PHOENIX -- Rebuffed by a federal judge, Republican state legislative leaders want an appellate court to give them a chance to void the decision by former President Joe Biden to designate nearly a million acres in northern Arizona as a national monument.
In new filings Wednesday, attorney Justin Smith is arguing that U.S. District Court Judge Stephen McNamee got it wrong in January when he concluded that House Speaker Steve Montenegro and Senate President Warren Petersen have no legal standing to challenge creation of the Baaj Nwaavjo I'tah Kukveni -- Ancestral Footprints of the Grand Canyon National Monument.
To the extent there is a right to sue -- and that has not been decided -- McNamee said it belongs to the executive branch. But neither Gov. Katie Hobbs nor fellow Democrat Attorney General Kris Mayes have sought to overturn the 2023 designation.
But Smith, in his new filings with the 9th Circuit Court of Appeals, said federal law allows anyone who is harmed by the designation to sue. He said the Legislature fits that category, what with the risk of reduced tax revenues because of issues such as restrictions on mining.
And Smith said even the fact that there will be no uranium mining allowed in the monument has an effect, because it could force Arizona utilities to have to rely on getting much of their supply from "hostile powers like Russia." And that, he said, could mean higher power costs for everyone -- including the Legislature itself.
He also said it's not just the Legislature that is affected, with Mohave County and the towns of Colorado City and Fredonia also challenging the monument and also asking the 9th Circuit to overturn McNamee's ruling.
Even if Smith convinces the appellate court, that still doesn't mean the GOP leaders ultimately will win their challenge. All that would do is send the case back to McNamee to judge the merits of their claims that the designation was illegal.
Yet, Petersen also has a fallback plan. He said in a statement Wednesday that he is working with the Trump administration "in an effort to end this legal battle."
Even that, however, is not a sure thing. There are legal questions about the extent of Trump's authority to overturn Biden's decision.
This case stems from a lawsuit filed last year by the pair who called Biden's actions an illegal "land grab."
Both acknowledge 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. 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 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 they have legal standing. Smith is telling the appellate judges that the damage to the state from the designation provides them that right.
"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," he wrote. "Diminishing the tax contribution form the mining operations will simply shift the tax burden to other parties or require governments to cut necessary services."
Smith said this is especially true of uranium mining.
He cites a 2009 study indicating such mining would provide a $29 billion benefit to local economies in northern Arizona and southern Utah over 42 years.
And then there's the larger issue of what happens if the uranium ore in the area -- deposits Smith said are "some of the highest ... in the country" -- becomes unavailable, what with 29% of the state's total electricity generation coming from nuclear power.
"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," Smith said. And, as to 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, sniffed at all that.
"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 judge said, the standard for filing suit.
Smith told the appellate judges that McNamee got it wrong in dismissing the potential harm from the U.S. having to rely on foreign suppliers and ignoring the "consistently elevated" uranium prices for the past 20 years.
"The proper inference to draw from the allegations is that uranium prices will remain high enough to justify continued interest in mining in the area," he wrote.
Smith also is telling the appellate judges that local governments face harm from the monument, beyond the tax loss to Mohave County.
He said reduced mining activity means reduced economic development for Fredonia. And Smith said Colorado City's water come from beneath the monument, raising the question of whether the federal government will claim the designation restricts the community's ability to withdraw from the aquifer.
The announcement from the White House at the time of Biden's designation of the monument said the name translates in part in the Havasupai language to "where Indigenous peoples roam" and in Hopi to "our ancestral footprints."