SB1395 - 501R

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

Section 1. Heading changes

A. The chapter heading of title 17, chapter 5, Arizona Revised Statutes, is changed from "WILDLIFE VIOLATOR COMPACT" to "INTERSTATE COMPACTS".

B. The article heading of title 17, chapter 5, article 1, Arizona Revised Statutes, is changed from "ADOPTION" to "WILDLIFE VIOLATOR COMPACT".

Sec. 2. Title 17, chapter 5, Arizona Revised Statutes, is amended by adding article 2, to read:

ARTICLE 2. COMPACT ON ENDANGERED SPECIES MANAGEMENT

START_STATUTE17-521. Authority to enter compact

A. On the recommendation of the Arizona game and fish commission, the governor may enter on behalf of this state a compact with other states providing for the cooperative management of WILDLIFE LISTED AS ENDANGERED OR THREATENED UNDER THE FEDERAL ENDANGERED SPECIES ACT OF 1973 (p.l. 93-205; 87 sTAT. 334; 16 uNITED sTATES cODE SECTIONS 1531 ET SEQ.).

B. A compact for this purpose must meet the following requirements:

1. At least one of the other participating states must share a border with this state.

2. The goal of the compact must be to achieve the ultimate establishment of viable populations of threatened and endangered species in locations compatible with human activity.

3. The compact must recognize and accommodate the unique management needs and challenges of the several distinct populations and subspecies of the various species present among the participating states.

4. The compact must provide for the administration of its provisions and public participation and comment in formulating the policies, procedures and programs under the compact.

5. The compact must include provisions and protocols for compiling and sharing data and other information, documents and electronic files among the participating states, among state and federal wildlife management agencies and with the public.

6. The compact must include measures for addressing issues of human and wildlife interface, specifically including habitat and depredation.

7. The compact must provide for uniform civil and criminal penalties for violations.

C. Pursuant to their police powers to protect public health, safety, welfare and morals, the party states have enacted or anticipate enacting laws or constitutional provisions to protect and guarantee the institution of free enterprise and private property rights notwithstanding the federal endangered species act of 1973 (P.L. 93-205; 87 stat. 334; 16 United States Code sections 1531 et seq.) ("private property laws").

D. The party states have enacted or anticipate enacting laws that make it a crime in their state for anyone to interfere with their respective private property rights laws notwithstanding the federal endangered species act of 1973 (P.L. 93-205; 87 stat. 334; 16 United States Code sections 1531 et seq.).

E. The party states find it necessary and deem it desirable for making effective their respective current or anticipated private property rights criminal laws, as well as this agreement and compact, to do the following:

1. Prohibit any governmental agent from depriving any resident of any party state of the rights and freedoms guaranteed under its respective current or anticipated private property rights laws notwithstanding the federal endangered species act of 1973 (P.L. 93-205; 87 stat. 334; 16 United States Code sections 1531 et seq.).

2. Prohibit any governmental agent from penalizing any resident of any party state for exercising the rights and freedoms guaranteed under its respective current or anticipated private property rights laws notwithstanding the federal endangered species act of 1973 (P.L. 93-205; 87 stat. 334; 16 United States Code sections 1531 et seq.).

3. Cooperate with each other and to give each other mutual assistance in the prevention of crimes under the private property rights criminal laws of any party state notwithstanding the federal endangered species act of 1973 (P.L. 93-205; 87 stat. 334; 16 United States Code sections 1531 et seq.).

4. Cooperate with each other and to give each other mutual assistance in the criminal prosecution of anyone who violates the private property rights criminal laws of any party state notwithstanding the federal endangered species act of 1973 (P.L. 93-205; 87 stat. 334; 16 United States Code sections 1531 et seq.).

ARTICLE II

DEFINITIONS

As used in this compact, unless the context clearly indicates otherwise:

1. "Compel" includes legal mandates, penalties or fines.

