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© 2016 Thomson Reuters. No Claim to Original U.S. Government Works STATE OF NEW MEXICO, ex ret Gary K. King, Attorney..., 2010 WL 7809109... 2010 WL 7809109 (N.M.) (Appellate Petition, Motion and Filing) Supreme Court of New Mexico. STATE OF NEW MEXICO, ex ret Gary K. King, Attorney General of the State of New Mexico, Petitioner, v. Patrick H. LYONS, Commissioner of Public Lands for the State of New Mexico, Respondent. No. 32,197. February 25, 2010. Original Proceeding on Petition for Writ of Mandamus Response of the Commissioner of Public Lands in Opposition Robert Stranahan, General Counsel, Office of the Commissioner, and Special Assistant Attorney General, 310 Old Santa Fe Trail, Santa Fe, New Mexico 87504-1148, Tel: (505) 827-5713. Charles R. Peifer, Special Assistant Attorney General, Lauren Keefe, Peifer, Hanson & Mullins, P.A., Post Office Box 25245, Albuquerque, New Mexico 87125-5245, Tel: (505) 247-4800. *i TABLE OF CONTENTS INTRODUCTION AND SUMMARY OF ARGUMENT .............................................................................. 1 BACKGROUND ............................................................................................................................................. 7 Land Exchanges in New Mexico .................................................................................................................... 12 The White Peak Exchanges ............................................................................................................................. 18 The Stanley Exchange ..................................................................................................................................... 19 UU Bar Exchange Application ........................................................................................................................ 23 CS Ranch Exchange Application .................................................................................................................... 24 Galloway Exchange Application ..................................................................................................................... 25 ARGUMENT ................................................................................................................................................... 27 I. THE ATTORNEY GENERAL HAS FAILED TO ESTABLISH A BASIS FOR THIS COURT TO 28 EXERCISE ITS MANDAMUS JURISDICTION .......................................................................................... A. The Attorney General Is Not Seeking To Compel a Ministerial Act, But Is Seeking To Impose New and 29 Unprecedented Limitations on the Commissioner's Discretion ...................................................................... B. This Case Does Not Meet Any of the Standards for Prohibitory Mandamus ............................................ 36 1. This case does not present a “purely legal issue,” but involves significant questions of fact .................... 36 2. There is an adequate remedy at law to challenge decisions of the Commissioner ..................................... 41 C. The Authority That the Attorney General Relies Upon Shows That Mandamus Is Not Appropriate ........ 45 *ii II. THE LAND COMMISSIONER HAS THE CONSTITUTIONAL AUTHORITY TO DECIDE 48 WHAT LANDS TO OFFER AND WHAT CONDITIONS TO IMPOSE ON ACCEPTABLE BIDS .......... A. The Commissioner Has the Discretion To Decide the Terms Under Which He Will Dispose of State 49 Trust Lands ...................................................................................................................................................... 1. The Commissioner has the discretion to decide the structure of an auction for trust lands ....................... 53 2. The Commissioner has the discretion to reject piecemeal bids .................................................................. 61 3. The Commissioner has the discretion to decide whether to accept cash bids ............................................ 63 B. The Land Commission Has the Duty and Authority to Determine Whether the State Will Obtain 67 Sufficient Value Before Deciding to Hold an Auction ................................................................................... III. THE ATTORNEY GENERAL IS ASKING THIS COURT TO EITEHR OVERRULE THE 71 COMMISSIONER'S PROPERLY PROMULGATED REGULATIONS ...................................................... CONCLUSION ................................................................................................................................................ 