Undergraduate enrollment officials say they never considered race in the first place – others say the schools were never selective enough for race to make a difference – and that minority enrollment has actually increased slightly.

The state’s professional schools have seen a slight dip in minority enrollment, but say it’s too early to tell if it’s because of the law. In the meantime, they said they have found other ways to maintain a diverse class. And campus programs targeting specific groups still operate under their original intent to “serve an underrepresented population” but officials say they meet the new law.

“We, some time ago, took a look at all programs, services, selection process and the like to ensure there aren’t any concerns regarding participations or selections and involvement on the basis of race,” said James Rund, senior vice president of educational outreach and student services at Arizona State University. There are not, he said.

The university’s long-standing priority of “inclusivity” and its custom to not “limit enrollment or participation” made it fairly simple for ASU to comply, said Rund, who added he is confident the school is “in a safe harbor” under the new law.

“The goal of the legislation is to create equity and parity and we certainly don’t quarrel with that if that is the goal,” Rund said.

Proposition 107 passed with 60 percent of the 1.6 million votes cast in November 2010. It added a section to the Arizona Constitution to prohibit programs that grant “preferential treatment to or discriminate against any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.”

The measure’s sponsor, Rep. Steve Montenegro, R-Avondale, did not respond to repeated calls seeking comment on the impact of the measure.

For Arizona’s universities, complying with the law was easy: Officials said race, ethnicity and gender were never considered in undergraduate student admissions, even though schools are committed to having a diverse student body that reflects the state’s overall demographics.

“We want to be accessible,” Rund said. “We clearly want our student population to reflect the population of the state. We regard that as a high priority for the institution in every respect.”

But the man behind a similar 1996 California law challenged the notion that campuses should reflect the demographics of the overall state population or that universities should make that a priority. Ward Connerly, founder and president of the American Civil Rights Institute, said university demographics should not be representative of the state “anymore than you have equal representation on the basketball team or the football team.”

“People pursue different things based on individual treatment,” Connerly said. “Kids that are, quote, minorities are no different than any other set of kids. They want different things and their goals in life – they will vary.”

California universities saw a “dramatic drop in the number of underrepresented minorities” following the ban there because “there was an enormous academic performance gap between blacks and Native Americans and Hispanics,” Connerly said.

In Arizona, by contrast, overall undergraduate enrollment of minority students has slightly increased since the ban was implemented.

Connerly suggested that is due to the fact that Arizona schools were less selective to begin with. When a school is “not worried about having to choose between an A-minus student and a C-minus student,” it does not have to take race into account in admissions and would be less affected by a ban on preferential treatment.

“I don’t think Arizona’s universities have to be as selective as Berkeley and UCLA because the demand for admission is not as great,” Connerly said. But that does not lessen the need for a ban on preferential treatment, he said.

Before the law was passed, Arizona’s public law schools and its medical school did use race as a factor to create a diverse class of students.

“Race was considered, and validly so by the law,” said Shelli Soto, assistant vice provost and associate dean of admissions at the ASU Sandra Day O’Connor School of Law.

Her school, along with the University of Arizona’s James E. Rogers College of Law and its College of Medicine, were committed to reviews of prospective students that included academic performance, work experience, personal statements, family background, socioeconomic status, and, previously, ethnicity.

The admissions process has remained largely the same for those programs, but race and ethnicity information is no longer shared with the admissions review committee, officials said.

In the one class that has been admitted since the ban took effect, both law schools saw about a 3 percent drop in minority student enrollment while the medical school stayed the same. But it might be too early to tell if there will be a long-term effect on minority student enrollment, said James Kerwin, interim associate dean at the medical school.

“I don’t think there’s enough evidence to see if there’s been a change, but time may tell,” Kerwin said. “I hope we’ll continue to get a diverse student body and I think we will. We’re still committed to diversity, at the same time as we’re committed to following the mandate of Prop 107.”

Kerwin said the medical school had to change enrollment procedures “to some extent” and consider other factors that can still contribute to diversity – “socioeconomic status, coming from a rural environment, being a first-generation college student, being multilingual, overcoming barriers in the process of their education up until medical school, disabilities.”

“We don’t choose those because they would be more common in a certain race or ethnicity,” Kerwin said. “We chose them because it promotes diversity in the class and that we’re more likely to have students from different backgrounds.”

Paul Bender, a constitutional law professor and former dean of the ASU law school, said he does not think considering race or ethnicity to create a diverse class would be a violation of the ban on preferential treatment.

“They (Arizona voters) voted for something much narrower than that,” Bender said. “Don’t treat people badly, don’t discriminate. I think it ought to be read that way. There is no law in Arizona about what this means.”

It was not “just a chance thing” that the words “affirmative action” were not included in the language of the law, Bender said. Banning the use of enrollment policies that help create a diverse class would have failed at the ballot box, he said.

Arizona is not the only state that has followed California’s lead – Michigan, Nebraska, Oklahoma and Washington have similar laws banning preferential treatment and the Supreme Court said this spring that it will hear a University of Texas case where race was a considered factor in student admissions. But Arizona is the only one of those states making headlines for another racially tinged policy, the SB 1070 immigration-enforcement law considered by the Supreme Court last week.

ASU Vice Provost Delia Saenz and other university officials said even though the university’s day-to-day operations were not greatly affected by the ban on preferential treatment, it still brings negative publicity to the state.

“There was concern probably throughout the state in terms of perception of diversity and how they’re treated at different levels of government and education,” she said. “They raise eyebrows as to what the politics of Arizona are about.”

ASU and other institutions have to argue that “what happens at the state legislature doesn’t necessarily reflect the sentiments of everybody in the state,” Saenz said.

“Diversity is actually a driver of innovation and economic development,” she said. “(The ban) constrains the full use of human capital from all diverse backgrounds and tends to give the state more of a black eye.”

Pass the ban on racial preferences, they said, and it would mean the end of programs like Arizona State University’s Hispanic Mother-Daughter Program, which aims to increase the odds for Hispanic women who would be the first in their families to attend college.

The proposition passed, but the program still exists. And officials say the Hispanic Mother-Daughter Program is, theoretically at least, open to more than just Hispanic mothers and daughters.

“It’s important to underscore that any student can participate in any program even though it might have a target population,” said James Rund, senior vice president of educational outreach and student services at Arizona State University.