2. "Private property rights laws" means any state law or constitutional provision that protects and guarantees the freedom or right to own, possess, use, transfer, sell, dispose of and enjoy private property and to own, operate and engage in otherwise lawful businesses on such private property.

3. "Private property rights criminal laws" means any state law that makes it a crime for anyone to interfere with anyone’s ownership, possession, use or enjoyment of the freedoms or rights protected and guaranteed by the state's respective private property rights laws.

4. "Penalty" means any civil penalty, criminal fine, tax, salary or wage withholding or surcharge or any named fee with a similar effect established by law or rule by a government established, created or controlled agency that is used to punish or discourage the enjoyment of freedoms or rights protected under the state's private property rights law.

5. "State" means a state of the United States.

ARTICLE III

TERMS

Notwithstanding any state or federal law to the contrary:

1. Each party state shall give full faith and credit to the private

Property criminal laws and private property rights laws of every party state.

2. A governmental agent shall not deprive residents of party states of the rights and freedoms protected under their respective state's private property rights criminal laws and guaranteed by their respective state's private property rights laws notwithstanding the federal endangered species act of 1973 (P.L. 93-205; 87 stat. 334; 16 United States Code sections 1531 et seq.).

3. Governmental agents shall not penalize residents of party states for exercising the rights and freedoms protected under their respective state's private property rights criminal laws and guaranteed by their respective state's private property rights laws notwithstanding the federal endangered species act of 1973 (P.L. 93-205; 87 stat. 334; 16 United States Code sections 1531 et seq.).

4. The party states shall cooperate with each other and give each other mutual assistance in the prevention of crimes under the private property rights criminal laws of any party state notwithstanding the federal endangered species act of 1973 (P.L. 93-205; 87 stat. 334; 16 United States Code sections 1531 et seq.).

5. The party states shall cooperate with each other and give each other mutual assistance in the criminal prosecution of any person who violates the private property rights criminal laws of any party state notwithstanding the federal endangered species act of 1973 (P.L. 93-205; 87 stat. 334; 16 United States Code sections 1531 et seq.).

ARTICLE IV

ENFORCEMENT

Notwithstanding any state or federal law to the contrary:

1. The chief law enforcement officer of each party state shall enforce this agreement and compact.

2. A taxpaying resident of any party state has standing in the courts of any party state to require the chief law enforcement officer of any party state to enforce this agreement and compact.

ARTICLE V

COMPACT ADMINISTRATOR AND INTERCHANGE OF INFORMATION

A. The governor of each party state or the governor's designee is the compact administrator. The compact administrator shall:

1. Maintain an accurate list of all party states.

2. Consistent with subsections C and D, transmit in a timely fashion to other party states citations of all current private property rights laws and current private property rights criminal laws of the compact administrator's respective state.

3. Receive and maintain a complete list of the private property rights laws and private property rights criminal laws of each party state.

B. The compact administrator of each party state shall furnish to the compact administrator of each party state any information or documents that are reasonably necessary to facilitate the administration of this compact.

C. Within ten days after executing this agreement and compact, and thereafter on the close of each of their respective succeeding legislative sessions, the party states shall notify each other in writing and by appropriate citation of each of their current private property rights laws, which shall be deemed within the subject matter of this agreement and compact, unless the compact administrator of one or more party states gives specific notice in writing to all other party states within sixty days of such notice that it objects to the inclusion of such law or laws in this agreement and compact.

D. Within ten days after executing this agreement and compact, and thereafter on the close of each of their respective succeeding legislative sessions, the party states shall notify each other in writing and by appropriate citation of each of their current private property rights criminal laws, which shall be deemed within the subject matter of this agreement and compact, unless the compact administrator of one or more party states gives specific notice in writing to all other party states within sixty days of such notice that it objects to the inclusion of such law or laws in this agreement and compact.

