Equal Access - The Struggle for Tuweep
By Mark Spencer
It’s a new year, a new legislative session, and a new day in the struggle to gain equal access to the Tuweep airstrip for Arizona pilots.
For our members’ benefit, here is a very brief history of the Tuweep struggle:
The Tuweep airstrip has been closed for nearly 10 years now for the expressed purpose of reducing the state’s exposure to liability. The APA and RAF tried to save it back in the 05-08 time frame, when Arv Schultz and others invested countless hours in negotiations with the Arizona Land Department (ASLD), but ASLD pulled the plug in these negotiations without warning, killing any hopes of regaining access to the famous Tuweep airstrip. This was a real kick in the gut to the team back then, and one that had its effect on the whole team, right up until 2012 when the APA and RAF were successful in amending the state's Recreational Use Statute (RUS) adding the operation of aircraft. With this new limit on liability in hand, we approached the ASLD once again. It’s getting a little cloudy, but I think we had no less than 4 meetings with ASLD, several conference calls, and countless meetings with legislators, lobbyists, ADOT, and even a senior advisor to the governor. In spite of the new RUS, the ASLD's position was that the only way to regain access to the Tuweep airstrip was if we:
- Provided a responsible management party thorough a lease agreement ($1,750/yr)
- Provide a liability policy in the name of that party ($1,500 - $$3,500/yr)
- Pay the additional liability costs for the ASLD (~$7,000/year)
We argued that such a requirement would undermine any protection offered by the RUS, since only a nominal non-revenue generating fee may be charged under the RUS. In spite of the fact that the Attorney General backed up this argument, the ASLD stuck to their offer, so we went to work on a potential agreement under that framework. Unfortunately, as the costs ratcheted up, and concern over the precedent this would set for aviators in all states, and all potential recreators on trust lands, we ultimately said no to this path and continued to ask for access under the same recreational permit system currently in place for all other classes recreating on trust lands.
It is important to understand that the ASLD is a nearly an autonomous fourth branch of government under the AZ Constitution. Its sole function is to manage trust lands, given to AZ at statehood, for the maximum benefit to its beneficiaries, which is basically public schools. Profits from this land, coming from leases and sales, go to the schools. The ASLD is part of the Executive branch, and the legislature only has limited powers to regulate how it accomplishes its constitutional mission. This being said, the ASLD relies on the budgeting process for its funding each year. It is not clear how much leverage this gives legislators over the ASLD, but it may offer some. In the end, there is no statute existing that forbids the ASLD from allowing the pilot community access to state trust lands, it is purely policy, a policy based in the concern of liability and its cost to them. To further cement this fear of liability, the ASLD lost a liability lawsuit involving an OHV rider just a few years ago to the tune of $5.5M, prompting them to initiate the amendment that added OHV's to the RUS, the same amendment we piggybacked on to add aviation. It was with this new RUS that we believed we would regain access. One must admit that it is appears strange that the RUS is relied upon to protect the state from OHV liability, but not aviation. Additional costs associated with aviation liability insurance are sighted, but we’ve never been presented with supporting evidence of this, or evidence that the same costs are not present for ASLD relating to other recreational activities on trust lands. At this point we can only speculate, but there is clearly some motivation beyond what has been placed on the table to make the cost of entry for one class of Arizonan, that being the pilot community, more onerous than for other classes. I could get into my thoughts on this, but should leave that for face to face discussions.
This year we are back at it, and have the ear of some important legislators, including Majority Leader Gowan, Speaker Tobin, and others. We began on the path with a letter to the Land Commissioner, and a discussion of possible legislation, but since the governor would have to sign any legislation passed, it seems that pressing for a simple change in policy makes the most sense at this moment; a policy change could be made by the commissioner or the governor with no legislation required. There is a process to follow here, one that we are working through day by day and week by week. It begins back at the table with ASLD, and this will happen on January 27th, thanks to Leader Gowan. If this does not produce positive results, we may have an opportunity to enter a formal appeal process defined under Title 37 for challenging the Commissioner's decisions. If we fail there, we will make a full court press on the Governor, and will be calling upon all of you for that effort if it becomes necessary. In the end, it may take a new governor, who makes new policies, and new appointments, and to these ends we have begun contacting gubernatorial candidates most likely to win this the upcoming primaries to get their attention early on.
The bottom line is that, while the state constitution and statutes give the commissioner broad powers on management of state trust lands, it is inconceivable that it gives the power to apply differing standards of entry, or privileges, when differentials in the resulting consequences of that entry are absent. In fact, we would argue that any difference in those consequences are demonstrably in favor of the very class being denied access through the current recreational use permit system, that being the pilot community.