Rund said the mother-daughter program is still around because there are “specific programs that have an emphasis on certain populations.” He pointed to other targeted student-services programs, like African-American Men of ASU, and said all comply with the state’s ban on preferential treatment.

“Latinas are still underrepresented at the institution, though we’ve made great progress,” Rund said of the mother-daughter program. “We want to ensure that we have a program that signals to the specific population that it is a priority for the university, at the same time making it available for all that want to participate.”

But just because the program is open to everyone doesn’t mean everyone’s applying.

The program has never told a male student he couldn’t apply, for example, but it has never received an application from one either, said Anita Tarango, ASU’s director of outreach for educational outreach and student services. That may be because it does not appeal to them, she said.

“It’s not necessarily going to be appealing to a broad spectrum of people,” Tarango said. “The audience is primarily Hispanic females – not exclusively, but predominantly.”

Rund called it “unlikely” that a male would want to be part of the program: “We won’t prohibit their participation, but the program is clearly focused.”

Program Director Jo Ann Martinez said being Hispanic is not a requirement, either, but she could not say if any non-Hispanic students are enrolled in the program, even though they are asked to identify their ethnicity on the application. While that information is “on hand,” it is not tallied, Martinez said.

The nearly 30-year-old Hispanic Mother-Daughter Program admits more than 100 students annually. Phoenix and East Valley school districts refer eligible seventh-grade students: Those who would be the first in their families to go to college, who are performing at grade level for English and math, and have at least a 2.75 grade-point average.

Prospective mother-daughter teams go through an “extensive” application process to whittle 500 students down to 140 teams that will start the program this fall, Martinez said.

Students have to be referred by their schools to apply. But the schools themselves interpret the program differently.

“If you say it’s the Hispanic Mother-Daughter Program – why would you identify anyone else?” asked Gracie Barraza, community service liaison for Roosevelt School District – which has 18 schools with seventh-grade classes.

Barraza said the schools have different approaches in reaching eligible students, but “the teachers know exactly who they can approach on that.”

Cesar Chavez Community School – a Roosevelt District school – passes out fliers to all seventh-grade classes and invites interested students to attend a meeting on the program. Chavez Principal Ivette Rodriguez said she has seen non-Hispanic girls admitted into the program at other schools, but has never seen interest from a male student.

“Because of the name of the program there might be an assumption on their (the boys’) part,” Rodriguez said. “Obviously, I think it would be great to have the same opportunities for all of our students – maybe one of our young men would like to apply for this.”

But in other school districts, recruitment is more targeted.

Debbie Fast, English Language Development coordinator at Chandler Unified School District, said the program has “qualifying factors of race or gender” and participants “have to be Hispanic and female.” Guidance counselors at the district’s seven participating schools approach Hispanic girls who might be first-generation college students and let them decide if they’re willing to make the time commitment, Fast said.

The ASU program wants schools to continue targeting the students with “the greatest need and have the greatest benefit for the program,” which Tarango said are Hispanic females.

“There are limited spots,” Tarango said. “They (schools) want to assure that the people that will get the most benefit are the people that are applying. That is what the hope would be.”

“Wow, you know? It felt good,” Zobel said. “We finally won. We had a lot of other legal challenges and never prevailed, but we finally prevailed, and it was a big deal at the time.

“Or at least it seemed to be.”

Seemed to be, because three years after the Supreme Court refused to hear the Carlota Mine case, handing Zobel an apparent victory, the only thing that has changed at the mine is the company extracting the copper.

Mining began a month before the high court decision that so excited Zobel and it has not stopped since. The mine’s owners adjusted their operations plan so that it complied with regulations and court rulings, said an official with the Arizona Department of Environmental Quality.

“Our compliance inspectors have been out there many, many times,” said Linda Taunt, deputy director of ADEQ‘s water-quality division. “We have not found them in violation.”

The mine’s opponents disagree. They say Carlota is not in compliance and continues to act as if the court case had never happened.

“We won the Supreme Court, but the regulatory bodies just ignored the ruling and allowed them to go right ahead and destroy the area,” Zobel said.

The mine’s owners declined to comment on the fight, now almost two decades old.

A “spectacularly beautiful desert creek”

The fight began in the early 1990s, when residents and environmentalists first became alarmed at plans that called for the Carlota Mine to displace an entire mile of Pinto Creek to construct an open pit.

“Pinto Creek is a spectacularly beautiful desert creek,” said Don Steuter, a longtime opponent of the mine and the conservation chair of the Sierra Club‘s Grand Canyon Chapter. It “is one of the last remaining examples of what desert creeks should look like. I mean, it’s just spectacular.”

The creek west of Miami, Ariz., starts south of Highway 60 and runs 30 miles through the Tonto National Forest before emptying into Roosevelt Lake.

“Pinto Creek was one of the few, last free-flowing streams from source to the lake, and it went through a very . . . scenic nice area,” Zobel said. “They wanted to destroy this area for a very short-term, limited project.”

No less an Arizona icon than former Sen. Barry Goldwater cited the need to preserve the creek, after it landed on a list of the nation’s most endangered waterways in 1996.

“Maybe we need copper, but we also need exceptional places like Pinto Creek,” the Arizona Republic quoted Goldwater as saying. “We’ve lost a lot of little gems like Pinto Creek in Arizona over the years for various reasons. How many more can we afford to lose?”

Original plans called for the mine to discharge copper into Pinto Creek, which was already impaired by the metal. Because of the proposed creek discharge, the mine needed a permit from the Environmental Protection Agency certifying that the project met standards under the Clean Water Act.

Opponents worried that the mine would destroy the area, and that high copper levels in Pinto Creek would harm its aquatic life, but they could not act until the permit – a National Pollutant Discharge Elimination System permit – was issued.

The permit was issued in 2000 and the opponents began mounting challenges, eventually ending up in court with their fight.

In 2007, the 9th U.S. Circuit Court of Appeals vacated the NPDES permit, ruling that the EPA incorrectly allowed discharge of a pollutant into water already impaired by that pollutant. The court said the Clean Water Act requires that any permit include a plan to actually improve polluted waters, not just maintain them.

“Do we allow people to add more pollutants to (impaired waters) or do we clean them up?” asked Roger Flynn, the attorney who argued the case for the Friends of Pinto Creek. “That was the main issue.”

