SUPREME COURT OF THE UNITED STATES
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No. 112, Orig.
--------
STATE OF WYOMING, PLAINTIFF v. STATE
OF OKLAHOMA
on bill of complaint
[January 22, 1992]

  Justice Scalia, with whom the Chief Justice and
Justice Thomas join, dissenting.
  In the almost century and a half since we first entered
the business of entertaining ``negative Commerce Clause''
actions, see Cooley v. Board of Wardens of Port of Philadel-
phia, 12 How. 299 (1852), I think it safe to say that the
federal courts have never been plagued by a shortage of
these suits brought by private parties, and that the
nontextual elements of the Commerce Clause have not gone
unenforced for lack of willing litigants.  Today, however,
when the coal companies with sales allegedly affected by
the Oklahoma law have, for whatever reason, chosen not to
litigate, the Court sees fit, for the first time, to recognize a
State's standing to bring a negative Commerce Clause
action on the basis of its consequential loss of tax revenue.
That is a major step, and I think it is wrong.  Even if it
were correct, however, summary judgment that Wyoming
suffered consequential loss of tax revenue in the present
case would be unjustified.  I would deny Wyoming's motion
for summary judgment and grant Oklahoma's.

                     I
  At the outset, let me address briefly the Court's sugges-
tion that our previous rejections of Oklahoma's standing
objections-when we granted Wyoming leave to file its
complaint and when we denied Oklahoma's motion to
dismiss for want of standing-somehow impede us from
considering that objection today.  Ante, at 7.  To begin with,
the ``law-of-the-case principles'' which the Court suggests
should be persuasive albeit not necessarily binding in
original actions, ibid., have never to my knowledge been
applied to jurisdictional issues raised (or re-raised) before
final judgment.  To the contrary, it is a court's obligation to
dismiss a case whenever it becomes convinced that it has no
proper jurisdiction, no matter how late that wisdom may
arrive.  See Fed. Rule Civ. Proc. 12(h)(3) (``Whenever it
appears . . . that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action'') (emphasis
added).  See also Jenkins v. McKeithen, 395 U. S. 411, 421
(1969).  Of course this does not mean that a court need let
itself be troubled by the same jurisdictional objection raised
over and over again, when it has thoroughly considered that
issue once and remains convinced that it resolved the issue
correctly.  But that is quite different from ``law of the case,''
which would give effect even to an erroneous decision,
simply because it has already been made.
  And in the present case, we have not considered the
standing issue thoroughly once before.  We disposed of
Oklahoma's preliminary standing objections summarily,
without oral argument and without opinion.  I considered
us to be deciding at that time, not, once for all, that
standing existed, but simply that the absence of standing
was not so clear that our noractice of permitting the
suit to be filed and of referring all questions (including the
standing question) to a special master should be short-
circuited.  The parties apparently understood our action
that way, since the standing issue was raised (without ``law-
of-the-case'' objection from Wyoming) before the Special
Master.  And the Master certainly did not think that we
had conclusively decided the point, since he received
argument on it, and discussed it as the very first of the
``three legal issues that require a recommendation to the
Court.''  Report of the Special Master at 10.  If the Special
Master was not precluded by our prior action, it is hard to
understand why we ourselves would be.
  There is no unfairness to Wyoming in this.  To be sure,
we might have given the standing question full-dress
consideration to begin with, and, if we concluded in
Oklahoma's favor, could have spared the parties lengthy
proceedings before the Special Master.  But the same could
be said of the substantive issue of whether the Act violated
the Commerce Clause.  Our choice not to proceed in that
fashion was both in accord with ordinary practice and in my
view sound.  Almost all other litigants must go through at
least two other courts before their case receives our atten-
tion.  It has become our practice in original-jurisdiction
cases to require preliminary proceedings before a special
master, to evaluate the facts and sharpen the issues.
Wyoming has no cause for complaint that we did that here,
and we should not distort our jurisdictional holding on the
basis of some misguided feeling of estoppel.
