Amicus Curiae Brief — Alaska Miners Ass'n v. Trustees for Alaska

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Supreme Gourt, U3. |

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Nos. 87°205, 87-206 and 87-371 MAY 4 1886

OCTOBER TERM, 1987

ALASKA MINERS ASSOCIATION, PETITIONER

v. ¢

TRUSTEES FOR ALASKA, ET AL.

STATE OF ALASKA, PETITIONER

Vv.

TRUSTEES FOR ALASKA, ET AL.

TRUSTEES FOR ALASKA, ET AL., CROSS-PETITIONERS

STATE OF ALASKA, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALASKA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

CHARLES FRIED

Solicitor General

ROGER J. MARZULLA

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

PETER R. STEENLAND, JR.

Altorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

sly yi

QUESTIONS PRESENTED

Section 6(i) of the Alaska Statehood Act provides that

mineral interests in lands selected by the State of Alaska pur-

suant to Section 6(a) or (b) of that Act may be disposed of only

by “lease,” and that any lands or minerals disposed of in viola-

tion of Section 6(i) shall be forfeited to the United States in a

suit brought by the Attorney General of the United States in the

United States District Court for the District of Alaska.

The United States will address the following questions:

1. Whether respondents have the standing necessary to per-

mit this Court to exercise jurisdiction under Article III of the

Constitution.

2. Whether private parties such as respondents are barred

by Section 6(i) from bringing an action in state court seeking a

declaratory judgment that the State’s mining laws governing the

disposition of mineral interests in selected lands do not comply

with Section 6(i). :

3. Whether Alaska’s mining laws violate the restriction in

Section 6(i) of the Alaska Statehood Act that minerals may be

disposed of only by a “lease” because they permit a person to ex-

tract “hard rock” minerals under a location system, similar to

that established by the federal Mining Act of 1872, without pay-

ment of rents or royalties to the State.

4. Whether the restriction in Section 6(i) of the Alaska

Statehood Act that permits minerals in lands selected by the

State under that Act to be disposed of only by lease is limited to

those lands that were known to be mineral in character at the

time they were selected by the State from the United States.

(I)

TABLE OF CONTENTS

Statement:

Cases:

Page

I ee l

SB. tme proceedings in this case .................00.. )

i bee rrrr rrr rrr rrr rere er CT PTT TTS 12

Cee eee aE eed davecsteuseceusess 30

Te Gee aid wee ok e dee occenseaes la

TABLE OF AUTHORITIES

Allen v. Wright, 468 U.S. 737 (1984) ............... 13, 15, 16

Andrus v. Utah, 446 U.S. 500 (1980) .................. 3

Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1984), vacated as

eR os 17

Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731

RS a 21

C.D.M., In re, 627 P.2d 607 (Alaska 1981) eee ea ss wa + 18

California v. Sierra Club, 451 U.S. 287 (1981) .......... 19

California Motor Transport Co. v. Trucking Unlimited,

Lo cab apse escedaceene 21

Cannon v. University of Chicago, 441 U.S. 677 (1979) ... 19, 23

Chambers v. Harrington, 111 U.S. 350 (1884) .......... 27

Commonwealth Edison Co. v. Montana, 453 U.S. 609

NE SE ES a 21

ee UE BL, END TS) ok ccc cc cece ee 17, 19, 20

County 0, skamania v. State, 102 Wash.2d 127, 685

Ee 22

Crane v. Cedar Rapids & lowa City Ry., 395 U.S.

eu wilsde deed dives eas 20

Daily Income Fund, Inc. v. Fox, 464 U.S. 523 (1984) . 19

Doremus v. Board of Education, 342 U.S. 429 (1952) . 14, 16, 17

Downer v. Graham, 21 F.2d 732 (8th Cir. 1927) ......... 20

Fidelity Nat'l Bank & Trust Co. v. Swope, 274 U.S. 123

ee ve faces cus cececeaea 17

RO | | 15

Frothingham v. Mellon, 262 U.S. 447 (1923) ........... 14-15

Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473

nae lacy cine nd wb on ob bas iw'es 23

Cases — Continued: Page

Hagar v. Reclamation Dist. No. 108, 111 U.S. 701

ES Oe eee Cee ee Fey eer ee FE ee ee 24

Hillsborough County vy. Automated Medical Labora-

Se eee, ee ee Oe Ges occ ccc sneneee so 21

Jackson Transit Auth. v. Transit Union, 457 U.S. 15

EE ee oor si Bak ci Lal eh Cane Sook 4 lne gale 6 Wi k--6. 0 19

Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969) ....... 18

Kadish vy. Arizona State Land Dep’t, 747 P.2d 1183

SE EE ach aa cu cadees ea che sckemckeadsan eas ines 22

Kanaly v. State by and through Janklow, 368 N.W.2d 819

EE hs nk oa kas Ma OG NEUROL oa wa Ee kO oa ho 22

Keaukaha-Panaewa Community Ass’n v. Hawaiian

Homes Comm’n, 588 F.2d 1216 (9th Cir. 1978), cert.

Gemted, 444 U.S. GIG (ISTS) . ww ccc ccc cc ccsnssecess 20

Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S.

se ola ee kek ce ue ah ae ae cheb 6 19

Merkwan v. State by and through Janklow, 375 N.W.2d

ee ore acces scan sees ace a sua ss 22

Merrell Dow Pharmaceuticals, Inc. v. Thompson, No.

= uu. 68 | RRP reorder -. 1%, 9

Middlesex County Sewerage Auth. v. National Sea

Clammers Ass’n, 453 U.S. 1 (1981) ................. 19

Mills County v. Railroad Cos., 107 U.S. 557 (1883) ...... 24

Moore v. Chesapeake & O. Ry., 291 U.S. 205 (1934) ..... 20

National Railroad Passenger Corp. v. National Ass’n of

Railroad Passengers, 414 U.S. 453 (1974) ............ 19

Northwest Airlines, Inc. v. Transport Workers, 451 U.S.

Pe aa a oe Oh 1 Eek an Od tee Ce ake Kanade 19

Oklahoma Education Ass’n v. Nigh, 642 P.2d 230 (Okla.

ORR OE Pee Cre aA hee” ee Pa 22

Papasan vy. Allain, No. 85-499 (July 1, 1986) ........... 3

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) .... 16

Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985), cert. denied,

EE oo kuna dec dcekicedsaekye nes 20

Revere v. Massachusetts General Hosp., 463 U.S. 239

i FER By hae ee ee Tere er ree 16

Ross v. Trustees of University of Wyoming, 30 Wyo. 433,

ee lid os as a de kaa ks bea aka Coa 22

Cases — Continued: Page

Schlesinger v. Reservists Committee to Stop the War,

Se I 9c dk bx 6b ch bana cexdnsswkwuan ens 14

Secretary of State of Maryland v. J.H. Munson Co.,

467-43.8.-967-41966) 0000s Ceeerrereveereiverer es 16

Siggelkow v. State, 731 P.2d 57 (Alaska 1987) .......... 18

Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S.

Eo cee ha ean cob dab ee ted Rabat aka ee eee 15, 16

Springfield Township v. Quick, 63 U.S. (22 How.) 56

CEL cad wc ade ok ac wie espera ne seek seueisneues 22

State v. Lewis, 559 P.2d 630 (Alaska), appeal dismissed,

Be TE Sh eh books Hans cooks cu hans 3, 4, 6, 14

State ex rel. Ebke v. Board of Educational Land & Funds,

154 Neb. 244, 47 N.W.2d 520 (1951) ................ 22

State ex rel. Hughes v. State Board of Land Commis-

sioners, 137 Mont. 510, 353 P.2d 331 (1960) .......... 22

Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S.

EEE cig Says cae nee cok add 4 ban Poh cab eaese 19

Thompson v. Thompson, No. 86-964 (Jan. 12, 1988) .... 17,

: 19, 20

Toomey v. State Board of Land Commissioners, 106

“Ee SPs of: . a ererrereT 22

Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) ... 19

Transamerica Mortgage Advisors, Inc. v. Lewis, 444

C8 RO Sp ere ere errr 19

Udall v. Kalerak, 396 F.2d 746 (9th Cir. 1968), cert.

Po me RS er rere 2

United States v. Atlantic Richfield Co., 435 F. Supp.

1009 (D. Alaska 1977), aff'd, 612 F.2d 1132 (9th Cir.),

cert. denied, 449 U.S. 888 (1980) ................... 2

United States v. Gratiot, 39 U.S. (14 Pet.) 526 (1840) .... 25

United States v.-Locke, 471 U.S. 84 (1985) ............. 2

United States v. Mason, 412 U.S. 391 (1973) ........... 23

United States v. Richardson, 418 U.S. 166 (1974) ....... 14, 15

United States v. Sweet, 245 U.S. 563 (1918) ............ 3, 29

United States v. Wyoming, 255 U.S. 489 (1921) ......... 29

Universities Research Ass’n, Inc. v. Coutu, 450 U.S. 754

(ae Cir Peete se Dre aot oe ore er red Laks a pins 19

Valley Forge Christian College v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464

ED co ok as cued os Vie eek re aaN Eee Cea ae 13, 15

Cases — Continued: Page

Winpisinger v. Watson, 628 F.2d 133 (D.C. Cir. 1980) ... 15

Wyoming v. United States, 255 U.S. 489 (1921) ......... 3

Constitutions, statutes and rule:

U.S. Const.:

ODES ee Ea . ey SD

Alaska Const.:

Art. VIII:

eae cosas eco uG as bie ee ae ccogte ee 4,5

ee eas 6 toe Bk basen is og rela wat 4

ET xs cco dus es dneweede eubeaeladeanins 5

Act of June 6, 1900, ch. 786, § 26, 31 Stat. 329, 30 U.S.C.

DT ett ee cc eter sd ouei hess seeeetabesrvedneces 6

Act of Jan. 25, 1927, ch. 57, § 1, 44 Stat. 1026-1027, 43

hs ch oye hund eins sbuneedeedeerevat as 3

nr +. 4s ewbbebenddscsveobounsesebs 3, 25

' Administrative Procedure Act, 5 U.S.C. (& Supp. IV)

PS did ae Gs sawn ada neenes ba tasteses ee bac nee 22

Alaska Coal Leasing Act of 1914, ch. 330, 38 Stat. 741 ... 4

Alaska Statehood Act, Pub. L. No. 85-508, 72 Stat. 339:

EC ME osc s.ncact'cvcedececeeunteseas 1, 4,

6, 9, 28, 29

ED 0.6 54 de 504002 60 dKe Rode RKO CUEE 1, 4,

6, 9, 28, 29

OS ee | eee eer Tere rrrraeTTTERi ie passim :

i eee c sb oetcceseseeseabedns 5

Arizona-New Mexico Enabling Act, ch. 310, 36 Stat.

AME Me ea das cakesd seeds eee eretees 20

cca wowed Cvadbdabuensetaewene 20, 24

Federal Food, Drug, and Cosmetic Act, 21 U.S.C.