Two years later, the Supreme Court declined to hear an appeal of the 9th Circuit ruling, handing Zobel an apparent victory and potentially raising environmental protections for the country’s more than 41,000 impaired waters.

“We were going up against $500-an-hour attorneys and all we had was Roger (Flynn), and Roger won,” Zobel said.

The ruling’s impact – elsewhere

Some believe the ruling in Friends of Pinto Creek v. EPA has affected the way EPA and industry lawyers approach such cases.

“Pinto Creek has had an enormous influence on water-quality policy, I think, nationwide,” said Rick Parrish, a senior attorney at the Southern Environmental Law Center. “I consider it one of the most important Clean Water Act decisions ever.

“Regulators and dischargers and environmental groups are all significantly attuned now in the wake of the Pinto Creek decision,” he said.

Craig Johnston, a professor at Lewis and Clark Law School in Portland, Ore., notes that only a handful of cases have cited Pinto Creek. But he said that may be a sign the EPA changed its procedures after the decision.

“I think EPA is very aware of this opinion nationally,” he said. “At least until EPA decides what to do about it nationally, I suspect it’s saying, ‘Let’s live with it, and let’s follow it.’”

But while the Pinto Creek ruling may have had an effect elsewhere, it had little apparent impact on Pinto Creek.

“We thought that they would have to have a permit . . . and that that would trigger a cleanup,” Steuter said. “But they avoided that.”

Between the time that Carlota applied for its permits and the time of the circuit court decision, the EPA largely handed the responsibility for issuing and enforcing water permits over to the states. And the Carlota Mine reworked its plan, building impoundments to retain wastewater instead of discharging into Pinto Creek.

“As long as a facility doesn’t discharge, theoretically it could operate,” said Taunt, of ADEQ. “That’s what Carlota is doing, is trying to internalize all of their discharges. All of their discharges go back to the pit essentially.”

She said state inspectors have checked the site multiple times and have only found discharges into Pinto Creek tributaries – Haunted Canyon and Powers Gulch -  which are permitted.

The mine now operates under a Multi-Sector General Permit, issued in 2000 by the EPA and up for renewal now with the state. Taunt said the state expects to send a letter shortly renewing the MSGP permit, but that there have been some concerns, the biggest being whether the mine is discharging wastewater from points that were not approved in the 2000 permit.

Taunt said it is unlikely that all the discharge points on the new application will be approved, “so we just need to make sure that we tell them the ones that are. And then they’re going to have to do probably what they did before and make large impoundments in these other ones to make sure they never discharge.”

Another concern is the temperature at which Carlota pumps water back into Haunted Canyon.

Carlota pumps water from wells at Haunted Canyon for mine operations. Because that can reduce Pinto Creek flows, the mine has to pump the used water back into Haunted Canyon, and that water eventually flows to the creek.

“At certain times of the year that pumped water is warmer than the ambient stream temperature,” Taunt said. “So we need them to do something to make it more like the stream temperature so it doesn’t cause any more problems.”

Another fight, or a moot point?

For mine opponents, who thought the circuit court ruling would lead to a cleaner Pinto Creek, the continued operation of the mine has been a disappointment. They believe the state has been too lenient and has given Carlota too much time to comply with standards.

“Who knows if the EPA would have done a better job – we’ll never know – but ADEQ, obviously, we feel is not enforcing the law properly,” Flynn said. “They have to protect the stream, and that’s what they’ve been dragging their heels on.”

Flynn, who first raised concerns about the Haunted Canyon water-temperature issues last July, now charges that the state is letting the mine pump the put-back water without a permit. He argues that the mine needs an NPDES permit for the put-back water, but that state officials “just ignore it, and look the other way in hopes the mine will continue.”

“They have yet to enforce the 9th Circuit’s decision,” Flynn said. “They’ve been dragging their heels.”

Taunt agrees that pumping put-back water is not covered by the 2000 permit, but she said the state does not believe that requires an NPDES permit.

“It’s surface water to surface water as far as we’re concerned,” Taunt said. “It has very low levels of copper, if any, so it’s well below the surface-water standard. So we’re looking at authorizing it as an ancillary discharge.”

Taunt said that even though opponents are “disappointed that the mine is operating,” the state is doing its job, by inspecting and interacting with Carlota and the other mines in the Globe area.

“Our role is to make sure they’re operating within the permits we issue. That’s our job,” she said.

In the meantime, opponents are waiting for the state’s next move before they decide what to do, which could include filing another lawsuit.

“We’re waiting to see what Arizona does about all these permitting issues . . .  if ADEQ ever gets around to issuing these permits,” Flynn said. “They’ve been dragging their feet for years to avoid having Carlota comply with the law.”

But any action at this point may be moot.

Quadra FNX, the company that took control of the Carlota Mine from Cambior Inc. in 2005, said in its 2011 annual report for Carlota that it plans to end mining operations there in 2013. Quadra FNX was acquired earlier this year by another company, KGHM International.

In the last two years, more than 30 million pounds of copper were extracted from Carlota, bringing in almost $200 million in revenue, the annual report said. But it reported an operating loss of $66.8 million as a result of production costs and other expenses during that two-year period.

While pleased with the news that mining could stop in 2013, for Carlota’s opponents “the damage is done.”

“They took this pristine area . . . for a little bit of copper, only half of which they ever got,” Zobel said.

The Bouse Fisherman Intaglio is said to represent Kumastamo, a god who thrust his spear into the ground to make the Colorado River flow.

For centuries, members of Native American tribes along the river have had a spiritual connection to the La Posa Plain, which unravels across the bleak desert toward distant mountains. Dig a hole and you’re likely to find prehistoric artifacts.

“It can be as small as stone flakes to make a stone tool or as big as a village site,” said John Bathke, historic preservation officer for the Quechan Indian Tribe. “There were many tribes that came here to trade, live, sing, worship.”

The undisturbed landscape stretching between mountains, known as a viewshed, is as precious to tribes as the fisherman itself. According to the BLM, seven of 18 viewsheds on or around La Posa Plain are sacred to various tribes.

But unlike the fisherman, sacred viewsheds aren’t protected.

By this time next year, a 653-foot solar tower – an industrial pipe taller than the Washington Monument – will rise from La Posa Plain if the Quartzsite Solar Energy Project earns BLM approval this summer. The top of the tower would be visible from Bouse Fisherman Intaglio and in other sacred viewsheds.

