Top Arizona Republican lawmakers still fighting to sue over Grand Canyon monument

PHOENIX — The top Republican lawmakers contend they’re entitled to sue President Biden for acting illegally in creating a new national monument in Arizona.

Ditto officials from Mohave County, Colorado City and Fredonia.
The legal pleadings come a month after Gov. Katie Hobbs and Attorney General Kris Mayes, the state’s top two elected Democrats, urged U.S. District Court Judge Stephen McNamee to toss out a bid by House Speaker Ben Toma and Senate President Warren Petersen to get him to void last year’s decision by the president to create the Baaj Nwaavjo I’tah Kukveni Ancestral Footprints of the Grand Canyon National Monument.

The pair, along with the local officials, contend protecting nearly a million acres of public lands surrounding the Grand Canyon National Park, would cause financial harm.

Hobbs and Mayes both support creation of the monument.
They contend only they can represent the interests of the state in federal court. And that, they said, makes the views of the Republican-controlled Legislature legally irrelevant.

But in a new filing, Justin Smith, a private attorney from Missouri hired by the legislative leaders to represent them, the local governments and Republican state Treasurer Kimberly Yee, said Hobbs and Mayes are missing the point.

“This is a red herring,” he told McNamee.

“The Legislature never asserted it could sue on behalf of the state, nor did it attempt to raise any claims for the state,” Smith continued. “Instead, the Legislature raised only claims held by the Legislature.”

Those claims, he said are regarding the effects of the monuments the Arizona Constitution specifically puts within the purview of the Legislature, things like the effects on nearby state lands, potential loss of revenue and even whether creation of the monument would bar air traffic over it.

What McNamee rules is crucial. If he agrees with the governor and attorney general, neither the Legislature nor the treasurer nor the local government will have any standing to sue.

More to the point, they are the only ones challenging the president’s decision. If they are not part of the case, the lawsuit goes away and the monument goes unchallenged.

At stake is not just whether the president exceeded his authority but the restrictions that would be placed within — and, potentially, adjacent to — the 1,462-square-mile site.

While national parks can only be created by Congress, the federal Antiquities Act of 1906 gives the president the power to create national monuments.

All of the property at issue is federal land.

The designation is sought to preserve thousands of cultural and sacred sites that are significant for a dozen Indian tribes who have lived in the area.

The move also will permanently block new uranium mining claims while allowing current grazing leases, hunting and fishing and other activities to continue. Arizona will continue to have control of fish and wildlife issues.
In filing suit, the legislative leaders and the local communities acknowledge the presidential power to set aside parcels of land 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. They argue 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 monument 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.”

In the latest filings, they say what makes this a state issue — and gives them legal standing to sue — is there are state trust lands that are surrounded by what would become part of the monument. The restrictions the monument’s designation would impose like vehicular access, they say, makes those lands less valuable to sell or lease for things like uranium mining.

“This injures the Legislature by interfering with its constitutionally assigned power, diminishing its legislative power, nullifying existing statutes created by the Legislature, and preventing the Legislature from passing any new legislation to lease mineral rights on state trust land or provide for highway easements over state trust land,” Smith told the judge.

Then there’s the argument the presidential proclamation allows for air travel over the monument only by the military and the Arizona Game and Fish Department. Smith said that, too, affects the trust lands wholly surrounded by the federal properties that have been designated.

All that, he said, will affect the value of the trust lands for sale or lease. Smith said that, in turn, “will impact the state budget for public schools and thus affect Legislature budgeting decisions.”

Smith also said the wording of the proclamation also results in reserving water rights for things like protecting landscaping. He said that, in turn, affects the rights of others who use that water, pointing out that Colorado City’s water supply comes from the aquifer that runs beneath the monument.

He also said it’s not just the Legislature that will be financially affected. Smith said Mohave County, Colorado City and Fredonia believe they will lose tax revenues they collect due to reduced mining activities and less economic development.

McNamee has not set a date to hear arguments and decide whether to throw out the challenge.