# Amicus Curiae Brief — Asarco Inc. v. Kadish > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0378%3A15 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1989 - **Citation:** 490 U.S. 605 ## Text Na. 87-1661 n the Supreme Court of the Hinited OCTOBER TERM, 1988 ASARCO INCORPORATED, ET AL., PETITIONERS Vv. FRANK AND LORAIN KADISH, ET AL. ON WRIT OF CERTIORARI TO THE ARIZONA SUPREME COURT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING RESPONDENTS CHARLES FRIED Solicitor General ROGER J. MARZULLA Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General CHRISTOPHER J. WRIGHT Assistant to the Solicitor General ROBERT L. KLARQUIST J. CAROL WILLIAMS Altorneys Department of Justice Washington, D.C. 20530 (202) 633-2217 - QU"STION PRESENTED Whether Section 28 of the New Mexico-Arizona Enabl- ing Act (Act of June 20, 1910, ch. 310, 36 Stat. 557) pro- hibits the leasing of mineral lands held in trust for the benefit of the state’s public schools at less than the ap- praised true value of the lease. (I) TABLE OF CONTENTS Interest of the United States ........... cc cece ccc cccccees ee ek cee nesennceenns EE Argument: This Court lacks jurisdiction because there has been no “final judgment or decree” as required by 28 U.S.C. SS Il. Because the plaintiffs lack Article III standing, this Court Nee Ue ccc cen cceevcesecccccess A. The plaintiffs lack standing because they have alleged no personal injury likely to be redressed by the relief they have requested .................. B. This Court lacks jurisdiction if the plaintiffs do not have standing under Article II] ................. Ill. Arizona’s school trust lands may not be leased for less than their appraised value .......................4.. A. Section 28 plainly provides that the school trust lands “shall be appraised at their true value” and prohibits leases “for a consideration less than the value sO ascertained” ........... cece cece cccees B. The history of the Enabling Act confirms that mineral lands are subject to the requirement that they be appraised prior to being leased and leased at no less than their appraised value ............... EEE ELE SLEEP TABLE OF AUTHORITIES Cases: Alamo Land & Cattle Co. v. Arizona, 424 U.S. 295 ees ow ccc ec ccccoevicote 7, Allen v. Wright, 468 U.S. 737 (1984) ..........6.0.04.. 15, 16, Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1984), vacated as a Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) ... (III) 21 25 30 10, 25 9, 14, 17, 19 19 9, Il, 12, 13 IV Cases — Continued: Page Deer Valley Unified School District No. 97 v. Superior Court, 760 P.2d 537 (Ariz. 1988) .... 26... 65 eee eee 3, 13, 24 Doremus v. Board of Education, 342 U.S. 429(1952).... 1, 9, 15, 16, 18, 19, 20 Duquesne Light Co. v. Barasch, No. 87-1160 (Jan. 11, POTD cnc ccccscccdcdeccdccccecccccetaccseccccece 12 Everson v. Board of Education, 330 U.S. 1 (1947) ....... 17 Flynt v. Ohio, 451 U.S. 619 (1981) .....- 6 eee eee eee 8, 11 Frothingham v. Mellon, 262 U.S. 447 PD ocecccceusse 15 Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 CIDTDD occ cccccccccccccccccccccccccccccecescoces 18 Lassen v. Arizona Highway Department, 385 U.S. 458 CIGBT) cc cccccccccccccccccccccccccccccscecerees 2, 5, 22 Minnick v. California Department of Corrections, 452 U.S. IOS CIGBE) 0 cc ccccccccccccccccscccccsccccces 8-9, 14 Murphy v. State, 65 Ariz. 338, 181 P.2d 336 (1947) ...... 3, 5 Neel v. Barker, 204 P.2d 205 (N.M. 1922) ........---+-: 25, 28 Oklahoma Education Ass’n v. Nigh, 642 P.2d 230 (Okla. 1971) ........ cece cece eee cence eee eteeeees 6 Papasan v. Allain, 478 U.S. 265 (1986) ....-..-----+++: 2 Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) .... 18 Radio Station WOW, Inc. v. Johnson, 326 U.S. 120 ~ CIDODD onc cccccccccccccscccccccccvcccesccosersess 11, 12 Revere v. Massachusetts General Hosp., 463 U.S. 239 CIO gowns ccccccccoccsucscesersccsseancesessses 18 Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974) ....-ccccccccccccccccccccccccccces 15 Secretary of State of Maryland v. J. H. Munson Co., 467 U.S. 947 (1984) 0... cece ccc cece cece ccc reccccvccces 18 Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976) .....-. cece cc ccc cece creccccvees 17 Smith v. Graham County Community College, 123 Ariz. 431, 600 P.2d 44 (Ariz. App. 1979) ........-.--0055- 15 State Land Depiment v. Tucson Rock & Sand Co., 12 Ariz. App. 193, 469 P.2d 85 (1970), vacated, 107 Ariz. 74, 481 P.2d 867 (1971) .. 0... eee eee eee eee eee 6 United States v. Richardson, 418 U.S. 166 (1974) ....... 15 United States v. Sweet, 245 U.S. 563 (1918) ..........-. 3 Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 GED bon wcesncescesiasdesvsdascccegeesetns 9, 14, 15, 18 Vv Cases — Continued: Page Wyoming v. United States, 255 U.S. 489 SE 3, 25, 26 Constitutions and statutes: U.S. Const.: RE ea eee ae ees Rees 1,9, 14 15, 16, 18, 19, 20 Amend. I (Establishment Clause) ................. 17 Ariz. Const.: IO ake eS et Pr NT She lon 2, 10, 23-24, 25, 29 hE edie onddak kviidau@edel Gddne Cosco 3 i aviied bard sberdeteedy due en oe 3, 24 SESE RAN aes ee em = aE OR em a AA See 24 Nr SE Os aR ae eae Pe ae ee 3, 29 Act of June 20, 1910, ch. 310, 36 Stat. 557 (New Mexico- Arizona Enabling Act): Pe SS eee 2 § 28, 36 Stat. $74-575....................., § 28 (para. 3), 36Stat. $74... SG 21, 22, 23, 25, 29 § 28 (para. 4), 36 Stat.574................... 2, 4, 9, 10 11, 21-22, 24, 25, 2 § 28 (para. 8), 36 Stat. 575 ........................ : FP 8 a 8, 12, 13 Act of Jan. 25, 1927, ch. 57, 44 Stat. 1026 (Jones A 25, ’ »ch. 5/7, , a) ..3, @&. fee 4 se , > § 1(b), 44 Stat. 1026-1027....................... 3,25 Act of June 5, 1936, ch. 517, 49 Stat. 1477.............. 3,4 Act of June 2, 1951, ch. 120, 65 Stat. 51.......... 4 RRS eat ae iia 21 65 Stat. 52 pid batt cece oee Rte ee eg ae +. 4, 6,7 Ariz. Rev. Stat. Ann. § 27-234(B) (1976 & Supp. 1988)... 4,5 ck a De 10 ERS Sno Ra ee ee: oe 8, 10 11, 12, 13, 14 ES NR LO EA EEE Te 11 se F F ) Ff | SS eee 7 Miscellaneous: Vi 69 Cong. Rec. 2095 (1928) ......- 6. eee rece eee neers H.R. Rep. 2615, 74th Cong., 2d Sess. (1936) ......----- S. Rep. 603, 69th Cong., Ist Sess. (1926) .......----+55- S. Rep. 1939, 74th Cong., 2d Sess. er L. Tribe, American Constitutional Law (2d ed. 1988) .... 