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Biden attorneys: GOP state lawmakers can't fight Arizona national monument designation

Arizona lawmakers have no legal right to try to invalidate the designation of nearly 1 million acres of federal land near the Grand Canyon as a national monument, the Biden administration is telling a federal judge.

In new court filings, Michael Sawyer, a senior attorney in the U.S. Department of Justice, said state lawmakers lack standing to even bring a claim in federal court over creation last year of the Baaj Nwaavjo I'tah Kukveni Ancestral Footprints of the Grand Canyon National Monument. That right, he told U.S. District Court Judge Stephen McNamee, belongs to the executive branch.

And Sawyer said the fact that neither Gov. Katie Hobbs nor Attorney General Kris Mayes chose to challenge the 2023 designation does not mean that lawmakers can hire their own attorneys and step in. In fact, Hobbs had written to the president urging the creation of the monument.

But even if Senate President Warren Petersen and House Speaker Ben Toma had standing to sue, Sawyer said it still wouldn't matter.

He said only Congress has the right to second-guess a decision by the president under the 1906 federal Antiquities Act. Sawyer said federal lawmakers can, and have, overruled prior presidential actions.

GOP: Monument is 'illegal "land grab'

The filing is in response to a lawsuit earlier this year by the top legislative Republicans who called the decision by the president an illegal "land grab.''

In filing suit earlier this year, Petersen and Toma acknowledged that the 1906 federal Antiquities Act does allow a president to set aside parcels of federal land, which is solely what is involved here, 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. More to the point, they argue 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 contend the Baaj Nwaavjo I'tah Kukeveni monument, the formal name for 1,462 square miles of the site 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.''

Wrong, said Sawyer.

"Many early monuments reserved comparable amounts of federal land to the Baaj Nwaavjo proclamation,'' he told the judge.

Previous rulings

But ultimately, Sawyer said, it all comes down to the fact that only Congress can override a presidential declaration of a monument. And Congress, he said, knows it has that power and has used it.

In fact, the first reversal actually occurred in Arizona.

In 1914 President Wilson created the 2,000 acre Papago Saguaro National Monument, an area on the eastern edge of Phoenix known for its sandstone buttes and giant cacti. But there were issues, including vandalism.

So in 1930, Congress abolished the monument. Some of the area now houses the Phoenix Zoo, the Botanical Gardens, trails and even the pyramid-shaped tomb of George W.P. Hunt, the state's first governor.

It is now up to McNamee to decide whether to dismiss the case or allow it to go to trial. But a ruling in a similar case last year suggests will be difficult for the state to make its case.

There, a federal judge threw out a lawsuit filed by the state of Utah and several counties that sought to roll back Biden's previous expansions of the Bears Ears and Grand Staircase-Escalante national monuments in that state.

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