HB 2376 — federal government; land acquisition; consent

2376 2.

SUBMIT A REQUEST IN WRITING TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES AND THE PRESIDENT OF THE SENATE FOR APPROVAL OF THE SALE PURSUANT TO SECTION 37-620.02.

B.

FOR A PRIVATE SALE OF PRIVATE REAL PROPERTY TO THE FEDERAL GOVERNMENT OR A FEDERAL AGENCY THAT IS NOT PROCESSED THROUGH ESCROW, THE PRIVATE REAL PROPERTY OWNER SHALL DO BOTH OF THE FOLLOWING:

1.

NOTIFY THE SPEAKER OF THE HOUSE OF REPRESENTATIVES AND THE PRESIDENT OF THE SENATE OF THE SALE OF PRIVATE REAL PROPERTY TO THE FEDERAL GOVERNMENT OR A FEDERAL AGENCY.

2.

SUBMIT A REQUEST IN WRITING TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES AND THE PRESIDENT OF THE SENATE FOR APPROVAL OF THE SALE PURSUANT TO SECTION 37-620.02.

C.

ON RECEIPT OF THE REQUEST FOR APPROVAL PURSUANT TO SUBSECTION A OR B OF THIS SECTION, THE PRESIDENT OF THE SENATE AND SPEAKER OF THE HOUSE OF REPRESENTATIVES SHALL APPOINT A JOINT LEGISLATIVE COMMITTEE TO CONSIDER THE REQUEST FOR APPROVAL.

IF THE COMMITTEE APPROVES THE REQUEST, THE LEGISLATURE SHALL PREPARE A JOINT RESOLUTION FOR THE LEGISLATURE TO APPROVE THE SALE PURSUANT TO SECTION 37-620.02.

IF THE COMMITTEE DOES NOT APPROVE THE REQUEST, THIS STATE SHALL EXERCISE THE RIGHT OF FIRST REFUSAL TO PURCHASE THE PRIVATE REAL PROPERTY PURSUANT TO SECTION 37-822.

D.

ANY STATE AGENCY OR ANY OFFICER OR EMPLOYEE OF A STATE AGENCY THAT IS NOTIFIED OR LEARNS OF A NOTICE FROM THE UNITED STATES DEPARTMENT OF THE INTERIOR REGARDING AN EFFORT TO PLACE PRIVATE REAL PROPERTY LOCATED IN THIS STATE IN TRUST AS PART OF AN INDIAN TRIBE'S SETTLEMENT OF A LAND CLAIM SHALL IMMEDIATELY NOTIFY THE SPEAKER OF THE HOUSE OF REPRESENTATIVES AND THE PRESIDENT OF THE SENATE SO THAT THE LEGISLATURE MAY DO ANY OF THE FOLLOWING, AS APPLICABLE:

1.

PROVIDE COMMENT.

2.

FILE AN ADMINISTRATIVE APPEAL.

3.

FILE AN ACTION IN THE APPROPRIATE COURT.

E.

A PERSON WHO VIOLATES SUBSECTION A OR B OF THIS SECTION IS SUBJECT TO A CIVIL PENALTY OF AT LEAST $500 BUT NOT MORE THAN $1,000.

F.

THIS SECTION DOES NOT APPLY TO ANY CONGRESSIONALLY APPROVED LAND EXCHANGE.

G.

FOR THE PURPOSES OF THIS SECTION, "ESCROW" AND "ESCROW AGENT" HAVE THE SAME MEANINGS PRESCRIBED IN SECTION 6-801.

37-822.

Right of first refusal A.

NOTWITHSTANDING ANY OTHER LAW, EXCEPT FOR LAND ACQUIRED THROUGH A CONGRESSIONALLY APPROVED LAND EXCHANGE, THIS STATE HAS THE RIGHT OF FIRST REFUSAL TO PURCHASE PRIVATE REAL PROPERTY THAT THE FEDERAL GOVERNMENT IS CONTRACTING TO ACQUIRE THROUGH A SALE, GIFT OR GRANT OR ANY OTHER TRANSFER OF AN OWNERSHIP INTEREST.

B.

A PURCHASE OF PRIVATE REAL PROPERTY PURSUANT TO THIS SECTION SHALL OCCUR IN A TIMELY MANNER AND, IF POSSIBLE, THE PURCHASE PROCESS - 2 - H.B.

2376 SHALL BE CONCLUDED WITHIN THE SAME TIME PERIOD IN WHICH THE ORIGINAL TRANSACTION WOULD HAVE CONCLUDED.

37-823.

Applicability THIS ARTICLE DOES NOT APPLY TO:

1.

A TRUSTEE'S DEED OR MORTGAGE THAT IS INSURED OR HELD BY ANY OF THE FOLLOWING:

(a) THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT.

(b) THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS.

(c) THE FEDERAL HOUSING ADMINISTRATION.

2.

ANY CONGRESSIONALLY APPROVED LAND EXCHANGE.

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 - 3 - H.B.

2376 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 - 4 - H.B.

2376 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".

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