LAND OF THE FREE-FOR-ALL

WITH PROPOSITION 300--THE PRIVATE-PROPERTY-RIGHTS MEASURE--ARIZONA ONCE AGAIN BECOMES A BATTLEGROUND FOR A NATIONAL RIGHT-WING CRUSADE

As the author of Proposition 300, Killian assumes he has the final word on interpretations of the measure. At a Sierra Club meeting last year, Killian answered questions good-naturedly for quite a long time, but got a little nasty toward the end, when a persistent questioner tried to pin him on a specific example of a government taking.

"I don't believe the bill sees it that way, and I'm the author of the bill. All right? 'kay?" Killian asked, his soft twang hardening.

Killian's office at the Capitol is decorated with cowboy art and carpeted in a shade of turquoise not found in nature. On his desk rest a Bible and the Book of Mormon. On his bookshelves, above the Arizona Revised Statutes, are two books by Rush Limbaugh, in front of which sits a statuette of an old-time politician standing on a soapbox.

Mark Killian's ancestors were sent to Arizona in the 1880s by Brigham Young. They settled at St. Johns, and lived in four covered wagons. Decades later, Killian's grandfather, a citrus grower, moved to Mesa. Mark grew up "in town," but spent time on the family farm and summered at the family ranch in Colorado. Today, he lives in Mesa, where he runs his own real estate company.

But it wasn't Killian's personal interest in private property that led him to introduce his first piece of takings legislation in 1989. He wanted to save the state money. One of the largest tax increases in the history of the state had just been approved, Killian recalls, and he was chairing the House Ways and Means Committee.

"[Speaker of the House] Jane Hull said, 'Mark, you've gotta figure out a way to solve these problems without going out and raising taxes.'" About that time, Killian read about Reagan's executive order, and that it was designed to address court judgments against the government in takings cases. Reagan's people had estimated that over a period of years, the federal government had shelled out $167 million in such cases!

Determined to save the State of Arizona, Killian drafted a bill that borrowed heavily from the Reagan executive order. Did he know, at the time, how much Arizona had lost in similar cases?

"No, I didn't at the time," he says.
And he has never found out. To this day, Killian is unable to find a single clear-cut example of a taking in Arizona. He says such cases don't come to light because property owners can't afford to sue.

The bill went down twice before Killian reintroduced it in 1992, with Senator Gus Arzberger, a Democrat and rancher from Willcox, as the primary co-sponsor. By this time, legislatures in Delaware and Washington had already passed takings legislation. The Arizona House Committee on Natural Resources and Agriculture heard testimony from both sides. Those in favor included representatives from the state's cattle growers' association, farm bureau and chamber of commerce.

Those in opposition included state agency heads Ed Fox, director of the Department of Environmental Quality; Betsy Rieke, director of the Department of Water Resources; Dave Schmitt, assistant to the engineer at the Department of Transportation; Gordon Whiting, chairman of the Game and Fish Commission; and Ken Travous, director of Arizona State Parks.

In the end, House Bill 2236 was attached to Senate Bill 1053, a bill titled "State Lands Adjacent to Mines," as a floor amendment, and the whole thing passed.

The bill went up to the Governor's Office. No one knew what to expect. Big business supported it, but Symington's agency heads hated the bill; even the Arizona Republic came out in strong opposition, calling it "a bit of mischief masquerading as protection for property rights." Killian worried that Symington might not sign, simply because the governor never thought the bill would reach his desk and hadn't planned ahead.

Symington did sign, and for a few days, there was speculation that Vice President Dan Quayle had twisted his arm. The governor denied it. Daily reporters cited the takings bill as an example of the governor's shift to the right--which coincided with the arrival of conservative Jay Heiler in the Symington inner circle.

His detractors called it "a 180-degree turn" on Symington's proenvironment stance, but after a while, everyone--including the governor, it seems--forgot that Symington had ever hesitated. After SB 1053 had been placed on the ballot as Proposition 300, Symington wrote, ". . . each of the guarantees against government tyranny in the American Constitution is important. But none is more important than the Fifth Amendment guarantee against the taking of private property without just compensation. . . ."

While the governor spurts rhetoric, his agency heads have clammed up. DEQ's Ed Fox? "He's just not talking about it," says DEQ spokesman John Godec. Ditto for ADOT's Larry Bonine, who has since replaced Charles Cowan (who was extremely critical of the bill), says ADOT spokesman Dan Galvin. Rita Pearson, who in 1992 was the governor's personal adviser on environmental issues and has since taken over at the Department of Water Resources, has announced that she supports Proposition 300. Betsy Rieke, who now works for Babbitt in Washington, D.C., is still opposed.

The Arizona Game and Fish Commission heard three and a half hours of testimony regarding Proposition 300 last Friday, and did not change its 1992 position, says commission chairwoman Beth Woodin. Woodin explains that the commission did not, however, take a formal vote to reaffirm its opposition.

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