dissenting.
I respectfully dissent. I would grant the relief requested by the petitioner by vacating the Commissioner’s order and declaring Public Auction Sale No. 53-99869 invalid.
I agree with petitioner that the auction was structured so that only one bidder could bid, and therefore the auction violates The Enabling Act and the spirit of our supreme court’s opinion in Fain Land & Cattle Co. v. Hassell, 163 Ariz. 587, 790 P.2d 242 (1990). The majority’s “fine line between terms of sale that are truly in the best interest of the trust, although discouraging certain bidders, and terms that improperly limit the universe of potential bidders to one” is no line at all. Fain, holds that any disposition of trust land “not in substantial conformity with the provisions of The Enabling Act is ‘null and void.’ ” 163 Ariz. at 589, 790 P.2d at 244 (emphasis added). The “fine line” distinction of the majority does not comply with this strict requirement of “substantial conformity.” Fain also held that: “Without sale at public auction, the trust is not guaranteed the additional profit that might result from competitive bidding.” Id., at 593, 790 P.2d at 248 (emphasis added) (citation omitted). There cannot be competitive bidding with only one bidder. See Enabling Act § 28; Ariz. Const, art. 10, § 3.