  Finally, even if the Court were correct that some ``change
of circumstance,'' ante, at 7, ought to be presented before
the jurisdictional objection that we denied so cursorily at
the preliminary stage can be reraised, such a change in fact
exists.  The litigation has reached a new stage, having
proceeded from a motion for judgment on the pleadings
(which we denied) to cross-motions for summary judgment
(which the Special Master recommended resolving in favor
of Wyoming).  When a district court denies the former, it
need feel no compunction of consistency to deny the latter;
and the same is true for us.  The standing issue is obviously
subject to different evaluation, depending upon the stage
the litigation has reached.  A plaintiff may survive a motion
to dismiss for lack of injury-in-fact by merely alleging that
a string of occurrences commencing with the challenged act
has caused him injury; at that stage we presume that
``general allegations embrace those specific facts that are
necessary to support the claim,'' Lujan v. National Wildlife
Federation, 497 U. S. ___, ___ (1990) (slip op., at 16).  See
also Whitmore v. Arkansas, 495 U. S. 149, 158-159 (1990).
A plaintiff cannot, however, on the basis of the same
generalizations, obtain or avoid summary judgment, where
a moving party must ``show that there is no genuine issue
as to any material fact,'' Fed. Rule Civ. Proc. 56(c), and
where a nonmoving party cannot rest on ``mere allegations''
to counter a properly supported motion, but must set forth
``specific facts'' through affidavits or other evidence,
Fed. Rule Civ. Proc. 56(e).  See Lujan, supra, at ___ (slip
op., at 14-15).  See also Gladstone, Realtors v. Village of
Bellwood, 441 U. S. 91, 115 and n. 31 (1979).  It is the
adequacy of these presentations that Oklahoma now asks us
to evaluate-and we have not evaluated them before.

                    II
  It is axiomatic that ``a litigant first must clearly demon-
strate that he has suffered an `injury in fact' '' in order to
assert Article III standing to sue.  Whitmore, supra, at 155.
In assessing a claim to injury, ``[w]e presume that federal
courts lack jurisdiction unless the contrary appears
affirmatively from the record,'' Renne v. Geary, 501 U. S.
___, ___ (1991) (slip op., at 3) (quotation omitted).  See also
Bender v. Williamsport Area School Dist., 475 U. S. 534,
546 (1986); it is accordingly ``the burden of the party who
seeks the exercise of jurisdiction in his favor . . . clearly to
allege facts demonstrating'' that he has been injured.
FW/PBS, Inc. v. Dallas, 493 U. S. 215, 231 (1990).  This
burden is ``substantially more difficult'' to bear when the
asserted injury is ``highly indirect and results from the
independent action of some third party not before the
court''-for the simple reason that there are more variables
involved.  Allen v. Wright, 468 U. S. 737, 757-759 (1984).
See also Simon v. Eastern Kentucky Welfare Rights Organi-
zation, 426 U. S. 26, 42, 44-45 (1976); Warth v. Seldin, 422
U. S. 490, 504-505 (1975).  It is incumbent upon the
plaintiff to eliminate those variables through ``specific,
concrete facts,'' showing that the third party actually acted
as he maintains and that the injury actually occurred.
Warth, supra, at 508.
  As I have mentioned, the plaintiff's success in meeting
this burden is to be assessed under the rules governing the
stage the litigation has reached.  See Lujan, 497 U. S., at
___ (slip op. at 14-15).  See also Gladstone, supra, 441
U. S., at 115 and n. 31; Simon, supra, at 45 n. 26; Warth,
supra, at 527 and n. 6 (Brennan, J., dissenting).  Wyoming's
motion for summary judgment thus cannot be granted
unless Wyoming has demonstrated ``that there is no
genuine issue'' as to its injury, Fed. Rule Civ. Proc. 56(c),
see Adickes v. S. H. Kress & Co., 398 U. S. 144, 157
(1970)-which means that ``[i]f reasonable minds could
differ as to the import of the evidence,'' the motion must be
denied, Anderson v. Liberty Lobby, Inc., 477 U. S. 242,
250-251 (1986).  To be entitled to prevail at this stage,
therefore, Wyoming must have submitted ``specific, concrete
facts,'' Warth, supra, at 508, which when ``viewed in the
light most favorable'' to Oklahoma ``foreclose'' all reasonable
inferences that Wyoming was not injured by the Act,
Adickes, supra, at 157.  Wyoming has not in my view
remotely carried that burden, and the Special Master's
recommendation to grant its motion for summary judgment
must be rejected.
