(Note from Jonathan DuHamel: I'm still waiting for an answer to the following letter I sent to State Land Commissioner Mark Winkleman.)

August 28, 2003

Mr. Mark Winkleman

State Land Commissioner

1616 W. Adams

Phoenix, AZ 85007

Dear Mr. Winkleman,

Recently, your department proposed an auction of State Trust Land near Tumamoc Hill in Tucson with a conservation easement as condition of sale. Upon protest, that auction was canceled.

Even more recently, it was announced that your department has designated a parcel of more than 4,500 acres near the Tortolita Mountains as "conservation lands" under the Arizona Preserve Initiative. http://www.land.state.az.us/programs/operations/api.htm

Again, the conditions of sale are that a conservation easement would be placed on the land.

Placement of an encumbrance such as a conservation easement as a condition of sale would seem to violate the Arizona Constitution, specifically Article 10, Section 3, which says in part:

"No mortgage or other encumbrance of the said lands, or any part thereof, shall be valid in favor of any person or for any purpose or under any circumstances whatsoever."

Can you please explain to me why you think that placing a conservation easement on property proffered for sale, even under API, is not unconstitutional?

People for the West, and affiliated organizations throughout the state, have no objection to conservation per se, but we are concerned that the Trustees, Arizona's school children, receive maximum value from State Trust land sales, and that those sales comply with the law.

If he answers, I will publish his response.

The Arizona Constitution may provide a basis for challenging all state land sales in which a condition of sale is a conservation easement.

Any lawyers out there want to opine?