“You’re looking at having this alien structure dropped down in the middle of our traditional spiritual area,” Bathke said.

Solar plants and wind farms are spreading quickly throughout the American Southwest; so far in Arizona, the BLM has identified more than 237,000 acres of public land as optimal for renewable energy developments.

While there are laws that can preserve sites with Native American artifacts, none are devoted to protecting viewsheds. Tribes have little power to halt or stop developments on land they don’t own and are only consulted by the BLM about their connection to a potential project’s land, be it historical or spiritual.

But to Bathke and his tribe, whose reservation lies along the Colorado River near Yuma, that consultation is little more than a formality.

“Many of us – not just Quechans – feel like our concerns aren’t being taken seriously,” Bathke said.

By the time applications for renewable energy developments go through BLM and get to the tribes, they’ve become massive binders – or sets of binders – that include environmental impact statements. Tribes are asked to read through these 500-page studies and respond with comments within 30 days.

“It took two years for them to develop it. How are we supposed to respond in a month?” Bathke said.

After watching the federal government go forward with a series of wind farms and solar plants that various tribes of the Southwest opposed, the Quechans are beginning to fight back, calling for a more meaningful consultation process – one that better acknowledges their religious beliefs.

“We always have to justify our spiritual experience,” Bathke said. “What if someone wanted to put solar panels on the Vatican? Would that be acceptable?”

‘Sensitive viewers’

Bathke’s office is in a trailer atop a hill on the Quechan reservation, close to the police station and other government buildings. The fluorescent-lit room, lined with maps, doesn’t have enough shelf space for all of the binders with proposals to review.

The Quartsize Solar Energy Project on La Posa Plain is one of three major solar developments that the Quechans currently oppose.

For Bathke, the biggest irony is that Native Americans actually support renewable energy initiatives.

“Renewables are in agreement with a lot of traditional Native American values, such as developing a responsible relationship with the earth,” Bathke said. “But ideally we’d like to see projects on disturbed land that doesn’t disrupt traditional viewsheds.”

Most developers look first at land that has already been dug up, built on or used for agriculture. But such land only accounts for a fraction of Arizona’s desert.

“It’s kind of like the land rush of the 1800s,” Bathke said. “If we let one in and then the next, soon this area will just be one big solar panel.”

Like all environmental impact statements, the document for the Quartzite project includes reports of cultural resources found by archaeologists. These resources include anything associated with history or prehistory, from artifacts indicating significant historical events to sacred or religious sites.

The statement also includes a list of viewsheds in the project area and “sensitive viewers” – groups that would be affected by a change in a viewshed.

As a result of consultation with tribes, the environmental impact statement expanded the distance for consideration of potential harm to views from three miles to 25.

Of the 18 notable viewsheds surrounding the project, tribes are listed as sensitive viewers for seven of them, including the view from the Bouse Fisherman Intaglio.

The final environmental impact statement on the Quartzsite project is expected to be released this summer, with a decision to follow in short order.

Cultural geography

Contact with the Quechans was first recorded in the late 1700s by Spanish explorers. The tribe lived and traded near the Colorado River and fought against the U.S. in the Yuma War of the 1850s.

The word “colonization” comes up often in conversation with Bathke and Lorey Cachora, a consultant to the culture committee that advises the Quechan Tribal Council.

“If you have a cultural site, that’s one thing that wasn’t taken away from you in the way of law,” Cachora said. “You have your sacredness, and that’s yours.”

In response to the tribes’ frustrations over consultation, the BLM has asked them to draw maps of their sacred landmarks. Many have resisted.

“Maps have historically been used against the tribes,” Bathke said. That applies to public information as well as battles over territory, he said; if these maps were to be released, sacred sites could become tourist destinations.

While most of the battles over viewsheds play out in the Southwest, the flat, hot heart of renewable energy country, disputes between tribes and the federal government can happen anywhere, said Steven Moore, an attorney with the Native American Rights Fund in Colorado.

“When you’ve got a landscape with 10,000 years of occupation, there is always the potential for disturbing archaeological sites,” Moore said.

The problem stems, in part, from BLM’s hurry to get projects approved, Moore said. Tribes may be more willing to help the federal government and provide critical information about their cultural geography if the BLM spent more time building up a relationship of trust and respect.

“These conversations between tribes and the BLM need to occur over a period of years, not months,” he said. “Hit-and-run conversation does not play well with the tribes.”

The BLM view

Connie Stone, an archaeologist with the BLM in Arizona, couldn’t agree more that tribes and the agency need to make communication an ongoing process.

“We need to figure out a better way to do this,” she said. “There has to be some level of trust.”

However, she said that maps – or any sort of deeper information about the viewsheds that tribes want to protect – would be exponentially more useful in the application and planning process.

“For good reason, they might not want to disclose that to us. But in order to do a good environmental analysis and to find ways to mitigate potentially bad effects, we need that information,” said Stone, who works in BLM Arizona’s Renewable Energy Coordination Office, another office with binders stacked to the ceiling.

“Is the view only important when looking out from a peak? Or is to a peak? Or between peaks?” she said.

The Quechans maintain that it’s impossible to encompass a tribe’s culture or spirituality with a pin on a map.

“People outside this area view the desert as a dry wasteland,” Bathke said. “When you go out there, there’s cultural material everywhere.”

In a statement to Cronkite News Service, the Quechan Tribal Council explained what it ultimately wants from BLM: to be approached much earlier in the application process and “to not be treated as an afterthought,” as well as the opportunity to review with the federal government how current consultation laws are being implemented.

In response, Stone said her office has examined ways to bring the tribes in before the environmental impact study begins.

As for the second request, the Advisory Council on Historic Preservation, an independent federal agency, has made it a 2012 priority to develop policy and guidance to deal with cultural landscape issues.

Stone said she would like to see more conversations between officials on the level above her and Bathke – among BLM managers and tribal councils. Archaeologists are the first point of contact for tribes, but they aren’t trained in diplomacy.

“I do wish we had professional help to handle dispute resolutions. You know, bring in Hillary Clinton or something,” said Stone, laughing. “Some days I feel like, am I an architect or an attorney?”

While Bathke and Stone said they respect each other’s work, Bathke characterizes the Quechan-BLM relationship as a “David and Goliath-in-the-desert kind of fight.”

