GIVE ME THAT OLD-TIME CONSTITUTION
On a hot July morning in Camp Verde, Ed Phillips, state senator and TV weatherman, briefs the Arizona Federation of Republican Women on the year's environmental legislation. He's light on his feet as he chatters pleasantly about the guy who waters his lawn and lets it run down the street, opines that making homeowners install efficient flush toilets infringes on their privacy. It's a good excuse to segue into some poopie jokes to make the gray-haired ladies titter and to set up a lighthearted tale that ends with him up on his roof to fix a faulty air conditioner.
"Is that the one you advertise on TV?" one of the ladies asks pointedly. It's a tough crowd.
He retreats into the recitation of bills, tries to mumble past Senate Bill 1053, the controversial private property act, but the audience stops him cold. What's that about?
He has no idea. And so he stammers a bit, says, "Well, you'd have to ask Mark Killian," then backpedals defensively to explain that there are so many issues brought before the Senate that one couldn't be expected to know the details of each, and he doesn't know that one.
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"You voted for it," says a voice from the back of the room, and it strikes like a jab.
Precious few voters understand the bill, either, which is to its proponents' advantage.
The concept of Senate Bill 1053, the private property rights bill, is inarguably sound: If the government passes a regulation that unfairly deprives you of the use of your property, it must compensate you.
SB 1053 rides the crest of a national property rights movement that started with a 1988 presidential executive order issued by Ronald Reagan and that has flashed through state legislatures coast to coast like a computer virus.
However honorable the concept, though, there's a hidden agenda to the national movement, and that's to sidestep environmental regulations--especially wetlands and endangered-species regulations. As such, it goes hand in hand with the antienvironmental extremism that calls itself the Wise Use Movement, a loose coalition of extractive industry lobbies, people who own land surrounded by national forest, off-road vehicle and snowmobile enthusiasts and everyone else who may have a beef with limits on what they can do on public lands. Not surprisingly, the money behind the bill comes from the mining and timber and ranching and building industries.
Proponents of 1053 say the law protects the little guy who can't afford big-time lawyers to battle the regulations excreted by unelected bureaucrats.
Its opponents say it's an all-terrain vehicle to ride roughshod over a generation's worth of environmentalism. Critics of 1053 charge that it protects extractive industries unwilling to knuckle under to rules protecting air and water and endangered species. They fear that 1053 will unleash a barrage of nuisance claims, that industries will wave it in front of any government regulatory agency that tries to restrict them. In fact, with the ink barely dry on the governor's signature, one of the biggest landowners and ranchers in the state has already invoked SB 1053 in a claim that smacks of the Sagebrush Rebellion.
The environmental community was so threatened by the new law that it mobilized to gather petition signatures to force a statewide vote in 1994. The property rightists, of course, will challenge the referendum, but in the meantime, no one is sure if the bill stands as law.
Most city folks have no more idea what the bill is than Senator Phillips. While figuring out how to explain it to potential petition signers, says Rob Smith of the Sierra Club, "We spent about a week just trying to explain it to ourselves." Folks in Safford and Fredonia and St. Johns know exactly what 1053 is, however, and they look to it as a panacea to save the industries that float their economies. More than a legislative battle, this bill is a symbol of the biggest socioeconomic rift in America since the Vietnam War, pitting liberal urban environmentalists against conservative rural farmers, ranchers, miners and loggers. Arizona is this year's national battleground.
@body:Property rights have long been a rallying cause for ultraconservative Americans, a constituency that quotes and interprets the U.S. Constitution as passionately as a fundamentalist quotes Scripture. The gospel according to the Founding Fathers is a scant clause at the tail end of the Fifth Amendment: No person shall ". . . be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation."
It's such a strongly held principle in American thought that it was repeated almost word for word in the 14th Amendment, and it means, basically, that if the government takes your property--a "taking," in legal parlance--it has to pay for it. Two hundred years after the Constitution was enacted, Ronald Reagan's 1988 Executive Order 12630 declared that "governmental actions that do not formally invoke the condemnation power, including regulations, may result in a taking for which just compensation is required."
The EO came in response to a number of U.S. Supreme Court rulings, notably a case in which the California Coastal Commission withheld a building permit until a landowner allowed a public easement across his beach lot. The Supreme Court held in favor of the homeowner, and told the Coastal Commission that if it wanted public use of the beach, it would have to pay for it.
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.
@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."
Despite the conviction of Symington's prose, rumors circulated that David McIntosh, the antienvironmental wunderkind from Vice President Quayle's Council on Competitiveness, or even Quayle himself had strong-armed the governor to sign.