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure (1984) In the Supreme Court of the Gnited States OCTOBER TERM, 1988 No. 87-1661 ASARCO INCORPORATED, ET AL., PETITIONERS v. FRANK AND LORAIN KADISH, ET AL. ON WRIT OF CERTIORARI TO THE ARIZONA SUPREME COURT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTIN’; RESPONDENTS INTEREST OF THE UNITED STATES The question presented is whether Congress, by Section 28 of the New Mexico-Arizona Enabling Act, Act of June 20, 1910, ch. 310, 36 Stat. 557, prohibited the leasing of the mineral lands it granted Arizona, which are held in trust for the benefit of the state’s public schools, at less than appraised value. Section 28 expressly provides that the Attorney General is charged with en- forcing the Act. Accordingly, the United States has a strong in- terest in the resolution of the question presented. In addition, in the submission we made at the Court’s inyita- tion prior to the granting of the petition, we noted that, in our view, the plaintiffs do not satisfy the standing requirements of Article III. Under Doremus v. Board of Education, 342 U.S. 429, 434 (1952), this Court therefore lacks jurisdiction even though the plaintiffs have standing under state law. The United States also has an interest in the resolution of these recurring questions of Article III jurisprudence. (1) 2 STATEMENT | he New Mexico-Arizona Enabling Act (Act of June = en, - 310, 36 Stat. 557), Congress granted Arizona tain numbered sections of every township within the —. : the support of public schools. Enabling Act § 24, “ tat. §72-573. Known mineral lands were specifically exclud — the grant, but Arizona was authorized to select other oy “ equal acreage in lieu of those specified sections nes ‘ mineral in character (ibid.). By the Act, Arizona receiv — than eight million acres for the support of its pong : Lassen v. Arizona Highway Department, 385 U.S. 458, n. . App. 4a. et a Arizona would use the granted lands mare e Congress provided that the lands were to be held in trust, a set forth explicit terms of the trust in the Enabling Act. Papasa v. Allain, 478 U.S. 265, 270 (1986). In Paragraph 3 of em 28 of the Act, Congress provided that the lands may not — or leased except to the highest bidder at a public auction og ing notice by advertisement in two newspapers once a wee ~ ten weeks. 36 Stat. 574. That paragraph originally provided t “ only leases for a term of five years or less were exempt from t 1 ~ advertising requirement. Paragraph 4 further provided ’ lg provides that, before any of the land may be sold or i must be appraised, and the sale or lease “shall [not] ” eo or a consideration less than the value so ascertained. 36 Stat. 574. Congress directed in Paragraph 8 of Section 28 ae : oa manent segregated fund must be established for all pro.eeds = rents derived from the land, and that only the intere.t from the fund, and not the principal, is to be made available for the sup- port of the schools.” Pet. App. 52a; see 36 Stat. 575. | Paragraph 4 of Section 28 provides, in full: “All lands, eneare — and other products of land, before being offered, shall be appr a “sa true value, and no sale or other disposal thereof shall be made for “ oe > tion less than the value so ascertained, nor in any case less thant Swen on price hereinafter fixed, nor upon credit unless accompanied by amp o a and the legal title shall not be deemed to have passed until the conside shall have been paid.” | | 7 2 Arizona has adopted and extended the conditions imposed in the a . “ Act. Article 10 of its Constitution is practically a rescript of Section 28 of the 3 As noted, the original 1910 grant did not include any known mineral lands. However, under United States v. Sweet, 245 U.S. 563, 572-573 (1918), and Wyoming v. United States, 255 U.S. 489, 500-501 (1921), unknown mineral lands—i.e., lands con- taining minerals that were not known to contain minerals at the time of the grant — were conveyed to the State. The distinction that this Court drew between known mineral lands and unknown minerai !ands led to numerous land title disputes in many of the western States to which Congress had granted lands to be held in trust for the benefit of public schools. In order to settle such disputes, Congress in 1927 passed the Jones Act (Act of Jan. 25, 1927, ch. 57, 44 Stat. 1026), which extended the Original grants to cover mineral lands as well. Congress pro- vided, however, that any disposition of the lands must contain a reservation of the minerals to the State. § 1(b), 44 Stat. 1026-1027). The Act also empowered each State to lease the mineral lands “as the State legislature may direct,” and provided that any proceeds, rents, or royalties from these lands are “to be utilized for the support or in the aid of the common or public schools” (ibid.). Section 28 of the Enabling Act has been amended subsequent to the enactment of the Jones Act to provide specific mineral leasing rules applicable to Arizona’s school trust lands. In 1936, Congress struck the clause of Section 28 that had excluded leases for a term of five years or less from the Act’s advertising requirements. Act of June 5, 1936, ch. 517, 49 Stat. 1477. In its place, Congress distinguished between leasing for grazing and agricultural purposes and leasing for mineral purposes. It Enabling Act. See Deer Valley Unified School District No. 97 v. Superior Court, 760 P.2d 537 (Ariz. 1988). Section 3 of Article 10 incorporates the Enabling Act’s bidding and advertising requirements for sales and leases, and Section 4 incorporates the requirement that “{aJll lands, lease-holds, timber, and other products of land, before being offered, shall be appraised at their true value, and no sale or other disposal thereof shall be made for a considera- tion less than the value so ascertained * * *.” By Sections 1 and 9 of Article 10 of the Arizona Constitution, the restrictive provisions of the Enabling Act are extended to cover “all lands otherwise Acquired by the State.” Thus, Arizona has decided to apply the restrictions of the Enabling Act to all the land it ac- quires for the school trust. See Murphy v. State, 65 Ariz. 338, 181 P.2d 336 (Ariz. 1947). — 4 authorized leases for grazing and agricultural purposes for ve years and leases for mineral purposes for 20 years, and ~— . that the leasing was to be conducted “in a manner oe -— legislature may direct” (49 Stat. 1477). The 1936 amen oer “a not amend the language in Paragraph 4 of Section om - Enabling Act requiring that “fajll lands, leaseholds, timber, vee other products of land before being offered, shall be — - at their true value, and no sale or other Capen Caevee s on made for less than the value so ascertained ** * ” 36 Stat. i : In 1951, the Enabling Act was again amended to esta S special rules for mineral leases for the exploration, develop- ment, and production of oil, gas, and other goatee = of June 2, 1951, ch. 120, 65 Stat. 51. Congress provi oe such leases could be for a term of 20 years or less. As un ert : 1936 amendment regulating other mineral leases, ogre Section 28 provides that oil and gas leases may be made “in —" manner as the Legislature of the State of Arizona may ayers ***” 65 Stat. 52. Unlike the provision relating to other mineral leases, the provision relating to oil and gas "or ex- plicitly exempts them from the advertisement, bidding, and ap- praisal restrictions of the Enabling Act.