Stone says the Quechans live up to their heritage.

“They were warriors traditionally” she said. “In a way, I think they’re warriors again.”

Changing dynamics

The Quartzsite project isn’t the first solar farm to be opposed by Native Americans in the Southwest.

In November 2011, construction halted at the Genesis Solar Power Project, a $1 billion plant near Blythe, Calif., when workers dug up grinding stones, indicating the area may have been used for cremation in ancient times. The National American Graves Protection and Repatriation Act requires federal agencies to return these artifacts to the proper tribe, which can often delay a project.

Tribes opposing further development of the project included the Quechan, Fort Mojave, Agua Caliente, Torres Martinez, Soboba and the Colorado River Indian Tribes.

The Quechans have also opposed the Ocotillo Express Wind Project, a site located near the bottom of a California mountain that figures in the Quechan creation story. Construction hasn’t begun, but the Quechans predict that developers will find artifacts there too.

Despite their issues with the consultation process, the Quechans have won a few battles with the federal government.

In 2010, the Quechans were granted an injunction against the Department of the Interior in a case that found that the BLM hadn’t properly consulted the tribe on an Imperial Valley solar project.

Meaningful consultation was a requirement for that project under Section 106 of the National Historic Preservation Act, which requires that the government go through a review process for all projects eligible for or listed on the National Register of Historic Places.

Sara Bronin, director of the Center for Energy and Environmental Law at the University of Connecticut School of Law, teaches the case in her classes. Although today’s consultation processes are still flawed, she said, the 2010 case forced the federal government to involve tribes in decision-making, changing the dynamic of government-to-government relationships.

“This is an emerging and important area of law. As we try and build more large scale projects in rural areas, we’re going to keep hitting up against the issue,” Bronin said. “We’re going to, as a nation, grapple with how we want to solve it.”

The National American Graves Protection and Repatriation Act and the National Historic Preservation Act don’t outright protect sacred viewsheds or lands, but they are powerful tools in delaying projects or changing the development plans to lessen cultural impact.

“These laws don’t necessarily have the means to stop development, but they’re fairly effective mitigation tools,” she said.

Environmentalists and tribes have also formed a unique partnership in fighting some of these high-impact projects. The Endangered Species Act and the National Environmental Protection Act can be used to delay or halt projects when development has the potential to damage wildlife or ecosystems.

For example, biologists believe that at the Genesis construction zone near Blythe repellents used to push animals away from the area weakened the immune systems of kit foxes, contributing to the outbreak of canine distemper and the death of more than eight foxes.

“We can have solar energy, we can have wind energy and we can still respect the cultural and natural values of the land,” said Sandy Bahr, director of the Sierra Club’s Grand Canyon Chapter. “Not everything translates easily into an environmental impact statement. If a tribe is saying that this is really significant and will harm their cultural values, the federal government needs to listen to them.”

Gov. Jan Brewer’s finger-wagging tarmac confrontation with President Barack Obama made national news in January. Her subsequent nomination to a Time magazine online poll of the 100 most influential people in the world was evidence, the magazine said, that “Arizona has faced off with the federal government like no other state in recent memory” under her leadership.

The state was in the Supreme Court last week defending itself against a Justice Department lawsuit over Arizona’s SB 1070 immigration law – just a year after it won another Supreme Court case the feds had filed over the state’s E-verify employer sanctions law.

Arizona Attorney General Tom Horne – who said earlier this year that his office is enmeshed in eight lawsuits with the federal government – is vowing to press another case to the high court, after a circuit court rejected part of the state’s voter registration law this month.

And state lawmakers just passed a bill demanding that the federal government hand back the millions of acres it owns in Arizona, while a Phoenix businessman is pushing a ballot initiative that would let voters flat-out reject any federal law they disagree with.

“We are commonly known as being very Western strong,” Brewer told Cronkite News in January. “We have always been kind of a leader in states’ rights. We have been affected immensely by some of the (federal) policies and we just can’t sit back and let that happen to Arizona.”

Still, other governors tell off the president. Other states have threatened to take back their federal lands. Arizona’s not even the leader in litigation against the feds: Attorneys general from Texas and Florida said this spring they are handling about a dozen and at least 10 lawsuits, respectively, against Washington.

But no other state gets the same notoriety as Arizona.

“The reason these ideas take root in Arizona more than other places is because Arizona really is the last vestige of the American spirit that bristles at the notion of federal bureaucrats running everything from Washington, D.C.,” said Nick Dranias, director of the Center for Constitutional Government at the Goldwater Institute in Phoenix.

And longtime political observers from both sides of the aisle agree that while the feuding is not unusual, the current level of anger is.

“In my lifetime, (Arizona) government officials are taking the most extreme positions I have ever seen,” said former state Attorney General Grant Woods, a Republican and one-time chief of staff to Sen. John McCain, R-Ariz. “SB 1070 and a few other things have gone too far.”

“Cemented in Arizona’s culture”

Fights between Arizona and the federal government trace back long before illegal immigration and border security became the top combustible political issues. They trace back, even, to before Arizona was a state.

The territory of Arizona was initially denied statehood when President William Howard Taft vetoed its proposed constitution over a provision that would have let Arizonans recall judges. The territory struck the provision, reapplied and, with Taft’s blessing, Arizona became a state on Feb. 14, 1912.

Later that year, Arizonans put the authority to recall judges back in the state constitution.

“This is your first example of Arizona fighting back against federal overreach,” said Christina Sandefur, a staff attorney also with the Goldwater Institute. “It’s something that is cemented in Arizona’s culture.

“From the very beginning, Arizona has been very, very protective of the rights of states, and really the rights to go its own way,” Sandefur said.

Arizona’s anti-establishment tradition is not unique among states in the interior West. The region has a long, entrenched history of antagonism toward Washington, said Gregg Cawley, a political science professor at the University of Wyoming.

“You’d be hard pressed to find anyone in the Mountain West who hasn’t had some expression of animosity toward the federal government,” Cawley said.

Much of that animosity stems from disputes over federal land management, said Cawley. His book “Federal Land, Western Anger” explores the Sagebrush Rebellion of the 1970s and 1980s, in which a coalition of Western states demanded the federal government give state and local authorities more control of Western lands.

