SB1281 - 572R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 37-620.03, Arizona Revised Statutes, is amended to read:

START_STATUTE37-620.03. National monuments; catalog; notification; litigation; definition

A. The department shall maintain a catalog of each existing or newly created national monument covered federal designation in this state. For each national monument covered federal designation, the department shall request from the federal government the following:

1. A detailed accounting of each individual item of natural, scenic, historical or cultural value or each resource, landscape, species, ecosystem, habitat or characteristic to be protected.

2. The precise global positioning system location of each item of natural, scenic, historical or cultural value or each resource, landscape, species, ecosystem, habitat or characteristic to be protected.

3. The square footage that each item of natural, scenic, historical or cultural value or each resource, landscape, species, ecosystem, habitat or characteristic to be protected occupies.

4. The total square footage of the parcel of land comprising the national monument covered federal designation.

5. A peer-reviewed justification for the protection of the object item of natural, scenic, historical or cultural value or the resource, landscape, species, ecosystem, habitat or characteristic by the federal government.

B. The department shall determine whether the limits of a parcel comprising a national monument covered federal designation in this state are confined to the smallest area compatible with the proper care and management of the objects item of natural, scenic, historical or cultural value or the resource, landscape, species, ecosystem, habitat or characteristic to be protected by the national monument covered federal designation.

C. If the department determines pursuant to subsection B of this section that the limits of a parcel comprising a national monument covered federal designation in this state are not confined to the smallest area compatible with the proper care and management of the objects item of natural, scenic, historical or cultural value or the resource, landscape, species, ecosystem, habitat or characteristic to be protected by the national monument covered federal designation, the department shall notify the President of the senate, the Speaker of the house of representatives and the attorney general. On receipt of the notice, the President of the senate, the Speaker of the house of representatives or the attorney general may commence an action to confine the limits of the parcel comprising the national monument covered federal designation to the smallest area compatible with the proper care and management of the objects item of natural, scenic, historical or cultural value or the resource, landscape, species, ecosystem, habitat or characteristic to be protected by the national monument covered federal designation.

D. For the purposes of this section, "covered federal designation" means any of the following:

1. an Area of critical environmental concern.

2. a National forest.

3. a National park.

4. a National monument.

5. a National wildlife refuge.

6. a National conservation area.

7. a National recreation area.

8. a National scenic area.

9. a National scenic trail.

10. a National historical trail.

11. a National recreation trail.

12. a Roadless area.

13. a Wild and scenic river.

14. a Wilderness area.

15. a Wilderness study area. END_STATUTE

Sec. 2. Heading change

The chapter heading of title 37, chapter 4, Arizona Revised Statutes, is changed from "ACQUISITION OF PRIVATE REAL PROPERTY BY STATE OR POLITICAL SUBDIVISION" to "ACQUISITION OF PRIVATE REAL PROPERTY BY GOVERNMENT ENTITIES".

Sec. 3. Title 37, chapter 4, Arizona Revised Statutes, is amended by adding article 2, to read:

ARTICLE 2. ACQUISITION OF PRIVATE REAL

PROPERTY BY FEDERAL GOVERNMENT

START_STATUTE37-821. Sale or transfer of private real property to federal government; notice

On the opening of escrow for the sale or transfer of title interest of private real property to the federal government or a federal agency, the escrow agent shall Notify the president of the senate and the speaker of the house of representatives that a contract for the sale or transfer of private real property to the federal government or a federal agency has been placed in escrow.END_STATUTE

Sec. 4. Legislative findings

The legislature finds that:

1. At the granting of statehood, the new State of Arizona was granted the exclusive right to all lands not assigned under treaty to the Native American tribes.

2. Since the granting of statehood, numerous lands have been retained by the federal government by various means by way of congressional action, thus depriving the State of Arizona of a tax base, which, in comparison to other states, is critical to funding services such as education, public safety and infrastructure.

