By Howard Fischer
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PHOENIX — Preparing for their own fight with the Biden administration over a new national monument in Arizona, top legislative Republicans now are attempting to help the state of Utah in its own battle against two other monuments.

In legal papers filed Monday, Senate President Warren Petersen and House Speaker Ben Toma are urging the 10th Circuit Court of Appeals to overturn a decision by a trial judge to allow hundreds of thousands of acres of two national monuments in Utah to remain protected.

In an August ruling, U.S. District Court Judge David Nuffer said there is no basis for lawsuits, one filed by the state of Utah and the other by Garfield County, asking him to void Biden’s decision to restore the Grand Staircase-Escalante and Bears Ears national monuments. Both had originally been designated by President Obama but were scaled back in 2017 when Donald Trump became president.

Now that case is on appeal. And Petersen and Toma are siding with Utah.

But the decision by the Arizona Republicans to file legal briefs in this case is not entirely academic.

Petersen announced in September he had “given the greenlight” for the Senate to sue the Biden administration “for their unconstitutional land grab in Arizona” after Biden set aside nearly a million acres for a national monument. The Senate president called it a “dictator-style land grab” and said it was Biden’s “tyrannic desires” to block mining and agriculture.

Petersen said Monday the state is still gathering facts and doing interviews before it files its own challenge.

“There is a lot of upfront work before it is filed,” he said.

But Senate press aide Kim Quintero said there is a benefit to Arizona weighing in now in the Utah case, with its own attorney, ahead of its own challenge.

“This brief will help lay the groundwork,” she said.

At the heart of both is the 1906 law, approved by Congress and signed by then-President Theodore Roosevelt. It allows the president, on his own, to set aside historic landmarks, prehistoric structure and “other objects of historic or scientific interest that are situated on land owned or controlled by the federal government to be national monuments.”

It also says that the land “shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.”

What has angered Petersen and Toma was Biden coming to Arizona in August to designate about 1,462 square miles of federal land in three tracts to the south, northeast and northwest of Grand Canyon National Park.

It is called the Baaj Nwaavjo I’tah Kukveni Ancestral Footprints of the Grand Canyon National Monument, the White House said it translates in part in Navajo to “where indigenous peoples roam” and in Hopi to “our ancestral footprints.” It is designed to preserve thousands of cultural and sacred sites that are significant for a dozen Indian tribes that have lived in the area.

The move permanently blocks new uranium mining claims while allowing current grazing leases, hunting, fishing and other activities to continue. The state retains control over fish and wildlife issues.

In his ruling in the Utah case, Nuffer noted only Congress has the power to limit the president’s authority or roll back monument designations, and pointed to laws passed limiting new monuments in Alaska and Wyoming.

“Congress knows how to restrict statutory presidential power,” the judge wrote.

“Otherwise, the terms of the statute control,” Nuffer said, saying he saw nothing in the Utah challenge to undermine that.

In their new filing, Petersen and Toma take aim at his conclusion, drawing parallels to their own upcoming legal fight with Biden.

“Like this case, he did so by declaring that the animals, plants, geological features, and entire landscape are a national monument,” wrote attorney D. John Sauer, hired by the state both to file a brief in the Utah case and, eventually, sue the Biden administration over its Arizona action.

“Like this case, the Northern Arizona Designation withdraws the land from further development and new, productive uses,” the lawyer argues. “And like this case, the result has been to impose costs on the state of Arizona and her citizens in the form of the lost productive capacity of the designated land.”

More to the point, Sauer is questioning how Nuffer is interpreting the scope of presidential power.

“President Petersen and Speaker Toma do not believe that Congress, in passing the Antiquities Act, gave to the president a royal prerogative to turn millions of acres of federal land located in Arizona, Utah, and other numerous states into a presidential forest,” he told the appellate court.

What the president is doing, Sauer said, is interpreting the term “objects” in the law — the things that the Antiquities Act allows him to protect — to mean “whatever he wants it to mean, such as plants, animals, qualities and experiences, and geological features.”

“The result: a bird, a blade of grass, a quiet spot with a bit of shade, and an interesting rock can all be national monuments,” the attorney said. “And if President Biden likes a particular view on federal land, he can now declare it a monument.”

Sauer said this view of the law “is little more than a modern-day version of the forest laws of medieval England.”

The view of the GOP leaders about monuments — and the one in Arizona in particular — is at odds with that of Katie Hobbs.

In a May letter to the president, the Democrat wrote that tribes deserved to have the area protected. Hobbs also said her office had “heard from people across the political spectrum including sporting groups, faith leaders, outdoor recreation businesses, conservation groups and other from a broad array of interests that support this monument designation.”

Petersen, by contrast, called the Arizona monument “nothing more than a publicity stunt to appeal to his radical environmental base, while in tandem creating dire consequences for the livelihoods of our citizens, Arizona’s economy, as well as our nation’s energy supply.

But Interior Secretary Deb Haaland, a member of the Pueblo of Laguna, said the designation has to be seen through a different lens, saying Biden’s action “makes clear that Native American history is American history.”

“This land is sacred to the many tribal nations who have long advocated for its protection, and establishing a national monument demonstrates the importance of recognizing the original stewards of our public lands,” she said at the time.

Bob Christie of Capitol Media Services contributed to this report.