Opponents of the hyperscale data center proposed for northern Utah are asking a judge to overturn the Box Elder County’s attorney’s denial of their attempt to challenge county commissioners’ decision approving the plan.

Box Elder Accountability Referendum, or BEAR, on Wednesday filed a lawsuit appealing the decision to Utah’s 1st District Court, which covers Box Elder, Cache and Rich counties.

The county’s attorney determined last week that “neither referendum is legally referable to voters,” according to a statement from the county.

BEAR had hoped for the chance to let voters decide whether to uphold or reverse the commissioners’ decision to greenlight the 40,000-acre data center complex backed by celebrity investor Kevin O’Leary and Utah’s Military Installation Development Authority, or MIDA.

But the right to refer commissioners’ actions to voters, County Attorney Stephen R. Hadfield wrote, “applies only to County Commission actions which create new laws.”

That decision, BEAR argues in its lawsuit, wasn’t disinterested or unbiased.

Hadfield, who works for the commission, “could not – as required by due process – impartially determine” whether the referendums should be referred to voters, the lawsuit reads.

That, they argue, is because Hadfield helped prepare impact statements for the referendum.

The legal portions of those statements say that repealing the resolutions for approval of the Stratos project area would “eliminate negotiated protections,” while also leaving the county on the hook for more public services if the data center proceeds through other means.

Shannon Barton, a co-sponsor of the referendum, said it’s “upside-down” that the county attorney would consider commissioners’ approval of “such a monumentally earth-shaking project” an administrative decision.

“The Stratos Data Center Project will have significant consequences that will affect the lives of all of us, our children, and our grandchildren in communities across Box Elder County and beyond for many years to come,” said Brenna Williams, another co-sponsor.

Appealing the county’s decision, Williams said, exercises the right to “place this important decision back in the hands of the people – where the power should be – through the referendum process.”

The appeal also means the county will “spend residents’ tax money to try to make sure we, as residents, don’t have a voice on this issue,” said referendum co-sponsor Brigette Cottam.