Gs cs i pan cecne bade ctnevess 19

Mineral Lands Leasing Act of 1920, ch. 85, 41 Stat. 437,

30 U.S.C. (& Supp. III) 181 ef seg. ..... 2.2.0.6 00 -ee. 2

ET oobi bse eades cdcuesedewedesene 2

ee ek hn kd ea cepa caenee kee 2

SSS bea ent ok iakes ar ducsddeatesars 2

oa os kos ons ceecen kiss cuadeseer 2

Vil

Statutes and rule — Continued: Page

SE EN sc abe pcakcdevas dc ee dequaepeseen 2

30 U.S.C. Gap. TEE) 24a) .. 2c ccc ccscccccess 2

DR CL esate ope bias ea eee Ueae wa 2

SN EE EEE EEE EY ETE 2

Mining Act of 1872, ch. 152, 17 Stat. 91, 30 U.S.C. 22 ef

SU accuceccsdnasevatsnsetcacedssetuesusicusenaps 2

RF i Caan A eS Ay er ys 2

sO A Ul 6G nc an een Ae need hee een oe 13

LS. 8 el a eed eee eee vanes 17, 19

S959 Annee Boas, LOG ZIPS oo cc ccc ccccnsecsccess 6

i ae ee adds cdeea eee eeesae bees? 6

en ea iwebtasanerweae.s 7

EF pt ee Pr ee ree Terr 6

DORE Fees BOs, LOWE GE, GES os ccc cccccvccesacavess 7

Alaska Stat.:

DP CED cc cccadccscancctiadeccdabas 18

DED os vccddccncccsssdebecseeoes 18

§§ 38.05.135-38.05.184 (1984) ................5.. 6

on ns, mee ET VEY EERERELESEREREEE ELE LIL 7,8

Rp ' RS Ff Ss 2) | rrr rer 6

DEE cc cnsccescbeccenacecsee seeds 7, 8,9

SSE aiccencccsencevussesaccsoss 8

SE, vnc Gu ce cces. cde vievwentanens 8

Ariz. Rev. Stat. Ann. § 27-234 (Supp. 1987) ............ 25

Colo. Rev. Stat. § 36-1-113 (Supp. 1987) .............. 25

Idaho Code § 47-704 (Supp. 1987) ................55-. 25

Mont. Code Ann. (1988):

eer rr rrr ere rrr 25

Ar errr ry eT rr err Try 25

ie = Se Ff Ft, RP eererrrrrerrr. 25

N.M. Stat. Ann. (1985):

Ret Govcn Lb N ay park bnwd dawn eakeaeeeh ears 25

Pee Se iar askiws dead be pan ee wat 25

Utah Code Ann. § 65-1-18 (1986) ...................4.. 25

SN OIE ede ec cvkesnekceutvesdcecdsseseaeset 29

Vill

Miscellaneous: Page

3 American Law of Mining (Rocky Mtn. Min. L. Inst.

a ee aig el me et tg 25

P. Bator, et al., Hart & Wechsler’s The Federal Courts and

ee ey DIED ov csccnaccdarucrdocesesse 17, 20

V. Fischer, Alaska’s Constitutional Convention (1975)... 4, 5

Letter from the Alaska Attorney General to Governor Jay

S. Hammond 0 Ey rrr 8, 9

Statehood for Alaska: Hearings on H.R. 50, et al. Before

the Subcomm. on Territorial and Insular Affairs of

the House Comm. on Interior and Insular Affairs,

es MU Is ba Sb sku ceases vce baw’ 40 5, 25

Status of Mining Claims Staked on State Selected Lands,

1981 Alas. Att’y Gen. Op. 113 (1981) ................ 6, 7

L. Tribe, American Constitutional Law (2d ed. 1988) .... 17

In the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-205

ALASKA MINERS ASSOCIATION, PETITIONER

TRUSTEES FOR ALASKA, ET AL.

No. 87-206

STATE OF ALASKA, PETITIONER

TRUSTEES FOR ALASKA, ET AL.

No. 87-371

TRUSTEES FOR ALASKA, ET AL., CROSS-PETITIONERS

STATE OF ALASKA, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALASKA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is filed in response to the Court’s invitation to the

Solicitor General to express the views of the United States.

STATEMENT

A. The Statutory Framework

Sections 6(a) and (b) of the Alaska Statehood Act authorized

Alaska to select 103,350,000 acres of land from the vacant, un-

(1)

appropriated and unreserved public lands of the United States.

72 Stat. 340. The “primary purpose” of this grant “was to ensure

the economic and social well-being of the new state” (86-206

Pet. App. B51 [hereinafter Pet. App.], citing Udall v. Kalerak,

396 F.2d 746, 749 (9th Cir. 1968), cert. denied, 393 U.S. 1118

(1969); United States v. Atlantic Richfield Co., 435 F. Supp.

1009, 1016, 1021 n.47 (D. Alaska 1977), aff'd, 612 F.2d 1132

(9th Cir.), cert. denied, 449 U.S. 888 (1980)). This case concerns

the validity of the statutory scheme by which Alaska permits the

extraction of so-called “hard-rock” minerals from lands selected

pursuant to Section 6(a) or (b).

1. a. Both the Alaska Statehood Act and the state statutory

scheme were enacted against the background of the distinction

that then existed (and still exists) under federal law between the

system of mineral /ocation under the Mining Act of 1872, ch.

152, 17 Stat. 91, 30 U.S.C. 22 et seqg., and the system of mineral

leasing under the Mineral Lands Leasing Act of 1920, ch. 85, 41

Stat. 437, 30 U.S.C. (& Supp. III) 181 et seg. Under the Mining

Act of 1872, “ ‘[d]Jiscovery’ of a mineral deposit, followed by the

minimal procedures required to formally ‘locate’ the deposit,

gives an individual the right of exclusive possession of the land

for mining purposes, 30 U.S.C. § 26; as long as $100 of assess-

ment work is performed annually, the individual may continue

to extract and sell minerals from the claim without paying any

royalty to the United States, 30 U.S.C. § 28.” United States v.

Locke, 471 U.S. 84, 86 (1985). The 1872 Act also authorizes the

claimant to obtain a patent by paying a nominal sum to the

United States. 30 U.S.C. 29, 37; Locke, 471 U.S. at 86. By con-

trast, under the Mineral Lands Leasing Act of 1920, a person

seeking to extract minerals from federal land may only lease the

land, and he must pay an annual rental fee and royalties on any

minerals extracted. 30 U.S.C. (& Supp. III) 207(a), 212, 226(b)

and (d), 241(a), 262, 283. The location system under the 1872

Act applies to so-called “hard rock” minerals, such as gold,

silver, copper, lead, zinc, tin and tungsten, while the leasing

system under the 1920 Act applies to coal, oil, gas, oil shale,

phosphate, sodium and potassium. 30 U.S.C. 181.

The Alaska Statehood Act and the state statutory scheme also

were enacted against the background of provisions in other

statehood acts that granted lands for school purposes. See

Papasan v. Allain, No. 85-499 (July 1, 1986), slip op. 1-4.

Under those other acts, this Court held that lands that were

known to be mineral in character at the time of statehood were

excluded from the school grants unless Congress expresssly pro-

vided otherwise. United States v. Sweet, 245 U.S. 563 (1918);

Wyoming v. United States, 255 U.S. 489, 500-501 (1921). In

response, Congress passed the Act of January 25, 1927, ch. 57,

§ 1, 44 Stat. 1026-1027, 43 U.S.C. 870, which extended the

school grants to embrace numbered sections that are mineral in

character. Andrus v. Utah, 446 U.S. 500, 509 (1980). The 1927

Act further provided that the mineral rights in such lands must

be retained by the State and “shall be subject to lease by the

State as the State legislature may direct, the proceeds and rentals

and royalties therefrom to be utilized for the support or in aid of

the common or public schools” (43 U.S.C. 870(b)).

Section 6(i) of the Alaska Statehood Act (72 Stat. 342) makes

applicable to the lands granted to Alaska a set of restrictions

that are expressly patterned after those in the 1927 School Lands

Act. See Pet. App. B30-B32, B39-B46; State v. Lewis, 559 P.2d

630, 636 (Alaska), appeal dismissed, 432 U.S. 901 (1977). Sec-

tion 6(i) provides:

All grants made or confirmed under this Act shall include

mineral deposits. The grants of mineral lands to the State

of Alaska under subsections (a) and (b) of this section are

made upon the express condition that all sales, grants,

deeds, or patents for any of the mineral lands so granted

shall be subject to and contain a reservation to the State of

all of the minerals in the lands so sold, granted, deeded, or

patented, together with the right to prospect for, mine, and

remove the same. Mineral deposits in such lands shall be

subject to lease by the State as the State legislature may

direct: Provided, That any lands or minerals hereafter

disposed of contrary to the provisions of this section shall

be forfeited to the United States by appropriate pro-

ceedings instituted by the Attorney General for that pur-

pose in the United States District Court for the District of

Alaska.

The only distinction between Section 6(i) and the 1927 Act is

that Section 6(i) does not require that “the proceeds and rentals

and royalties” of mineral leasing be utilized only for school pur-

poses, since the basic grants under Section 6(a) and (b) of the

Alaska Statehood Act are not limited to school purposes.

b. The requirement that minerals on selected lands be

disposed of only under a “lease” encountered substantial op-

position from mining interests and others in Alaska when the

question of statehood for Alaska was under consideration by

Congress in the mid-1950s. This opposition is reflected in the

text and background of the Alaska Constitution, which was

proposed by a Convention in 1956 and approved by the people

of Alaska later that year. See Lewis, 559 P.2d at 636. The basic

restrictions of the 1927 School Lands Act had already been in-

corporated into the pending Alaska statehood bill when the

Convention convened. Pet. App. C10; V. Fischer, Alaska’s

Constitutional Convention 134 (1975). As the Alaska Supreme

Court explained, those restrictions “were controversial because

they signalled a change from the existing location-patent system

to a leasing system” for hard-rock minerals (Pet. App. B46). As

a result, the Alaska Constitution, as approved by the voters in

1956 and still in effect, retains the distinction between mineral

leasing and mineral location. Article VIII, § 12 states that the

Legislature “shall provide for the issuance, types and terms of

leases” for oil, gas, coal and other minerals that were then sub-

ject to the Mineral Lands Leasing Act of 1920 or the Alaska

Coal Leasing Act of 1914, ch. 330, 38 Stat. 741. But Article

VIII, § 11 provides that “[d]iscovery and appropriation shall be

the basis for establishing a right in those minerals reserved to the

State which, upon the date of ratification of this Constitution

by the people of Alaska, were subject to location under the

federal mining laws.”!

' Section 11 further provides that continuation of rights in those minerals

“shall depend upon the performance of annual labor, or the payment of fees,

The Alaska Supreme Court explained that Art. VIII, § 11 was

included by the Convention at the instance of delegates who

favored a location-patent system for hard-rock minerals, in the

hope that Congress might recede from the universal leasing re-

quirement in the pending bill (Pet. App. B49). “ ‘Most

[delegates} also saw the provision as a demonstration to miners

* * * that any restrictions applicable to alienation of mineral

lands were being imposed from outside and were not the con-

vention’s own doing’” (ibid. (quoting V. Fischer, supra, at

134)). But because the benefits of statehood were thought to

outweigh the disadvantages of the “lease” requirement, the Con-

stitution proposed by the Convention and approved by the

voters in 1956 expressly consented in advance to such terms or

conditions as Congress might attach to the grant of federal

lands to Alaska (Art. XII, § 13; see Pet. App. B46-B47 & n.22).