Within two weeks of the bill's signing, the Sierra Club and Common Cause, the political-watchdog group, had mobilized against the bill and begun to collect signatures. Joni Bosh of the Sierra Club debated Killian at rubber-chicken political dinners; they called each other "extremists" and lobbed rhetorical scare bombs at the audience. At one such event, Bosh fretted that 1053 undermined all health and public safety regulations, while Killian droned on and on about your property, until a confused young man at the back of the room stood up and asked if they were talking about the same bill.
A shrill flier from the "Take Back Your Rights Committee," a joint project of Common Cause and the Sierra Club, which share offices, referred to 1053 as "the Polluters' Protection Act," and warned that "your tax dollars could go to pay big polluters to obey basic health and safety laws. (It's like paying criminals not to rob banks.)" The Arizona Center for Law in the Public Interest wrote letters warning the law would affect civil rights, women, people with disabilities, anyone applying for licenses, agencies monitoring emissions and pesticides; the group even worried that anyone who had his or her driver's license revoked could label it a "taking."
Killian pooh-poohed those arguments. "You have to evaluate who's not supporting this bill," he said. "The state agencies, the bureaucrats and special-interest environmental groups." His inflection indicated that these were evil--at best, flaky--entities.
But ask who does support this bill. On June 18, a full-page ad in the Arizona Capitol Times gushed, "I [heart symbol] Property Rights." It was signed by 48 trade and recreation associations, including the homebuilders, timber companies, mining companies, Cotton Growers, cattlemen, the Farm Bureau, the AFL-CIO, realtors, off-road vehicle enthusiasts--those people who have suffered the most acute abuses," as Killian says.
People who contribute to Killian's candidacy, and to Arzberger's--people affiliated with the Wise Use Movement.
@body:The epicenter of environmental backlash in the United States is the Center for the Defense of Free Enterprise in Bellevue, Washington. Its executive vice president and spokesperson, Ron Arnold, borrowed the phrase "wise use" from the writings of Gifford Pinchot, first head of the U.S. Forest Service--who was speaking of the wise use of natural resources--and superimposed it over the brown ground swell he saw growing up against the green. Opportunistically, he jumped into the center of attention.
Arnold is the antichrist of the environmental movement, a gnome of a man with white hair and beard, and his influence reaches right into the White House. He claims he once sat on the board of directors of the Sierra Club in Washington state until he became scandalously dismayed by the hidden agenda of the environmentalists.
"They're out to destroy all property rights," he says. "We're out to destroy the environmental movement once and for all." As such, his organization promotes agitation and litigation, provides a unifying voice for the movement and serves as a clearinghouse and disseminator of disinformation.
In 1988, Arnold and his associate Alan Gottlieb published a frightening tract called The Wise Use Agenda. Among demands for private property protections and rangeland grazing legislation, it called for "immediate wise development of the Arctic National Wildlife Refuge--meaning drilling for oil--and "passage of a Global Warming Prevention Act to convert in a systematic manner all decaying and oxygen-using forest growth on the National Forests into young stands of oxygen-producing, carbon dioxide-absorbing trees to help ameliorate the rate of global warming and prevent the greenhouse effect--meaning clear-cutting the old-growth forests.
That same year, a Seattle Times investigation linked the Wise Use Movement to Sun Myung Moon's Unification Church, through Gottlieb. He had been a fund raiser for and a member of the board of directors of the Washington-state chapter of the American Freedom Coalition, a Moonie political lobbying organization that ingratiates itself with ultraright, "family values" causes and organizations. Arnold, the reports argued, was on the speakers' circuit as well for CAUSA, another Moonie political organization. And Arnold's and Gottlieb's Center for Defense of Free Enterprise shared office space with the Moonie American Freedom Coalition. These allegations were later repeated in reports from the Canadian Parliament.
It is no secret that Reverend Moon is establishing himself as a political presence in the United States with his vision of one-world theocracy. To that end, his organizations attach themselves to like-minded conservative groups. Arnold claims that Moonie dominance of the Wise Use Movement is patently false, and refers to Reverend Moon as "some slanty-eyed gook who thinks he's God or whatever." Then he softens and admits that Moon's American Freedom Coalition had "a presence at the outset." But now, he says, "To the best of my knowledge, there are no Moonies in the Wise Use Movement. And if there are, who cares? There are Jews and Catholics, too."
Arnold wields disinformation like a bludgeon. He claims that Walter Hatch, the Seattle Times reporter who broke the Moonie story, was fired for irresponsible journalism. Hatch no longer works for the newspaper, but his superiors not only deny he was fired, they laud his reporting and his ethics.
Furthermore, Hatch claims that Arnold threatened him: "He said if I did anything to hurt the Unification Church that he would come after me." And he claims that Arnold did, in fact, spread false rumors about his political and personal associations.