“The basic problem is the amount of federal land that is located out here, which gives the federal government more of a presence,” Cawley said. “The perception of a lot of Western states is that autonomy … is constantly in jeopardy.”

In most states, the federal government typically owns less than 5 percent of the land. In Western states, that number is closer to 40 or 50 percent.

In Arizona, a state of almost 73 million acres, federal agencies own about 44 percent of the land, said Joseph Feller, a natural resources and property law professor at Arizona State University. Another 27 percent is allocated to Indian reservations.

Only about 14 percent is private or municipally owned and the remaining 15 percent – just 11 million acres – is owned by the state.

Most suggest that Arizona’s culture of independence is also a basic characteristic of the people who settled there – and who continue to do so today.

“If you can imagine what type of person moved out here in the late 1800s or early 1900s, when it’s 120 degrees and no air conditioning, you had to have a hearty soul, and didn’t care about what was going on back in Washington,” Woods said.

“Just as other states have certain themes running throughout its history, Arizona has always had an anti-establishment mentality and we continue to attract those same kind of people,” he said.

An anti-Washington “perfect storm”

But the state’s historic anti-establishment animosity has hardened in recent years, most observers say.

To some, mostly Democrats, Arizona’s recent clashes with Washington are the result of years of political, economic and cultural changes at the national and state levels.

Republicans gained strength in the state legislature. Democratic Gov. Janet Napolitano left to take over the Department of Homeland Security in 2009, handing the seat to Brewer, a Republican. With Brewer’s decision to stake her re-election on being tough on immigration, conservatives were able to push through bills such as SB 1070, said Randy Parraz, a Democrat who unsuccessfully ran for U.S. Senate in 2010.

“It was a perfect storm for them to appeal to the xenophobic, anti-Latino sentiment,” Parraz said. “When did the federal government become the enemy?”

Others reject the notion that bills like SB 1070 are only matter of partisan politics.

“People in general are feeling the need to draw the line with greater passion because there’s so little left to defend from federal overreach,” said Dranias of the Goldwater Institute. “The federal government is reaching out and literally trying to take away the last vestiges of authority states have.

“We’re fortunate to be in a state where people aren’t going to stand for that,” he said.

But the federal government hasn’t always been “the enemy,” as Parraz says. There have been moments in Arizona’s 100-year history of “tremendous cooperation” with Washington that are usually to the state’s benefit, said former state Attorney General Terry Goddard.

Past cooperation led to the creation of partnerships such as the Salt River Project, began in 1903, and the Central Arizona Project, began in 1968, said Goddard, a Democrat.

“Those would not have happened without major federal leadership and cooperation with state authorities,” Goddard said in March. “Ninety percent of the time we got a lot more with sugar than an attack.”

But Horne sees it differently. He believes Arizona is targeted by the Obama administration for lawsuits because the state is under the jurisdiction of the 9th U.S. Circuit Court of Appeals, which he called the “most liberal circuit in the country.”

Horne said the federal government is out of touch with Arizona, and that many Washington policymakers are entrenched in age-old perceptions of the state.

“They live with the kind of East Coast myth about people in Arizona being against Latinos, being against immigrants,” Horne said in March. “None of that is true. We’re only against illegal immigration.”

Regardless of who’s to blame for the strained relationship, observers agree it is not likely to change anytime soon.

“Where does it end? I don’t know,” said Woods, the former Republican attorney general. “You think we have every possible gun law in place and then they come up with another one. You think they’ve passed every possible abortion law and they come up with another one.”

That’s why the Phoenix businessman is pushing a ballot initiative that would let Arizona voters “reject any federal action that they determine violates the U.S. Constitution.”

“It’s a very simple proposal,” Biltis said. “It gives the Arizona people the right to check-and-balance the federal government.”

His Checks and Balances in Government initiative is one of at least two measures currently being considered in Arizona that would let the state tell the federal government to buzz off.

The other is a bill from state Sen. Al Melvin, R-Tucson, that would require the federal government hand over to the state the millions of acres of land it holds in Arizona by 2014, or start paying property taxes. The bill, SB 1332 has passed both the House and Senate and is awaiting action by Gov. Jan Brewer.

“It’s really blatantly unfair,” how much land the federal government owns in Western states, Melvin said. “I believe, and others believe, that the Forest Service, Bureau of Land Management and others are totally mismanaging these federal lands.”

While the measures may be popular in Arizona – Biltis is so confident he can get the 250,000 signatures needed to put his initiative on the ballot that he is mortgaging his house for the campaign – experts say they would stand little chance of holding up in court if passed.

Melvin’s bill in particular is a legal “non-starter” because both the federal Constitution and Arizona Constitution make it “crystal clear” the lands are rightfully federal possessions, experts say.

“It makes a good scapegoat,” said Joseph Feller, a property law professor at Arizona State University’s Sandra Day O’Connor School of Law. “You have this huge amount of land out there and it’s easy to say, ‘Wow, our economy would be booming if only the state could grab vast amounts of federal land.’

“But these lands are not filled with gold,” he said with a laugh.

To Gregg Cawley, a political science professor at the University of Wyoming, proposals like Biltis’ and Melvin’s are little more than ploys that conservatives use to ratchet up anti-federal sentiment anytime they want to gin up political support. Cawley has written about the Sagebrush Rebellion of the 1970s and 1980s, in which some Western states demanded control of their federally held lands.

“What’s intriguing to me is how that animosity spreads from issue to issue,” Cawley said, noting immigration as an obvious example of federal-state friction. “It just gets repeated over and over again and people just nod their heads.”

But Biltis, for one, is not nodding his head along with other Arizona conservatives. He does not support SB 1070, the state’s controversial immigration enforcement bill, for example, saying he considers immigration to be a federal matter.

But he still thinks Washington has overreached its authority in many other areas, and hopes the Supreme Court will strike down President Barack Obama’s health-care reform law.

If it doesn’t, his Checks and Balances in Government initiative would let Arizona voters decide.

An initiative like his might have little shot of becoming law in most other states, but Arizona is not like most other states. Biltis said that early polls have indicated strong support for his measure.

Biltis, the president and owner of TAG Employer Services, hopes his initiative will inspire other states to seek similar remedies to push back against an overreaching federal government.

Arizona – and the country – needs more checks and balances than just the Supreme Court, Biltis said.

