State lawmakers have no legal right to try to invalidate the designation of nearly a million acres of federal land near the Grand Canyon as a national monument, the Biden administration is telling a federal judge.
In new court filings, Michael Sawyer, a senior attorney in the U.S. Department of Justice, said state lawmakers lack standing to even bring a claim in federal court over creation last year of the Baaj Nwaavjo I'tah Kukveni Ancestral Footprints of the Grand Canyon National Monument. That right, he told U.S. District Court Judge Stephen McNamee, belongs to the executive branch.
And Sawyer said the fact that neither Gov. Katie Hobbs nor Attorney General Kris Mayes chose to challenge the 2023 designation does not mean that lawmakers can hire their own attorneys and step in. In fact, Hobbs had written to the president urging the creation of the monument.
But even if Senate President Warren Petersen and House Speaker had standing to sue, Sawyer said it still wouldn't matter.
He said only Congress has the right to second-guess a decision by the president under the 1906 federal Antiquities Act. Sawyer said federal lawmakers can, and have, overruled prior presidential actions.
The filing is in response to a lawsuit earlier this year by the top legislative Republicans who called the decision by the president an illegal "land grab.''
In filing suit earlier this year, Petersen and Toma acknowledged that the 1906 federal Antiquities Act does allow a president to set aside parcels of federal land, which is solely what is involved here, for protection.
But they say such a proclamation has to be limited to historic landmarks, historic and prehistoric structures and other objects of historic or scientific interest. More to the point, they argue that such designations have to be confined to the "smallest area compatible'' with the care and management of the items to be protected.
And they contend the Baaj Nwaavjo I'tah Kukeveni Ancestral Footprints of the Grand Canyon National Monument, the formal name for 1,462 square miles of the site, meets neither requirement.
"Congress passed the Antiquities Act to protect just that: antiquities,'' the lawsuit says. "It did not pass the law to allow the Biden administration to declare every inch of federal land a federal forest, cut off from all but those it selects.''
Wrong, said Sawyer.
"Many early monuments reserved comparable amounts of federal land to the Baaj Nwaavjo proclamation,'' he told the judge.
Consider the Grand Canyon National Monument, which later became a national park, was created by proclamation in 1908 at 800,000 acres. That was followed by things like nearly 1.4 million acres for Glacier Bay National Monument, 848,000 acres for Death Valley National Monument and 825,000 acres for Joshua Tree National Monument.
Nor, Sawyer said, is that power reserved to protect only specific artifacts, landscapes or species.
Even if that were the case, he told the court, there is more than enough evidence of archaeological, paleontological, biological and geological sites to merit protection. That includes "over 3,000 known cultural and historic sites, including 12 properties listed on the National Register of Historic Places.''
In just the northwestern area of the monument, the declaration says there is "a spectacular collection of rock art,'' some of which "has been used for over 2,000 years.'' There also are ancient dwelling units, critical biological habitats and even the route taken by the 1776 Dominguez-Escalante expedition, which started in Santa Fe in a search for a northern route to newly established missions in Monterrey, Calif.
What is also critical, Sawer told the judge, is that Biden took "significant steps to avoid adverse impacts to local communities.''
For example, he said the proclamation was worded so it does not affect water rights and does not prohibit grazing under existing permits. And it leaves unaffected the ability of the state to regulate hunting and fishing.
None of that satisfied the legislative leaders.
One issue they raised is that uranium deposits in the area would be inaccessible within the national monument. And that, they said, undermines the ability of Arizona utilities to get the fuel they need for their power plants.
"A significant portion of energy produced and consumed in Arizona comes from nuclear power,'' the pair said, with the figure in 2022 hitting 29% of total electricity net generation in the state.
What makes that important, the lawsuit says, is that, for the moment, domestic nuclear energy production is dependent on foreign imports of uranium. And that, GOP leaders said, puts nuclear power at risk if foreign nations suspend uranium exports to the United States.
"There is every reason to believe such a risk exists,'' Petersen and Toma said. "Many uranium imports come from foreign companies owned by nations, like Russia, with interests adverse to the interests of the United States and who 'leverage' their control over those companies `to further geopolitical ambitions.' ''
Sawyer called all that "speculative,'' at least in part because new uranium mines aren't allowed there now after the Secretary of the Interior in 2012 made the area off-limits for 20 years, even without creation of the monument.
"It relies on surmising about what various foreign powers might do in the global uranium market eight years from now,'' he said. "Plaintiffs notably fail to mention that stalwart allies like Australia and Canada have the largest assured uranium reserves in the world.''
But ultimately, Sawyer said, it all comes down to the fact that only Congress can override a presidential declaration of a monument. And Congress, he said, knows it has that power and has used it.
In fact, the first reversal actually occurred in Arizona.
In 1914 President Wilson created the 2,000 acre Papago Saguaro National Monument, an area on the eastern edge of Phoenix known for its sandstone buttes and giant cacti. But there were issues, including vandalism.
So in 1930 Congress abolished the monument. Some of the area now houses the Phoenix Zoo, the Botanical Gardens, trails and even the pyramid-shaped tomb of George W.P. Hunt, the state's first governor.
It is now up to McNamee to decide whether to dismiss the case or allow it to go to trial. But a ruling in a similar case last year suggests it will be difficult for the state to make its case.
There, a federal judge threw out a lawsuit filed by the state of Utah and several counties that sought to roll back Biden's previous expansions of the Bears Ears and Grand Staircase-Escalante national monuments in that state.
U.S. District Court Judge David Nuffer said every previous effort to challenge the president's authority to create national monuments under the Antiquities Act had been rejected, including rulings by the 9th Circuit Court of Appeals and the U.S. Supreme Court.
More to the point, Nuffer noted that only Congress has the power to limit the president's authority or roll back monument designations. He pointed to laws previously passed limiting new monuments in Alaska and Wyoming.
"Congress knows how to restrict statutory presidential power,'' Nuffer wrote in his ruling, throwing out Utah's lawsuit. "Otherwise, the terms of the statute control.''
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