Lawyers for SUWA, Kane County and San Juan County argue Open Meetings Act case before Utah Supreme Court

(Brian Maffly | Tribune file photo) In this 2017 file photo, San Juan County Commissioner Rebecca Benally, center, joined Interior Secretary Ryan Zinke, in blue shirt, on a tour of Zion National Park. Benally is flanked by Utah congressmen Rob Bishop, left, and Chris Stewart. San Juan County was sued by the Southern Utah Wilderness Alliance in 2017 under Utah's open meetings law after Zinke and Benally met behind closed doors with the two other San Juan County commissioners. The case is currently before the Utah Supreme Court.

The Utah Supreme Court heard arguments Wednesday from attorneys representing three southern Utah counties and the Southern Utah Wilderness Alliance over a case that has been in the courts since 2017 when then-Interior Secretary Ryan Zinke made a tour of Utah’s Grand Staircase-Escalante and Bears Ears national monuments.

On the May 2017 trip, which was initiated by an executive order from President Donald Trump, Zinke met behind closed doors with the county commissioners of San Juan, Kane and Garfield counties, prompting the Southern Utah Wilderness Alliance (SUWA) to sue the counties for allegedly violating Utah’s Open and Public Meetings Act.

SUWA argued that the meetings should have been posted and opened to the public as is required of public bodies conducting official business in the state. But judges in the 6th and 7th district courts dismissed the cases, ruling that not only had the county officials acted in compliance with the law but SUWA’s lawsuits were undertaken frivolously and in bad faith.

The conservation group, which has long tangled with local governments in southern Utah, was hit with over $50,000 in punitive legal fees in 2018.

SUWA appealed the decisions to the state’s top court, where the justices took the case under advisement on Wednesday with no indication of when their decision would come out.

A ruling on the Open and Public Meetings Act could have long-lasting ramifications on how government business is conducted in Utah, and some critics of the lower courts' decisions have feared that the fees levied against SUWA could have a chilling effect on future open meetings disputes.

Utah Headliners Chapter of the Society of Professional Journalists signed friend of the court briefs with Deseret News and FOX 13 in support of SUWA’s motion, in large part because of concerns over how the lower courts' handling of the case could affect journalists.

The fees issue was only touched on a handful of times Wednesday, but Justice Deno Himonas suggested that Judge Lyle Anderson of the 7th District Court may have violated judicial ethics code by conducting his own independent research in order to grant a “huge award of fees” to the county in the case in 2018.

At the time, SUWA’s attorney Troy Booher called Anderson’s decision to award fees based on his own research and evidence that was not presented to him by a party as “highly unusual”, and Himonas appeared to take a similar position during oral arguments Wednesday.

“Are you seriously defending the award of attorneys fees here?” Himonas asked Stewart Peay, San Juan County’s attorney. Peay answered in the affirmative.

The majority of the nearly three hours in arguments the court heard on Wednesday, however, dealt with hypothetical situations that may or may not constitute a public meeting as defined under the act.

“The way the act is written is not a model of clarity,” David Reymann, an attorney representing SUWA on the case, told the court. “There are not a lot of definitions, and part of the problem we have with interpreting it is … cases under this act almost never get brought.”

A lack of clarity in the act was further complicated because the issue in question — closed-door meetings between county commissioners and a federal official — were private, making it difficult for third parties to determine whether the contents of the discussion were in violation of the act.

Chief Justice Matthew Durrant called the situation “a bit of a Catch-22.”

“We can’t find out what happened in the meeting because it was closed,” he said.

The act, multiple parties noted, is meant to prevent elected officials from holding a private meeting before a public meeting to deliberate on policy in private, but it’s not clear what the commissioners and Zinke discussed.

Kane County’s attorney for the case, Shawn Welch, argued that if the commissioners talked about Grand Staircase-Escalante National Monument with Zinke, it wouldn’t have violated the act because county commissioners do not have the power to make decisions over federal land policy. (State law exempts public bodies from holding open meetings to discuss matters over which they hold no authority.)

“I would remind this court that the state of Utah is two-thirds federal land, so of course there are all kinds of interactions at every level, especially in the rural counties, with federal officials,” Welch said, adding that a precedent requiring those meetings to be public “could be devastating.”

Interpreting the act too liberally, attorneys for the counties said, could limit local governments' ability to carry out their job, especially for three-member county commissions that serve as both the executive and legislative branches of government.

But all parties seemed to agree some clarity was needed. “People don’t publicize the fact that they’re having a secret meeting,” Booher said, noting that violations of the law need to be enforceable.

“These sort of meetings happen all the time where public policy is discussed on behalf of the citizens whom these bodies represent," he continued, “and if public policy is being discussed, that’s exactly what this provision in this act is supposed to cover. You don’t get to have the meeting before the meeting and decide what you want to say ... [so] you don’t have to say it in the public’s view.”

Zak Podmore is a Report for America corps member and writes about conflict and change in San Juan County for The Salt Lake Tribune. Your donation to match our RFA grant helps keep him writing stories like this one; please consider making a tax-deductible gift of any amount today by clicking here.