* ' 2. The Arizona statute governing mineral leasing on oe ; land requires that every mineral lease “provide for er the state by the lessee of a royalty of five per cent of t 7 ne value of the minerals produced for the claim.” Ariz. Rev. - Ann. § 27-234(B) (1976 & Supp. 1988). Net value is furt “ defined as gross value after processing minus certain eyes as production costs, transportation costs, and taxes. /bid. Un 3 Section 28, as revised by the 1951 amendments, authorizes “the wees » any of said lands, whether or not also leased for other purposes, - the a ploration, development, and production of oil, gas, and other hy soma - substances on, in, or under said lands for an initial term of twenty ye - and as long thereafter as oil, gas, or other hydrocarbon substances} — - procured therefrom in paying quantities, the leases to be made in any _ on with or without advertisement, bidding, or appraisement, and under va terms and provisions as the Legislature of the State of Arizona me age = the terms and provisions to include a reservation of royalty to said State less than 12'4% per centum of production * * *. 65 Stat. 52. 5 this scheme, the value of a claim is never individually deter- mined and, therefore, there is no guarantee that the State will receive, at the least, the value ascertained by an appraisal. Rather, a flat royalty is applied in every case and, where deduc- tible costs exceed gross value, no royalty at all is paid. Several individual taxpayers who claim that their taxes sup- port public education in Arizona and the Arizona Education Association, which represents approximately 20,000 public school teachers throughout the state, brought suit in state court against the pertinent state officials and a mining company seek- ing a declaration that Ariz. Rev. Stat. § 27.234(B) (1976 & Supp. 1988) is void and related relief. On cross-motions for summary judgment, the trial court found that Ariz. Rev. Stat. Ann. § 27-234(B) does not violate the Enabling Act or the Arizona Constitution. Pet. 37a-39a. | 3. The Supreme Court of Arizona reversed. Pet. App. la-36a. It first noted the “sad experience” that led Congress to enact the strict trust terms of the New Mexico-Arizona Enabling Act. Pet. App. Sa-6a (quoting Murphy, 65 Ariz. at 351, 181 P.2d at 344). Of the 23 states that had previously been granted lands, the “ ‘dissipation of the funds by one device or another, sanctioned or permitted by the legislatures of the several States, left a scandal in virtually every state’ ” by 1910 (id. at Sa). Through the New Mexico-Arizona Enabling Act, Congress in- tended “to severely circumscribe the power of state government to deal with the assets of the common school trust” (id. at 6a). The court noted (id. at 20a) that in Lassen, 385 U.S. at 463, 466, this Court observed that “[t}he central problem which con- fronted the [Enabling] Act’s draftsmen was * * * to devise con- straints which would assure that the trust received in full fair compensation for trust lands,” and they solved this problem by * The originally named defendants were the Arizona State Land Depart- ment, the State Land Commissioner, and Cyprus Pima Mining Company. Magma Copper Company, Asarco, Inc., James Sullivan, Eisenhower Mining Company, and Can-Am Corporation were permitted to intervene as defend- ~ ants. The trial court subsequently certified the case as a defendant class action, the class consisting of all present and future mineral lessees of state land. 6 “unequivocally demand{ing] * * * that the trust receive the full value of any lands transferred from it.” . The court below rejected the mining companies’ « »ntention that the Jones Act and the 1936 amendment of Section did it bother to create specific exemptions in 1951 for oil, gas, and other hydrocarbon leases?”5 The Arizona Supreme Court also noted that this Court’s deci- sion in Alamo Land & Cattle Co. v. Arizona, 424 U.S. 295 (1976), supported its decision. In that case, the federal govern- ment had condemned school trust lands, and a company that had leased some of the condemned lands from Arizona sought an award to compensate it for the fact that the rent it owed the State was less than the fair rental value of the property. In remanding the case for further determinations, the Court ques- tioned the validity of the company’s claim, even though Section 28 of the Enabling Act provides that grazing lands, like mineral lands, may be leased “in such manner as the Legislature of the State of Arizona may prescribe.” 65 Stat. 52. The Court relied on the fact that, notwithstanding that provision, Section 28 “has a protective provision against the initial setting of lease rentals at less than fair rental value” that “provides that a leasehold before being offered, shall be appraised at ‘true value’ ” (424 U.S. at 305, 306).* The decision in Alamo, the Arizona Supreme Court stated, “seem{s] fully dispositive of the issue” presented in this case (Pet. App. 22a). * The Arizona Supreme Court also found support for its construction of Section 28 in Joint Resolution No. 7 (S.J. Res. 38, ch. 28, 45 Stat. 58), a 1928 congressional resolution relating to New Mexico. The resolution stated that New Mexico could amend its constitution to provide that mineral leases on school lands “may be made under such provisions relating to the necessity or requirement for or the mode and manner of appraisement, advertisement, and competitive bidding, and containing such terms and provisions, as may be pro- vided by act of the legislature.” If Congress had generally intended through the Jones Act to authorize the state legislatures to avoid the appraisal, advertise- ment, and competitive bidding requirements, then, the court concluded, “it would have used explicit language to accomplish that result, just as it did for New Mexico in Joint Resolution No. 7” (Pet. App. 17a). * The Court in Alamo Land & Cattle Co. further explained that a difference between the “rental specified in the lease and the fair rental value” could arise in one of two ways (424 U.S. at 304). First, it could be that “the lease rentals were set initially at less than fair rental value” (ibid.), in which case the lease would be void under Section 28 of the Enabling Act. Second, the lease might 8 Having concluded that “the Enabling Act and its rescript in art. 10 of the Arizona Constitution * * * forbid the state from making nonhydrocarbon mineral leases without appraisal or for less than their true value” (Pet. App. 24a), the court then con- sidered the validity of the state’s mining statute. Because the statute provides that the royalty due is five percent of the net value of the minerals produced, and the deductible costs used to calculate net value may exceed the gross value of the minerals, the court concluded that “under § 27-234(B) it is possible for a lessee to extract minerals from school trust lands and pay no royalty whatsoever” (id. at 26a). After adding that “we have no way of knowing from this record whether such circumstances have existed” (ibid.), the court remanded with instructions that the trial court enter a judgment declaring the statute unconstitu- tional and take further evidence to determine “what further relief is appropriate” (id. at 29a). SUMMARY OF ARGUMENT 1. This Court lacks jurisdiction because 28 U.S.C. 1257 authorizes review only of “[flinal judgments or decrees” of state courts, and this case is in an interlocutory posture. On remand, the trial