Congress did not recede from the universal “lease” require-

ment when it enacted Section 6(i) of the Statehood Act in 1958.

However, in light of the opposition to that requirement in

Alaska,? Congress provided in Section 8(b) of the Statehood

Act that Alaska’s admission to the Union was conditioned upon

the voters’ consent at a special election to all provisions of the

Statehood Act “reserving rights or powers to the United States,

as well as those prescribing the terms or conditions of the grants

of lands or other property therein made to the State of Alaska”

(72 Stat. 344). Section 8(b) further provided that if the voters

approved this proposition, the Constitution of Alaska “shall be

rents, or royalties, or upon other requirements as may be prescribed by law,”

and that “[dJiscovery and appropriation [of such minerals] shall initiate a right

* * * to patent of mineral lands if authorized by the State and not prohibited

by Congress.”

? After the proposed Constitution was approved by the people of Alaska in

1956, petitioner Alaska Miners Association (AMA) urged Congress to recede

from the mandatory mineral leasing provision now embodied in Section 6(i)

and instead to permit the State to implement the mineral location system con-

templated by Art. VIII, § 11 of the proposed Constitution for minerals that

were subject to location under the federal mining laws. See Statehood for

Alaska: Hearings on H.R. 50, et al. Before the Subcomm. on Territorial and

Insular Affairs of the House Comm. on Interior and Insular Affairs, 85th

Cong., Ist Sess. 217-245 (1957).

deemed amended accordingly” (ibid.). The people of Alaska

voted in favor of the proposition at a special election on August

26, 1958 (559 P.2d at 639), and Alaska was admitted to the

Union on January 3, 1959.

2. In the early years of statehood, state officials did not in-

terpret the “lease” requirement in Section 6(i) to apply to all

lands selected by the State pursuant to Section 6(a) and (b) of

the Statehood Act. Rather, they interpreted it to apply only

where the surface estate was sold or otherwise disposed of by the

State, with a reservation of mineral interests to the State. Under

that construction, Section 6(i) did not restrict the manner in

which the State disposed of minerals in those selected lands

(presumably the vast majority) that were retained by the State,

and the State therefore was free to apply a mineral location

system to such lands. See Status of Mining Claims Staked on

State Selected Lands, 1981 Alas. Att’y Gen. Op. 113, 154-155

(1981) [hereinafter 1981 Alas. Att’y Gen. Op.].

The State’s narrow construction of Section 6(i), and the

distinction embodied in the Alaska Constitution between

mineral leasing and mineral location, were implemented in a law

enacted by the Alaska Legislature in 1959 to govern the ad-

ministration of lands owned by the new State. 1959 Sess. Laws

of Alaska (SLA) 229-247. The 1959 legislation provided for the

leasing of state lands and the payment of rents and royalties for

the extraction of coal, oil, gas and other minerals that are

governed by the Mineral Lands Leasing Act of 1920. Art. VIII,

§ 3, 1959 SLA at 241-244; see Alaska Stat. §§ 38.05.135-

38.05.184 (1984). But “all minerals [that were] subject to loca-

tion under the mining laws of the United States” were made sub-

ject to discovery, appropriation and location under the relevant

sections of Alaska’s mining laws, which in turn had been derived

directly from the federal mineral location laws. Art. IX, § 1,

1959 SLA at 246.3 The only difference was that a claimant

under the State’s location system could not receive a patent to

> The laws of the United States relating to mining claims were extended to

the Territory of Alaska by Section 26 of the Act of June 6, 1900, ch. 786, 31

Stat. 329, 30 U.S.C. 49a. The State’s mining laws are now codified at Alaska

Stat. §§ 38.05.185-38.05.275 (1984).

the mineral interests. However, as required even by the State’s

narrow construction of Section 6(i), minerals that were reserved

to the State when the surface estate in selected land was sold by

the State could be extracted only under a lease, on terms ap-

proved by the Commissioner of the Department of Natural

Resources. Art. IX, 1959 SLA at 246.

3. a. Section 6(i) became the subject of considerable in-

terest in Alaska at the beginning of this decade, when the At-

torney General of Alaska undertook an extensive analysis of the

scope of Section 6(i) for the Commissioner of Alaska’s Depart-

ment of Natural Resources. 1981 Alas. Att’y Gen. Op., supra.

In his final opinion, rendered in 1981, the Attorney General

concluded, inter alia, that state officials had erred in inter-

preting the “lease” requirement in Section 6(i) to apply only to

mineral interests that were reserved to the State when the sur-

face estate was sold (id. at 156-157). In his view, the “over-

whelming weight” of the legislative history established that “the

leasing restriction [in Section 6(i)] was to apply to all mineral

lands” (ibid.), while “[t]he approach offered by state officials

was not contemplated by anyone prior to passage of the

Statehood Act” (id. at 157).4 However, reversing the position he

had taken in a publicly circulated draft of the opinion (id. at

158), the Attorney General further concluded that Section 6(i)

applies only to lands that were known to be mineral in character

at the time they were selected by the State (id. at 157-166).

b. In response to the Attorney General’s opinion, the State

Legislature revised the State’s mining laws in 1981. 1981 SLA

ch. 108. The 1981 amendments provide that hard-rock minerals

must be exiracted under a lease, even on lands retained by the

State. However, this special leasing requirement for hard-rock

minerals applies only if the Commissioner first finds that the

lands in question were known to be mineral in character at the

time they were selected by the State. That finding can be made

only through the issuance of a formal land classification order

(Alaska Stat. §§ 38.05.185, 38.05.205), and we have been in-

4+ We believe that the Attorney General’s interpretation of Section 6(i) in this

respect is clearly correct, and petitioners do not challenge it here.

Sn ne ee

formed by the Office of the Attorney General of Alaska that no

such classification orders have been issued. As a result, even on

lands that were known to be mineral in character at the time

they were selected, hard-rock minerals continue to be governed

solely by the State’s mineral /ocation system, which does not

provide for the payment of rents or royalties to the State.’ ~~

Moreover, the special hard-rock leasing provisions (unlike the

State’s general mineral leasing laws applicable to oil, gas and

coal) do not provide for the payment of royalties to the State for

the extraction of minerals. And although the special leasing pro-

visions do prescribe an annual rental fee, that fee is set at the

amount of annual labor necessary to maintain a mining location

claim (now $200 per year, Alaska Stat. § 38.05.210(a)), and the

lessee is entitled to a credit against his rent for the labor actually

performed (§ 38.05.205(b)). The net effect of these provisions is

that even if the Commissioner should trigger application of the

special hard-rock leasing provisions in the future, the State still

would not realize any cash rents or royalties for the leasing or

extraction of hard-rock minerals from those lands.

c. In 1982, the Alaska Legislature again amended the State’s

hard-rock mining laws in response to the Attorney General’s

1981 opinion. As explained by the Attorney General in a June 3,

1982 opinion letter to Governor Jay S. Hammond,® the 1982

amendments responded to the concern that the State’s mineral

location system does not satisfy the “lease” requirement in Sec-

tion 6(i) because it does not provide for particularized review by

the State of individual mining claims and does not contain a

mechanism by which the State conveys a mining right or other

‘interest to each claimant. The Attorney General observed that

although the granting of rights in a special tract “may not be a

necessary element of a leasing system, it could be the deciding |

* State law also provides for the mining of hard-rock minerals under a lease

if the Commissioner determines that the mining would conflict with potential

uses of state land (Alaska Stat. § 38.05.185). This provision is not addressed to

Section 6(i), and we have been informed by the Office of the Attorney General

of Alaska that the only mining leases issued under Section 38.05.205 have been

premised on a finding of conflicting uses.

® We have lodged a copy of this opinion letter, which was furnished to us by

the Office of the Attorney General of Alaska, with the Clerk of this Court.

factor in a judicial determination of whether Alaska’s location

system is really a leasing system” (Letter at 3). The 1982 amend-

ments authorize the Commissioner to issue a “production

license” to each locator of a mining claim who wishes to extract

hard-rock minerals. Alaska Stat. § 38.05.205. Although a pro-

duction license likewise is not conditioned upon payment of

rents or royalties, the Attorney General was of the view that the

1982 amendments brought the State into compliance with the

Statehood Act because a production license could be regarded

as a “lease” for purposes of Section 6(i). Letter at 3-4. The At-

torney General acknowledged that it would be better if the

license were expressly termed a “lease,” but he explained that

“this additional cosmetic change proved impossible due to the

miners’ adamant and vocal opposition to the term” (éd. at 3).

B. The Proceedings In This Case

1. This suit was filed in state Superior Court in 1983 by the

respondent environmental organizations, Native village cor-

porations, and fishing association. They sought a declaratory

judgi.:ent that the state statutory scheme for the mining of hard-

rock minerals on land selected pursuant to Section 6(a) or (b) of

the Statehood Act violates the “lease” requirement in Section

6(i) because the State does not receive rents or royalties in return

for production licenses or leases and because the State construes

the “lease” requirement to apply only to lands that were known

to be mineral in character when they were selected. Comp.

44 40-46, 57-59; Prayer for Relief 44 1-3, 7.’

The trial court granted summary judgment in favor of peti-

tioners (Pet. App. Al-A15). The court first held that respond-

ents do not have standing to seek judicial review (id. at AS-A9),

because “[o]n the evidentiary record in this case, [respondents]

have * * * failed to establish the requisite individualized harm,

direct interest, or personal stake in the mineral resources being

managed under the statutory scheme challenged here” (/d. at

A5-A6). The court also found that respondents do not have

? Respondents raised certain claims under the State Constitution as well

(Compl. 4§ 47-56, 60-62), but the Alaska Supreme Court did not reach the

state-law claims (Pet. App. B85) and they are not at issue here.

————ea iii i |

standing under a distinct state-law doctrine that permits a

citizen or taxpayer to challenge state governmental action (id. at

A6-A9). On the merits, the trial court held that because Section

6(i) provides that minerals are “subject to lease by the State as

the State legislature may direct,” the Alaska Legislature had

discretion to permit the consideration for a lease (or production

license) to be in the form of “services” (the annual labor

necessary to maintain a mining claim), rather than cash rents or

royalties (Pet. App. A9-A12).

2. On respondent’s appeal, the Supreme Court of Alaska

reversed and remanded for entry of a declaratory judgment that

the state statutory scheme violates Section 6(i) and for other ap-

propriate proceedings (Pet. App. B1-B86). The Supreme Court

noted that respondents “assert that they have standing as

citizens or taxpayers, rather than because their interests are in-

jured” (id. at B9), and it held that respondents have standing in

the former capacity (id. at B6-B26). The court rejected the

State’s argument that respondents are not appropriate plaintiffs

as citizens or taxpayers because the Attorney General of the

United States has authority to challenge the State’s hard-rock

mining system in a forfeiture proceeding brought under Section

6(i) of the Statehood Act. The court reasoned that respondents

“are interested in preserving to the state the economic value of

these lands,” while the Attorney General “would be bringing an

action for forfeiture of these lands, contrary to [respondents’}

interest” (id. at B25-B26). The court also rejected the State’s

related contention that the authorization in Section 6(i) for the

Attorney General to bring a forfeiture action constitutes an im-

plied, federal-law preclusion of this declaratory judgment ac-

tion in state court (Pet. App. B26-B31). The court pointed out

that there has been much litigation in the courts of other States

concerning restrictions on federal land grants (id. at B26-B27 &

n.11), and it did not read the forfeiture provision in Section 6(i)

to require a different result for Alaska (id. at B29-B31 & n.13).

