PHOENIX — Preparing for their own fight with the Biden administration over a new national monument in Arizona, top legislative Republicans are siding with Utah’s opposition to two other monuments.
In legal papers filed Monday, Arizona Senate President Warren Petersen and House Speaker Ben Toma are urging the 10th Circuit Court of Appeals to overturn a trial judge’s decision to allow hundreds of thousands of acres of two national monuments in Utah to remain protected.
In an August ruling, U.S. District Court Judge David Nuffer said there is no basis for lawsuits, one filed by the state of Utah and the other by Garfield County, asking him to void President Joe Biden’s decision to restore the Grand Staircase-Escalante and Bears Ears national monuments. Both were designated by President Barack Obama but scaled back in 2017 under President Donald Trump.
The Utah case is on appeal. The Arizona lawmakers’ decision to file a legal brief in it dovetails with their effort against a new national monument near the Grand Canyon.
Petersen announced in September he had “given the greenlight’’ for the Senate to sue the Biden administration “for their unconstitutional land grab in Arizona’’ after Biden set aside nearly a million acres for the monument. The Senate president said Biden has “tyrannic desires’’ to block mining and agriculture.
Petersen said Monday that Arizona officials are still gathering facts and doing interviews before filing their own challenge.
“There is a lot of upfront work before it is filed,’’ he said.
Senate press aide Kim Quintero said there is a benefit to Arizona weighing in now in the Utah case, with its own attorney, ahead of its own challenge.
“This brief will help lay the groundwork,’’ she said.
At the heart of both is a 1906 law approved by Congress and signed by then-President Theodore Roosevelt. It allows the president, on his own, to set aside historic landmarks, prehistoric structures and “other objects of historic or scientific interest that are situated on land owned or controlled by the federal government to be national monuments.’’
It also says the land “shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.’’
Petersen and Toma were angered that Biden in August designated about 1,462 square miles of federal land in three tracts to the south, northeast and northwest of Grand Canyon National Park.
It is called Baaj Nwaavjo I’tah Kukveni Ancestral Footprints of the Grand Canyon National Monument, which the White House said translates in Navajo to “where indigenous peoples roam’’ and in Hopi to “our ancestral footprints.’’ It is designed to preserve thousands of cultural and sacred sites that are significant for a dozen Indian tribes that have lived in the area.
The move permanently blocks new uranium mining claims while allowing current crazing leases, hunting, fishing and other activities to continue. The state retains control over fish and wildlife issues.
In his ruling in the Utah case, Nuffer noted that only Congress has the power to limit the president’s authority or roll back monument designations, and pointed to laws passed limiting new monuments in Alaska and Wyoming.
“Congress knows how to restrict statutory presidential power. Otherwise, the terms of the statute control,’’ Nuffer said, saying he saw nothing in the Utah challenge to undermine that.
In their new filing, Petersen and Toma take aim at his conclusion, drawing parallels to their upcoming legal fight with Biden.
“Like this case, he did so by declaring that the animals, plants, geological features, and entire landscape are a national monument,’’ wrote attorney D. John Sauer, hired by the state both to file a brief in the Utah case and, eventually, to sue the Biden administration over its Arizona action.
“Like this case, the Northern Arizona Designation withdraws the land from further development and new, productive uses,’’ the lawyer argues. “And like this case, the result has been to impose costs on the state of Arizona and her citizens in the form of the lost productive capacity of the designated land.’’
Sauer is questioning how Nuffer is interpreting the scope of presidential power.
“President Petersen and Speaker Toma do not believe that Congress, in passing the Antiquities Act, gave to the president a royal prerogative to turn millions of acres of federal land located in Arizona, Utah, and other numerous states into a presidential forest,’’ he told the appellate court.
What the president is doing, Sauer said, is interpreting the term “objects’’ in the law — the things that the Antiquities Act allows him to protect — to mean “whatever he wants it to mean, such as plants, animals, qualities and experiences, and geological features.’’
“The result: a bird, a blade of grass, a quiet spot with a bit of shade, and an interesting rock can all be national monuments,’’ the attorney said. “And if President Biden likes a particular view on federal land, he can now declare it a monument.’’
The GOP leaders’ view is at odds with that of Democratic Gov. Katie Hobbs.
In a May letter to the president, Hobbs wrote that tribes deserved to have the area protected. She also said her office had “heard from people across the political spectrum including sporting groups, faith leaders, outdoor recreation businesses, conservation groups and other from a broad array of interests that support this monument designation.’’
Interior Secretary Deb Haaland, a member of the Pueblo of Laguna, said Biden’s action “makes clear that Native American history is American history.’’
“This land is sacred to the many tribal nations who have long advocated for its protection, and establishing a national monument demonstrates the importance of recognizing the original stewards of our public lands,’’ she said in August.