  The Special Master apparently thought Wyoming's injury
unquestionable because it is undisputed that, since the
Act's effective date, Oklahoma utilities have bought less
Wyoming coal as a percentage of their coal purchases.
Report of the Special Master at 11.  I am willing to assume
for the sake of argument that that undisputed fact compels
the inference that less Wyoming coal was sold in Oklahoma
as a result of the Act.  To establish injury, however,
Wyoming had to show not merely that the statute caused
Oklahoma sales to be lost, but that it prevented Wyoming
``severances'' of coal from occurring.  Wyoming does not tax
sales of coal to Oklahoma utilities; it taxes severances.  The
loss of a particular Oklahoma sale would not hurt
Wyoming's treasury at all unless (1) the coal that was the
subject of that sale was not severed to be sold elsewhere, or
(2) if it was severed to be sold elsewhere, that latter sale
(and severance) would have occurred even if the Oklahoma
sale had been made.
  The Court o'erleaps this inconvenient obstacle by assert-
ing that ``a loss of specific tax revenues [is] an undisputed
fact here.''  Ante, at 9.  I cannot imagine where this helpful
concession comes from.  The Special Master listed the
undisputed facts, and it is not among them.  See Report of
Special Master at 2-10, 11.
  The Court also appears to believe that the second of the
above described means of connecting sales loss with tax loss
is established by the fact that ``Wyoming has a significant
excess mining capacity''; this fact, according to the Court,
necessarily means that ``the loss of any market cannot be
made up by sales elsewhere.''  Ante, at 7.  That is not so.
Excess capacity can mean the existence of facilities capable
of producing additional quantities of goods that can be sold
for a profit at current market prices-in which case the loss
of one sale cannot really be ``replaced'' by the gain of
another.  But excess capacity need not mean that.  It can
also mean the existence of facilities that lie fallow because,
although they can produce additional quantities of goods,
they cannot do so at a cost that will yield a profit at current
market prices.  Innumerable capped or unexploited oil wells
in this country exemplify that phenomenon.  If that is the
sort of excess capacity the Wyoming coal industry has, it
nonetheless has a limited capability of sales at current
market prices-in which case so long as that capability has
been fully achieved no tax revenue has been lost.
  The excess capacity attested to by Wyoming's experts may
well have been of this latter sort, since it was said to have
been created in response to 1970s ``forecasts of high demand
growth.''  Affidavit of Seth Schwartz 2.  Higher demand
generally means higher prices, and the coal companies
might well have brought new, higher-cost production
facilities on line (for example, deep-pit mines) that are at
current prices not competitive.  Even if the entire ``excess
capacity'' is competitive, since much of it came (according to
Wyoming's expert) from the opening of ``new mines,'' ibid,
another possibility is that the Wyoming industry responded
to less-than-anticipated demand in an efficient manner-by
closing down some of the mines entirely rather than leaving
them all in operation at a fraction of capacity.  Under these
conditions, it might well not pay a particular company to
make a particular additional sale, if that additional sale
would require the reopening of an additional mine, with the
incremental cost that entails.
