Arizona State Land Trust – “The Highest & Best Use”

When Congress established the Territory of Arizona in 1863, Congress set aside sections 16 and 36 of each township of the Territory of Arizona for the benefit of the Common Schools, a practice first established by the Northwest Ordinance in 1787.  Congress recognized then the value of land and the importance of public schools to the developing nation.  In addition to the land set aside by Congress in 1863, the 1910 Arizona-New Mexico State Enabling Act, which allowed the Territory of Arizona to prepare for statehood, also set aside sections 2 and 32 of each township to be held in trust for the Common Schools.  The set aside for the Common Schools in Arizona currently totals approximately eight million acres. 

One of the early actions by the Arizona legislature after statehood was to create the State Land Commission, who were charged with assessing, evaluating, and making recommendations about the use of the state land trust .  The Commission, which later became the Arizona State Land Department, concluded that Arizona should not sell its Trust land outright, as other states had done.  Instead, it should put the lands to their "highest and best use."  This concept may well have been gleaned from the General Mining Act of 1872, which effectively states that mining on federal lands is deemed to be the "highest and best use" of that land.

The "highest and best use" concept has historically led the Arizona State Land Department to attempt to maximize the revenue for the designated beneficiaries of the trust, namely the Common Schools.  Increasingly, this concept has been criticized because it fails to incorporate any potential for conservation of those lands. 

Indeed, a 2006 initiative attempted to give the state of Arizona more power in managing the state land trust and also attempted to set aside over 600,000 acres of state trust land for conservation purposes.  However, that initiative failed.  A similar initiative will be on the ballot in 2008, which proposes setting aside some 570,000 acres of state trust land.  Undoubtedly, the competing interests of maximizing revenues for the state land trust and the pressure to conserve sensitive state trust lands will continue to play out in both the Arizona legislature and through the public initiative process.