ARTICLE VI

ENTRY INTO EFFECT AND WITHDRAWAL

A. This compact is deemed accepted when at least two states deliver a notice of confirmation, which is duly executed by their respective authorized representative and which acknowledges complete agreement to the terms of this compact, to each other's governor, the office of the clerk of the United States house of representatives, the office of the secretary of the United States senate, the president of the United States senate and the speaker of the United States house of representatives. Thereafter, the compact is deemed accepted by any state when a respective notice of confirmation, which is duly executed by the state's respective authorized representative and which acknowledges complete agreement to the terms of this compact, is delivered to each party state's compact administrator, the office of the clerk of the United States house of representatives, the office of the secretary of the United States senate, the president of the United States senate and the speaker of the United States house of representatives.

B. Any party state may withdraw from this compact by enacting a joint resolution declaring such withdrawal and delivering notice of the withdrawal to each other party state. A withdrawal does not affect the validity or applicability of the compact to states remaining party to the compact.

ARTICLE VII

CONSTRUCTION AND SEVERABILITY

A. This compact shall be liberally construed so as to effectuate its purposes.

B. This compact is not intended to and shall not:

1. Prevent any person or association of people from enjoying or enforcing private property rights.

2. Authorize any activity that ordinarily causes cognizable harm or injury to any person or association of people.

3. Authorize increased regulation of any peaceful and productive activity of any person or association of people.

C. This compact is intended to operate as the law of the nation with respect to the party states under 4 United States Code section 112, to supersede any inconsistent state and federal law and to establish vested rights in favor of residents of the party states in the enjoyment of the rights and freedoms protected by their respective private property rights criminal laws and guaranteed by their respective private property rights laws.

D. If any phrase, clause, sentence or provision of this compact is declared in a final judgment by a court of competent jurisdiction to be contrary to the constitution of the United States or is otherwise held invalid, the validity of the remainder of this compact shall not be affected.

E. If the applicability of any phrase, clause, sentence or provision of this compact to any government, agency, person or circumstance is declared in a final judgment by a court of competent jurisdiction to be contrary to the constitution of the United States or is otherwise held invalid, the validity of the remainder of this compact and the applicability of the remainder of this compact to any government, agency, person or circumstance shall not be affected.

F. If this compact is held to be contrary to the constitution of any party state, the compact shall remain in full force and effect as to the remaining party states and in full force and effect as to the affected party state as to all severable matters. END_STATUTE

Sec. 3. Title 17, Arizona Revised Statutes, is amended by adding chapter 7, to read:

CHAPTER 7

AUTHORITY OVER ENDANGERED AND THREATENED SPECIES

ARTICLE 1. STATE AUTHORITY

START_STATUTE17-801. Authority over endangered or threatened species

Notwithstanding any federal law or regulation, this state, through the legislature, has authority to regulate endangered or threatened species under the federal endangered species act of 1973 (P.L. 93-205; 87 Stat. 884; 16 United States Code sections 1531 et seq.) END_STATUTE

START_STATUTE17-802. Short title

This article may be cited as the "protect Arizona species act". END_STATUTE

START_STATUTE17-803. Declarations of authority

The legislature of this state declares that the authority for this article is the following:

1. The Tenth Amendment to the United States Constitution guarantees and reserves to the states and their people all powers not granted to the federal government elsewhere in the Constitution as they were understood at the time that the amendment was ratified on December 15, 1791, subject only to modification by duly ratified subsequent amendments to the United States Constitution. The guaranty of those powers is a matter of compact between the state and people of Arizona and the United States as of the time that Arizona was admitted to statehood on February 14, 1912.

2. As a matter of compact between the state and people of Arizona and the United States as of the time that Arizona was admitted to statehood, the Tenth Amendment to the United States Constitution guarantees to the state and people of Arizona that Congress and the federal government will not exercise any purported power under article I, section 8 of the United States Constitution (the "Enumerated Powers") except in accordance with its meaning and understanding at the time the United States Constitution was ratified on June 21, 1788, subject only to modification by duly ratified subsequent amendments to the United States Constitution.

