GOP lawmakers press for right to sue over Biden's Arizona monument designation

PHOENIX — The state’s top Republican lawmakers contend they’re entitled to sue President Joe Biden, saying he acted 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 a federal judge to toss out House Speaker Ben Toma and Senate President Warren Petersen’s request that he void Biden’s decision last year to create the Baaj Nwaavjo I’tah Kukveni Ancestral Footprints of the Grand Canyon National Monument. The Republican legislative leaders, along with the local officials, contend protecting nearly a million acres of public lands surrounding Grand Canyon National Park will cause financial harm.

Hobbs and Mayes both support creation of the monument.

More to the point, they contend that only they can represent the state’s interests in federal court. They said that 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 U.S. District Court Judge Stephen 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.’’

He said those claims are over the effects of monuments that the Arizona Constitution specifically puts within the Legislature’ purview, such as effects on nearby state lands, potential loss of revenues, and whether creation of the monument would bar air traffic over it.

If McNamee agrees with the governor and attorney general, neither the Legislature, the treasurer nor the local governments will have any standing to sue.

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.

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

It will also 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 acknowledged 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 also argue that such designations have to be confined to the “smallest area compatible’’ with the care and management of the items to be protected.

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 that there are state trust lands surrounded by part of the monument. The monument’s designation imposes restrictions on the surrounding state lands such as vehicular access, which makes those lands less valuable to sell or lease for things like uranium mining, they say.

“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 that 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 that are wholly surrounded by the federal properties.

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

Smith also said the proclamation’s wording results in reserving water rights for things like protecting landscaping. He said that 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 said it’s not just the Legislature that will be financially affected. Smith said Mohave County, Colorado City and Fredonia 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.