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Whose forest is it? Bills seek to promote state sovereignty over land

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Republicans legislators are once again pressing legislation aimed at asserting Arizona’s authority over federal land and dictates from Washington.

One of the bills would allow authorized state employees to enforce off-highway vehicle regulations on any land. Another would prohibit the state of local governments from using any resources to enforce, administer or cooperate with any Environmental Protection Agency changes involving “waters of the U.S.”

Perhaps no bill goes as far as HB 2321, authored by Brenda Barton, R-Payson, which calls for the federal government to transfer title to all public lands in Arizona by Dec. 31, 2019. It was awaiting a vote by the full House.

Barton said western states weren’t treated the same as other states in terms of public lands, with the federal government controlling much more here than elsewhere.

“It was the fact that there weren’t many people, so they were waiting or more population to come into these states so that they could become good stewards of these lands. Otherwise, they just left them in their raw state,” Barton said. “But I think Arizona has reached their population area, and we can manage these lands efficiently and effectively.”

She said the state can manage these lands more efficiently and in the process raise money for education.

At least eight bills, each of them authored by Barton or Rep. Bob Thorpe, R-Flagstaff, deal with state sovereignty in one form or another. All were still alive as of Thursday.

The moves follow a victory at the ballot box in November, when Arizona voters narrowly approved a Proposition 122, which calls for the state to opt out of following federal it deems unconstitutional.

But would any of these hold up in court?

In the case of Barton’s HB 2321, Paul Bender, who teaches state and federal constitutional law at Arizona State University’s Sandra Day O’Connor College of Law, said the lands are under federal control and that there is no way the state can tax or do anything else with them without approval from the federal government.

“In this bill, they’re asking Congress to transfer control of the lands to the state,” he said. “They can ask that, but they can’t force Congress to do that.”

Bender pointed to the Supremacy Clause, which establishes the U.S. Constitution as the supreme law of the land. When state law and federal law conflict, federal law prevails.

“They either want to ignore what the Constitution says or don’t know what the Constitution says,” Bender said. “They think that states can declare themselves free of federal regulation whenever they want. They don’t believe in the American Constitution; they think they should be free to ignore federal law.”

Thorpe authored HB 2055, which “prohibits this state or any political subdivision from using any resource to enforce, administer or cooperate with changes made by the United States Environmental Protection Agency to waters of the U.S.” That bill was awaiting action by the full House.

Another of Thorpe’s bills, HB 2055, would prohibit committing state personnel or financial resources to cooperate with a federal rule, regulation or policy directive unless it has been affirmed by a vote of Congress. It was awaiting action by the full House as well.

He also offered HB 2365, which would permit authorized state employees and peace officers to enforce off-highway vehicle regulations on any lands, including those controlled by the federal government. It cleared the House with little opposition and was awaiting action in the Senate.

“This is a problem where we simply don’t have enough law enforcement out in those wilderness areas,” Thorpe said. “The thing about Arizona is that (there’s) some 30 million acres of federal land and being able to have enough officers to really keep the public safe can be a huge challenge.”

Even though the House Military Affairs and Public Safety Committee endorsed the bill unanimously in February, committee member Rep. Mark Finchem, R-Oro Valley, said he was concerned about potential conflicts with the federal government.

“I’m not so sure that I’m interested in empowering somebody, one of our officers, to do something in an area where they could penalize somebody for being in a right of way we maintain is open but that the federal government might say, ‘We’re going to close it,’” Finchem said.

Other bills from Barton include HB 2318, which would add the state to an interstate compact called for by a Utah law that aims to facilitate the transfer of public lands to states and promote state sovereignty. That bill was awaiting a vote by the full House.

She also authored HCM 2005, a memorandum that would urge Congress to immediately relinquish its control of public lands in Arizona and turn them over to the state. It was awaiting a vote by the full House.

“So the memorandum is really that beginning step, and you have to start somewhere,” Barton said.

Sandy Bahr, director of the Sierra Club’s Grand Canyon Chapter, said the state can’t afford to manage these lands.

“We think that the Legislature should be focusing on taking care of the lands we have, like the state parks that we have that are always underfunded,” Bahr said. “We have 9.2 million acres of state trust lands that are not being cared for the way they should. The Legislature could think about providing funding for doing that as well instead of thinking they can take on public lands.”

Bahr pointed to the 2012 defeat of a statewide ballot proposition that would have declared sovereignty over the state’s natural resources. Before that, Gov. Jan Brewer vetoed similar legislation seeking the change without going through the voters.
“We think it’s still unconstitutional, that the state can’t afford it. And by the way, the public does not support having the state in control of these federal public lands,” Bahr said. “I mean these are lands that have been set aside for all of us for a variety of purposes and for future generations of Americans. We all have a stake in them.”

State sovereignty propositions | Create infographics