3. At the time the United States Constitution was ratified on June 21, 1788, the enumerated powers were meant and understood not to grant congress general police powers or the power to regulate the purely internal affairs of the states or their people. This meaning and understanding of the enumerated powers, as it pertains to management or regulation of endangered or threatened species has never been modified by any duly ratified amendment to the United States Constitution. Accordingly, the foregoing meaning and understanding of the enumerated powers is a matter of compact between the state and people of Arizona and the United States as of the time that Arizona was admitted to statehood on February 14, 1912.

4. At the time the United States Constitution was ratified on June 21, 1788, the enumerated powers were not meant or understood to authorize congress to regulate wholly intrastate manufacturing or noneconomic activities. This understanding of the enumerated powers, as it pertains to the management or regulation of endangered or threatened species has never been modified by any duly ratified amendment to the United States Constitution. Accordingly, the foregoing understanding of the enumerated powers is a matter of compact between the state and people of Arizona and the United States as of the time that Arizona was admitted to statehood on February 14, 1912.

5. At the time the United States Constitution was ratified on June 21, 1788, the enumerated powers were not meant or understood to authorize congress to prohibit any aspect of interstate trade except as necessary and proper to prevent state law from engaging in local protectionism and otherwise solely to ensure that interstate trade occurs smoothly and efficiently among the states. This understanding of the enumerated powers, as it pertains to the management or regulation of endangered or threatened species has never been modified by any duly ratified amendment to the United States Constitution. Accordingly, the foregoing understanding of the enumerated powers is a matter of compact between the state and people of Arizona and the United States as of the time that Arizona was admitted to statehood on February 14, 1912.

6. Congress has not expressly preempted state regulation of intrastate commerce pertaining to the management or regulation of endangered or threatened species.

7. The regulation of intrastate commerce, manufacturing and noneconomic activities, as it pertains to endangered or threatened species is excluded from the meaning and understanding of the enumerated powers at the time the United States Constitution was ratified on June 21, 1788, and it is vested in the states under the tenth amendment to the United States Constitution.

8. Under the Tenth Amendment, the people and state of Arizona retain their exclusive power to manage all wildlife or species within the boundaries of the State of Arizona, subject only to the Fourteenth Amendment's guaranty that the people and state of Arizona shall exercise such sovereign power in accordance with each citizen's lawful privileges or immunities, and in compliance with the requirements of due process and equal protection of the law.

9. Article II, sections 2 and 33, Constitution of Arizona, secure to Arizona citizens, and prohibits unreasonable government interference with, their natural rights to life, liberty and property as entailed by the traditional Anglo‑American conception of ordered liberty, including their rights as they were understood and secured by the law in the state of Arizona at the time the Arizona Constitution was adopted. This Constitutional protection is unchanged from the Arizona Constitution as it was adopted. The guaranty of this right is a matter of compact between the state and people of Arizona and the United States as of the time that Arizona was admitted to statehood on February 14, 1912.

10. The Ninth Amendment to the United States Constitution secures individual rights not specified in the Constitution and reserves to the people of Arizona as against the federal government their natural rights to life, liberty and property as entailed by the traditional Anglo-American conception of ordered liberty, including their rights as they were understood and secured by the common law at the time that the amendment was ratified on December 15, 1791, as well as their rights as they were understood and secured by the law in the state of Arizona at the time the Arizona Constitution was adopted. The guaranty of those rights is a matter of compact between the state and people of Arizona and the United States as of the time that Arizona was admitted to statehood on February 14, 1912.

11. To the extent that article II, sections 2 and 33, Constitution of Arizona, secures to Arizona citizens a more expansive right to manage or regulate all endangered or threatened species, than does the Ninth amendment to the United States Constitution, the Tenth amendment to the United States Constitution secures and reserves to the people of Arizona as against the federal government that right as it was understood and secured by the law in the state of Arizona at the time the Arizona Constitution was adopted. The guaranty of this right is a matter of compact between the state and people of Arizona and the United States as of the time that Arizona was admitted to statehood on February 14, 1912. END_STATUTE

START_STATUTE17-804. Declarations of exclusive sovereign authority and sanctions

A. The management or regulating Endangered or Threatened Species is a necessary incident of the Constitutional rights of Arizonans under the Ninth Amendment to the United States Constitution, as well as article II, sections 2 and 33, Constitution of Arizona.

