Property Rights Foundation of America®

from Proceedings of the First Annual N. Y. Conf. on Private Property Rights (PRFA, 1995)

Western States Directions to Regain Land-Use Sovereignty
Tom Rawles

Chairman, Maricopa County Board of Supervisors, Phoenix, Arizona

As I weave my way through a little history about what is going on in Arizona and the West I would like you to bear a couple of things in mind. We'll try to provide a next step of the analysis that we've heard today from everyone so far. I just want you to bear two things in mind, although they may not make sense in the beginning. The first one is a definition that I heard the other day in Phoenix from a free market economist Barry Asmus, of the National Center for Policy Analysis. He said, "An election is simply an advance auction on stolen property."

Keep that in mind.

Secondly, I'd like you to think about the fact that in this country there are really two sets of rights. One set are economic rights of which property is probably the most important. The second one is the individual liberties, the personal rights, free speech, freedom of religion, etc., things that don't have an inherently economic value.
You can have economic rights in a society without having individual liberties. But I submit to you that you cannot, under the most bizarre scenario you can describe, have individual liberties without economic liberties, without the right to private property.

So keep that in mind, as I try to lead you through a couple of things.

First of all just, by way of background, Arizona has 87% of its land in public ownership. Either the federal government or the state government or Indian tribes own every acre of land except the 13% of it that's privately owned. So although we don't have as much private land effected, the impact is much more severe because there's so little of it.

Maricopa County is the third largest county in the country by land mass. It's over 9,000 square miles and it is the 6th largest county in the country in terms of population with a little over 2.4 million people in it. We still have agricultural interests. We don't have mining anymore in the county, but we are still a diverse population, a diverse county, because the county is so geographically large.

I'm going to very briefly give you four stories , about the kind of problems that we're facing in Arizona.

Many of you may have heard about a big hole we have up there in the northwestern corner of our state called the Grand Canyon. Surrounding that canyon are millions of acres of forest land called Kaibab National Forest. Logging on that entire millions of acres has been halted by the federal courts in Phoenix because of an animal — and I quite frankly can't remember what it is so I'll just call it the "Mexican-wolf-spotted-owl-goshawk-snail-bird" — is endangered. Despite the fact that in the recorded history of man no one has ever seen one of these "Mexican-wolf-spotted-owl-goshawk-snail-birds" on this land, logging has been shut down.

We have a problem in Arizona, particularly in Maricopa County, with the National Clean Air Act. There's a thing called "PM-10." Scientists will tell you what it is and I'll tell you that it's dust. In the air in the Southwest we have dust. I'm sure that our dust would exceed anything that you would ever see in upstate New York. You get into a dust storm and you couldn't see the first table from the podium. So we had to pass very strict controls, because we're a non-attainment area. They lead to bizarre results. One of them pertains to a World Wildlife Zoo, which is a private zoo, which is an interesting concept in itself. It's a private zoo in the middle of an agricultural area. You can go two miles in any direction from this zoo and come to nothing but farm fields. Our PM-10 standards don't apply to farming operations. So farmers can plow and till and do whatever they want to on their property, and rightfully so, by the way, without having to comply with any standards. But this zoo has a dirt parking lot, and it has to pave its parking lot even though it probably contributes one-thousandth of the dust that arises out of that area.

Another Maricopa County problem, is that we just recently passed a county prohibition on citizens burning wood in their own fireplaces on certain days of the year. You cannot use a wood-burning fireplace on certain days of the year and we have 50 to 75 fireplace police out every time we have this day arise, when the inversion layer comes and sits over our valley. You can go out into your backyard and build a bonfire but you can't have a fire in your fireplace.

This next point may be a little hard to follow but it comes out of the fact that in this country we have taken the Constitutional rights which are essentially negative rights (the right to be left alone, as Roger Pilon described it at lunch, the right not to have government take things, the right to not have government interfere with you), and we've lately turned them into a positive right. What a positive right means nowadays is that if you want something you want someone else to pay for it whether it's the right to health care, right to a car, right to a job, this thing or that.

Up in northern Maricopa County is a little area called New River. The river's essentially a dry river except when it rains hard. We had 23 people go into the valley in the course of the last 10 or 15 years and build homes in the riverbed. I'm not talking about in the flood plain where water gets to in a hundred years, but in the actual riverbed itself. Because no federal, state or local agency had ever designated this riverbed a "floodplain," these people have now come to us and demanded that we buy them out because we didn't "do our job" of regulating their purchase of land that a moron could tell is in the middle of a river. By a three to two vote, the Board of Supervisors authorized the expenditure of $2.2 million because we were afraid that we were going to be sued.