court. will first need to determine whether the State has received “true value,” or any value, for mineral leases on the school trust lands. It will then have to decide what “substantial conformity” in Paragraph 9 of Section 28 of the Enabling Act means, an issue of federal law, because that Paragraph provides that leases not made in substantia! conformity with the re- quirements of the Enabling Act are void. Finally, it will have to apply its legal determination on that issue to the facts that it finds in order to determine whether any leases are void. In that situation, where important federal legal issues and key factual questions must be addressed on remand, this Court lacks jurisdiction. Flynt v. Ohio, 451 U.S. 619, 620 (1981); Minnick initially have been set at the fair rental value, but that value might have in- creased during the term of the lease (id. at 305), in which case the company might be entitled to an award to compensate it for the loss of the lease. The Court remanded with instructions that the lower courts determine how the dif- ference between the rental specified in the lease and the fair rental value arose and enter judgment accordingly (id. at 311). : 9 penn pac op ni of Corrections, 452 U.S. 105, 127 ; see Cox Broadcasti peg a Bn casting Corp. v. Cohn, 420 U.S. 469, 2. The plaintiffs lack standing under Article III to bri i challenging Arizona’s mineral leasing statute. The por oe plaintiffs claim standing merely as taxpayers, and this Court has repeatedly rejected claims that a person may bring suit under Article III based on his status as a citizen or taxpayer. Rather, a plaintiff “must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be re- dressed by the requested relief.” Allen v. Wright, 468 U.S. 737 751 (1984); Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). The individual plaintiffs have not alleged such injury; their claim that their tax rates will be lowered by the relief they request is, as Asarco itself argued in the trial court, “wholly speculative.” Asarco’s Reply to Pitf. Response to Asarco’s First Mot. to Dismiss, Aug. 13, 1981, Memo. at 9. The Arizona Education Association likewise has failed to show that its members are likely to benefit from the relief requested. It follows for Article III purposes that the decision of the Arizona Supreme Court is, in effect, an advisory opinion. In Doremus v. Board of Education, 342 U.S. 429, 434 (1952), this Court held that while a state court may “render an opinion on a federal constitutional question even under such circumstances that it can be regarded only as advisory, * * * because our own jurisdiction is cast in terms of ‘case or controversy,’ we cannot accept as the basis for review, nor as the basis for conclusive disposition of an issue of federal law without review, any pro- cedure which does not constitute such.” As that holding makes rage this Court lacks power to review a decision, such as plese mg below, where the plaintiffs lack standing under 3. If this Court concludes that it has jurisdiction, it should affirm the decision below. Paragraph 4 of Section 28 of the Enabling Act provides that the school trust lands must be ap- praised before being leased, and further provides that the school trust must receive, at the least, the appraised value for any lease. 10 Paragraph 3 of Section 28 excepts oil and gas a a other mineral leases, from the appraisal requirement. — this Court held in Alamo Land & Cattle Co., pence - p the Enabling Act plainly requires that, “before being 0 — . school trust land other than that na for oil and gas produc- ion “ appraised at ‘true value.’ ” | — caine argument that the unknown mineral lands that passed to Arizona in 1910 were not covered by 7 praisal requirement, Paragraph 4 of Section 28 express y jects all leaseholds of lands granted by the Enabling Act to : s restrictions. Nor is there merit to petitioners’ contention oa os known mineral lands that passed under the Jones Act ~ a passed free of the appraised requirement. Nothing in that Ac explicitly so provides, and, since the appraisal pany seme = “{uJndoubtedly the most important restriction (Pet. —_. > there is no basis for concluding that Congress intend 4 : away with that restriction in the absence of clear evidence t r: z so intended. Moreover, the 1951 amendment to Section 28, which freed oil and gas leases, but not other mineral leases, from the appraisal requirement, shows that Congress did — tend to do away with that requirement with respect to pe “ tioners’ leases. Furthermore, petitioners’ contention a mineral lands are not subject to any restrictions is comp ete y undercut by the terms of Article 10 of the Arizo na eared which specifically incorporates the restrictions in Section o the Enabling Act and extends them to all the land Arizona ac- quires. ARGUMENT ION BECAUSE I. THIS COURT LACKS JURISDICT THERE HAS BEEN NO “FINAL JUDGMENT OR DECREE” AS REQUIRED BY 28 U.S.C. 1257 28 U.S.C. 1254 allows interlocutory review of deci- Pea 2 oo courts, 28 U.S.C. 1257 provides that this Court may review only “{flinal judgments or decrees of state — “In general, the final-judgment rule has been interpret a preclude reviewability . . . where anything further remains to 11 determined by a State court, no matter how dissociated from the only federal issue that has been finally adjudicated by the highest court of the State.’ ” Flynt v. Ohio, 451 U.S. 619, 620 (1981), quoting Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 124 (1945). There is much to be determined on remand here. Section 28 provides that leases “not made in substantial conformity with the provisions of this Act shall be null and void” (emphasis added), and the state courts here have not yet decided what criteria will be used to determine whether a lease is in “substantial conformity” with the terms of the Act. In addi- tion, the court below stated that it had “no way of knowing from this record” whether mineral lessees had paid “true value” (or any amount), as required by Paragraph 4 of Section 28, and ordered further factfinding. Thus, it is not clear whether any leases will be declared void. Accordingly, this Court lacks jurisdiction at this time to review the Arizona Supreme Court’s decision under 28 U.S.C. 1257(3), the basis of jurisdiction on which petitioners rely. To be sure, there are “four categories of * * * cases in which the Court has treated the decision on the federal issue as a final judgment for the purposes of 28 U.S.C. § 1257 and has taken jurisdiction without awaiting the completion of the additional proceedings anticipated in the lower state courts.” Cox Broad- casting Corp. v. Cohn, 420 U.S. 469, 477 (1975). By and large, those cases involved situations where the “additional pro- ceedings would not require the decision of other federal ques- tions that might also require review by the Court” (ibid.). This case is not one of those. The key legal decision to be made on re- mand, what “substantial conformity” in Section 28 of the Enabling Act means, is plainly a question of