“As good as they are, they don’t always get it right,” he said of the Supreme Court’s justices. “They’re on the salary of the federal government.”

Of the $730,000 this group donated in elections since 2008, about 85 percent went to Democrats, according to Federal Election Commission records. That runs counter to overall giving by Arizonans, which was about 2-1 for Republicans.

Higher education officials often come under fire from conservative politicians and commentators who claim that instructors – if not the instruction – favor Democrats or liberal causes. Rep. John Kavanagh, R-Fountain Hills, said the breakdown of donations suggests that most college professors are political liberals, something he said creates at least a subtle, unintentional bias.

“It deprives students of political diversity, and I find it disturbing,” said Kavanagh, who is a professor of justice studies at Scottsdale Community College.

But Terence Ball, an Arizona State University professor of political ideology, said that despite his donation of $200 to Barack Obama’s campaign in 2008 it would be “highly unethical” to impose his political beliefs on his students.

“If you come into my classroom as a conservative, I want you to leave as a more thoughtful and reflective conservative, not a socialist or liberal,” he said.

The review included donations from Arizona public university and college professors, administrators, librarians, physicians, teaching assistants and associate faculty.

In all, 1,060 people in those groups donated to presidential and congressional campaigns for 2008, 2010 and 2012. The donors from ASU, the University of Arizona and Northern Arizona University accounted for about 3 percent of total faculty and staff at the universities.

For this year’s presidential election, 52 percent of donations through March 31, as GOP candidates have faced off in primaries, have gone to Democrats while 48 percent have gone to Republicans. For the 2008 presidential election, the breakdown was 89 percent for Democrats and 11 percent for Republicans.

For congressional elections in 2008 and 2010, 86 percent went to Democrats against 14 to Republicans. In 2010, 32 percent of donations went to U.S. Sen. John McCain’s re-election campaign against 68 to Democrats.

Rep. Tom Forese, R-Gilbert, who this year sponsored a successful bill aimed at prohibiting discrimination in higher-learning institutions based on a professor’s religious or political beliefs, said the figures suggest the need for a diversity of opinion in higher education.

“There’s a line somewhere, and my hope is that line isn’t getting crossed,” he said.

Policies at universities and community colleges don’t forbid political giving, though each institution has a policy against using school resources to advocate for candidates and causes.

Institutions are also required to abide by standards set by the Arizona Board of Regents like not allowing political participation to affect the objectivity of their teaching.

“We don’t restrict people from donating, but they don’t do it in the name of the university,” said Katie Paquet, spokeswoman for the Arizona Board of Regents.

During the 2008 presidential campaign, Elizabeth Capaldi, the ASU provost and executive vice president who notifies employees about the university’s policy on political activity, contributed the maximum allowed for individuals – $2,300 at the time – to Democrat Hillary Clinton.
Capaldi declined requests for an interview but said in an email that ASU employees are free to make political contributions as individuals.

Eugene Sander, currently the University of Arizona’s interim president but a dean at the time, donated $520 to Democrat Rodney Glassman’s 2010 Senate campaign and $700 to Republican congressional candidate Timothy Bee in 2008.

“I do not support candidates one way or another unless it’s something so egregious you just can’t ignore it,” Sander said, adding that Glassman is a friend but that he normally votes Republican.

About 90 percent of the donations were by employees of ASU, UA and Northern Arizona University, while 10 percent came from community college employees.

Sharon Keeler, media relations director for ASU, said “there’s nothing impermissible” about faculty donating to political campaigns.

University of Arizona’s policy prohibits the wearing of campaign buttons during on-duty hours or off-duty hours while in a classroom or “other instructional setting.” Northern Arizona University’s policy prohibits employees from advocating for a candidate in the name of the university.

Clara M. Lovett, who retired as NAU’s president in 2001, donated $1,000 to the 2008 re-election campaign of Democratic U.S. Rep. Harry Mitchell but said she votes and donates money based on the candidate, not the party.

She added that people who are active politically tend to donate to Democratic candidates more.

“Helping the campaigns is very much a part of our freedom of speech as citizens,” she said. “As long as the money comes from your own personal checkbook and not the organization you work for, that’s your right to do so.”

At Maricopa County Community Colleges, spokesman Tom Gariepy said faculty cannot act on behalf of a community college district to influence an election.

“What this does not do is say anything about what people can do on their own time,” he said. “We don’t try to influence that in any way.”

Tiffany Andersen, a public speaking professor at Chandler-Gilbert Community College, said she doesn’t tell her students that she gave $500 to Mitt Romney’s 2008 presidential campaign or that she is conservative.

“When I was going to school for my undergraduate … I had a lot of professors who really seemed to push their liberal agenda so I kept quiet and didn’t participate,” she said. “I told myself I did not want to push any sort of agenda in the classroom.”

Self-proclaimed libertarian Dan Klein, a professor of economics at George Mason University, said that while students may not be directly influenced by their professors’ ideologies they aren’t being exposed to enough diversity of opinion.

“The people who are more collectivist or statist have just dominated,” he said.

University of British Columbia sociologist Neil Gross, who has done research on political leanings in certain occupations, said teaching at the college level is the most liberal occupation in the U.S.

“Very few have the goal of converting students from one political camp to another,” he said.

Rep. Tom Chabin, D-Flagstaff, a member of the House Higher Education Committee, said that given funding cuts by the Republican-controlled Legislature he isn’t surprised Arizona university and college faculty supported Democrats.

“If educators are concerned about increases in tuition … they’d better open up their pocketbooks and make an investment in next year’s election,” he said.

Beverly Jenkins, a professor and director of Phoenix College’s accounting program, donated $2,300 in 2008 to Republican presidential candidate Ron Paul. She said she has experienced a very one-sided workplace in the past.

“Academia has always been more liberal,” she said. “They don’t understand the free market because they haven’t had to deal with it.”

Jonathan Penner, a retired professor from the University of Arizona, was teaching English when he donated $2,000 to 2008 Democratic presidential candidate John Edwards.

“I don’t think there is overall a very big influence on students,” he said.

Penner has seen policies about political activism change over his years of teaching. He was politically active and outspoken during the Vietnam era.

“I did work on campus with students and faculty who wanted to protest the war,” he said, adding “I never introduced politics in a class setting.”

The 19-year-old was one of hundreds of singing, chanting – but mostly civil – demonstrators who gathered Wednesday in front of the high court to make their voices heard as the justices weighed arguments on the law.

