Arizona’s governor and attorney general are telling a judge that state legislative leaders have no legal right to try to undo the designation of nearly a million acres of federal land near the Grand Canyon as a national monument.
Attorneys for Gov. Katie Hobbs and Attorney General Kris Mayes say claims that somehow the state is being hurt by the creation of the Baaj Nwaavjo I’tah Kukveni Ancestral Footprints of the Grand Canyon National Monument are “speculative and conjectural.’’
Their new legal filings in federal court are in rebuttal to a lawsuit brought by House Speaker Ben Toma and Senate President Warren Petersen. The Republican legislative leaders claim the designation by President Joe Biden will make it more difficult for Arizona to manage its own lands adjacent to the new monument.
Democrats Hobbs and Mayes say there’s a basic problem with the lawsuit.
“The state of Arizona itself — represented by the attorney general — holds the general power to sue (or not sue) based on alleged harms to the state,’’ their attorneys wrote. They said that specifically includes the right to protect the interests of state lands as well as the money the state gets from leases.
“The Arizona State Legislature plaintiffs — represented by private counsel with offices in Missouri — hold no such power,’’ they told U.S. District Judge Stephen McNamee. That refers to Justin Smith, who describes himself on LinkedIn as “an attorney and strategist who fights for conservative values.’’
President Joe Biden, surrounded by tribal members and elected officials, signs proclamation designating the Baaj Nwaavjo I'Tah Kukveni National Monument on Aug. 8, 2023, in Tusayan, Ariz.
Hobbs and Mayes say the State Land Department, which oversees state lands, agrees with their contention that creation of the monument will not harm those interests.
“And it is the governor — not the Legislature, treasurer, counties or cities — who has authority to set policy for Arizona’s executive branch agencies like the State Land Department,’’ they said.
What the lawsuit comes down to, they told McNamee, is that the Legislature, which has been joined by Arizona Treasurer Kimberly Yee, Mohave County, Colorado City and Fredonia, are unhappy that Hobbs and the Land Department have “different perspectives’’ than they do on what the national monument will mean.
“Plaintiffs seek to anoint themselves as roving defenders of the state’s interests,’’ the governor and attorney general said. “But that is simply not their role.’’
The filing in U.S. District Court on behalf of Hobbs and Mayes most immediately seeks permission to intercede in the lawsuit.
Once they are parties to the case, Hobbs and Mayes intend to file a motion asking McNamee to throw out the entire case.
In fact, they already provided the judge with their proposed motion to dismiss.
At issue is Biden’s August 2023 decision to establish the national monument to protect close to a million acres of public lands surrounding Grand Canyon National Park.
In filing suit, Toma and Petersen acknowledged the 1906 Federal Antiquities Act gives a president the power to set aside parcels of government land for protection. They argue, however, any proclamation has to be limited to historic landmarks, historic and prehistoric structures and other objects of historic or scientific interest.
They also contend such designations have to be confined to the “smallest area compatible’’ with the care and management of the items to be protected. They said this monument, at about 1,462 square miles, meets neither requirement.
President Joe Biden speaks before signing a proclamation designating the Baaj Nwaavjo I'Tah Kukveni National Monument on Aug. 8, 2023, in Tusayan, Ariz.
They also say there would be a financial impact on the state and its residents and businesses because of a ban on new mining within the monument. That could also undermine the supply of uranium needed for nuclear reactors to supply power for the state, they say.
There’s also their claim about affecting state lands.
Hobbs and Mayes urge McNamee to reject those contentions.
“Contrary to the allegations in the complaint, the monument does not encumber state trust land,’’ they said. “And the alleged impacts on mining activities, state and local revenue, and the state’s energy supply are speculative at best.’’
Their effort to get the case dismissed also centers on these points: “Arizona has designated the attorney general to represent the state on any case brought in federal court. Arizona also designates one official to speak on behalf of the state to the federal government: the governor. Gov. Hobbs did just that when she encouraged the federal government to establish the Ancestral Footprints Monument.’’
Hobbs and Mayes acknowledge the U.S. Justice Department already is defending the president’s designation and asking that the case be dismissed. But they told McNamee they, too, need to have a seat at the legal table.
“The Department of Justice is tasked with enforcing federal laws, and here, its responsibility is to defend the federal government’s authority to declare a national monument on federal lands,’’ they said. “It is not responsible, in this case, for the state’s, governor’s, and state Land Department’s interests as articulated.’’
They are not the only ones seeking to intercede to fight the lawmakers’ lawsuit.
The largest uranium producer in the United States is ramping up work at a mine less than 10 miles from the rim of the Grand Canyon.
The Havasupai, Hopi and Navajo tribes also want a role in defending creation of the monument. So do several environmental groups including the Grand Canyon Trust, the National Resources Defense Council and the Sierra Club.
No date has been set for a hearing.
