderman, 465 U.S. 89 (1984), that state law, qua state

law, cannot be the basis for suits against state officials in

the federal courts. As this Court held in Oregon ex rel.

State Land Board v. Corvallis Sand & Gravel Co., 429 US.

363 (1977), “[uJnder our federal system, property owner-

ship is not governed by general federal law, but rather by

the laws of the several States,” “unless some other princi-

ple of federal law requires a different result.” Id. at 378.

Only recently, this Court has made clear that “the indi-

vidual States have authority to define the limits of the

lands held in public trust and to recognize private rights

in such lands as they see fit.” Phillips Petroleum Co. v.

Mississippi, 484 U.S. 469, 475 (1988). Amici submit that

whether Hawaii’s shoreline certification process was cor-

rectly carried out is, at most, a state question for the state

courts. Certiorari should issue to correct the lower court’s

intrusion on Pennhurst, and principles of sovereign

immunity generally which prohibit the trying of the

14

State’s title to land in federal court. See Florida Dep’t of

State v. Treasure Salvors, Inc., 458 U.S. 670, 700 (1982).

C. Certiorari Should Be Granted to Correct the

Court of Appeals’ Novel Enforcement of State

Admission Acts Through the Civil Rights Act

of 1871, 42 U.S.C. § 1983.

Although not elaborated upon in its opinion, the

Ninth Circuit’s judgment rests additionally upon the

proposition that 42 U.S.C. § 1983 grants a right “to

enforce the provisions of the trust.” See Pet. App. at 7

(citing Price v. Akaka, No. 89-15169 (9th Cir. Sept. 25,

1990), Pet. App. 46-47). Because this summary conclusion

is wrong, review here is additionally counseled.

The Ninth Circuit’s holdings that § 5(f) of Hawaii's

Admission Act, which, insofar as relevant here, allows

trust lands to be put to any “public use,” and provides, as

the sole stated remedy for a breach of the statute’s

requirements a “suit by the United States,” is enforceable

under § 1983 has ignored this Court’s teaching regarding

the implication of § 1983 remedies for asserted violations

of federal statutes. For, in contrast to statutes that provide

an “objective benchmark” fur testing the State’s perfor-

mance, cf. Wilder, 110 S.Ct. at 2522-23, the discretion-con-

ferred by Hawaii's admission act, as a matter of federal

law, extends to the limit of Hawaii’s constitutional

powers. Compare § 5(f) of the Hawaii Admission Act, 73

Stat. 4, 6 (1959) (“public use” requirement) with Hawaii

Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984)

(“public use” requirement is “coterminous with the scope

15

of the sovereign’s police powers”). While additional con-

straints might be posed by state law, “there is no author-

ity anywhere supporting the proposition that a state [law]

becomes a federal law merely by virtue of its inclusion in

a state plan required by federal law.” Oberlander v. Perales,

740 F.2d 116, 119 (2d Cir. 1984). And the fact that Con--

gress provided Hawaii with no ongoing funds to enforce

the provisions of the public land trust cuts strongly

against a holding that § 1983 provides an enforcement

vehicle in this context. See Wilder, 110 S.Ct. at 2518 & n.10.

It is also dubious that Congress had any intent but to

foreclose private enforcement in the Admission Act itself.

It is anomalous to hold otherwise, for, as stressed above,

the strong presumption is against any sort of reserved

federal control over a State’s lands conveyed by its

admission to the Union. For Congress to be deemed to

have allowed § 1983 enforcement, that intention should

have been “ ‘definitely declared or otherwise made very

plain.’ ” Utah Division of State Lands v. United States, 482

U.S. 193, 201-02 (1987). In fact, it is simply illogical to

deem Congress to have allowed § 1983 suits in this con-

text. Section 1983 could not be enforced when Hawaii's

trust lands were administered by the United States. See

Negirangas v. Sanches, 110 S.Ct. 1737 (1990). Thus, as Peti-

tioner points out, there was nothing in the way of § 1983

remedies to be “withdrawn” upon Hawaii's admission to

the Union. Cf. Wilder, 110 S.Ct. at 2524 & n.19.

The fundamental error of the Court of Appeals here

was to ignore the precise language, structure, and con-

text, as well as the surrounding presumptions to be

applied to the sort of statute sought to be enforced by

16

way of § 1983. This is, in essence, the sort of error which

the States have called to the Court’s attention in Suter v.

Artist M., No. 90-1488 (U.S. cert. granted May 13, 1991).

Although it may be appropriate for the Court to therefore

hold this case pending the disposition in Suter, this case,

even more than the federal mandates imposed by the

Adoption Assistance Act, warrants this Court’s review as

an inappropriate expansion of § 1983’s enforcement

reach. For this additional reason, the petition should be

granted.

CONCLUSION

In urging this Court to grant the petition for cer-

tiorari, the Amici States do not diminish the important

problems which appear to have animated the Ninth Cir-

cuit’s efforts to federalize the litigation concerning

Hawaii's public trust lands. However, the position of the

Amici States is that the dispute in this case, if it belongs

in a judicial forum, ought to be heard in the courts of the

State of Hawaii.> For this reason, and all those others

> The Petition (see Pet. at 28-30) suggests that the case

below ought to have been dismissed pursuant to Burford v. Sun

Oil Co., 319 U.S. 315 (1943), or stayed pursuant to Railroad

Comm'n of Texas v. Pullnan Co., 312 U.S. 496 (1941). Amici agree

that such a prudential course is warranted, providing a ground

for mooting the important substantive issues here.

i

17

stated above, the Amici States urge the Court to grant the

petition for certiorari in this case.

Respectfully submitted, August 23, 1991.

FRANKIE SUE Det Para*

Attorney General of Nevada

Mark P. GHAN

Deputy Attorney General

State of Nevada

*Counsel of Record

for Amici Curiae

Capitol Complex

Carson City, Nevada 89710

(702) 687-4170

Other Counsel Listed on

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