By Howard Fischer
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PHOENIX — The stage is set for a legal fight between Gov. Katie Hobbs and the Republican-controlled Legislature over the decision by the Biden administration to create a new national monument in Arizona.

In a new order, U.S. District Court Judge Stephen McNamee rejected arguments by GOP legislative leaders that they need to do battle only with the federal government in their bid to overturn the decision to create the Baaj Nwaavjo I’tah Kukveni Ancestral Footprints of the Grand Canyon National Monument.

He said the interests of the governor — and Attorney General Kris Mayes — are different from those of the U.S. Department of Justice. McNamee said the federal attorneys have a single goal: defending the constitutionality of the president’s decision to designate nearly a million acres of federal land near the Grand Canyon as a national monument.

By contrast, the judge said, Hobbs and Mayes have a different legal theory.

The pair contend that they — and not the Legislature — have the sole right to file litigation objecting to the monument on behalf of the interests of the state. And they say it is the executive branch of state government, run by Hobbs, that gets to decide whether formation of the monument will aid or harm the adjacent state trust lands, not the Legislature.

More to the point, both actually support what the president did.

That, said McNamee, entitles them to play a role in his courtroom to seek to dismiss the legislators’ lawsuit. And if he concludes the Legislature lacks the authority to sue on behalf of the state — the argument Hobbs and Mayes are making — the judge could dismiss the case even without hearing arguments on the underlying question of whether Biden broke any laws in declaring the monument.

Now that the legal table has been set, it is up to McNamee to decide who is right.

In filing suit earlier this year, attorneys for Senate President Warren Petersen and House Speaker Ben Toma acknowledge the 1906 federal Antiquities Act does allow a president to set aside parcels of land 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. They argue such designations have to be confined to the “smallest area compatible” with the care and management of the items to be protected.

They contend the moment, at 1,462 square miles, 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.”

The Biden administration is fighting back.

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 of the monument.

Ultimately, he said, 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.

But McNamee may not need to address that question of who can undo a monument. And that relates directly to allowing Hobbs and Mayes to intervene.

They told the judge he should toss the case without even considering the arguments raised by Petersen and Toma. Put simply, they said, the two lawmakers had no legal right to file suit challenging the monument in the first place.

“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.

They said the same arguments of who can sue also precludes the legal claims filed by state Treasurer Kimberly Yee, who joined the lawsuit to undo the monument designation. Ditto, they said, of a separate lawsuit — now consolidated into this one — filed by Mohave County, Colorado City and Fredonia.

“Arizona has designated the attorney general to represent the state on any case brought in federal court,” they said in their legal filings.

“Arizona also designates one official to speak on behalf of the state to the federal government: the governor,” their arguments continued. “Gov. Hobbs just that when she encouraged the federal government to establish the Ancestral Footprints Monument.”

McNamee, in his new order, said Hobbs and Mayes — or, at least their lawyers — are entitled to the right to be in his court to make those arguments.

He agreed that simply allowing the case to be decided solely on the arguments by the Biden administration about the president’s power to create a monument does not address the separate legal questions Hobbs and Mayes are raising.

That includes not just who has the right to sue but also contentions by Petersen and Toma that creation of the monument would harm the value of trust lands. Hobbs and Mayes say allowing the lawmakers to assert such an interest would impair the ability of the executive branch — and the Land Department which reports to Hobbs — “to determine what injures or aids the trust.”

The judge, however, was not so accommodating to requests by the Navajo, Hopi and Havasupai tribes to also play a role in defending the monument.

He acknowledged the lands at issue are within the homelands of the tribes and that they were involved in advocating for the monument’s creation.

But McNamee said their interests in protecting the area are the same as the Biden administration. And he said there is no reason to believe the Department of Justice cannot represent those interests.

For the same reason, the judge rejected the bid of 10 environmental groups to also be parties to the litigation.

No date has been set for a trial.