If there are questions about links between Ron Arnold's Center for the Defense of Free Enterprise and the Moonies, there are no doubts about the center's ties to the highest levels of the Republican party. Arnold's partner, Gottlieb, has widely circulated a photograph of himself with President Bush. Arnold brags about his connections to David McIntosh of the Council on Competitiveness and to various congressmen, including Senator Symms, who championed the unsuccessful national property rights bill. Mark Pollot, a former Justice Department attorney who co-wrote Reagan's executive order and the Symms bill, takes case referrals from the center. "Is that influence at the highest levels?" Arnold asks gleefully. "You tell me."
Arnold argues that the purpose of the Center for the Defense of Free Enterprise is not to lobby, but to educate and disseminate information. His Arizona mailing list is a who's who of 1053 supporters: executives at Stone Forest, Phelps Dodge and the Farm Bureau, the NRA, the Arizona Cattlemen's Association and ACCORD, the Arizona Citizen's Coalition on Resource Decisions. ACCORD is not really a citizens' group, but rather a consortium headed by Bruce Whiting of Kaibab Industries and comprising three other timber companies, mining, farming and ranching associations, off-road enthusiasts, the Lincoln Caucus (which has sponsored antienvironmental conferences and collaborates with the American Freedom Coalition) and several other like-minded organizations.
Officially, they all distance themselves from Arnold; Mark Killian calls him an extremist. Unofficially, it's a different story. Killian has quoted Arnold in articles he's written about the Arizona property rights bill. And ACCORD newsletters feature nuggets of his wisdom as "Quotable Quotes from Ron Arnold." ACCORD also sent a letter of sponsorship to the Wise Use conference in Reno last June, which was held to coincide with and parody the Earth Summit.
"I think what Ron Arnold has done is to give those people ideas on how to fight back, how to play the legislative game," says Killian of ACCORD's members. For his part, Arnold thinks his side has won at least one battle in Arizona. "We're sending copies of the Arizona legislation to everybody we know," he says delightedly.
@body:But the war is far from over. Common Cause and Sierra Club canvassers collected 71,669 signatures on petitions, almost 20,000 more than they needed to bring 1053 to a vote in the 1994 general election.
Killian has threatened to challenge the petitions. "I believe many of the signatures were obtained under false pretenses," he says, claiming that canvassers told signers that the bill repealed all antipollution laws. And though Killian has suggested he would be willing to sit down with his opponents to hammer out a compromise, the environmentalists fear he'll nickel-and-dime them with more antienvironmental legislation to keep them occupied.
Meanwhile, Killian has talked to Linda Francisco, the freelance campaign director who led the withering crossfire against Proposition 200, the steel-trap bill. She may soon aim her infantry in defense of 1053.
But environmentalists have launched a flanking maneuver and are trying to use the bill against its own backers. Phoenix environmental attorney Stephanie Lake has cited 1053 on behalf of Morristown citizens trying to stop an Australian company from strip-mining across the Hassayampa River from their homes (Mine Shafted," July 22). Lake argued that if state agencies issued permits to the mine, property values would plummet.
While confusion reigned in the Capitol, an Apache County judge quietly wrote the first takings ruling based on SB 1053.
@body:In St. Johns in July, a pair of ranchers who are also lawyers cited the new bill in a dispute with the state Land Department over their grazing lease, and a Superior Court judge ruled partially in their favor.
It was clearly a premeditated act--Jay Platt, one of the two complainants, had testified on behalf of 1053 in Senate hearings. The case may have been motivated more by symbolism than finances, by what their lawyer melodramatically referred to as the "unconscionable, onerous, unlawful and unconstitutional provisions of the . . . lease."
Platt and his brothers control more than 100,000 acres in the rolling, red badlands east of St. Johns. Half of it is private, deeded land, one-third is leased state land and the rest is leased from the Bureau of Land Management. His uncle Earl controls 207,000 acres that break down into roughly the same proportions of private, state and BLM land.
The state demands access to its lands, but because the private and public lands are "checkerboarded," it would be necessary to cross the Platts' private property in order to get to the leased state parcels. "In theory," says Jay Platt, "the state could take the opinion that if they give a license to a hunter, he would be a licensee of the state" and virtually free to walk unrestricted across Platt land. "We said that was a taking."
Judge Michael Nelson, Superior Court judge in Apache County, disagreed, and he decided not to rule on the dispute. But he did rule in the Platts' favor on another alleged taking, a clause limiting compensation to the ranchers if a parcel of the state land were condemned. If, for example, the federal government wanted to put a highway through, the state would have to reimburse the rancher only for the unused time on the lease and for any improvements made. The Platts argued that they were entitled to severance damages, as well. If they were not compensated for damage done to the operation of the ranch as a whole if a piece were taken out, it would be a taking. Judge Nelson agreed.
