GIVE ME THAT OLD-TIME CONSTITUTION

THE STRUGGLE BETWEEN ENVIRONMENTALISTS AND INDUSTRY OVER PRIVATE PROPERTY RIGHTS HAS TAKEN ON A RELIGIOUS FERVOR

Reagan's order had no legal teeth, but instead called for guidelines to better define takings. Senator Steve Symms, a Republican from Idaho, introduced a bill in this session of Congress to make the executive order a federal law, but it failed. And Symms, whose term has expired, decided not to stand for reelection, though activists expect the banner will be picked up.

In the meantime, 27 states have considered property rights legislation, but only two have passed it. Arizona's bill is clearly the stronger of the two, and this has made 1053's champion, House Majority Leader Mark Killian, something of a cult figure nationwide.

@rule:
@body:Mark Killian is a soft-spoken man, besuited and bespectacled, with impeccably shined shoes, an accountant's haircut and courtly good manners. "I take a lot of agricultural trade publications as well as real estate and other publications," he says in his State Capitol office. They're spread out on a coffee table, magazines with names like Beef, Farm Journal, Arizona Cattlelog, Coal Voice. Atop the pile is a glossy photograph of a spotted owl on a magazine named Our Land, a knee-jerk, reactionary tome that systematically takes a contrary angle to all things environmental. It argues that spotted owls are not endangered, for example, that oil drilling in the Arctic National Wildlife Refuge won't affect wildlife, that the Exxon Valdez oil spill didn't seriously hurt the environment. The president of the organization that publishes the magazine lives in Mesa.

Killian's notions about private property come from his reading--and from his breeding. He has a real estate business in Mesa. He represents the fifth generation of his family in the agriculture business. His grandfather ran the Roosevelt irrigation district, and he and his family own farms and ranches in Arizona and two other states.

Not surprisingly, Killian's campaign contributions tend to come from the Farm Bureau, the Cotton Growers and the Cattle Growers, realtors' and builders' organizations, and timber and mining companies.

The idea for a property rights bill came to Killian when he first read of Reagan's executive order. There had been no takings cases in Arizona, but, he says, "I had been involved in a number of pieces of legislation since 1986 where we were building quite a bureaucracy in the environmental area and other areas of state government, and I could see that, potentially, we could be creating some problems for ourselves."

Like most farmers and ranchers, Killian describes himself as a "steward of the land." Unfortunately, his notion of stewardship differs from the Sierra Club's, and judging from the legislation that bears his name, Killian's an environmental Jekyll and Hyde. In January and February of this year, as he pushed 1053 through the State Legislature, he helped release a barrage of antienvironmental napalm: bills that would allow wetlands to be drained for croplands, that would forbid the Game and Fish Department from maintaining a state endangered-species list, that demanded compensation for damage done to stock and forage by wildlife, that would forbid trespassing on leased state land, that would divert Heritage Fund monies from the Game and Fish Department. None passed, but the intent clearly was to keep the environmentalists on the defensive while he rammed home the private property legislation.

But what constitutes private property in Arizona, anyway, where only 17 percent of the land is privately held and the rest is national forest, Native American reservation land and a checkerboard of state and federal tracts?

From a legal standpoint, "property" includes not just real estate, but other assets, tangible and intangible--contracts, grazing rights or mineral rights. A logging company can purchase the timber on state or federal land without purchasing the land itself, for example. A rancher can own the right to graze his cattle on state land.

And herein the intent: SB 1053 concerns regulatory takings, business lost, contracts or profits impinged on by government rules. If, for example, the Game and Fish Department tells the timber company not to log because a northern goshawk has been found in a timber-sale area, or tells the rancher not to graze because it would interfere with elk calving season, the timber company and the rancher could argue that their contract--their property--has been taken from them. The law, then, is supposed to force state agencies to "look before they leap," as the private property rightists chant in unison.

Killian first introduced private property bills in 1989 and 1990, but they went nowhere. This year, he pitched yet another version of the bill, but it was held up in the Rules Committee. Finally, working with Senator Gus Arzberger, a rancher from Willcox, Killian reintroduced property rights as a floor amendment tacked onto a bill entitled "State Lands Adjacent to Mines." The extractive industries threw in their support and it passed.

The particulars were left to the Attorney General's Office, which has until January 1, 1994, to set department-by-department guidelines that define takings.

Governor Symington's department heads opposed 1053. Betsy Rieke of the Department of Water Resources, Ed Fox of DEQ and Gordon Whiting, head of the Game and Fish Department, all testified against it in legislative hearings. On June 1, Symington signed the bill anyway. In an explanatory letter to Senate President Pete Rios, he wrote, "Private property rights lie near the source of liberty under which Americans are free to enjoy the God-given beauty of the Earth."

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