Indeed, the court believed that “{i]t would be unusual in the ex-

treme if a state court could not construe the meaning of its

state’s Statehood Act” (id. at B31).

On the merits, the Supreme Court found Alaska’s hard-rock

mining statutes to be substantively “indistinguishable” from a

~« ey

mineral location system (Pet. App. B70-B71), and it held that

the state statutes “do not meet the leasing requirement of section

6(i)” because Section 6(i) “mandates a system under which the

state must receive rent or royalties for its mining leases” (id. at

B66-B67). Based on its exhaustive review of the legislative

history of Section 6(i) (see Pet. App. B33-B67), the court con-

cluded that “Congress * * * granted Alaska the mineral estate

with the intention that the revenue generated therefrom would

help fund the new state’s government” (id. at B56). In the

court’s view, “[t]he leasing restriction in section 6(i) was in-

tended to further the goal of state revenue production” (id. at

B58-B59), especially since Congress equated it with the leasing

procedures under the Mineral Lands Leasing Act of 1920, which

“reject[ed] the location system for certain minerals in order to

provide revenue to the United States” (id. at B64-B65). The

court also found it significant that the lease requirement in Sec-

tion 6(i) was “copied advisedly” from the 1927 School Lands Act

(id. at B59-B63), because the 1927 Act’s leasing requiremeni

“was expressly intended to be productive of proceeds, rents, and

royalties” (id. at B64-B65) and because the laws of the States

subject to the 1927 Act “are uniform in requiring the payment

of rent, or royalties, or both” (id. at B65). Finally, the court re-

jected the contention that the performance of annual labor

worth $200 satisfies the requirement of rents or royalties, since

annual labor is required as evidence of good faith that the claim

will be worked and “is not a source of revenue to the

landowner” (id. at B70). The court did, however, agree with

petitioners that the leasing requirement in Section 6(i) applies

only to lands that were known to be mineral in character when

they were selected by the State (id. at B71-B84).

3. After the petitions and conditional cross-petition for a

writ of certiorari were filed in this Court, the Superior Court, on

remand, issued an order and declaratory judgment dated

November 9, 1987 (App., infra, la-8a). Because the Supreme

Court’s decision referred only to rents or royalties, the Superior

Court rejected respondents’ contention that the declaratory

judgment should state that Alaska’s statutory scheme must pro-

vide for payment of rents and royalties (id. at 3a-4a). The

Superior Court also rejected respondents’ contention that the

ak i

State must charge rents or royalties that reflect the “fair market

value” of the hard-rock minerals in the land (id. at 4a). The

court reasoned that Section 6(i) was intended to assure the State

Legislature “substantial flexibility and discretion in fashioning

some appropriate leasing system” (ibid.), and it read the

Supreme Court’s opinion to hold only that “the State has to

charge some rents or royalties for extracted minerals, i.e., that

the State was not free to impose no such charges on miners ex-

tracting minerals from state mineral lands” (ibid. (emphasis in

Original)). Finally, the Superior Court denied, as premature,

respondents’ request for an injunction barring the State from

allowing extraction of mineral deposits from covered state lands

after May 15, 1988 if the State Legislature did not enact a leas-

ing system conforming to the Alaska Supreme Court’s inter-

pretation of Section 6(i) by that time (App., infra, Sa-6a).

DISCUSSION

Respondents do not satisfy the standing requirements of Arti-

cle III of the Constitution, and this Court therefore does not

have jurisdiction to entertain the petitions or cross-petition for a

writ of certiorari. In any event, the issues raised by petitioners

do not warrant review. The Supreme Court of Alaska correctly

held that the courts of that State are not precluded by Section

6(i) of the Alaska Statehood Act from entertaining an action

seeking a declaratory judgment regarding the validity of the

State’s hard-rock mining laws under Section 6(i). The courts of

a number of other States have entertained similar suits, and a

declaratory judgment action does not conflict with the Attorney

General’s distinct authority under Section 6(i) to bring an action

for forfeiture of lands or minerals that are disposed of in viola-

tion of that Section. On the merits, the Alaska Supreme Court

reasonably characterized the State’s hard-rock mining laws as

essentially a mineral location rather than a mineral leasing

scheme, reasonably construed the “lease” provision in Section

6(i) to require the payment of at least some rents or royalties for

the extraction of minerals, and reasonably concluded that the

State’s mining laws fail to satisfy that requirement because

Alaska (unlike other western States) does not receive any cash

payments for the extraction of hard-rock minerals. This unani-

mous holding that the State’s own mining laws are inconsistent

with the Alaska Statehood Act presents no issue warranting

review by this Court.

By contrast, we find considerable merit in respondents’ con-

tention in their cross-petition that the Alaska Supreme Court

erred in limiting the “lease” requirement in Section 6(i) to lands

that were known to be mineral in character when they were

selected by the State. However, because respondents request

this Court to grant their cross-petition only if it grants the prin-

cipal petitions, and because we believe that those petitions

should be denied, the cross-petition should be denied as well.

1. Before addressing the questions presented in the petitions

and cross-petition, we shall first address an important threshold

question not raised by the parties: whether respondents have the

Article III standing necessary to permit this Court to review the

decision of the Alaska Supreme Court.* The “core component”

of standing under Article III is that the plaintiff “must allege

personal injury fairly traceable to the defendant’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 for Separation of

Church & State, Inc., 454 U.S. 464, 472 (1982). In our view,

respondents face obstacles under all aspects of this test.

The Superior Court found that respondents “have * * * failed

to establish the requisite individualized harm, direct interest, or

personal stake in the mineral resources being managed under the

statutory scheme challenged here” (Pet. App. A5-A6).

Respondents did not challenge that finding, and the Alaska

* The holding below that respondents’ declaratory judgment action is not

barred by Section 6(i) and that Alaska’s existing hard-rock mining laws are in-

consistent with Section 6(i) would appear to be sufficiently “final” for pur-

poses of this Court’s review under 28 U.S.C. 1257, even though the Supreme

Court remanded for the Superior Court to enter the declaratory judgment and

that judgment on remand addressed several additional issues regarding the

meaning of Section 6(i) that might be relevant to the validity of future amend-

ments to the State’s mining laws. Our only reservation on the finality issue

arises from the fact that neither court below has yet addressed the availability

of injunctive relief, which could raise additional federal issues under Section

6(i). See note 18, supra.

Supreme Court did not overturn it. In fact, the Supreme Court

acknowledged that respondents “assert that they have standing

as citizens or taxpayers, rather than because their interests are

injured” (id. at B9).? Moreover, in holding that respondents

have standing as citizens and taxpayers (id. at B8-B26), the

Alaska Supreme Court did not rely upon the possibility that

Alaska’s hard-rock mining laws might have a financial impact

on the taxpayers who are members or constituents of the

respondent organizations. Rather, it appears that under the

special standing doctrine applied by the Supreme Court, the

mere status of an individual as a citizen or taxpayer is sufficient

to give him a derivative interest or stake in significant legal

issues concerning the performance of state governmental func-

tions. Althought the courts of the States are not barred by the

Federal Constitution from recognizing standing on such a

theory, this Court has consistently held that an individual does

not satisfy the standing requirements of Article III based on

nothing more than his status as a citizen who is interested in the

conduct of his government. Schlesinger v. Reservists Committee

to Stop the War, 418 U.S. 208, 215-221 (1974); United States v.

Richardson, 418 U.S. 166, 171-175 (1974); Doremus v. Board

of Education, 342 U.S. 429, 433-435 (1952); Frothingham v.

* The standing portions of respondents’ brief (at 25-31) and reply brief (at

2-11) in the Alaska Supreme Court discussed only the taxpayer-citizen doctrine

recognized by the Alaska Supreme Court in State v. Lewis, supra, and related

cases. The briefs did assert that respondents had a “personal stake” in the out-

come. But those assertions were made in the framework of the taxpayer-citizen

standing doctrine under state-law precedents, and the “personal stake” that

respondents alleged was entirely derivative of what respondents alleged to be

the State’s interest in realizing income from rental fees and royalties and

avoiding the possible forfeiture of the land. See Appellants’ Br. 25-26, 27;

Reply Br. 2-3, 5 That stake is not “personal” in the sense of being unique to

respondents; it is the interest shared by all taxpayers and citizens of Alaska in

having their state government retain its assets and maximize its income from

those assets.

Respondents also alleged in the Superior Court that their members or

residents used state lands for recreational, commercial and subsistence pur-

poses; that mining adversely affected those uses; and that placer mining

polluted streams used by respondents’ members and residents. Compl.

44 1-12. Neither the Superior Court nor the Alaska Supreme Court referred to

those allegations of injury, and respondents did not rely on them in their briefs

in the Alaska Supreme Court.

ome ee) enone

Mellon, 262 U.S. 447 (1923); cf. Allen v. Wright, 468 U.S. at

754-755, 756 n.21; Valley Forge, 454 U.S. at 482, 489-490 n.26.

Nor have respondents alleged that the State has spent tax

revenues pursuant to a statute in direct contravention of a

specific constitutional (or statutory) provision, such as the

Establishment Clause, that restricts such expenditures. Com-

pare Flast v. Cohen, 392 U.S. 83, 102-103 (1968); see Valley

Forge, 454 U.S. at 479-480; United States v. Richardson, 418

U.S. at 175. In fact, respondents do not challenge the

lawfulness of any taxes or expenditures as such. They merely

object to the failure of the State to collect additional, non-tax

revenues from other persons. If that theory of standing were

adopted, any taxpayer could challenge any actions that have

monetary consequences for the government.

Under Article III, “{t}he injury must be ‘fairly’ traceable to

the challenged action, and relief from the injury must be ‘likely’

to follow from a favorable decision” (Allen v. Wright, 468 U.S.

at 751, quoting Simon v. Eastern Kentucky Welfare Rights

Org., 426 U.S. 26, 38, 41 (1976)). In this case, respondents

neither alleged in their complaint nor argued in the Alaska

Supreme Court that there was a direct correlation between the

amount of income the State receives from hard-rock mining on

state lands and the amount of money that respondents’

members and residents pay in state taxes. Compare Allen v.

Wright, 468 U.S. at 758. Respondents accordingly do not deny

that if the State in the past had received the increased mining

revenues that respondents seek to compel in this suit, it is possi-

ble that the State Legislature would not have amended the

State’s tax code but instead would have used the increased

revenues to furnish additional services, reduce a budget deficit,

or increase a budget surplus. Any “injury” respondents’

members and residents suffer as a result of the current rates of

taxation therefore is not fairly traceable to the challenged action

of the State in failing to charge rents and royalties. See United

States v. Richardson, 418 U.S. at 171-172; Flast v. Cohen, 392

U.S. at 92-93; Frothingham v. Mellon, 262 U.S. at 487-488; see

also Winpisinger v. Watson, 628 F.2d 133, 139(D.C. Cir. 1980).