federal law. Moreover, it is a question that may be crucial to the ultimate resolution of this lawsuit, since the courts below may conclude that any lease for which the State has received or is likely to receive true value will be held to be valid despite the absence of an appraisal. Accordingly, review at this time would be premature. More detailed consideration of the four exceptions listed in Cox to Section 1257’s rule that only final judgments of state 12 courts are reviewable confirms that review is not proper. The first category includes case where “the outcome of further pro- ceedings [is] preordained” (420 U.S. at 479). That is obviously not the case here. While Paragraph 9 of Section 28 provides that leases “not made in substantial conformity with the provisions of this Act shall be null and void,” it is not yet clear, as we have stated, whether petitioners’ leases substantially conform to the requirements of the Enabling Act. Only if petitioners were will- ing to concede that their leases are null and void would the out- come on remand be preordained and review be proper now.’ The second exception to Section 1257’s finality requirement involves cases where “ ‘the federal questions that could come here have been adjudicated by the State court,’ ” and the state _ court issues that remain to be decided are essentially ministerial. Cox, 420 U.S. at 480, quoting Radio Station WOW, 326 U.S. at 127. This exception is plainly inapplicable here since, as noted, important federal issues remain to be decided on remand. The third exception, cases where “later review of the federal issue cannot be had, whatever the ultimate outcome of the case” (Cox, 420 U.S. at 481), is likewise plainly inapplicable. If peti- tioner’s leases are declared void on remand, the federal question they seek to resolve now would not be moot and no disability 7? By contrast, in Duquesne Light Co. v. Barasch, No. 87-1160 (Jan. 11, 1989), the Pennsylvania Supreme Court, reversing a decision of the state’s public utilities commission, decided that a state statute prohibited a utility from recovering the costs of a nuclear power plant that never went into serv- ice, rejected the utility’s argument that the state law thus interpreted con- stituted a taking of property without just compensation under the federal Constitution, and remanded for the issuance of a rate order giving effect to its conclusion (slip op. 5). This Court held that the Pennsylvania Supreme Court’s decision, while not final because of the remand for a corrected rate order deleting the allowance of recovery for the costs expended in building the canceled nuclear power plant, fell into the first exception listed in Cox. The Court explained that the “Pennsylvania Supreme Court has finally adjudicated the constitutionality of [the state statute] in the context of otherwise com- pleted rate proceedings and so has left ‘the outcome of further proceedings preordained.’ ” Slip op. 6 (quoting Cox, 420 U.S. at 479). Here, however, the answer to the question whether petitioners’ leases are valid, the ultimate issue in this case, is not preordained. 13 that does not presently exist (see pages 14-20, infra) would bar them from seeking review. The final exception consists of cases where “the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, * * * reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action, * * * [and] a refusal immediately to review the State-court decision might seriously erode federal policy.” Cox, 420 U.S. at 482-483. While the court below could, following re- mand, amend its decision so that it is based entirely (rather than alternatively) on state law grounds, which would preclude review by this Court, this final exception to Section 1257 is also inapplicable here. First, petitioners, “the party seeking review here,” cannot moot the federai issue by prevailing on state grounds. While the restrictions on disposal of the school trust lands in the Arizona Constitution may be more or less stringent than the restrictions in the Enabling Act, if they are /ess stringent Arizona (and petitioners) must nevertheless abide by the federal restrictions as well. Second, reversal of the decision below by this Court would not “preclud{e] * * * further litiga- tion” because the requirements of Article 10 of the Arizona Constitution may well be more restrictive than the requirements of the Enabling Act; so that question would remain and the litigation would continue. Cf. Deer Valley Unified School District No. 97 v. Superior Court, 760 P.2d 537, 541 (Ariz. 1988), where the Arizona Supreme Court declined to interpret language in the state Constitution as this Court had interpreted identical language in the Enav!ing Act because it concluded that this Court’s decision was not sufficiently protective of the school trust fund. And third, there is no basis for a contention that federal policy would be “seriously erode[d]” if this Court does not review the decision below now. Since no exception to the plain language of Section 1257 ap- plies here, this Court lacks jurisdiction. Moreover, this case presents a situation where a difficult question of federal law (the meaning of “substantial conformity” in Paragraph 9 of Section 28) remains to be decided on remand and there is no good 14 reason not to wait for a final judgment. To the contrary, there are important reasons to await a final judgment because, along with the legal issue that will need to be addressed on remand, important factual findings will be made as well. At this stage, as the court below stated (Pet. App. 26a), the record discloses very little about the value that Arizona has received in exchange for mineral leases on the school trust lands, and that information, which is to be supplied on remand, will inform any subsequent judgment on the importance and merits of the legal issues presented. Cf. Minnick v. California Department of Correc- tions, 452 U.S. 105, 127 (1981) (“because of significant am- biguities in the record concerning both the extent to which race or sex has been used as a factor in making promotions and the justifications for such use, we conclude that we should sot ad- dress the constitutional issues until the proceedings in the trial court are finally concluded”). Here, moreover, resolution of the issues remaining to be determined on remand may obviate any need for this Court to address federal constitutional questions in this case (see Point II, infra). Thus, the normal policy disfavor- ing unnecessary decision of constitutional questions further sup- ports application of Section 1257’s plain terms here. | il. BECAUSE THE PLAINTIFFS LACK ARTICLE Ill STANDING, THIS COURT LACKS JURISDICTION A. The Plaintiffs Lack Standing Because They Have Alleged No Personal Injury Likely To Be Redressed By The Relief They Have Requested If this Court determines that the judgment below is final under 28 U.S.C. 1257, it should nevertheless dismiss for lack of jurisdiction because the plaintiffs lack Article III standing. The “core component” of standing