“We’re here today to send a message,” said Lopez, one of 12 members from the faith-based group Promise Arizona who showed up for Wednesday’s hearing. He said the law has had a real and damaging impact on his community.

On the other side of the plaza in front of the court, SB 1070 supporter JoAnn Abbott, 53, said she came out “to support fairness.”

Abbott, a Virginia resident who lived in Fort Huachuca when her husband was stationed there, said undocumented immigrants are straining the education and health systems. Arizona has had to step in, she said, because the federal government is not doing its job of enforcing immigration law.

“Why’s the federal government getting in their way?” asked Abbott, who was waving U.S. and Arizona flags amid a group of supporters on the steps of the Supreme Court.

Faith played a big role in the demonstrations on both sides.

Opponents staged an interfaith “Jericho Walk” around the court that began with the blowing of a shofar. Catholic clergy walked alongside United Church of Christ leaders and Jewish groups, many in religious vestments, making calls to “welcome strangers” as their religions call them to do.

Noel Anderson, a former pastor for the United Church of Christ Southwest in Tucson, spoke about the conditions he said many undocumented immigrants face in the community.

Anderson, a Washington-area resident who was in Arizona when the law was passed and who has lived in Mexico, said he understands the “root causes” of illegal immigration.

A smaller group of supporters on the other side of the steps wielded signs, including one that read, “God so loves us He gave us Arizona’s SB 1070.” They performed a song with the line, “God save Arizona from our own federal government.”

There was another song with lyrics about English proficiency among immigrants, while others carried signs with messages like, “SB1070 supports federal immigration law, President Obama doesn’t.”

The bill’s backers said the issue for them wasn’t one of human rights, but of enforcing the law.

“The federal government is ignoring the federal law and has done so for a while,” said Mary Lynne Bebee, a member of the American Council of Immigration Reform.

“There’s nothing wrong with immigration law,” she said. “What’s wrong with it is lack of enforcement by our government.”

Bebee said undocumented immigration has taken away jobs from many qualified Americans.

Some people reportedly showed up before dawn to get in line for tickets, and the crowd eventually reached 400 to 500 people by the time arguments began at 10 a.m.

The sides remained cordial, with the most obvious conflict being the battle to see who could sing the loudest as each side struggled to have its music heard.

Phoenix resident Patricia Rosas, 48, said she made the trip because she is afraid police will decide whether or not she or others like her are pulled over because of the color of their skin if the law stands.

But if the court upholds the law, she said, she will not give up the fight. If the law is not stopped in Arizona, similar laws will be passed in other states.

“I came to ask God that they remove this law and that He move the hearts of the judges who will be there,” Rosas said in Spanish. “If the community is united, whether they have papers or not, that is how things get done.”

Most of the debate focused on the law’s requirement that Arizona police check the immigration status of people during routine stops, and whether that is an unlawful pre-emption of federal authority or the state helping enforce federal law.

Gov. Jan Brewer and former state Sen. Russell Pearce, the bill’s architect, both expressed confidence the court will uphold some, if not all, of the law.

“The hearing went very, very, very well,” Brewer said outside the court building. “I feel very confident as I walked out of there that we will get a favorable ruling in late June.”

Pearce characterized the hearing afterward as “just awesome.”

The 2010 law makes it a state crime to be in the country illegally. It requires that police check immigration status if they have reasonable suspicion to believe someone is here illegally.

Similar laws have since passed in a handful of states.

But a federal judge blocked parts of Arizona’s law after the Justice Department sued, claiming the state was trampling on federal authority to regulate immigration.

Solicitor General Donald Verrilli, who argued the Justice Department’s case Wednesday, appeared to have a hard time convincing the court Arizona was unlawfully trying to enforce federal immigration policy.

“It (S.B. 1070) is not an effort to enforce federal law. It is an effort to let you know about violations of federal law,” said Chief Justice John Roberts, who also made it clear the court was not reviewing concerns about racial profiling.

“It seems to me that the federal government just doesn’t want to know who is here illegally and who’s not,” Roberts said.

Verrilli seemed to struggle to convince even the court’s more liberal justices that the federal government has exclusive authority over immigration matters. Some noted that the checks required by SB 1070 are checks that police routinely make already.

“You can see it’s not selling very well,” Justice Sonia Sotomayor said to Verrilli. “Why don’t you try to come up with something else?”

Verrilli argued the Constitution gives the federal government exclusive authority over immigration because it can affect foreign relations, but the justices appeared skeptical of that reasoning, too.

“What does sovereignty mean if it does not include the ability to defend your borders?” Justice Antonin Scalia asked.

“What’s wrong about the states enforcing federal law?” Scalia asked. “There is a federal law against robbing federal banks. Can it be made a state crime to rob those banks? I think it is.”

Pearce, the Mesa Republican whose support of SB 1070 sparked his recall last year, said that “even the liberals thought their arguments were weak.”

He declared it “a great day for Arizona and a great day for America,” and reiterated his belief that SB 1070 is only doing the job the federal government has failed to do itself.

“We will not apologize for demanding our border is secure and our laws are enforced,” he said.

Even some opponents conceded Wednesday that the court might uphold the law.

State Sen. Steve Gallardo, D-Phoenix, admitted the court raised some “serious questions” about sections of SB 1070 and he said the federal government erred in not making racial profiling an element of its case.

“It’s hard to read some of the justices,” said Gallardo, a strident opponent of the law. “At the end of the day, regardless of what the court says, SB 1070 needs to be repealed.”

Rep. Raul Grijalva, D-Tucson, told hundreds of SB 1070 opponents after the hearing that the court has a “tremendous responsibility” in deciding the law’s fate.

“In times of crisis, this court has been a refuge for the American people and for decency, fair play and equality,” Grijalva said. “I hope that is the court we are going to hear from in the next few months.”

Some in the crowd, which erupted in cheers and began chanting ‘Si se peude!’ in response to Grijalva, began to boo moments later when Brewer came out to address the press.

Justice Elena Kagan, one of the court’s liberal justices, recused herself from the hearing. She had been involved with the case during her time as solicitor general in the Obama administration before being named to the bench.

A decision is expected this summer. In the event of a 4-4 split, the lower court ruling blocking portions of SB 1070 would stand.