Nor would respondents necessarily receive relief from that

“injury” as a result of a decision in their favor in this case. To

the contrary, respondents seek an injunction barring all hard-

rock mining on state lands under the existing state

statutes—relief that obviously would not generate additional

revenues. Moreover, even if this suit should cause the State

Legislature to amend the state statutes to impose rents and/or

royalties in the future, many persons holding mining claims

might forgo mining rather than make the payments. Compare

Allen v. Wright, 468 U.S. at 758-759; Eastern Kentucky

Welfare, 426 U.S. at 40-46. And even if some claimants did con-

tinue to mine, the increased revenues might not lead to lower

taxes.

In sum, the decision of the Supreme Court of Alaska in this

case was, for federal jurisdictional purposes, essentially an ad-

visory opinion. That opinion might provide useful guidance to

the Alaska Legislature as it seeks to conform its hard-rock min-

ing laws to Section 6(i) of the Alaska Statehood Act, just as the

1981 Opinion of the Attorney General of Alaska led the Alaska

Legislature to amend the State’s hard-rock mining laws in 1981

and 1982 (see pages 7-9, supra). But the opinion is not subject to

review here. This Court held in Doremus (342 U.S. at 434):

We do not undertake to say that a state court may not

render an opinion on a federal constitutional question even

under such circumstances that it can be regarded only as

advisory. But, 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 procedure which

does not constitute such.

See also Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804

(1985); Secretary of State of Maryland v. J.H. Munson Co., 467

U.S. 947, 954 & n.4 (1984); Revere v. Massachusetts General

Hosp., 463 U.S. 239, 243 (1983). We therefore suggest that the

Court deny certiorari because of this jurisdictional defect, as

well as for the other reasons set forth below. If the Court denies

review, then in any future suit in federal court—including a

forfeiture action brought by the Attorney General of the United

States — both petitioners and respondents presumably would be

free to relitigate the issues of federal law that were addressed by

the Alaska Supreme Court in this case, since the district court in

any such suit could not accept a proceeding in state court that

did not constitute a case or controversy “as the basis for con-

clusive disposition of an issue of federal law” (Doremus, 342

U.S. at 434). See P. Bator, et al., Hart & Wechsler’s The Federal

Courts and the Federal System 128-129 (1973); cf. Fidelity Nat’l

Bank & Trust Co. v. Swope, 274 U.S. 123, 130-131 (1927).'°

2. Petitioners’ principal contention in this Court is that the

state courts should not have entertained this suit, because

respondents do not have an “implied right to action” under the

Alaska Statehood Act to enforce the “lease” requirement of Sec-

tion 6(i) and because the authorization for the Attorney General

of the United States to bring a forfeiture action implicitly

forecloses all private suits arising under Section 6(i). 87-206 Pet.

20-33; 87-205 Pet. 6-9. Both arguments fail.

a. We may assume for present purposes that, under the ap-

proach followed by this Court in Cort v. Ash, 422 U.S. 66, 78

(1975), and its progeny (see, e.g., Thompson v. Thompson, No.

86-964 (Jan. 12, 1988), slip op. 4-5), respondents do not have an

implied private right of action under Section 6(i) that could be

brought in federal district court under the general grant of

federal question jurisdiction, 28 U.S.C. 1331. See Pet. App.

A8-A9. Thus, we may assume that Section 6(i) was not enacted

'0 It has been suggested that the language in Doremus quoted in the text

could be read to mean that dismissal of the petition or appeal is appropriate

only if the state supreme court rejected the federal constitutional challenge in a

proceeding in which the plaintiff did not satisfy Article III’s standing re-

quirements, and that this Court properly could vacate a state court decision

that sustained the federal constitutional challenge in such a proceeding. See

Barnes v. Kline, 759 F.2d 21, 63 n.16 (D.C. Cir. 1984) (Bork, J., dissenting),

vacated as moot, No. 85-781 (Jan. 14, 1987); L. Tribe, American Constitu-

tional Law 114 n.20 (2d ed. 1988). We disagree. In our view, the Doremus

passage makes clear that a federal court will not give preclusive effect to the

unreviewed state court decision in a future case, not that this Court could

vacate the state court decision on direct review in the samme case, despite the

absence of a case or controversy. The latter suggestion would have been incon-

sistent with the Court’s explicit disclaimer of any suggestion that a state court

is barred from rendering an advisory opinion on a federal constitutional ques-

tion where Article III standing is lacking. 342 U.S. at 434.

for the special benefit of respondents or their members and

residents, that the indicia of legislative intent do not reveal an

affirmative congressional purpose to provide a private right of

action under federal law, that a federal cause of action would

not further the purposes underlying Section 6(i), and that re-

spondents’ cause of action is typically relegated to state law.

Compare Merrell Dow Pharmaceuticals, Inc. v. Thompson,

No. 85-619 (July 7, 1986), slip op. 6-7. But the absence of a right

to sue directly under federal law in federal court does not sug-

gest that the state courts erred in entertaining this suit.

The Alaska Supreme Court did not hold that respondents

have an implied private cause of action, as a matter of federal

law, directly under Section 6(i). In fact, the Alaska Supreme

Court did not discuss this Court’s implied-right-of-action cases.

Nor, as the State concedes (87-206 Pet. 31), did respondents

assert that federal law afirmatively granted them a cause of ac-

tion in the Superior Court; instead, respondents relied on the

authority of that court, as one of general jurisdiction (see

Alaska-Stat. § 22.10.020(a) (1982)), to grant relief to the citizens

of Alaska who are injured by the State’s violation of federal

law. See Appellants’ Alaska Sup. Ct. Br. 31-32''; Reply Br. 6-9.

In other words, respondents argued (and the Alaska Supreme

Court apparently agreed) that state law provided respondents

with a cause of action to challenge the validity of the State’s

hard-rock mining laws and to seek a declaratory judgment

regarding the meaning of Section 6(i).

Because the Alaska Supreme Court did not purport to find a

right of action under federal law, petitioners’ contention cannot

be that that Court misapplied this Court’s implied-right-of-

action precedents. Rather, it is that the Alaska Supreme Court

'! Quoting Jn re C.D.M., 627 P.2d 607, 610 (Alaska 1981) (emphasis in

Original):

Where a court is one of general jurisdiction, such as the superior court in

the case at bar, it has traditionally been regarded as having the power to

hear all controversies which may be brought before a court within the

legal bounds of rights or remedies, except insofar as has been expressly

and unequivocally denied by the state’s constitution or statutes.

Accord Siggelkow v. State, 731 P.2d 57, 61 (Alaska 1987). The Superior Court

has broad authority to issue declaratory judgments. See Alaska Stat.

§ 22.10.020(b); Jefferson v. Asplund, 458 P.2d 995 (Alaska 1969).

should have applied Cort v. Ash and its progeny, and that had it

done so, it would have found that respondents do not have a

cause of action under Section 6(i). See 87-206 Pet. 27-31; 87-206

Reply Br. 4-14; 87-205 Pet. 7-9. However, Cort v. Ash and this

Court’s other implied-right-of-action cases over that last fifteen

years, including those cited by petitioners, all involved the ques-

tion whether a plaintiff could bring an action in federal court

based on a violation of a federal statute.'? Petitioners cite no

authority (and we are aware of none) for the proposition that

Cort v. Ash and its progeny also restrict the power of a state

court to entertain a state-created cause of action that includes as

an element the violation of a federal statute. In fact, Merrell

Dow demonstrates otherwise.

The plaintiffs in Merrell Dow brought a state-law tort suit in

state court, seeking damages based on the alleged mislabeling of

a drug in violation of the Federal Food, Drug, and Cosmetic

Act (FDCA), 21 U.S.C. (& Supp. IV) 301 et seq. Merrell Dow,

slip op. 1-2. The Court assumed that the FDCA did not grant

the plaintiffs an implied cause of action that could be brought in

federal court under 28 U.S.C. 1331 (slip op. 6-7), and the Court

held that the plaintiffs’ state-law cause of action likewise could

not be removed to federal court merely because of the presence

of a federal issue (the alleged violation of the FDCA) (id. at 1, 7,

10). However, the Court made clear that the plaintiffs could

proceed with their suit in state court, even though they sought to

recover damages based on a violation of the FDCA in cir-

cumstances where the FDCA itself did not provide an implied

right of action for damages (id. at 11-12 & n.14; id. at 15

'? See, e.g., National Railroad Passenger Corp. v. National Ass’n of

Railroad Passengers, 414 U.S. 453 (1974); Cannon v. University of Chicago,

441 U.S. 677 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560 (1979);

Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11 (1979); Univer-

sities Research Ass'n, Inc. v. Coutu, 450 U.S. 754 (1981); Northwest Airlines,

Inc. v. Transport Workers, 451 U.S. 77 (1981); California vy. Sierra Club, 451

U.S. 287 (1981); Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S.

630 (1981); Middlesex County Sewerage Auth. v. National Sea Clammers

Ass'n, 453 U.S. 1 (1981); Jackson Transit Auth. v. Transit Union, 457 U.S. 15

(1982); Daily Income Fund, Inc. v. Fox, 464 U.S. 523 (1984); Massachusetts

Mutual Life Ins. Co. v. Russell, 473 U.S. 134 (1985); Merrell Dow Phar-

maceuticals, Inc. \. Thompson, supra; Thompson v. Thompson, supra.

(Brennan, J., dissenting)). See also Thompson v. Thompson,

supra (no implied right of action in federal court to enforce full-

faith-and-credit rules in custody disputes, although rules must

be enforced in state court); Crane v. Cedar Rapids & Iowa City

Ry., 395 U.S. 164, 166-167 (1969) (nonemployee’s remedy for

violation of Safety Appliance Act is state common-law tort suit,

brought in state court and subject to state defenses and stand-

ards of causation); Moore v. Chesapeake & O. Ry., 291 U.S.

205 (1934) (same); Hart & Wechsler, supra, at 488 (“federal law

does not create the cause of action” under Crane and Moore).

Accordingly, petitioners err in relying on this Court’s decisions

concerning the availability of an implied cause of action in

federal court.!?

b. The relevant question for present purposes therefore is

not whether Congress has affirmatively granted respondents a

right to sue directly under Section 6(i) of the Statehood Act, but

whether Congress has affirmatively foreclosed the state courts

from entertaining a state-created cause of action in which the in-

terpretation of Section 6(i) is at issue—i.e., whether the state

cause of action is preempted by the Statehood Act. Compare

Moore, 291 U.S. at 216 (proper question is whether federal

statute “precludes” incorporation of federal safety standard into

state law). In our view, the Alaska Supreme Court correctly held

that Section 6(i) does not bar this declaratory judgment action

in state court. See Pet. App. B26-B31.

