‘Anyone can lobby’: Utah judge slams environmental group’s lawsuit over commissioners’ private meetings with feds

A state judge has summarily shot down the first of three lawsuits filed by the environmental group Southern Utah Wilderness Alliance alleging county commissions violated open meeting requirements when they met privately with Interior Secretary Ryan Zinke and other federal officials last year.

In court filings, San Juan County argued that its commissioners’ conversations with Zinke on shrinking or rescinding Bears Ears and Grand Staircase-Escalante national monuments were not covered under the Utah Open and Public Meetings Act since counties have no say over national monument designations or adjustments, a power held only by Congress or the president of the United States.

That argument swayed 7th District Judge Lyle Anderson, who dismissed the SUWA suit Friday without fielding oral presentations.

“The County Commission was advocating on behalf of the county or its citizens when meeting with members of Congress or Interior officials,” Anderson, based in Monticello, wrote in his April 6 order, which also accuses SUWA of using the lawsuit to harass San Juan officials.

“Anyone can advocate. Anyone can lobby,” the judge continued. “That one can do so does not mean one has either jurisdiction or advisory status.”

SUWA has filed similar actions against Kane and Garfield counties, and the disputes could have broad implications for three-member commissions, a form of government used to run 23 of Utah’s 29 counties.

Wide impact

Most rural Utah county commissions favor multiple uses of public lands — and lean toward oil, gas and mining industries over conservation restrictions, particularly when it comes to monument and wilderness designations that SUWA endorses.

Victories for SUWA could require county commissions to notify the public of meetings and accommodate residents who hope to attend when two or more commissioners meet with federal land officials.

“The issue is bigger than the monument. It strikes at their ability to function,” said attorney Mark Ward, who filed amicus briefs on behalf of a dozen rural counties.

County commissions in Utah, Ward noted, play a dual role as lawmaking and executive bodies.

“When they pass ordinances and adopt policies, they do that in an open process and come up with a position after taking in public comment,” said Ward, who runs a legal nonprofit called Balance Resources. “Then they put on their executive-branch hat and carry out that position.”

That, Ward said, was what San Juan County commissioners were doing when they met with Zinke. “When you carry out administrative matters,” he said, “you are not subject to that [open meetings] act.”

Question of transparency

SUWA officials say they intend to appeal Anderson’s ruling and rejected his rebuke, which was made with no prompting from San Juan County’s lawyers.

According to SUWA legal director Steve Bloch, Utah’s meeting law is rooted in the idea that state and local officials must conduct business in the light of day. The San Juan suit targets commissioners’ taxpayer-funded trips last year to Washington, where they asked Zinke face to face to erase the Bears Ears monument, as well as visits with Utah’s members of Congress and other Interior officials last May and June.

Then-President Barack Obama had designated the monument a few months earlier, and President Donald Trump later scaled it way back under Zinke’s recommendation.

But Anderson’s ruling asked whether SUWA’s action was filed for “the improper purpose of intimidating” the county commission. The judge ordered the group to submit a brief by May 1 explaining why its suit does not violate laws against abusive litigation.

The order raises the specter of judicial sanctions against a group that Anderson once criticized as a legislative candidate before he was a judge.

“When he ruled against us, he didn’t even cite a case,” Bloch said of Anderson’s order. “It’s unfortunate. We did not bring the suit with the intent to harass the commission. The arguments made in our brief are well-supported by case law.”

SUWA’s related suits against Kane and Garfield counties, home to Grand Staircase-Escalante, were combined before 6th District Judge Marvin Bagley, based in Panguitch, who is expected to rule soon on nearly identical motions to dismiss.

Ward argued at a March 22 hearing in support of Kane and Garfield. In an interview Tuesday, he said Utah law supports county commissioners’ common practice of meeting in private with Bureau of Land Management officials to press for land-use policies previously set in public meetings.

‘A red herring’

SUWA argued openness is required at “every stage of a government body’s discussions of business of public interest — not just to meetings at which formal votes or actions are taken.” The San Juan commissioners’ meetings with Zinke, the group said, raised “substantive policy matters, not administrative or operational matters.”

Asserting that environmentalists’ true aim is “destroy rural communities,” San Juan officials hailed Anderson’s ruling as a victory for county authority.

“SUWA has abused their platform and donors for too long. They have made money on the backs of the taxpayers by filing frivolous lawsuits and exploiting the Equal Access to Justice Act,” said Commission Chairman Bruce Adams, referring to a law that allows nonprofit groups to recoup litigation costs when they sue the federal government. That law, however, does not apply in SUWA’s meeting lawsuits and the group is not seeking fees in them.

“It is our hope that this will be the first step in a movement to unmask SUWA,” Adams said, “and the manipulative way they do business.”

Bloch acknowledged the group does sue the BLM as part of its mission to limit motorized access and energy development on Utah’s public lands with wilderness characteristics, but those suits, he said, are grounded in law and supported by facts.

SUWA also has a track record of winning many of the lawsuits it files, he noted, and when it does, it indeed provides a way for SUWA and other groups to recover legal fees. Bloch called assertions that it seeks excessive fees “a red herring that right-wing media hit on when there is no there there.”

“SUWA’s fees are modest,” Bloch said. “It is hardly how we are keeping our lights on.”