Both sides appealed the judge's ruling. The Platts wanted their other arguments upheld. The Attorney General's Office argued that the bill did not officially take effect until September 29. The judge held firm. "I think what the Legislature did is determine that these people do have property rights," Nelson told New Times.
The Platts cling passionately to the land they see as their birthright. Earl Platt is 84, as gnarled and weathered as the range where he runs his cattle; some of the land has been in his family since the 1870s. "I was born here," Platt says, "and I was ranching here since I was big enough to ride."
Nor is this the Platts' first legal battle over property rights; their efforts are merely the latest squabble in a long history of quarreling between ranchers and government of any sort. In the late 1800s, the federal government ruled that Western lands would remain in the public domain, which ranchers have seen ever since as a way for East Coast industrialists--and the congressional lobbies they manipulate--to keep control over Western resources.
"This is the same fight we've had since the Constitution was written," says C.B. "Doc" Lane of the Arizona Cattlemen's Association.
Not surprisingly, the Platt case leads back to the Wise Use Movement. Jay Platt consulted with the current prophet of land rights, Wayne Hage. Hage is author of Storm Over Rangelands: Private Rights in Federal Lands, a paranoid chronicle of the debate over who should own the land.
His book has become a sort of how-to bible for bucking the system, and as Hage brags, "The Supreme Court ordered six copies, even though I was never handicapped with a law degree." Hage is enough of a barnyard lawyer to serve as director of the Free Enterprise Legal Fund, an offshoot of Ron Arnold's Center for the Defense of Free Enterprise; Hage's editor and publisher, of course, is Ron Arnold. Hage's Nevada ranch is currently embroiled in a takings battle with the U.S. Forest Service, and Mark Pollot, who wrote the Reagan executive order, is his lawyer. Jay Platt met Hage while the former was on a speaking tour in Arizona, read Hage's book and talks with him on the telephone for advice. And though he doesn't agree with everything Hage says, he found his book helpful. "I've met Ron Arnold, too," Platt notes. "He says it's all-out war, and you have to treat it as such. In that sense, I agree with him."
Platt also retained Wyoming takings attorney Karen Budd--who used to share the lecture circuit with Wayne Hage on behalf of the National Federal Lands Conference--to represent him in a takings claim against the Forest Service on leased grazing land in Utah. Because of drought, the Forest Service asked Platt to temporarily keep his cattle off certain plots. Platt argued that it was a taking, but by the time the case came to court, the Forest Service had already lifted the stay. He worries that soon Arizona state environmental regulations will dictate every detail of how he runs his ranch here--how I run my feedlot, where I dispose of manure--even on his private property. And it rubs raw.
@body:Private property, says Wayne Hage, ". . . is the most important of all civil liberties, because without the ability to accumulate wealth, the private citizen has no way to protect himself from a totalitarian government." To his rancher's mind, somehow, environmentalism becomes an arm of that impending totalitarianism. "People are waking up to what the environmental movement is about," Hage rants. "It's nothing but a means to end all property rights. It has nothing to do with protecting air and forests. It's about control of the resource base--to concentrate it in the hands of certain international corporations and the big government that deals with big enterprises."
Their power and money, he feels, come from urbanites with bucolic escapist fantasies. "You look at the guy who lives in smog-filled Los Angeles surrounded by crime and he can't go outside, or the poor guy in New York who can't get a drink of water," he says. "You look at the poor guy in Detroit where the city is falling apart. They get a brochure from the Sierra Club saying, 'This beautiful area is going to be destroyed by some rapacious mining company or, worst of all, grazing.' How can he not send in his $15?"
There may be some truth to that vision. The environmental extremists would deny that the nation consumes the beef, needs the wood and paper and minerals that come from Western resources. And despite environmentalists' accusations that the land-use contracts extractive industries hold amount to industrial welfare checks, those industries are pushed to the wall economically. They see their oppressors as urbanites forcing regulations on businesses they don't understand. There is certainly irony in Eastern urbanites denouncing overgrazing in the name of environmentalism, when the closest they've been to a ranch is the cowboy boots and hats they wear as a fashion statement.
The extractive industries, however, refuse to admit that their operations constitute any environmental threat. And rather than adapt to changing times and diminishing resources, their response is to force legislation that says, "Let me do what I want or pay me not to."
The battle lines form, fueled by the cloudy logic and rhetoric on both sides. "I think it's going to be a classic political struggle, and I don't know who the winner's going to be," says Mark Killian.
Wayne Hage thinks the struggle will be more than political. "If we can't work it out in the legal system," he says, "it could eventually translate into lawlessness and violence.
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