'3 For the same reason, Alaska also errs in relying on three appellate deci-

sions finding no implied private right of action in federal court to enforce the

provisions of two statehood Acts. See 87-206 Pet. 23-25, citing Keaukaha-

Panaewa Community Ass’n v. Hawaiian Homes Comm’n, 588 F.2d 1216 (9th

Cir. 1978), cert. denied, 444 U.S. 826 (1979); Price v. Hawaii, 764 F.2d 623,

631 (9th Cir. 1985), ce. * sted, 474 U.S. 1055 (1986); Downer v. Graham, 21

F.2d 732 (8th Cir. 1927). is «he “rst two of these cases, the Ninth Circuit ap-

plied the Cort v. Ash anatysis. Downer arose prior to Cort v. Ash. Although

language in Downer suggests that restrictions in the Arizona-New Mexico

Enabling Act (ch. 310, 36 Stat. 557) could not be enforced in a suit brought by

a private party against a state official, that Act could not be read to foreclose

such a suit in state court: as Alaska points out (87-206 Pet. 26 n.7), Section 28

of that Act (36 Stat. 575), which was not mentioned in Downer, expressly

preserves the power of the State or any of its citizens to enforce the Act. See

pages 23-24, infra.

Preemption of state law of course “ ‘is not favored “in the

absence of persuasive reasons—either that the nature of the

regulated subject matter permits no other conclusion, or that

the Congress has unmistakably so ordained.” ’ ” Common-

wealth Edison Co. v. Montana, 453 U.S. 609, 634 (1981) (cita-

tions omitted); see also Hillsborough County v. Automated

Medical Laboratories, Inc., 471 U.S. 707, 715 (1985). A court

should be especially reluctant to find preemption here. This is

not a routine state-law damages action between private parties

in a commercial or other context that is actively and pervasively

regulated by federal law, such that entertaining a cause of action

in state court might disarrange the federal regulatory scheme.

This case, rather, involves the power of a State to confer on its

citizens the right to invoke the jurisdiction of the state courts to

sue the State-itself, concerning the State’s administration of vast

expanses of land that were granted to it by Congress for the

maintenance of the state government and the ultimate benefit of

its citizens. Respondents’ suit does not intrude upon any active

and pervasive regulatory scheme of the Federal Government,

which has no continuing jurisdiction over the more than

100,000,000 acres granted to the State; respondents seek merely

to enforce certain requirements that were imposed directly on

the State by the Statehood Acct itself. It would be ironic indeed if

the Statehood Act, whose very purpose was to accord sovereign

status to the newly admitted State, were construed implicitly to

withdraw from the State so central a sovereign prerogative as

the power to permit its citizens to petition their government,

through its courts,'* for redress of grievances concerning an en-

tire subject matter of such importance to the State and its peo-

ple.'5

Petitioners point to no evidence that Congress intended that

extraordinary result. Moreover, the courts of a number of

States have entertained suits by taxpayers and other alleging

'4 Cf. Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983);

California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510

(1972).

'S The Supreme Court of Alaska similarly observed that “[i]t would be

unusal in the extreme if a state court could not construe the meaning of its

state’s Statehood Act” (Pet. App. B31).

that actions by state officials with respect to lands granted by a

statehood act are inconsistent with the statehood act. See, e.g.,

Springfield Township v. Quick, 63 U.S. (22 How.) 56 (1860)

(plaintiff township’s citizens were beneficiaries of school land

grant); Kadish v. Arizona State Land Dep’t, 747 P.2d 1183

(Ariz. 1987) (taxpayer plaintiffs); Merkwan v. State by and

through Janklow, 375 N.W.2d 624 (S.D. 1985) (taxpayer);

Kanaly v. State by and through Janklow, 368 N.W.2d 819 (S.D.

1985) (taxpayers and citizens); County of Skamania v. State,

102 Wash. 2d 127, 685 P.2d 576 (1984) (county beneficiary of

school land grant); Oklahoma Education Ass’n v. Nigh, 642

P.2d 230 (Okla. 1982) (education association); State ex rel.

Hughes v. State Board of Land Commissioners, 137 Mont. 510,

515-519, 521-523, 353 P.2d 331, 335-336, 338 (1960) (apparently

a citizen); Toomey v. State Board of Land Commissioners, 106

Mont. 547, 559-563, 81 P.2d 407, 413-415 (1938) (taxpayer);

State ex rel. Ebke v. Board of Educational Land & Funds, 154

Neb. 244, 47 N.W.2d 520 (1951) (disappointed lease applicant);

Ross v. Trustees of University of Wyoming, 30 Wyo. 433, 222

P. 3 (1924) (university that was beneficiary of school land

grant).

Contrary to petitioners’ contention (87-206 Pet. 19, 26-30),

there is no reason to believe that Congress intended a different

and unique rule in Alaska simply because Section 6(i) authorizes

the Attorney General of the United States to bring an action for

forfeiture of any lands or minerals that are disposed of contrary

to Section 6(i). Petitioners cite no legislative history suggesting

that this authorization was intended to preclude other litigation,

in state court, concerning the meaning of Section 6(i).'® It is, in

'¢ The potential breadth of petitioners’ preclusion argument is unclear. For

example, in a suit under a state equivalent of the Administrative Procedure

Act (5 U.S.C. (& Supp. IV) 701 ef seq.), a disappointed applicant might wish

to challenge the state agency’s award of a mining permit or lease to another ap-

plicant on the ground that it failed to comply with state standards as well as

Section 6(i); could Congress have meant to foreclose the state court from con-

sidering the federal issue in the action for judicial review? If land was

mistakenly conveyed to a private party without reservation of mineral interests

to the State, would the Attorney General of Alaska be barred from bringing

an action in state court to cancel the patent on the ground that it was void

under Section 6(i)? Would the state courts be barred from entertaining a quiet

title action between private parties where the issue of ownership turned on a

construction of Section 6(i)?

“nares

fact, most unlikely that Congress intended to divest the state

courts of their authority to guide the State in the performance

of its trust responsibilities (cf. United States v. Mason, 412 U.S.

391, 399 (1973)) and instead to vest the Attorney General of the

United States with the exclusive (and paternalistic) responsibili-

ty to oversee all aspects of the State’s performance.

Nor does private litigation—and especially a declaratory

judgment action—interfere with the Attorney General’s en-

forcement authority under Section 6(i), any more than the opin-

ions of the Attorney General of Alaska in 1981 and 1982 con-

struing Section 6(i) interfered with that authority. Forfeiture

under Section 6(i) obviously was intended as an ultimate sanc-

tion to protect the interests of the United States if the restric-

tions it imposed are violated; respondents, by contrast, seek to

prevent a violation of those restrictions from occurring and

thereby to avoid any occasion for forfeiture, so that the land

may be preserved for the State and its citizens, as Congress in-

tended (Pet. App. B25-B26). Fhe Attorney General does not

have the resources necessary to monitor the administration and

disposition of the millions of acres of land that were granted to

the States. Suits by private parties and beneficiaries of the trusts

can furnish an important means for ensuring that the limitations

imposed by Congress are respected. Compare Cannon v.

University of Chicago, 441 U.S. at 687-688 n.8, 704-708

(discussing the relationship between private suits to enforce

anti-discrimination provisions and fund-termination actions by

federal agencies).'’

In addition, in the Arizona-New Mexico Enabling Act, which

was the last statehood act passed by Congress prior to the

Alaska Statehood Act, Congress authorized the Attorney

General to bring any action (not merely one seeking forfeiture)

to enforce its provisions and expressly provided that nothing in

the Act “shall be taken as in limitation of the power of the state

'7 For similar reasons, there is no reason to believe that Congress would

have wanted the federal courts to have exclusive jurisdiction over suits under

Section 6(i). See 87-205 Pet. 10-11, citing Gulf Offshore Co. v. Mobil Oil

Corp., 453 U.S. 473 (1981). As this case demonstrates, state courts are not in-

hospitable to federal claims under Section 6(i), and there is no distinct need for

uniformity or for the expertise of federal judges. See 453 U.S. at 483-484.

ht OOOO eo

or of any citizens thereof to enforce the provisions of this Act”

(§ 28, 36 Stat. 575). This provision sanctions the availability of

whatever remedies might be afforded outside the Enabling Act;

it does not confer a right directly under that Act, as Alaska con-

tends (87-206 Pet. 26 n.7). There is no reason to believe that

Congress intended to treat the State and citizens of Alaska any

differently, by foreclosing a right action that would otherwise

be available in the courts of Alaska concerning lands granted by

the Alaska Statehood Act.'®

3. In addition to arguing that the state courts were without

authority to entertain this suit, petitioners also contend (87-206

Pet. 33-38; 87-205 Pet. 12-13) that the Alaska Supreme Court

erred in holding that the State’s hard-rock mining laws do not

satisfy the “lease” requirement in Section 6(i) because they do

not provide for payment of cash rental fees or royalties to the

State. In our view, however, the Alaska Supreme Court’s

unanimous ruling on this issue is correct, and indeed petitioners

offer virtually no rebuttal to that Court’s extensive analysis. For

this reason, and because the ruling below does not conflict with

the decision of any other state or federal court, review on this

issue is not warranted.

'8 The State relies (87-206 Pet. 21-22) on a passage in Mills County v.

Railroad Cos., 107 U.S. 557 (1883), that discussed the requirement in the

Swamplands Act that the proceeds of the States’ sales be used for reclamation

of such lands; the Court stated that whether that condition was faithfully per-

formed was “a question between the United States and the States, and is

neither a trust following the lands, nor a duty which private parties can en-

force as against the State” (107 U.S. at 566). Mills County did not purport to

lay down a general rule that all statutory grants to the States are unenforceable

in suits by private parties; the decision turned in part on the Court’s conclusion

that the particular grant there at issue committed expenditures largely to the

State’s discretion, as evidenced by the directive to use the funds for reclama-

tion “as far as necessary.” See Hagar v. Reclamation Dist. No. 108, 111 U.S.

701, 713 (1884). Here, in contrast to Mills County, the “lease” requirement in

Section 6(i) is not discretionary, and the grant of 103,000,000 acres to Alaska

pursuant to the Statehood Act did create a relationship in the nature of a trust.

In addition, the state courts in this case have so far awarded only declaratory

relief; they have not yet actually “enforced” Section 6(i) by granting injunctive

relief. Finally, Mills County arose prior to Congress’s express recognition of

private suits to “enforce” restrictions on federal grants to the States when it

enacted the Arizona-New Mexico Enabling Act in 1910.

ee fev

a. Use of the term “lease” in Section 6(i) itself suggests a re-

quirement that the State realize at least some revenue, because

“{t]he legal understanding of a lease for years is, a contract for

the possession and profits of land for a determinate period, with

the recompense of rent.” United States v. Gratiot, 39 U.S. (14

Pet.) 526, 538 (1840). This interpretation of Section 6(i) is rein-

forced by the various factors identified by the Alaska Supreme

Court: (1) the legislative history demonstrating that Section 6(i)

was intended to assure financial support for the State (Pet.

App. B51-B67); (2) the parallel drawn in the legislative history

between the “lease” requirement in Section 6(i) and the Mineral

Lands Leasing Act of 1920, which requires payment of both

rentals and royalties (Pet. App. B64-B65 & n.27)!9%; (3) the pat-

terning of Section 6(i) after the 1927 School Lands Act, which

expressly contemplates that the States will realize “proceeds and

rents and royalties” from the leasing of mineral lands (43 U.S.C.