  The speculations Wyoming invites us to engage in are
certainly plausible (though one must be given pause by the
fact that the Wyoming coal companies themselves-who if
Wyoming is right have lost not just the tax on the
severances but the entire profits-have not chosen to
litigate).  Were this a trial on the record I might well
conclude that it is more likely than not that Wyoming was
injured.  But ``at the summary judgment stage [our]
function is not to weigh the evidence.''  Anderson, 477 U. S.,
at 249.  It has at least not been conclusively established
that Wyoming coal producers would have sold coal in
addition to that diverted from the (presumably) lost
Oklahoma sales.  A genuine issue of material fact thus
exists, and the Special Master's recommendation that we
grant Wyoming's motion for summary judgment must be
rejected.
                    III
  Even if Wyoming had fully established, in the manner
Rule 56 provides, the ``injury in fact'' required by Article III,
I would still conclude that it does not have standing to
bring this suit, and would grant Oklahoma's cross-motion
for summary judgment.  ``Beyond the constitutional require-
ments, the federal judiciary has also adhered to a set of
prudential principles that bear on the question of standing.''
Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U. S. 464, 474
(1982).  One of these is the requirement that the plaintiff
``establish that the injury he complains of (his
aggrievement, or the adverse effect upon him) falls within
the `zone of interests' sought to be protected by the statut[e]
[or constitutional guarantee] whose violation forms the legal
basis for his complaint.''  Air Courier Conference of America
v. American Postal Workers Union, 498 U. S. ___, ___ (1991)
(slip op., at 6) (quotation omitted).  The ``zone-of-interests''
formulation first appeared in cases brought under 10 of
the Administrative Procedure Act, 5 U. S. C. 702, see
Association of Data Processing Service Organizations, Inc.
v. Camp, 397 U. S. 150, 153 (1970), but we have subse-
quently made clear that the same test similarly governs
claims under the Constitution in general, see, e. g., Valley
Forge, supra, at 475, and under the negative Commerce
Clause in particular, see Boston Stock Exchange v. State
Tax Comm'n, 429 U. S. 318, 320-321, n. 3 (1977).  Indeed,
we have indicated that it is more strictly applied when a
plaintiff is proceeding under a ``constitutional . . . provision''
instead of the ``generous review provisions of the APA.''
Clarke v. Securities Industry Assn., 479 U. S. 388, 400, n.
16 (1987).
  The zone-of-interests test ``denies a right of review if the
plaintiff's interests are . . . marginally related to or incon-
sistent with the purposes implicit in the [constitutional
provision].''  Id., at 394, 399.  The usual starting point for
zone-of-interests analysis is the text of the provision at
issue, see Air Courier Conference, supra, at ___ (slip op., at
7-8); since, however, the negative Commerce Clause is an
inference rather than a text, the starting point here must
be the history and purposes of the inference, see id., at ___
(slip op., at 9-10).
  Our negative-Commerce-Clause jurisprudence grew out
of the notion that the Constitution implicitly established a
national free market, under which, in Justice Jackson's
words, ``every farmer and every craftsman shall be encour-
aged to produce by the certainty that he will have free
access to every market in the Nation . . . [and] every
consumer may look to the free competition from every
producing area of the Nation to protect him from exploita-
tion.''  H. P. Hood & Sons, Inc. v. DuMond, 336 U. S. 525,
539 (1949).  Virtually every one of our cases in this area
thus begins its analysis with some form of the incantation
that ``the very purpose of the Commerce Clause was to
create an area of free trade among the several States
. . . [and the Clause] by its own force created an area of
trade free from interference by the States.''  Westinghouse
Electric Corp. v. Tully, 466 U. S. 388, 402-403 (1984); see
also Boston Stock Exchange, 429 U. S., at 328; American
Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 280 (1987).
Just last Term we said that the negative commerce clause
``confer[s] a `right' to engage in interstate trade free from
restrictive state regulation,'' for it ``was intended to benefit
those who . . . are engaged in interstate commerce.''  Dennis
v. Hig 498 U. S. ___, ___ (1991) (slip op., at 8, 10).
