Rebuffed by a federal judge, Republican state legislative leaders want an appellate court to give them a chance to void the designation of nearly a million acres in northern Arizona as a national monument.
In new filings Wednesday, Arizona’s House speaker and Senate president argue that Judge Stephen McNamee got it wrong in January when he ruled they have no legal standing to challenge the creation of Baaj Nwaavjo I’tah Kukveni Ancestral Footprints of the Grand Canyon National Monument.
Then-President Joe Biden signed a proclamation designating the Baaj Nwaavjo I’tah Kukveni — Ancestral Footprints of the Grand Canyon National Monument on Aug. 8, 2023, in Tusayan, Arizona.
If there is a right for Arizona to sue on this issue, and that has not been decided, McNamee said it belongs to the executive branch. But neither Gov. Katie Hobbs nor Attorney General Kris Mayes have sought to overturn the monument’s 2023 designation by former President Joe Biden.
Justin Smith, an attorney for House Speaker Steve Montenegro and Senate President Warren Petersen, says in his new filings to the 9th Circuit Court of Appeals that federal law allows anyone who is harmed by the designation to sue. He said the Legislature fits that category, due to the risk of reduced tax revenues because of restrictions on mining, for instance.
Even the fact that there will be no uranium mining allowed in the monument has an affect, Smith said, because it could force Arizona utilities to rely on getting much of their supply from “hostile powers like Russia.’’ He said that could mean higher power costs for everyone, including the Legislature.
He also said it’s not just the Legislature that is affected. Mohave County and the towns of Colorado City and Fredonia are also challenging the monument and also asking the 9th Circuit to overturn McNamee’s ruling.
Even if Smith convinces the appellate court, all that would do is send the case back to McNamee to judge the merits of the legislators’ claims the designation was an illegal “land grab.”
Petersen also has a fall-back plan. He said in a statement Wednesday that he is working with the Trump administration “in an effort to end this legal battle.’’
There are legal questions, too, about Trump’s authority to overturn Biden’s decision, however.
The 1906 federal Antiquities Act allows a president to set aside parcels of federal land — which is solely what is involved here — for protection.
But Montenegro and Petersen say such a proclamation must be limited to historic landmarks, historic and prehistoric structures and other objects of historic or scientific interest.
They argue that such designations must be confined to the “smallest area compatible’’ with the care and management of the items to be protected. They contend the 1,462-square-mile monument meets neither requirement.
Now they want their day in court to make that case. First, however, they need to convince the 9th Circuit that they have legal standing.
Smith writes that they do, saying, “Fewer jobs will be created due to the mining ban, and Arizona and local governments will not collect the billions of dollars in tax revenues that the jobs and mining activities would have created. Diminishing the tax contribution from the mining operations will simply shift the tax burden to other parties or require governments to cut necessary services.’’
He cites a 2009 study that indicated uranium mining would provide a $29 billion benefit to local economies in northern Arizona and southern Utah over 42 years. He says the uranium ore deposits in the area are “some of the highest ... in the country.’’
Writing that 29% of the state’s total electricity generation comes from nuclear power, he adds: “Domestic nuclear energy production is dependent on foreign importations of uranium — an inherently risky proposition as many uranium imports are sourced from countries with interests adverse to the United States or areas that are unstable.”
As to having the standing to sue, he said anything that affects the state’s ability to produce nuclear power results in “harming the Legislature as a consumer of energy.’’
McNamee, in tossing the lawsuit, previously disagreed.
“This argument is exceedingly speculative,’’ he wrote. “The court concludes that legislative plaintiffs’ fears of potential geopolitical shifts that may impact domestic uranium process in the future are inadequate to support an injury-in-fact,’’ the standard for filing suit.