870(b); see Pet. App. B29-B30, B39-B43, B63-B64); and (4) the

fact that Section 6(i) was intended to put Alaska on a par with

other western States, which uniformly require the payment of

rents and/or royalties (see Pet. App. B63 n.25, B65-B66,

quoting 3 American Law of Mining § 63.05[4][d] (Rocky Mtn.

Min. L. Inst. 2d ed. 1987)).?°

b. In addition, the history of the State’s hard-rock mining

laws (see pages 2-7, supra) demonstrates that they were not

enacted with a view toward complying with the basic re-

quirements of the “lease” provision in Section 6(i). Congress

deliberately declined to authorize mining under a mineral loca-

tion system, as petitioner AMA and many delegates to the

Alaska Constitutional Convention had urged. See pages 4-6,

supra; Pet. App. B34-B36 & n.16, B39-B54. Nonetheless, the

Alaska Legislature enacted the State’s hard-rock mining laws in

1959 as a mineral location system, not a mineral leasing system.

'9 See also 1957 Hearings, supra note 2, at 222-223 (witness for petitioner

AMA acknowledges tiiat under the “mandatory leasing” provisions of Section

6(i), a lease “would be probably on a royalty basis”).

20 See, e.g., Ariz. Rev. Stat. Ann. § 27-234 (Supp. 1987); Colo. Rev. Stat.

§ 36-1-113 (Supp. 1987); Idaho Code § *7-704 (Supp. 1987); Mont. Code

Ann. §§ 77-3-115, 77-3-116 (1988); Nev. Rev. Stat. § 322.030 (1985); N.M.

Stat. Ann. §§ 19-8-21, 19-8-22 (1985); Utah Code Ann. § 65-1-18 (1986).

And the Legislature followed that course not on the premise

that a location scheme complied with Section 6(i), but on the

premise that the “lease” requirement in Section 6(i) was inap-

plicable, except in those limited instances in which selected lands

were subsequently sold (for which the Legislature authorized a

special leasing scheme) See pages 6-7, supra.

The Attorney General of Alaska concluded in 1981 that the

State’s original interpretation of the “lease” requirement in Sec-

tion 6(i) was incorrect and that it applies to all mineral lands

selected by the State. See page 7, supra. It is that Attorney

General’s opinion, not the decision of the Alaska Supreme

Court in this case, that unsettled whatever expectations mining

interests and others in Alaska might have had. Yet the State

Legislature accepted that interpretation when it amended the

State’s hard-rock mining laws in 1981, and that interpretation is

not at issue here. The 1981 amendments now do provide for

mineral “leases” on all selected lands that were known to be

mineral in character when they were selected by the State; but

those amendments have never been invoked, because the State

has never made the requisite formal finding that any particular

tract was known to be mineral in character when it was selected.

See pages 7-8, supra. Moreover, the Alaska Supreme Court con-

cluded in this case that any leases issued under those provisions

would be “in substance indistinguishable from state mining

locations” (Pet. App. B70-B71 (footnote omitted)), because the

right to lease is «s*aditioned upon a mining location, because no

royalties are charged for the extraction of minerals, and because

the annual rent is set at the amount of labor required to main-

tain a mining location for the same claim (id. at B68-B70).

Thus, the holding below rests in large part on the Alaska

Supreme Court’s determination that the State Legislature in-

tended to and did enact what is fundamentally a mineral loca-

tion system for hard-rock minerals—the very approach Con-

gress rejected when it enacted Section 6(i). We have no reason to

disagree with this assessment by the Alaska Supreme Court of

the Alaska Legislature’s actions.

c. Petitioners rely on a statement in a 1955 memorandum

prepared by a Mr. Slaughter of the Solicitor’s Office in the

Department of the Interior on the then-pending statehood bill

(see Pet. App. C1-C11), which stated that what is now Section

6(i) “ ‘does not attempt to prescribe maximum or minimum

rates of royalty’” and that it “ ‘leave[s] the terms of leasing

wholly to the discretion of the state legislature’ ” (87-206 Pet.

35-36, quoting Pet. App. C15). Based on this passage, the State

argues (87-206 Pet. 36) that there are no restraints on the Alaska

Legislature in fashioning laws governing the disposition of

minerals (beyond the prohibition against issuing a patent for the

minerals). The Alaska Supreme Court correctly rejected a broad

reading of the Slaughter memorandum that would suggest that

the State need not collect any rents or royalties — especially since

the memorandum also states that “ ‘Alaska should not be ac-

corded greater freedom in the administration of mineral lands

than that accorded existing States having Congressional land

grants’ ” (Pet. App. B69 n.29, quoting id. at C5; see also id. at

C10): other States are governed by the 1927 School Lands Act,

which expressly contemplates the receipt of proceeds and rents

and royalties from mineral leasing. See page 25 and note 20,

supra.?' The Alaska Supreme Court also reasonably concluded

that a mining claimant’s performance of $200 worth of labor an-

nually to maintain his mining claim does not satisfy the require-

ment under Section 6(i) that the State receive at least some rents

or royalties from mineral leasing. As the Alaska Supreme Court

observed, annual labor is required under mineral location laws

“to ensure that the claim is worked so that the miner does not

locate numerous claims and obtain the right to exclude others”;

it “is not a source of revenue to the landowner” (Pet. App. B70,

citing Chambers v. Harrington, 111 U.S. 350, 353 (1884)).

d. Neither the Alaska Supreme Court nor the Superior

Court on remand prescribed a specific amount of rents or

royalties that must be paid pursuant to a lease under Section

6(i). They properly left determination of the amount to the

Alaska Legislature in the first instance, now that Alaska’s

Supreme Court has disabused its Legislature of the notion that

Section 6(i) permits the State to retain a statutory scheme that

2! Moreover, under this interpretation, Alaska presumably would be free,

as a matter of federal law, to dispense with the payment of rents and royalties

for the extraction of oil and gas from the substantial reserves underlying lands

granted to the State by the Statehood Act.

is, in substance, a mineral location system, rather than a true

“lease” system. Resolution of any questions concerning the per-

missible contours of a true “lease” system under Section 6(i)

should await future amendments by the Alaska Legislature.

4. There is considerable force to respondents’ contention in

their cross-petition (87-371 Cross-Pet. 9-20) that the Alaska

Supreme Court erred in holding that Section 6(i) applies only to

lands that were known to be mineral in character when they

were selected by Alaska (Pet. App. B71-B84). Section 6(i) states

that “[aJll grants” made by the Act “shall include mineral

deposits”; that the grants under Section 6(a) or (b) are made on

the condition that all dispositions shall be subject to a reserva-

tion of mineral interests to the State; and that “[{mlineral

deposits in such lands shall be subject to lease by the State as the

State legislature may direct.” There is no indication that this all-

inclusive language was intended to apply only to those lands

whose mineral character was known when they were selected.

To the contrary, as respondents point out (87-371 Cross Pet.

16-17), a provision that would have required the mineral

character of the land to be determined when the patent issued to

the State was deleted by the House Committee. See Pet. App.

B79-B82. Moreover, the underlying purpose of Section 6(i)—to

furnish a substantial financial base for the State — suggests that

its all-inclusive language means what it says.

Despite the reference in the first sentence of Section 6(i) to the

inclusion of mineral deposits in “[aJll grants,” the Alaska

Supreme Court held that deposits unknown at the time of selec-

tion were not covered by Section 6(i) and instead were included

in the grants of land made by Section 6(a) or (b). The Court

reasoned that lands that were not known to be mineral in

character were included in the original grants of school sections

to other States and that the purpose of the i927 Act, on which

Section 6(i) was based, was only to include known mineral lands

in those grants. See Pet. App. B43-B45, B72-B76. In those other

States, however, the exclusion from the 1927 Act of lands whose

mineral character was not known at the time of statehood did

not reflect a decision by Congress to exempt the mineral

deposits in such lands from ail/ restrictions on their use and

disposition. Lands whose mineral character was unknown at the

time of statehood were not covered by the 1927 Act because

earner tinea

they were already part of the original grant of school lands

made by the relevant statehood Act itself (cf. United States v.

Wyoming, 255 U.S. 489, 500-501 (1921); United States v. Sweet,

245 U.S. 563, 572-573 (1918)); for this reason, any mineral

deposits that were later discovered in such lands while they re-

mained in state ownership presumably were already subject to

the requirements in the relevant statehood Act that the lands be

held in trust and be disposed of for school purposes. By con-

trast, the Alaska Supreme Court’s decision limiting the reach of

Section 6(i) appears to have the effect of excluding mineral

deposits in lands whose mineral character was not known at the

time of selection from a// restrictions, and of allowing the States

to give away the hard-rock minerals in such lands — unless Sec-

tion 6(a) or (b) of the Statehood Act also imposes a trust obliga-

tion on the State to exact some rental or royalty payments for

the extraction of minerals from lands selected by the State pur-

suant to those provisions.

Of course, even if the application of Section 6(i) does not turn

solely on knowledge concerning the mineral character of par-

ticular land at the time it was selected (or the patent was issued

(see Pet. App. B84 n.33)), the State might be free to classify

land definitively as either mineral or non-mineral at a later date,

such as immediately prior to a proposed sale or lease. But it does

not necessarily follow that Section 6(i) should be construed to

exclude lands in which mineral#deposits are discovered by a

mining claimant prior to such a formal classification and prior

to any sale, lease or other disposition by the State, simply

because those deposits were not identified at the time the lands

were selected by or patented to the State, perhaps many decades

earlier.

We do not propose here a definitive view of the proper inter-

pretation of Section 6(i) in this regard. Respondents have filed

their cross-petition on a conditional basis, urging that it be

granted only if the Court grants the principal petitions filed by

the State and the Alaska Miners Association. See 87-371 Cross

Pet. 9-10; Trustees Br. in Opp. 10 n.3. Because we believe that

the principal petitions should be denied, we submi: that the

cross-petition should be denied as well (see this Court’s Rule

20.5). That course would permit the Alaska Legislature to ad-

dress the issues raised by the cross-petition when it considers

whatever amendments to the State’s mining laws it believes are

required by the Alaska Supreme Court’s decision on the other

issues in the case.

CONCLUSION

The petitions and cross-petition for a writ of certiorari should

be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

ROGER J. MARZULLA

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

PETER R. STEENLAND, JR.

Attorney

May 1988

APPENDIX

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT

Case Civ. No. 3AN-83-9862

TRUSTEES FOR ALASKA; NUNAM KITLUTSISTI; DINYEA

CORPORATION; VILLAGE OF MINTO; ALASKA INDEPENDENT

FISHERMEN’S MARKETING ASSOCIATION; ALASKA CENTER

FOR THE ENVIRONMENT; SOUTHEAST ALASKA

CONSERVATION COUNCIL; FRIENDS OF THE EARTH,

PLAINTIFFS

vs.