76 *III STATEMENT OF COMPLIANCE © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 STATE OF NEW MEXICO, ex ret Gary K. King, Attorney..., 2010 WL 7809109... Pursuant to Rule 12-213(A), (F) & (G), Defendant/Respondent states that the total word count contained in the body of the brief is 20,417 words, using Microsoft Office Word 2007. *iv TABLE OF AUTHORITIES New Mexico Cases Alexander v. Anderson, 1999-NMCA-021, 126 N.M. 632, 75 973 P.2d 884........................................................................... Am. Mortgage Co. v. White, 34 N.M. 602, 287 P. 702 51, 52 (1929) ..................................................................................... Andrews v. Walker, 60 N.M. 69, 287 P.2d 423 (1955) .......... 30, 31, 43 Brantley Farms v. Carlsbad Irrigation Dist., 1998- 28, 31 NMCA-023, 124 N.M. 698, 954 P.2d 763............................. Burguette v. Del Curto, 49 N.M. 292, 163 P.2d 257 (1945) .. 51 Carson Reclamation Dist. v. Vigil, 31 N.M. 402, 246 P. 907 31 (1926) ..................................................................................... City of Las Cruces v. El Paso Elec. Co., 1998-NMSC-006, 44 124 N.M. 640, 954 P.2d 72.................................................... Clark v. New Mexico Children, Youth & Families Dept., 73 1999-NMCA-114, 128 N.M. 18, 988 P.2d 888...................... Cobb v. State Canvassing Bd., 2006-NMSC-034, 140 N.M. 41 77, 140 P.3d 498.................................................................... El Dorado at Santa Fe, Inc. v. Bd. of County Comm'rs, 89 30 N.M. 313, 551 P.2d 1360 (1976) .......................................... Ellison v. Ellison, 48 N.M. 80, 146 P.2d 173 (1944) ............ 43 Forest Guardians v. Powell, 2001-NMCA-028, 130 N.M. 42 368, 24 P.3d 803.................................................................... Gonzales v. Allstate Ins. Co., 1996-NMSC-041, 921 P.2d 73 944........................................................................................... Heimann v. Adee, 122 N.M. 340, 924 P.2d 1352 (1996) ....... 43, 51, 53 High Ridge Hinkle Joint Venture v. City of Albuquerque, 72 1998-NMSC-50, 126 N.M. 413, 970 P.2d 599...................... Howell v. Heim, 118 N.M. 500, 882 P.2d 541 (1994) ........... 74 *v In re Petition of PNM Gas Servs., 2000-NMSC-012, 73 129 N.M. 1, 1 P.3d 383.......................................................... Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200 73 (1965) ..................................................................................... Mimbres Valley Irrigation Co. v. Salopek, 2006- 28, 29 NMCA-093, 140 N.M. 168, 140 P.3d 1117........................... New Mexico Bus Sales v. Michael, 68 N.M. 223, 360 P.2d 59 639 (1961) ............................................................................. New Mexico Dep't of Health v. Ulibarri, 115 N.M. 413, 852 74 P.2d 686 (Ct. App. 1993) ...................................................... New Mexico Mining Ass'n v. New Mexico Mining Comm'n, 74 122 N.M. 332, 924 P.2d 741 (Ct. App. 1996) ....................... Perea v. Baca, 94 N.M. 624, 614 P.2d 541 (1980) ............... 30 Pharm. Mfrs. Ass'n v. New Mexico Bd. of Pharmacy, 86 73 N.M. 571, 525 P. 2d 931 (Ct. App. 1974) ............................. Pub. Serv. Co. of New Mexico v. New Mexico Taxation & 72 Revenue Dep't, 2007-NMCA-50, 141 N.M. 520, 157 P.3d 85............................................................................................. Raton v. Vermijo Conservancy Dist., 101 N.M. 95, 678 P.2d 73 1170 (1984) ........................................................................... Regents of Univ. of New Mexico v. Hughes, 114 N.M. 304, 73 838 P.2d 458 (1992) .............................................................. Regents of the Univ. of New Mexico v. New Mexico Fed'n of 38 Teachers, 1998-NMSC-020, 125 N.M. 401, 962 P.2d 1236.. © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 STATE OF NEW MEXICO, ex ret Gary K. King, Attorney..., 2010 WL 7809109... Shed Indus. v. King, 95 N.M. 62, 618 P.2d 1226 (1980) ....... 59 State ex rel. Battershell v. City of Albuquerque, 108 N.M. 73 658, 777 P.2d 386 (Ct. App. 1989) ....................................... State ex rel. Bird v. Apodaca, 91 N.M. 279, 573 P.2d 213 29, 37 (1977) ..................................................................................... State ex rel. Clark v. Johnson, 120 N.M. 562, 904 P.2d 11 28 (1995) ..................................................................................... *vi State ex rel. Evans v. Field, 27 N.M. 384, 201 P. 1059 31, 32, 51 (1921) ..................................................................................... State ex rel. Four Corners Exploration Co. v. Walker, 60 29 N.M. 459, 292 P.2d 329(1956) ............................................. State ex rel. State Hwy. Transp. Dep't v. Garley, 111 N.M. 38 383, 806 P.2d 32 (1991) ....................................................... State ex rel. King v. UU Bar Ranch Ltd. P'ship, 2009- 11 NMSC-010, 145 N.M. 769, 205 P.3d 816.............................
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