under Article III is that the plain- tiff “must allege personal injury fairly traceable to the defend- ant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984); Valley Forge Christian College v. Americans United Sor Separa- tion of Church & State, Inc., 454 U.S. 464, 472 (1982). The plaintiffs here, individual citizens of Arizona and an association ut es ee eee 15 that represents Arizona teachers, falter under each aspect of that test. The individual plaintiffs — — —_ Poel their own sy oon cones I. Under Arizona law, tax- injured. Complaint para. Il - Un i pont ne standing to seek to enjoin pecuniary toss _ ublic fisc. Smith v. Graham County Community -- : Dist » ae ; . ae = a ae + 0 federal Although the courts of the sta : = ituti izi ding on such a theory, Constitution from recognizing stan > pen i son does not satisfy Court has consistently held that a per — i i icle III based on nothing mor standing requirement of Artic a. i tus as a citizen or taxpayer who is in preg government. rng ns ce and aie : the War, 418 U.S. 208, 215- ; pace Pt 418 U.S. 166, 171-175 (1974); Doremus v. a of Education, 342 U.S. 429, 433-435 (1952); or “ - Mellon, 262 U.S. 447 (1923); cf. Allen, 468 U.S. piven ~ ve n.21; Valley Forge, 454 U.S. at 482, 489-490 n.20. c 0 3 the individual taxpayers lack standing to invoke the jurl icle III court. . 2 a Arizona has liberal standing rules, = Asarco, after intervening “ the me yr peng —_ too dismiss the complaint on the ground: og dene i i he individual plaintiffs, standing.* With respect to t : "erg o ” their claim that they ha described as “wholly speculative” t petra tan “A i g scheme from higher taxes because the mineral ‘ rasa by Arizona statute conflicts with Section 28 of eee ing Act. Asarco’s Reply to Pitf. Response to Asarco . ~~ a ny“ Aug. 13, 1981, Memo. at 9. Asarco explain og even if a different leasing scheme generated pr a = islature, rather than lowering taxes, mi art so the state’s general revenues that 1s currently = a education and spend it on other programs. Even a Arizona law, Asarco contended, the plaintiffs lack standing tag! h * The superior court denied the motion without opinion by Order of Marc 30, 1982. 16 “because a prediction of legislative behavior is pure conjecture” (ibid.). In arguing that the individual plaintiffs lack standing, Asarc was right, at least under federal law. Although petitioner argued in this Court in their supplemental brief in support o their petition for a writ of certiorari, without acknowledging their prior inconsistent position, that the individual plaintiffs’ brought “a good-faith pocketbook action” (Supp. Br. 3), any claim that the plaintiffs have suffered economic injury as a result of Arizona’s mineral leasing law is far too tenuous to sup- port standing under Article III. As an initial matter, it is not clear that a mineral leasing law requiring prior appraisal of the value of the leasehold would generate additional funds. Amicus Clinton Campbell Contractor, Inc., suggested in its brief filed prior to the granting of the petition (at 9) that “mineral ex- plorers will shun Arizona’s trust land” if appraisal is required, preferring “land in other states or jurisdictions” where such a re- quirement, which that amicus predicts will be very burdensome, is not mandated. Whatever the merits of that prediction, it is clear that, if the mining companies’ leases are declared void, as the plaintiffs have requested (Pet. App. 38a), then state revenues from mineral leases will decline in the short term. And even if a revised leasing law would thereafter generate addi- tional revenue, it is not clear that lower taxes would follow, as Asarco argued in the superior court. Moreover, the likely effect of any tax adjustment on each of the millions of individual tax- Payers across the State would be very slight. That is all the more reason to give dispositive weight to the fact that it is “wholly speculative” whether tax rates will be affected at all. Thus, while this Court has stated that taxpayers have Standing where they seek “to restrain unconstitutional acts which result in direct pecuniary injury” (Doremus, 342 U.S. at 434 (emphasis added)), the plaintiffs have established no such injury here. Rather, “[t}he links in the chain of causation between the challenged Government conduct and the asserted injury are far too weak for the chain as a whole to Sustain respondents’ stend- ing” (Allen, 468 U.S. at 759). Petitioners have cited no case 17 comparable to this one where taxpayers have been found to ding. ae ma also correct, under federal law at least, when it argued to the superior court that the Arizona sn a pre Bil lacks standing.'® While the Association wo t - “(t]he failure of the defendants to collect the true value on = of State mineral lands * * * imposes an adverse onan pact on the Association and its members” i nk aamel a ich i hat the teachers 1 by which it presumably means t argentino 5 rao ive more pay if it prevails in this suit, it is 1 rey would be “ ‘likely’ to follow from a favorable sion.” Allen, 468 U.S. at 751 (quoting Simon v. ee se tucky Welfare Rights Organization, 426 U.S. 26, 38, - ( _ There has been no showing that, if the State er we iti leasing mineral lands fo additional revenues as a result of van i ‘ hers will receive pay raises y an appraisal, the state’s teac - Aree i i seem at least as y otherwise would not receive. It wou oat i iti ed from mineral leases, that. if additional revenues are receiv phen t on education wi p then general funds currently spen ir 4 prevent said proposed State from leasing any of sai ani — ferred to in this section for a term of five years or eer - said advertisement herein required” (Pet. Br. ~3 soon 2 phrase “nothing herein contained,” as first draft d, oe = no restriction other than the advertising ey py “ad did not lift the appraisal requirement. '° There is no in icati that Congress ever intended to expand its —-. ‘ato While subsequent amendments to Paragraph 3 oO a have made it less clear whether the phrase nothing ere i tained” still refers omy to the advertising requirement = 4 lished by the sentence immediately preceding the ee! agi a reasonable way to read it. Indeed, that is how the dra — the Arizona Constitution have read it. The —e ' . — Enabling Act restrictions contained in Article 10 0 \6 This straightforward reading is not contradicted by petitioners’ argument (Pet. Br. 21) that “herein,” as used elsewhere in the Enabling Act, sometimes refers to more than the paragraph in which the word is used. 24 Constitution deviates from the language of Section 28 of the Enabling Act in that the words “without advertisement” are in- serted at the end of the exceptions relating to leases other than for oil and gas production.'’ Thus, the parallel provision of the State Constitution appears to authorize the legislature to avoid the advertising requirement only. It plainly does not authorize the legislature to avoid the appraisal requirement, which is con- tained in Section 4 of Article 10 of the State Constitution and is not mentioned in the provision of the State Constitution giving the legislature authority over the manner of leasing nonhydrocarbon mineral lands.'