STATE OF ALASKA; ALASKA DEPARTMENT OF NATURAL

RESOURCES, ESTHER WUNNICKE, COMMISSIONER,

DEPARTMENT OF NATURAL RESOURCES, DEFENDANTS

ALASKA MINERS ASSOCIATION, FAIRBANKS NORTH STAR

BOROUGH, JOSEPH VOGLER, DEFENDANTS —INTERVENORS

ORDER

1. Procedural Background

The issues presented in this action were originally addressed

by this Court through rulings on cross-motions for summary

judgment. Such rulings were then appealed to the Alaska

Supreme Court, which reversed this court’s rulings, and held

that the parties had standing to litigate the issues herein, that the

state’s mineral leasing system violated Section 6(i) of the

Statehood Act insofar as it did not require miners to pay “rents

or royalties” on mining leases, and that the Section 6(i)

restrictions applied only to those lands known to have been

mineral in character at the time the lands were selected by the

state. Trustees for Alaska v. State, 736 P.2d 324 (Alaska 1987).

The Alaska Supreme Court then remanded this action to this

Court with the express direction to “enter a declaration in

(la)

accordance with [its] opinion and for such other and further

proceedings as may be appropriate.” Jd. at 342.

Pursuant to such remand, and on May 24, 1987, this Court

ordered plaintiffs Trustees for Alaska to submit a proposed

order and declaratory judgment form consistent with the Alaska

Supreme Court’s aforementioned decision. Plaintiffs submitted

such proposed order on July 10, 1987, and thereafter, defend-

ant State and defendant-intervenors Alaska Miners Association

opposed the order, objecting to specific portions thereof.

Meanwhile, defendant State and defendant-intervenor sought

further appellate review of the Alaska Supreme Court’s decision

by filing petitions for writs of certiorari with the United States

Supreme Court. Plaintiff Trustees subsequently filed a cross-

petition for a writ of certiorari. The parties’ various petitions are

still pending at this time.

Given the pending petitions before the United States Supreme

Court, defendant and defendant-intervenor filed a Motion to

Suspend Proceedings with this Court on September 11, 1987,

essentially seeking a stay of further proceedings before this

Court until such time as the United States Supreme Court acted

upon the pending petitions.

Arguments on plaintiffs’ proposed declaratory judgment

form and order, and defendants’ Motion to Suspend Pro-

ceedings were heard by this Court on October 28, 1987. In the

instant order, the Court rules on the parties’ objections,

arguments and motion as set forth below.

2. Defendants’ Motion to Suspend Proceedings.

Defendants’ motion is denied.

This court interprets the Alaska Supreme Court’s instructions

on remand to be a direct order from the appellate court to the

lower court to take certain action. Thus construed, this Court

concludes that it has no discretion to refrain from following the

appellate court’s direction, and that it is obliged to attempt to

implement, in good faith, the order of the higher court. Accord-

ingly, this Court has held “such other and further proceedings”

on plaintiffs’ proposed order and declaratory judgment form,

and defendants’ objections thereto, and has issued a declaratory

judgment which the Court believes to be consistent with the

Alaska Supreme Courts’ decision in this case. In this Court’s

view, any request by any party to stay or “suspend” the im-

plementation of the Alaska Supreme Court’s decision, pending

action by the United States Supreme Court on the parties’ peti-

tions for writs of certiorari, should be addressed to the Alaska

Supreme Court.

3. Proposed Deciaratory Judgment Form and Injunction.

The Court has issued a revised version of plaintiffs’ proposed

declaratory judgment form. The parties’ objections, and the

Court’s revisions, are addressed separately below.

a. “Rents or Royalties”

Plaintiffs’ proposed declaratory judgment contains the

language “rents and royalties.” Plaintiffs argue such language

reflects the essence of the Alaska Supreme Court’s holding, and

that the Court intended that the State is not free to adopt one

form of compensation to the exclusion of the other. Defendants

contend that the Alaska Supreme Court used the language

“rents or royalties” with precision in its appellate decision, and

that the Court is, in effect, giving defendant State the discretion

to fashion whatever compensation system it deems appropriate.

This Court agrees with defendants’ interpretation of the

Alaska Supreme Court’s decision. In its Opinion, the Alaska

Supreme Court discusses “the leasing systems of other states”,

noting that they differ from the federal leasing system but that

they are “uniform in requiring the payment of rent, or royalties,

or both.” Jd. at 338. (Emphasis added). The Supreme Court

went on to acknowledge and discuss that such state leasing

systems can be categorized into two types: one which requires

the payment of both rents and royalities, but which credits the

former against the latter or which ceases rent payments when

the payment of royalties begins; and the second which separate-

ly requires the payment of both rents and royalties, independent

of one another. /d. In construing Section 6(i) of the Statehood

Act, the Court considered such differing mineral leasing systems

of other states and concluded that Section 6(i) “mandates a

system under which the states must receive rent or royalties for

its mineral leases.” Jd. (Emphasis added). This Court concludes

that, in using such language, the Alaska Supreme Court in-

tended to give the State the flexibility to fashion whichever leas-

ing system it chose—whether allowing the crediting of rents

against royalties or requiring the payment of both rents and

royalties. The only thing which the State is not free to do,

however, is to adopt a system which charges no rents or

royalties for the extraction of minerals from state mineral lands.

Id. at 338 n. 29.

In this Court’s view, the Alaska Supreme Court carefully

chose, and intended to use, the precise language “rents or

royalties.” Accordingly, this Court has used such language in

the declaratory judgment issued herewith.

b. “Fair Market Value”

Plaintiffs’ proposed declaratory judgment form suggests, and

defendants object thereto, that the leasing system adopted by

defendant State must charge rents or royalties reflective of the

“fair market value of the hardrock mineral resources” of the

State.

As noted above, this Court interprets the Alaska Supreme

Court’s decision in this case as recognizing that the State has

substantial flexibility and discretion in fashioning some ap-

propriate leasing system requiring the payment of “rents or

royalties” for the extraction of minerals. The Alaska Supreme

Court did not mandate that a particular valuation approach

must be used by the State in setting such “rents or royalties.”

Rather, the only requirement imposed upon the State, by the

Alaska Supreme Court as this Court interprets the appellate

decision, was that the State has to charge some rents or royalties

for extracted minerals, i.e., that the State was not free to impose

no such charges on miners extracting minerals from state

mineral lands. Accordingly, this Court has declined to incor-

porate any particular valuation standard or requirement, such

as the proposed “fair market value” requirement of plaintiffs’

proposed order, into its declaratory judgment.

¢. Determination of Mineral Character of State Lands

Defendants object to that portion of plaintiffs’ proposed

declaratory judgment form which refers to “all state lands” as

well as “hardrock” mineral resources.

As this Court interprets the Alaska Supreme Court’s decision,

the appellate court specifically considered, and rejected, the

argument that the leasing system should apply io “ail lands”

where mineral are found. /d. at 341. Rather, the Supreme Court

concluded that the restrictions of Section 6(i) “were intended to

apply only to lands whose mineral character was known at the

time of selection.” /d. Further, the Court characterized such

mineral resources as “mineral deposits.” Jd. at 339. Finally, the

Court acknowledged that the “all lands” test might avoid “ad-

ministrative problems” in determining the mineral character of

land at the time of selection, but nevertheless rejected such test

in its final holding on this issue.

This Court, therefore, has substituted the terms “lands whose

mineral character was known at the time of selection” for “all

state lands”, and “mineral deposits” for “hardrock mineral

resources” in plaintiffs’ proposed judgment form. Similarly, the

Court has declined to specify any particular methodology or

process for the identification of such lands, or any definition of

“mineral deposits’, but instead defers to the State and/or the

legislature in this respect.

d. Injunction

Plaintiffs’ proposed declaratory judgment and order contain

a prospective injunction, which would enjoin the State from

allowing the extraction of mineral deposits from appropriate

state lands after May 15, 1988, ifa leasing system conforming to

the Supreme Court’s interpretation of Section 6(i) has not been

adopted or enacted. Defendants contend that no injunction

should issue since no imminent harm is about to occur. Defend-

ants argue that mining activity realistically is not conducted dur-

ing the winter months, that the issuance of an injunction would

be premature at this point, and that the Alaska Legislature

should be given an opportunity to enact an appropriate leasing

system during the next legislative session.

The Court agrees with defendants that the issuance of any in-

junctjon at this time would be premature and inappropriate.

The Court thus declines to issue any injunctive relief in connec-

tion with the instant declaratory judgment. Should the State

and/or Legislature fail to adopt an appropriate leasing system

by the time the next mining season is about to commence, any

party is free to return to this Court with a proper application for

injunctive relief at such time.

4. Attorneys’ Fees.

Insofar as this litigation is a “public interest litigation”, and

plaintiffs are “public interest litigants”, the Court will allow an

award of full, reasonable attorneys’ fees and costs to plaintiffs

regarding this litigation. Plaintiffs shall submit their application

for fees and costs, along with detailed supporting documenta-

tion, pursuant to Rules 82 and 79. All parties will have an op-

portunity to brief such isues in accordance with applicable Civil

Rules.

Dated this 9 day of November, 1987.

/s/ DOUGLAS J. SERDAHELY

Douglas J. Serdahely

‘

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT

Case Civ. No. 3AN-83-9862

TRUSTEES FOR ALASKA; NUNAM KITLUTSISTI; DINYEA

CORPORATION; VILLAGE OF MINTO; ALASKA INDEPENDENT

FISHERMAN’S MARKETING ASSOCIATION; ALASKA CENTER

FOR THE ENVIRONMENT; SOUTHEAST ALASKA

CONSERVATION COUNCIL; FRIENDS OF THE EARTH,

PLAINTIFFS

vs.

STATE OF ALASKA; ALASKA DEPARTMENT OF NATURAL

RESOURCES, ESTHER WUNNICKE, COMMISSIONER,

DEPARTMENT OF NATURAL RESOURCES, DEFENDANTS

ALASKA MINERS ASSOCIATION, FAIRBANKS NORTH STAR

BOROUGH, JOSEPH VOGLER, DEFENDANTS—INTERVENORS

DECLARATORY JUDGMENT

Pursuant to the remand in this action by the Alaska Supreme

Court in Trustees for Alaska v. State, 736 P.2d 329 (Alaska

1987), this Court has considered the Supreme Court’s decision,

plaintiffs’ proposed declaratory judgment order and defendants’

and defendant-intervenors’ responses thereto. The Court finds

and declares as follows:

1. The State of Alaska’s current system allowing the

extraction of mineral deposits from state lands, AS 38.05.185 er

seq., violates Section 6(i) of the Alaska Statehood Act because it

does not require the payment of rents or royalties from state

lands whose mineral character was known at the time of state

selection.

2. Tocomply with Section 6(i) of the Alaska Statehood Act,

the State’s mineral leasing system must include some process for

determining which lands were of known mineral character at the

time of selection and must further require the payment of rents

or royalties for the extraction of mineral deposits from such

lands. ;

3. Plaintiffs, as successful public interest litigants in this ac-

tion, are entitled to their full, reasonable attorneys’ fees and

costs incurred during the litigation of this case. Plaintiffs shall

file a proper application for attorneys’ fees and costs along with

detailed documentation therefor, pursuant to Civil Rules 82 and

79.

DATED this 9th day of November, 1987.

/s/ DOUGLAS J. SERDAHELY

Douglas J. Serdahely

Superior Court Judge

-: US GOVERNMENT PRINTING OFFICE: 1988 —202-037/60420

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.