  The coal companies, of course, would pass the zone-of-
interests test.  So would Wyoming if it bought or sold coal,
or otherwise directly participated in the coal market.  It
would then be ``asserting [its] right to engage in interstate
commerce free of discriminat[ion],'' Boston Stock Exchange,
supra, at 320-21, n. 3 (emphasis added).  But Wyoming's
right to collect taxes presents an entirely different category
of interest, only marginally related to the national
market/free trade foundation of our jurisprudence in this
area; indeed, it is in a sense positively antagonistic to that
objective, since all state taxes, even perfectly constitutional
ones, burden interstate commerce by reducing profit.  Thus,
when state taxes have been at issue in our prior negative-
Commerce-Clause cases they have been the object of the
plaintiff's challenge rather than the basis for his standing;
and we have looked upon the State's interest in tax collec-
tion as a value to be weighed against the purposes of our
Commerce Clause jurisprudence.  Thus, Wyoming's interest
in this case falls far shorter of meeting the zone-of-interests
test than did that of the plaintiff postal union in Air
Courier Conference, supra, at ___ (slip op., at 11): Whereas
the latter's interest in securing employment for postal
workers, although distinct from the statute's goal of provid-
ing postal services to the citizenry, at least coincided with
that goal a good amount of the time, here the asserted
interest (tax collection) and the constitutional goal invoked
to vindicate it (free trade) are antithetical.
  In seeming response to a zone-of-interests argument, the
Court quotes, ante, at 10, our statement in Hunt v. Wash-
ington Apple Advertising Comm'n, 432 U. S. 333, 345
(1977), that ``the interests of the [Washington State Apple
Advertising] Commission itself may be'' at issue in the
litigation, because ``[i]n the event the North Carolina
statute results in a contraction of the market for Washing-
ton apples or prevents any market expansion that might
otherwise occur, it could reduce the amount of the assess-
ments due the Commission.''  The Court fails to note that
this statement was preceded by the square holding that the
State Apple Advertising Commission had standing to sue as
an association on behalf of its members, the apple growers
and dealers (who were in the same position as the coal
companies here):
``If the Commission were a voluntary membership
organization-a typical trade association-its standing
to bring this action as a representative of its constitu-
ents would be clear . . . .
``The only question presented, therefore, is whether, on
this record, the Commission's status as a state agency,
rather than a traditional voluntary membership
organization, precludes it from asserting the claims of
the Washington apple growers and dealers who form its
constituency.  We think not.''  Id., at 342-344.
Only after finding associational standing did we speculate,
in the passage the Court quotes, that the Commission itself
``may be'' adversely affected because its revenue collections
``could [be] reduce[d].'' Id., at 345.  I hardly think that
musings of this sort are grounds for disregarding the
obvious application of the zone-of-interests test to the
present case-particularly as the Court in Hunt did not
purport to be applying that test.  The dicta in Hunt,
moreover, were applying a since-repudiated understanding
of the purpose of the standing requirement.  Compare the
last sentence of the passage quoted by the Court (taking the
purpose to be ``to `assure that concrete adverseness which
sharpens the presentation of issues . . . ,' '' ibid., quoting
Baker v. Carr, 369 U. S. 186, 204 (1962)), with Allen, 468
U. S., at 750-752 (asserting that standing performs a
separation-of-powers function, restricting the courts to their
traditional role).
  Of course, if the state interest in collecting severance
taxes does fall within the zone of interests of the Commerce
Clause, so must every other state taxing interest.  The
zone-of-interest test, as opposed to the injury-in-fact
requirement, turns on the type of interest asserted and not
on its speculativeness or its degree of attenuation from its
alleged source.  The injury-in-fact requirement, of course,
will still remain-but if and when de facto causality can be
established, every diminution of state revenue attributable
to the allegedly unconstitutional commercial regulation of
a sister-State will now be the basis for a lawsuit.  Suits
based on loss of sales tax revenue ought to become a
regular phenomenon, since it is no more difficult to show
that an automatic sales tax was lost on a particular sale
than it is to show that the severance tax was lost here.