*® '’ Article 10, section 3 of the Arizona Constitution provides, in pertinent part (emphasis added): Nothing herein, or elsewhere in article X contained, shall prevent: 1. The leasing of any of the lands referred to in this article in such manner as the Legislature may prescribe, for grazing, agricultural, com- mercial and homesite purposes, for a term of ten years or less, without advertisement. 2. The leasing of any of said lands, in such manner as the Legislature may prescribe, whether or not also leased for grazing and agricultural purposes, for mineral purposes, other than for the exploration, develop- ment, and production of oil, gas and other hydrocarbon substances, for a term of twenty years or less, without advertisement * * *. '* Petitioners have not attempted to come to grips with the fact that Article 10 of the Arizona Constitution, while similar to Section 28 of the Enabling Act, differs in certain respects, and, even in those respects in which it does not differ, may be given a different construction by the Arizona courts. Since the court below relied alternatively on the Arizona Constitution (“[w]e hold, therefore, that A.R.S. § 27-234 violates art. 10 of the Arizona Constitution and § 28 of the Enabling Act” (Pet. App. 27a)), that defect is fatal. At most, this Court may remand this case to the Arizona Supreme Court with instruc- tions that it may not base its holding on the Enabling Act. Given the different language of the State Constitution, however, and the court’s decision below and in Deer Valley Unified School District No. 97, 760 P.2d at $41, where the court recently declined to follow a decision of this Court construing the Enabl- ing Act “in interpreting the identical language in the Arizona Constitution” because the court concluded that this Court's analysis was not sufficiently pro- tective of the school trust fund, it seems clear that the result below will not change. For that reason, this Court may wish to decline the question presented if it determines that it has jurisdiction. 25 , in Alamo Land & Cattle Co. this Court read Section eee an appraisal before lands are leased for purposes other than oil and gas production. The Court held that the Act requires that grazing leases, “before being offered, shall be ap- praised at ‘true value’ ” (424 U.S. at 306). As it does with respect to mineral leases other than for the production of oil and gas, Section 28 provides that “[nJothing herein contained” prohibits grazing leases of a certain term, and states that such leases me! be made “under such terms and provisions as the Legislature o the State of Arizona may prescribe.” Accordingly, this _— has already concluded that the exception clause in Paragraph of Section 28 does not free Arizona from the appraisal restric- tion. There is no reason in this case to depart from that reading, which follows from the plain language of the statute and gives effect to its key provision. B. The History Of The Enabling Act Confirms That That Mineral Lands Are Subject To The Requirement They Be Appraised Prior To Being Leased And Leased At No Less Than Their Appraised Value Contrary to petitioners’ contentions, the history of the cl abling Act aid related enactments, including the Jones = 1927 and Article 10 of the Arizona Constitution, confirms t : the Enabling Act, both as enacted in 1910 and as reser su : jects all of the school trust lands, except for lands used for ne and gas production, to the requirement, set forth in paragrap : of Section 28, that they be appraised prior to being leased an leased “for a consideration [no] less than the value so ascertain- ag PaO the New Mexico Saprune Court’s analysis in rire v. Barker, 204 P. 205 (1922), petitioners argue (Pet. Br. 2 : ) that the unknown mineral lands that passed to Arizona under this Court’s decision in Wyoming v. United States were never subject to the restrictions in the Enabling Act. The trial 7 = Neel reasoned, and the New Mexico Supreme Court agreed ( P. at 207), that Congress in 1910 did not intend to convey mineral lands under the Enabling Act, so it . did not rg mind a mineral lease’ ” in drafting the restrictions in Section 28, ead 26 and those restrictions therefore do not appl to min That argument is severely flawed. First, the cota camemaes in its basic assumption that Congress did not have mineral lands in mind when it granted the school trust lands in Arizona in 1910. The rationale underlying the Court’s decision in Wyomin v. United States, which held that unknown mineral lands “te under school trust grants, was that Congress, while intending to require the States to trade known mineral lands in the numbered sections granted them for other lands, did not intend that its grant should be rendered nugatory by any future discoveries of mineral” (255 U.S. at 499). Since Congress undoubtedly knew that much western land not known to contain minerals at the time of a grant would subsequently be discovered to contain minerals, yet it intended to grant those unknown mineral lands to the States, Congress contemplated grants of mineral lands fs In any event, Congress in 1910 comprehensively subjected {ajll lands, leaseholds, timber, and other products of land” to the appraisal requirement. Accordingly, mineral leases are plainly subject to the requirement, and that is so whether or not Congress specifically had mineral leases in mind. For example Congress did not have condominiums or shopping malls in mind when it drafted the Enabling Act in 1910, but no one would sug- gest that the school trust lands may be sold or leased to a a. dominium builder or a shopping mall developer without an appraisal. Indeed, since the broad language of Paragraph 4 sub- jecting all leaseholds to its restrictions was designed to ensure that the trust would receive “true value” upon disposition of the granted land, there is no reason to believe that Congress in tended to require advertising and an appraisal before every small tract of non-mineral land, even desert land, is sold > ees ine simultaneously allowing the disposal of the rp th contained in the trust lands without any restric- Nor are petitioners correct in contendin Pet. B ne known mineral lands that Congress oem tt Ps oo of the Jones Act in 1927 passed without restriction. ile the Jones Act does not itself contain restrictions com- Oe ee ee Se rex Pedy 27 parable to those found in Section 28 of the Enabling Act, Sec- tion 1(a) of the Jones Act expressly provides that the prior grants are “extended” to cover known mineral lands and that the Jones Act grant was “of the same effect” as the prior school trust land grants.'® Providing that the grant was “of the same ef- . fect” was clearly more efficient than attempting to list all of the restrictions in the many prior acts granting school trust lands to the western States.?