Arizona lawmakers consider new run at controlling public lands

Some Arizona lawmakers are renewing an attack on federal ownership of millions of acres across the Grand Canyon State with a bill that would direct the attorney general to consider joining a lawsuit for state control.

Rep. Mark Finchem, R-Tucson, and 30 colleagues proposed House Bill 2210, a measure that would mandate legal analysis of a case Utah has prepared to challenge for public lands in that state. If the attorney general determines the case has merit, the bill authorizes Arizona to join the lawsuit this fall. 

The House Land, Agriculture and Rural Affairs Committee plans a hearing of the bill at 10 a.m. Thursday.

“This is a civil-rights case,” said Finchem, who argues that the feds manage lands poorly and inefficiently, robbing Arizona of a chance at development and revenue collection on them.

While Arizona turns a profit on lands it controls, he said, the federal government bleeds money on its holdings.

Critics: State can’t afford to maintain lands

Others contend the lands are too expensive for Arizona to maintain unless they sell them, closing off cherished public hiking, camping, hunting and fishing grounds.

“It’s time for the state legislators to quit wasting the state’s valuable resources on these harebrained schemes that are legally and socially doomed to failure,” said Brad Powell, president of the Arizona Wildlife Federation.

The federal government spends an average of $80 million a year on fire-prevention and -suppression activities in Arizona forests and ranges and more than $200 million in a bad fire year, Powell said. If a lawsuit succeeds, those costs would transfer to a state “that has had to close state parks and can’t keep many of the rest stops open.”

Voters previously rejected similar proposal

Finchem said his former home state of Michigan has maintained a robust state park system despite having few federal or national park lands. “Michigan has proven very well that states are capable of caring for their lands,” he said.

Arizona voters rejected a proposition seeking state control of federal lands in 2012. Legislators referred the proposed constitutional amendment to the ballot, where it lost by more than a 2-to-1 margin.

The U.S. government controls more than 40 percent of Arizona, including 18 national parks and monuments, six national forests, vast desert ranges and military grounds, all adding up to more than 30 million acres. After accounting for tribal lands, less than 20 percent of the state is available for private or state ownership.

Finchem contends that impoverishes the state, and he argues it’s the reason Arizona spends less than half per student for education than New York, whose residents and state or local governments control almost their entire state.

“We’re a welfare state that’s at the behest of the federal government,” he said.

Does promise of ‘equal footing’ apply?

The bill cites legal a legal theory that the Utah Legislature has embraced: that statehood carries the constitutional promise of “equal footing,” and that this implies a state would control its own lands the way older states in the East do. It also contends that the Constitution’s framers gave the federal government land-management powers only to regulate disposal of government lands — not permanent retention.

University of Utah political scientist Dan McCool has followed Utah’s claims to federal lands and deemed them legally indefensible. This week he read the Arizona bill and said it also reads too much into the Constitution.

“Equal footing” is a phrase from case law that simply means the law applies equally to new and old states alike, McCool said. It doesn’t mean the law can’t change, as it did in 1976 when Congress created the Bureau of Land Management with an act that effectively ended the era of major federal land disposals.

That change naturally affected the West more than the East, because the federal government still controlled much of the West in 1976.

McCool noted a similar disparity exists in anti-pollution laws, because they restrict the most polluted states more than they do the most pristine. Despite the unequal outcomes, the laws apply equally and are constitutional.

The Arizona bill has “one foot in constitutional law and one foot in la-la land,” McCool said.

Finchem said Utah’s legal team includes constitutional scholars who endorse a lawsuit seeking state control. His bill doesn’t commit any Arizona funds beyond a routine legal analysis of the Utah case, he said.

“All I’m asking for is for the attorney general to tell us if he agrees with Utah’s attorneys,” Finchem said.

Environmental coverage on azcentral.com and in The Arizona Republic is supported by a grant from the Nina Mason Pulliam Charitable Trust. Follow the azcentral and Arizona Republic environmental reporting team at OurGrandAZ on Facebook, Twitter and Instagram.

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