3. There are three primary legal theories available to Arizona to attempt to prove the claim of tax base in existing American jurisprudence, which are, "the equal sovereignty principle," "the equal footing doctrine" and "the compact theory." All three legal theories provide credible support to the claim of a primary interest in state private property tax base.

4. Arizona relies on approximately sixteen percent of its land area to fund the critical services of education, infrastructure, public safety and welfare programs, while other states enjoy nearly complete access to their lands to generate a survivable tax base.

5. The equal sovereignty principle was recently highlighted by the United States Supreme Court in Shelby County, Ala. v. Holder, 570 U.S. 529 (2013), which challenged the requirement of the Voting Rights Act of 1965 (P.L. 89-110, 79 Stat. 437) that certain states preclear their voting laws with the United States Department of Justice as a violation of the constitutional requirement that the states in our federal system be equal in sovereignty. The court applied a heightened level of scrutiny to the preclearance requirements because they treated Alabama as unequal in sovereignty and ruled that the preclearance provisions were unconstitutional under the equal sovereignty principle. For the reasons discussed in detail below, the legislature finds that section 102(a)(1) of the federal land policy and management act of 1976 (P.L. 94-579; 90 Stat. 2743), which reversed almost two hundred years of federal public lands policy from one of disposal to one of near-permanent retention, treats Arizona as unequal in sovereignty as compared to the states with dominion over the land within their borders. This argument, if adopted by the court, would most likely result in a declaration that the United States cannot forever retain the public lands within Arizona's borders, not an order transferring the public lands to the State of Arizona. Therefore, should the court be persuaded by this argument, a subsequent political solution negotiated by all stakeholders would most likely be required to resolve the issue. A possible outcome of that political process could be Arizona's ownership of those lands.

6. The equal footing doctrine is based on the equal sovereignty principle. It requires that states newly admitted to the Union receive all incidents of sovereignty enjoyed by the thirteen original states. The equal footing doctrine considers only sovereign and political rights of the newly admitted states, not economic or geographic differences. The original thirteen states stepped into the shoes of the Crown with regard to dominion over public lands within their borders. Similarly, Vermont, Kentucky, Tennessee, Maine, Texas and Hawaii all came into the Union with dominion over their public lands. Dominion over land has historically been viewed as a key incident of sovereignty, and denial of that dominion negatively impacts sovereignty in a variety of ways. Therefore, in order for Arizona to have been admitted as a co-equal sovereign with the states with dominion over public lands within their borders, Arizona also should have received on admission dominion over the land within its borders. A ruling by the United States Supreme Court based on the equal footing doctrine argument would logically result in the transfer of public lands to the State of Arizona.

7. The compact theory posits that the Arizona enabling act was an offer, and Arizona's acceptance of that offer created a solemn compact. Implicit in that compact was the duty of the United States to timely dispose of the public lands within Arizona's borders as it had done with states admitted before Arizona. There is historical support for the position that the United States promised to dispose of the public lands, maintained a policy requiring disposal of public lands and acted on that policy from 1784 through the date of Arizona's admission. There is historical evidence that Arizona and the United States both expected, at the time of Arizona's admission, that the public lands would be disposed of consistent with past practice. There is also historical evidence that the intent of the property clause of the Constitution of the United States was to dispose of public lands, not to forever retain them. Accordingly, an argument can be made that the United States undertook an obligation to dispose of the public lands within Arizona's borders.

8. Since the United States has not disposed of the public lands within Arizona, the state relies on less than sixteen percent of the land it has dominion over as tax base to generate tax revenue in order to pay for critical services. Arizona cannot continue to serve the interests of its citizens if the private property tax base is taken without careful contemplation of consequences of such transfers to a government unit, the United States, which does not pay tax, nor does it compensate for the value of the land it controls through payments in lieu of taxes.

9. Under article I, section 8, clause 17, Constitution of the United States, the legislature of each state has the sole authority to give its consent of all purchases of land, "to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the Acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings".

Sec. 5. Short title

This act may be cited as the "Tax Base Protection Act".