federal government; land acquisition; consent, the official text

REFERENCE TITLE: federal government; land acquisition; consent

State of Arizona

Senate

Fifty-seventh Legislature

Second Regular Session

2026

SB 1281

Introduced by

Senator
Farnsworth

AN
ACT

amending
title 11, chapter 3, article 3, Arizona Revised Statutes, by adding section 11-485;
amending section 37-620.02, Arizona Revised Statutes; amending title 37,
chapter 4, Arizona Revised Statutes, by adding article 2; relating to United
States land acquisition.

(TEXT OF BILL BEGINS ON NEXT PAGE)

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 11, chapter 3, article 3,
Arizona Revised Statutes, is amended by adding section 11-485, to read:

START_STATUTE11-485. Federal government land acquisition; recording of deed;
prohibition

NOTWITHSTANDING any other law, a county recorder
may not record a deed that transfers real property to the federal government.

Sec. 2. Section 37-620.02, Arizona Revised
Statutes, is amended to read:

START_STATUTE37-620.02. State consent required; acquisition of private real property by
the United States; joint resolution; exception

A. Pursuant to article I,
section 8, clause 17, [of the]
Constitution of the United States, the consent of this state may not be given to the acquisition, of sale, gift or grant or any other transfer of
an ownership interest in any [other] privately owned
real property within this state that is not in the possession of
any federal agency as of the effective date of this amendment to this section by
the United States [only upon] that would
remove the real property from state, county and municipal property tax rolls
without the express, affirmative consent of the legislature and the governor
through the governor's signing of a joint
resolution adopted by an affirmative vote of a majority of the
members of the legislature to that effect. The joint
resolution shall recite the legal description of the land and the purposes to
which [the] this state consents that
the property may be used.

B. This section
does not limit the rights of any indian tribe with respect to the tribe's
indian lands, reservations and lands acquired as a settlement of a land claim.

Sec. 3. Heading change

The chapter heading of title 37,
chapter 4, Arizona Revised Statutes, is changed from "ACQUISITION OF
PRIVATE REAL PROPERTY BY STATE OR POLITICAL SUBDIVISION" to
"ACQUISITION OF PRIVATE REAL PROPERTY BY GOVERNMENT ENTITIES".

Sec. 4. Title 37, chapter 4, Arizona Revised
Statutes, is amended by adding article 2, to read:

ARTICLE
2. ACQUISITION OF PRIVATE REAL

PROPERTY
BY FEDERAL GOVERNMENT

START_STATUTE37-821. Sale or transfer of private real property to federal government;
notice; joint legislative committee; violation; civil penalty; definitions

A. On the opening of escrow for the
sale or transfer of title interest of private real property to the federal
government or a federal agency, the escrow agent shall do both of the
following:

1. Notify the president of the senate
and the speaker of the house of representatives that a contract for the sale or
transfer of private real property to the federal government or a federal agency
has been placed in escrow.

2. Submit a request in writing to the
president of the senate and the speaker of the house of representatives for
approval of the sale or transfer pursuant to section 37-620.02 and
article I, section 8, clause 17, Constitution of the United States.

B. For a private sale or transfer 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 president of the senate
and the speaker of the house of representatives of the sale or transfer of
private real property to the federal government or a federal agency.

2. Submit a request in writing to the
president of the senate and the speaker of the house of representatives for
approval of the sale or transfer 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 the 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 or transfer 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 president of the senate
and the speaker of the house of representatives 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. For the purposes of this section,
"escrow" and "escrow agent" have the same meanings
prescribed in section 6-801. END_STATUTE

START_STATUTE37-822. Applicability

This article does not apply to a trustee's deed
or mortgage that is insured or held by the United States department of housing
and urban development, the United states department of veterans affairs or the
federal housing administration. END_STATUTE

Sec. 5. 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 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 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. 6. Short title

This act
may be cited as the "Tax Base Protection Act".