Further expansions of standing (or irrational distinctions)
lurk just around the corner: if a State has a litigable
interest in the taxes that would have been paid upon an
unconstitutionally obstructed sale, there is no reasonable
basis for saying that a company salesman does not have a
litigable interest in the commissions that would have been
paid, or a union in the wages that would have been earned.
  In abandoning the zone-of-interests test, the Court
abandons our chosen means of giving expression, in the
field of constitutional litigation, to the principle that ``the
judicial remedy cannot encompass every conceivable harm
that can be traced to alleged wrongdoing.''  Associated
General Contractors of California, Inc. v. Carpenters, 459
U. S. 519, 536 (1983).  The ``zone of interests'' test performs
the same role as many other judge-made rules circumscrib-
ing the availability of damages in tort and contract litiga-
tion-doctrines such as foreseeability and proximate cause,
see, e. g., Palsgraf v. Long Island R. Co., 248 N. Y. 339, 162
N. E. 99 (1928); directness of injury, see, e. g., Associated
General Contractors, supra, at 540-541; the limitation on
suits by third-party beneficiaries of contracts, see, e. g.,
Restatement (Second) of Contracts 302(1) (1981); and the
contemporaneous ownership rule governing shareholders'
derivative actions, see, e. g., Fed. Rule Civ. Proc. 23.1.
When courts abolish such limitations and require, as our
opinion does today, nothing more than a showing of de facto
causality, exposure to liability becomes immeasurable and
the scope of litigation endless.  If today's decision is adhered
to, we can expect a sharp increase in state-against-state
Commerce Clause suits; and if its rejection of the zone-of-
interests test is applied logically, we can expect a sharp
increase in all constitutional litigation.
                  *  *  *
  Of the three points I have discussed in the three portions
of this opinion, I must believe that the first is the crucial
one: the Court's reluctance, in an original action, to recon-
sider our initial denial of a motion to dismiss for lack of
standing.  I shall consider that to be an essential part of the
holding of the case.  I respectfully dissent.
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SUPREME COURT OF THE UNITED STATES
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No. 112, Orig.
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STATE OF WYOMING, PLAINTIFF v. STATE
OF OKLAHOMA
on bill of complaint
[January 22, 1992]

  Justice Thomas, with whom The Chief Justice and
Justice Scalia join, dissenting.
  Even if I believed that Wyoming had standing to chal-
lenge the Oklahoma statute (which, for the reasons given by
Justice Scalia, I do not), I would decline to exercise the
Court's original jurisdiction here.
  The Constitution provides that -[i]n all Cases . . . in
which a State shall be a Party, the supreme Court shall
have original Jurisdiction.-  U. S. Const., Art. III, 2, cl. 2.
Congress, in turn, has provided that -[t]he Supreme Court
shall have original and exclusive jurisdiction of all contro-
versies between two or more States.-  28 U. S. C. 1251(a).
Given these provisions, one might expect-assuming the
existence of a -case- or -controversy--that we would be
required to exercise our original jurisdiction here, for a
court having jurisdiction generally must exercise it.  -We
have no more right to decline the exercise of jurisdiction
which is given, than to usurp that which is not given.-
Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (Marshall,
C. J.).  As the Court observes, however, ante at 11-12, we
have exercised discretion in declining to hear cases that fall
within the literal terms of our original jurisdictione,
e. g., United States v. Nevada, 412 U. S. 534, 538 (1973)
(per curiam) (controversy between the United States and
individual States); Ohio v. Wyandotte Chemicals Corp., 401
U. S. 493, 497-499 (1971) (action by a State against the
citizens of other States).  We exercise this discretion even
with respect to controversies between two or more States,
which fall within our original and exclusive jurisdiction.
See, e. g., Texas v. New Mexico, 462 U. S. 554, 570 (1983);
California v. Texas, 457 U. S. 164, 168 (1982) (per curiam);
Maryland v. Louisiana, 451 U. S. 725, 739 (1981); Arizona
v. New Mexico, 425 U. S. 794, 796-798 (1976) (per curiam).