° Nor did the language of the Jones Act authorizing mineral leasing in the manner that the legislatures of the various States direct free Arizona from the appraisal requirement, for the same reasons that the parallel lagguage added to the Enabling Act in 1936 did not have that effect (see pages 22-25, supra). Moreover, petitioners’ interpretation of the Jones Act would mean that the Jones Act perpetuated the very problem it was in- tended to solve. Since, in our view, the unknown mineral lands undoubtedly passed to Arizona in 1910 subject to the terms of the school trust, then, if the known mineral lands passed in 1927 outside the terms of the trust, it would be necessary to deter- mine whether each parcel of school trust land containing minerals was known to contain minerals in 1910 in order to \% Petitioners complain (Pet. Br. 33-34) that Congress should have treated the western States uniformly by placing the same restrictions on each State. However, Congress’s overriding purpose in enacting the Jones Act was to set- tle the costly litigation over whether lands were known to contain minerals at the time of the prior grants to the States, not to revise its prior grants to treat the States uniformly. See, e.g., S. Rep. 603, 69th Cong., Ist Sess. 1-2 (1926). 20 Petitioners argue (Pet. Br. 32-34) that by the “same effect” language Con- gress meant no more than that the lands granted under the Jones Act would pass and vest in the same manner as prior grants. That, however, is not what the Jones Act says. Section 1(a) provides that “the grant of numbered mineral sections under this Act shall be of the same effect as prior grants for the numbered nonmineral sections, and titled to such numbered mineral sections shall vest in the States at the time and in the manner and be subject to all the rights of adverse parties recognized by existing law in the grants of numbered nonmineral sections” (emphasis added). 44 Stat. 1026. The comments of Senater Work upon which petitioners rely (Pet. Br. 33) plainly refer to the portion of the sentence following the word, “and,” and shed no light on the meaning of the phrase “of the same effect.” 28 determine whether the restrictions of the Enabling Act applied. That is surely not the result Congress intended. The 1928 amendment of the New Mexico Constitution also supports the conclusion that the restrictions in Section 28 apply to mineral lands in Arizona. Despite the New Mexico Supreme Court’s ruling in Neel v. Barker that the Enabling Act’s restric- tions did not apply to the unknown mineral lands in New Mex- ico that passed to the state pursuant to the Enabling Act in 1910, and the passage of the Jones Act, which petitioners con- tend passed the known mineral lands to the western States free of any restrictions, the Gov-:.4or of New Mexico, concerned that the restrictions in the Enabling Act applied to the mineral lands granted New Mexico, petitioned Congress to pass a joint resolution authorizing the State to amend its Constitution to ex- empt mineral leases from the restrictions of the Enabling Act. A New Mexico congressman advised Congress that the resolution was needed so that “New Mexico will be relieved from some pro- visions of its enabling act,” including the restriction at issue. 69 Cong. Rec. 2095 (1928) (statement of Rep. Morrow). Thus, petitioners err in suggesting (Pet. Br. 24-25) that it was understood that the Jones Act freed the mineral lands in the western States of the restrictions in the various enabling acts.?! ?! Contrary to petitioner’s contentions (Pet. Br. 37-39), the 1936 amend- ment to the Enabling Act, which authorized mineral leasing in the manner prescribed by the Arizona legislature, does not support their argument. The committee reports described that amendment as “remov([ing} certain restric- tions contained in the Enabling Act.” S. Rep. 1939, 74th Cong., 2d Sess. 2 (1936); H.R. Rep. 2615, 74th Cong., 2d Sess. 2 (1936) (emphasis added). Ob- viously, the restrictions could be removed only if they applied, contrary to petitioners’ contentions. While it is not clear exactly what restrictions Congress removed in 1936, the statements in the legislative history are congruent with either of our interpretations (see pages 22-24, supra) of the language added by the 1936 amendment. If the purpose of the amendment was to remove the advertising requirements only, as the drafters of the conforming amendment to the Arizona Constitution concluded, then those were the restrictions that were removed. If, as the court below concluded (Pet. App. 15a), the purpose was to allow leasing in “substantial conformity” with the requirements of Sec- tion 28, though not all its details, then those were the restrictions that were removed. There is no evidence at all that Congress intended to remove the ap- praisal requirement. 29 vents, Article 10 of the Arizona Constitution provides in ah 1 that both the lands transferred to the State a to the Enabling Act “and all lands otherwise acquired by - State, shall be by the State accepted and held in rage to b : disposed of in whole or in part, only in manner as in t — Enabling Act and in this Constitution provided (emp as added). Section 9 of Article 10 of the Arizona Constiates reiterates that “all lands otherwise acquired by the State td may be sold or leased by the State in the manner, and on . conditions, and with the limitations, prescribed by the ne Enabling Act and this Constitution” (emphasis added). ye . is clear beyond dispute that the unknown mineral lands a passed to Arizona in 1910 and the known mineral conan “ passed in 1927 are subject to the restrictions applicable to school trust lands, including the appraisal requirement, un _ the Enabling Act and the Arizona Constitution — y remove the restrictions. Since, as we have shown, neither ; : Enabling Act nor the Arizona Constitution has been eo to repeal the appraisal requirement, except for lands u oe and gas production, that requirement applies to all other sc trust mineral lands.?? 22 Moreover, as the court below concluded (Pet. App. 20a), the 1951 amendment to the Enabling Act confirms that the appraisal —— ap- plies to mineral leases other than for oil and gas production. By lifting the ap- i ion 28 referring to i i t in the sentence in Paragraph 3 of Section pt pte while making no mention of the appraisal requirement in the preceding sentence relating to leasing for other ees oo iously intended to continue to require an apprais; ae antes are leased for the production of minerals.other than oil and gas. 30 CONCLUSION This Court should dismiss the petition for lack of jurisdic- tion. If it does not, the judgment of the Arizona Supreme Court should be affirmed. Respectfully submitted. CHARLES FRIED Solicitor General ROGER J. MARZULLA Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General CHRISTOPHER J. WRIGHT Assistant to the Solicitor General ROBERT L. KLARQUIST J. CAROL WILLIAMS Altorneys JANUARY 1989 wy U.S. GOVERNMENT PRINTING OFFICE: 1989—241-699/00058 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0378%3A15. Public record. Not legal advice.