Facing $3 million lawsuit, dredging foe files ‘anti-SLAPP’ action

BYU ecologist Ben Abbot has been an outspoken critic of proposal to build islands on Utah Lake

(Trent Nelson | The Salt Lake Tribune) Ben Abbott, Assistant Professor of Ecosystem Ecology at BYU, takes a water sample from Utah Lake's Benjamin Slough on Thursday April 25, 2019. The scientist is facing a $3 million defamation lawsuit arising from criticism he has directed at a proposal to dredge Utah Lake.

Staring down the barrel of a $3 million lawsuit, ecology professor Ben Abbott is now turning the legal tables on the company proposing to dredge Utah Lake.

In court filings last week, Abbott’s lawyers laid out their case that Lake Restoration Solutions’ defamation suit is an abuse of the judicial system aimed at gagging Abbott, an outspoken critic of the controversial proposal to scoop a billion of cubic yards of lake bed sediments into a sprawling network of subdivisions on one of the West’s largest freshwater lakes.

The professor’s motion was filed under Utah’s so-called anti-SLAPP statutes, which frown on bad-faith litigation known as “strategic lawsuits against public participation.”

Lake Restoration Solutions, or LRS, filed its suit on Jan. 10, accusing Abbott, a Brigham Young University scientist and leading researcher into Utah Lake’s ecosystems, of “spreading misinformation” about the proposed dredging project and its potential impacts. In the face of intense doubt from the scientific community, LRS contends dredging Utah Lake would reverse its water quality problems, which have arisen over decades of neglect, pollution discharges and drought.

“LRS’s primary purpose in this litigation is to silence Professor Abbott and prevent him from participating in the public debate surrounding LRS’s Project,” wrote attorney Whitney Krogue in a motion filed Friday in Salt Lake City’s 3rd District Court. “Further, LRS asks the Court to extend defamation law into a new frontier; to prevent Professor Abbott from even making ‘derogatory’ comments about its project, and to stop Professor Abbott from ‘poisoning’ the debate. These requests are far beyond just seeking relief for purportedly false statements, and they have no foundation in the law.”

The motion asks the court to dismiss the defamation suit, while reserving Abbott’s right to seek compensatory damages against LRS for filing it in the first place.

In an email sent via a publicist, David Jordan, LRS’s attorney who filed the defamation suit, said the company respects the public’s First Amendment right to express opinions but said no one has to publish defamatory false information.

“Lake Restoration Solutions welcomes a vigorous, science-based, public process to carefully examine its comprehensive plan to restore Utah Lake to the beautiful, clear water lake it once was,” Jordan’s statement read. “We are confident that the science will prove that with appropriate remediation Utah Lake can again be a thriving environment for fish and waterfowl and a place of unrivaled recreational opportunities.”

In various public forums and on his blog, Abbott has said LRS has no doctorate-level scientists on its team and has not provided a scientific basis for its core claim that deepening the lake and sequestering contaminated sediments in artificial islands would improve the lake’s water quality. He also raised questions about the project’s financing.

Those and other statements are lies intended to advance a personal agenda and to turn the public against the project, according to LRS.

“Ben Abbott’s repeated statements that Lake Restoration Solutions has no Ph.D. scientists on its team is simply false. We have shared with his lawyers a list of nearly 100 scientists, many of whom hold Ph.D.s, who are working on our team,” Jordan said. “Mr. Abbott’s statements that Lake Restoration Solutions is funded with ‘shady foreign money’ is equally false. None of our investors are outside the United States.”

That may be true now, but documents obtained by The Salt Lake Tribune through public record requests suggest LRS had at one time sought funding from international sources.

For his part, Abbott contends his criticisms are factual and based on information available in the public record. The real defamation is being perpetrated by LRS’s lawsuit, his defenders argue.

Abbott and many other critics say LRS is peddling their own disinformation about Utah Lake’s problems and potential solutions to sell policymakers on an extreme makeover, expected to cost $6.4 billion.

Jordan’s statement, for example, contains one of LRS’s allegedly phony claims that Abbott and many other scientists have long pointed out. Historically, Utah Lake’s waters were never “clear;” the lake’s opacity contributes to the lake’s ecological resilience, so making the water clear could actually result in harm, Abbott contends.

In exchange for dredging the lake to ecological health, under LRS’s proposal, the company would retain some of the islands created to sell for real estate development.

Abbott’s motion argues that the timing of the defamation lawsuit also demonstrates that it was designed to “chill” his participation at a time when the Legislature, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers were considering key actions connected to the project.

Abbott was served with the suit on Jan. 11, just hours before he was to speak at the Utah Lake Summit, hosted by Rep. Kevan Stratton, R-Orem. This was also a few days after LRS submitted its application with the Army Corps, which initiated the environmental review, and a week before the Legislature convened its 2022 session, where Abbott was expecting to advocate for the repeal of the 2018 bill that instructed the Utah Department of Natural Resources to consider the dredging project.

Abbott’s recent motion builds on a countersuit he filed in February, adding substance to his claim that the defamation suit was filed in bad faith.

During the suit’s discovery process, Krogue obtained numerous documents from LRS and its investors that help support this claim. While her motion extensively cites these documents, the references are redacted in the version available to the public.

The lawyer said she made the redactions at the insistence of LRS, which claims the information is “confidential.” As a result, the basis for Abbott’s anti-SLAPP action remains partially out of public view.

In the meantime, LRS has hit the environmental group Conserve Utah Valley with a subpoena, demanding any documents it has related to the Abbott case.

The group, which has helped raise money for Abbott’s legal defense, did turn over documents last week, but it denounced the request as “overly broad, unduly burdensome, disproportionate to the needs of the case.”

“We try to work in good faith to bring more transparency and collaboration to solve issues surrounding the challenges facing Utah Lake. We wish the developers [LRS] would focus on involving the public in their plans instead of using the law to antagonize those who want to participate,” said Craig Christensen, Conserve Utah Valley’s executive director. “For an organization that seems unwilling to provide transparency about its plans and how it plans to profit, LRS seemed to have no qualms in trying to use its lawsuit to take a deep look into our organization.”

Correction • This story was changed with the correct date Abbott was served.

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