B. The management or REGULATING of Endangered or Threatened Species is not subject to federal law or federal regulation under the Enumerated Powers of the federal government. Accordingly, to the extent that such management or regulation of all wildlife or species within the borders of the State of Arizona, such power is reserved to the State of Arizona or the people under the Tenth Amendment to the United States Constitution.

C. Any effort by any governmental official or AGENCY to enforce within the borders of the state of Arizona federal laws or federal regulations purporting to manage or regulate Endangered or Threatened Species is herewith declared a violation of civil rights and unlawful under Arizona state law. END_STATUTE

START_STATUTE17-805. Rule of construction and severability

Any court responsible for construing this chapter must adopt a construction of each provision that:

1. Confines the power of Congress to regulate under the Enumerated Powers, as it pertains to the management or regulation of the Endangered or Threatened Species Act to the least expansive interpretation permitted under binding precedent.

2. Secures the authority of the state of Arizona to exclusively regulate intrastate wildlife and species under the Endangered Species Act and under the Tenth Amendment to the United States Constitution to the greatest extent permitted under binding precedent.

3. Protects the constitutional rights of Arizonans under the Ninth Amendment to the United States Constitution, as well as article II, sections 2 and 33, Constitution of Arizona, as they pertain to the Endangered Species Act from regulation or restraint by the federal government to the greatest extent permitted under binding precedent.

4. If any portion of this chapter is held to be unlawful or unconstitutional under any present or future law or court decision, that provision will be fully severable. This chapter shall then be construed and enforced as if the unlawful or unconstitutional provision had never comprised a part of it, and the remaining provisions of this act will remain in full force and effect and will not be affected by any such unlawful or unconstitutional provision or by its severance from this chapter. END_STATUTE

START_STATUTE17-806. Violations; classification; jurisdiction

A. IT IS UNLAWFUL FOR A FEDERAL GOVERNMENT AGENCY OR EMPLOYEE TO INTERFERE WITH THE MANAGEMENT OR REGULATION OF ANY ENDANGERED OR THREATENED SPECIES IN THE STATE OF ARIZONA.

B. It IS UNLAWFUL FOR ANY ORGANIZATION, FOUNDATION OR other entity TO INTERFERE WITH THE MANAGEMENT OR REGULATION OF ANY WILDLIFE OR SPECIES, ENDANGERED OR THREATENED SPECIES IN THE STATE OF ARIZONA.

C. IT IS UNLAWFUL TO INTENTIONALLY AND KNOWINGLY HARM ANY SPECIES LISTED BY THE ARIZONA GAME AND FISH COMMISSION AS ENDANGERED OR THREATENED.

D. A VIOLATION OF SUBSECTION A, B OR C IS A CLASS THREE MISDEMEANOR.

E. THE SUPERIOR COURT HAS JURISDICTION TO HEAR ALL LEGAL ACTIONS BROUGHT AGAINST THIS STATE ARISING FROM THE PROVISIONS OF THIS CHAPTER. THE COURT SHALL AWARD COSTS AND ATTORNEY FEES TO THE PREVAILING PARTY IN ANY ACTION UNDER THIS SUBSECTION. END_STATUTE

START_STATUTE17-807. Effect on habitat conservation plans

This chapter DOES not apply to the management, regulation, conservation or other actions, INCLUDING THE IMPLEMENTATION OF PROJECTS, taken to mitigate effects to any endangered, threatened or candidate species included in a multi-species conservation program, HABITAT CONSERVATION PLAN, biological opinion, CONSENT DECREE or settlement approved or entered into by the SECRETARY OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, OR THE IMPLEMENTATION OF SUCH A HABITAT CONSERVATION PLAN. END_STATUTE