I believe that the Court's decision to accept jurisdiction over
this case is a misguided exercise of that discretion.
  ``It has long been this Court's philosophy that `our
original jurisdiction should be invoked sparingly.'''  Illinois
v. City of Milwaukee, 406 U. S. 91, 93 (1972) (quoting Utah
v. United States, 394 U. S. 89, 95 (1969)).  The sound
reasons for this approach have been set forth on many
occasions, see, e. g., Ohio v. Wyandotte Chemicals Corp.,
supra, at 498; Maryland v. Louisiana, supra, at 761-763
(1981) (Rehnquist, J., dissenting), and I need not repeat
them here.  As Chief Justice Fuller aptly observed almost
a century ago, our original jurisdiction -is of so delicate and
grave a character that it was not contemplated that it
would be exercised save when the necessity was absolute.-
Louisiana v. Texas, 176 U. S. 1, 15 (1900).  In determining
which cases merit the exercise of original jurisdiction, the
Court typically has focused on two considerations: the
nature of the claims involved and the availability of
alternate forums where they can be addressed.  See, e. g.,
Illinois v. City of Milwaukee, supra, at 93; Massachusetts v.
Missouri, 308 U. S. 1, 18-19 (1939).
  In my view, both factors cut strongly against exercising
original jurisdiction here.  Wyoming claims to be injured as
follows: the Oklahoma statute decreases coal sales by
Wyoming mining companies to Oklahoma buyers, which
supposedly decreases the amount of coal those companies
extract in Wyoming, which in turn supposedly decreases the
tax revenues Wyoming collects from the companies when
they extract the coal.  Plainly, the primary dispute here is
not between the States of Wyoming and Oklahoma, but
between the private Wyoming mining companies and the
State of Oklahoma, whose statute reduced the companies'
sales to Oklahoma utilities.  It is true, as the Court notes,
ante at 12, that Oklahoma passed the statute in its sover-
eign capacity and that Wyoming collects taxes in its
sovereign capacity.  That States act qua States is certainly
very relevant in assessing the -seriousness and dignity- of
a claim.  See Maryland v. Louisiana, supra, at 764-766
(Rehnquist, J., dissenting).  But it is also critical to
examine the extent to which the sovereigns actually have
clashed.  Cf. Arizona v. New Mexico, supra, at 797-798 (-In
denying the State of Arizona leave to file, we are not
unmindful that the legal incidence of [the challenged action
by New Mexico] is upon the utilities-).  In my view, an
entirely derivative injury of the type alleged by Wyoming
here-even if it met minimal standing requirements-would
not justify the exercise of discretionary original jurisdiction.
Additionally, of course, Wyoming has advanced no reason
why the affected mining companies (hardly bashful liti-
gants) did not or could not themselves challenge the
Oklahoma statute in another, more convenient, forum.  The
lower federal courts and the state courts are readily
available as appropriate forums -in which the issues
tendered here may be litigated.-  Id., at 797 (emphasis in
original).
  The implications of the Court's novel theory that tax-
collection injury alone justifies exercise of original jurisdic-
tion are, in my view, both sweeping and troubling.  An
economic burden imposed by one State on another State's
taxpayers will frequently affect the other State's fisc.  (That
will virtually always be the case, for example, with respect
to income taxes; if State A takes actions that reduce the
income of the taxpayers of State B, State B will collect less
income-tax revenue.)  Under today's opinion, a State that
can show any loss in tax revenue-even a de minimis loss,
see ante at 13-14, and n.11, that can be traced (albeit
loosely) to the action of another State can apparently
proceed directly to this Court to challenge that action.
Perhaps the Court is not concerned about that possibility
because of its -discretion- in managing its original docket.
But, having extended the original jurisdiction to one State's
claim based on its tax-collector status, the Court cannot, in
the exercise of discretion, refuse to entertain future dis-
putes based on the same theory.  That would be the
exercise not of discretion, but of caprice.
  I respectfully dissent.
-------------------------------
