By Howard Fischer
Capitol Media Services
PHOENIX -- Top Republican lawmakers 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, the state's top two Democrat elected officials are charging.
In new legal filings in federal court, attorneys for Gov. Katie Hobbs and Attorney General Kris Mayes say the 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.'' The lawsuit by House Speaker Ben Toma and Senate President Warren Petersen claims the designation will make it more difficult for the state to manage its own lands which are adjacent to the new monument.
But even leaving the merits of those arguments aside, Hobbs and Mayes say there's an even more 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,'' they said. That specifically includes the right to protect the interests of state lands as well as the monies 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.''
And there's something else.
Hobbs and Mayes say that 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 Treasurer Kimberly Yee, Mohave County, Colorado City and Fredonia, are unhappy that Hobbs and the Land Department have "different perspectives'' 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 say. "But that is simply not their role.''
The filing made in U.S. District Court on behalf of the two Democrats most immediately seeks permission to intercede in the lawsuit.
That, however, is simply a means to an end. 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, the pair already have shared their proposed motion to dismiss with the judge.
At issue is the August 2023 decision by Biden to establish the national monument which would protect close to a million acres of public lands surrounding the Grand Canyon National Park.
In filing suit, Toma and Petersen acknowledge the 1906 Federal Antiquities Act does allow 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.
More to the point, they contend that such designations have to be confined to the "smallest area compatible'' with the care and management of the items to be protected. And they said the monument at about 1,462 square miles, meets neither requirement.
They also contend 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, they say, could also undermine the supply of uranium needed for nuclear reactors to supply power for the state.
And then there's the 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.''
But their effort to get the case dismissed could lie in convincing the judge who gets to decide what is in the state's best interests -- and who gets to make those arguments to him.
"Arizona has designated the attorney general to represent the state on any case brought in federal court,'' they said.
"Arizona also designates one official to speak on behalf of the state to the federal government: the governor,'' their arguments continue. "Gov. Hobbs just that when she encouraged the federal government to establish the Ancestral Footprints Monument.''
Both Hobbs and Mayes acknowledge the U.S. Department of Justice already is defending the president's designation and asking the case be dismissed. But they told McNamee that is not legally sufficient and they 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 in the case to fight the lawsuit.
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.
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