I voted against it. I'd just as soon be sued and let us take our chances, but that's a different story.
Those are just four of the kinds of problems that we're experiencing in the West, at least in my little neck of the woods. What are we doing about it? Let me do this in a graduated level.

First of all, on this Wednesday's agenda of the Board of Supervisors we are going to adopt a protected development rights act, which basically says that when a developer comes in with a master plan for an area and it gets zoning approval, no subsequent change in zoning, regulatory efforts, or environmental protection can effect the right to complete that project. It's not a big thing, but it's something to say you now have a vested right. You no longer have to rely on the common law. We are as a matter of statute giving you vested rights.

We also last week adopted an ordinance that implements a state mandate which came out of the Legislature this year, that requires every city and town to comply with, by name, the Nollan and Dolan decisions.

It's an interesting statute. You rarely see statutes that say you must comply with existing law. This is one that actually names the cases that we have to comply with. We have to set up a hearing office and field process to make sure that any dedications and any exactions meet the dual nexus and proportionality requirements of Nollan and Dolan.

Again at the local level, we're trying to make sure that we can implement what's already there. Back in 1992, we, the Legislature, also passed what's come to be known as a "Look before you leap" private property rights initiative. That was a bill that required the Attorney General to prepare a set of guidelines to guide the State regulatory agencies as they contemplate actions and then requires the State regulatory agencies to take those guidelines and prepare a "takings" assessment before any action is taken and to make sure that there is a proportionality, to make sure that there is a nexus, and to anticipate the takings issue and to put a price tag on it.

Shortly after the law was enacted, a group of people got together and went out and got the signatures necessary to put it on the ballot. (We have a position in Arizona law that any piece of legislation can be referred to the people within 90 days if enough signatures are gotten, ten percent of the people who voted in the last gubernatorial election.) Because there were a lot of other initiatives at the same time, the Secretary of State said, "I can't get to the verification process by the October deadline for printing the ballots, so we're going to push this one off to 1994." That meant that the law remained ineffective, from as soon as the petition signatures were gathered until the election in 1994.

Despite having over two to one in monetary backing, that proposal went down to defeat by a vote of about 60:40. The "proposition" actually passed, which repealed the law.

Arizona was perceived as one of the strong property rights states in the Union and yet the law was crushed.

I think if it had been voted on in 1992 it probably would have passed, but in 1994 the theme throughout the country was limited government and less taxes, which was the Republican theme. It was crushed because the other side, the environmentalists and groups that were opposed to this law, grabbed that as their slogan and basically said that we're going to need a whole new bureaucracy to create guidelines and do studies, and it's going to cost the taxpayer an enormous amount of money.

And so, what happened, as Roger Pilon has indicated, was that these costs were kept off budget. They were borne by the private property owners rather that by the society as a whole. That was the result of the negative campaign.

The problem with the positive campaign was that it never came up with a clear, coherent message as to why the law was important. I was happy to come out here because this kind of education process and discussion about what's happening across this country to private property rights make this conference so important to help us define the issues, and thereby to help us reclaim that high moral ground. Although we've never given it up, in some people's minds we need to reclaim this high ground. I want you to just put that aside for a minute with the definition that I offered a little while ago.

What else is going on around the country, or at least in the West?

Washington State has an almost identical situation right now. Their Legislature passed a "Look Before You Leap" bill and opposition went out and got 230,000 signatures, and put that on the ballot. I don't know how that's going to turn out, but unless they can solve the problems that we did not solve in Arizona... Remember we had state agencies come out and say this is going to cost us $10 million more a year to implement.

Well, you put that together and those scare tactics drove people away from it. That may be happening in Washington.

There are also compensation bills where, I think, the Congress is considering one of those as well. Arizona had one. It was introduced, but it didn't pass. It basically said, that if you could show a loss of value over 10 percent, that could be compensable. Other states have it at 50 or 40 percent. Louisiana and North Dakota have this kind of law.

Two of the most interesting things that are happening are taking place at the county level, however. In Nye County, Nevada, the Board of Commissioners passed an ordinance saying all federal land in that county is owned by the State of Nevada and is subject, by custom and culture, to the control and management of them, the Commissioners of Nye County. Now that resolution, I'm sure, was duly embossed, signed and printed up and sent back to somebody in the Federal Government, and it will probably stay there a long time. But it is a nice strong statement.

In Catron County, New Mexico, they have taken the position, not that they owned the land, but that they have exclusive right to manage and control the land. They have asked the U.S. Fish and Wildlife to return to them all the grazing fees, etc., because they're really the ones who were due to operate it; so they're the ones who deserve the money.

That is a sovereignty issue. That is an issue over "local control is best." Again, there's no resolution of those and I don't think there's going to be any in the immediate future.

But I would suggest to you as the last thing I want you to keep over here before I weave this together, is that local governments, county governments and state governments are as equally capable of oppression as the federal government. Government is government.

I think the key here is what Richard Pilon talked about a few minutes ago about the Tenth Amendment. Those powers not delegated are reserved to the states, and to the people.

What I'd like to talk to you about in closing is the "people" aspects of that, because I don't feel any better, quite frankly, about having my State control that land than I do about the federal government controlling all that land.

Carol, I'm going to use you as a guinea pig for just a moment. I want you to assume that I hold a gun to Carol's head and say, "Carol, I will spare your life if you give everyone in this audience, including me, ten dollars."

Now, is that theft?

Everyone here, including those of you who were going to benefit from this, would say, "Yes, that's theft, of course it is."

All right, I agree. Let's not make it so severe.

Let's just say that the four of us up here tell Carol, "You give everyone in this audience ten dollars or we're going to beat the living daylights out of you, but we won't kill you."

Is that theft? Of course it's theft.

You're right. I'm wrong. I'm out of line here.

Let's have a vote.

Everybody in this room is going to vote as to whether or not Carol has to give us each ten dollars.

Is that theft? That is not only theft, that is American government today.

It goes back to what I said earlier about the election. It's an advance auction on stolen property.

Let me tell you about one other thing that we've done in Maricopa County. We did it last Friday in the strategic planning retreat, of all things, to revisit and revise our mission statement and our vision statement. We had one of the most glorious ones in the country, I'm sure. It went on for pages and it talked about quality of life and resources and all of the great and wonderful things that government was going to do. Our vision, of course, wasn't just to do them. Our vision was to be world-renowned for doing them. It doesn't matter whether we did them right. Just let people think you're doing them.

I couldn't stand the thought of six hours at the strategic planning retreat talking about this kind of government gobbledygook.

So I drafted a very short vision statement for the Maricopa County legislature, which for some strange reason I got my colleagues to adopt. One of the reasons was that the most liberal member of the board of supervisors in the state was sick that day, so she wasn't there. That probably helped. I take advantage of every opportunity.

The Mission Statement of Maricopa County now reads:

"The mission of Maricopa County Government is to enhance, increase and enrich the individual freedoms of all its citizens." Period.

What is done by that is shift the paradigm. And if I can figure out how to use the word "synergy" in this and we use at least two of these favored words, that would save time. But we truly have shifted the paradigm, because no longer is the collective good the role of Maricopa County Government, it is individual freedom.

That gets us back to what the moral and legitimate function of government is: it is to preserve and protect freedom.

In this country, for the last sixty years at least, we have elevated security above freedom. When we voted to have Carol give all of us ten dollars, we concluded that our security, our need for that ten dollars, was more important than her freedom.

In this country we have lost sight of the simple fact that this pen, however I got it, whether it was a gift or whether I bought it, is mine, and that you have no legitimate right to it. Whether you want to use it to sign an official public document and then give it back to me, or to just take it because pens are inherently dangerous somehow, you have no right to it unless you compensate me for it.

What I want to suggest to you is that we need to take the battleground one step further to not just pay for it but to recognize that, in most cases and particularly at the federal level, it is probably illegal and unconstitutional for you to take it anyway.

Congressman Richard Pombo asked, "How do I prioritize these very difficult balances." I would suggest the answer lies in just three words, the free market. That's where the answer lies.

Closing a speech has always been difficult for me. Very rarely do I get to close a speech in this position... I used to work for a Congressman but never really got to tell one something.

I would suggest to put this on a different plain. At least as it relates to private property, don't reform the Endangered Species Act, repeal it.

If we are a free people and if we believe in a free market, let's ask our government to act accordingly and let's deliver.


Editor's note: Please see Arizona Proposition 300, the Property Rights Referendum.

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