How Utah’s Tabby Mountain got caught up in a political hailstorm

Ute Tribe’s $47 million bid to buy these trust lands derailed state’s plan for a wildlife preserve

(Rick Egan | The Salt Lake Tribune) Utah’s Tabby Mountain provides scenic big game habitat in the western Uinta Basin, on Thursday, Sept. 22, 2022. The Utah Department of Natural Resources has tried buying 28,400 acres of trust lands here to manage as wildlife preserve open to the public, but was outbid by the Ute Indian Tribe.

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For years, Utah wildlife officials have coveted a 28,500-acre block of state trust lands covering Tabby Mountain, considered some of the finest big game habitat in Utah.

The trouble is Tabby is not, technically speaking, public land, and the Department of Natural Resources’ attempts to buy this plateau at the headwaters of the Duchesne River wound up summoning other potential buyers who may want to exclude the public.

While worth millions, Tabby has not generated much revenue, so the Utah School and Institutional Trust Lands Administration (SITLA) has long looked to sell to the state as long as the school trust receives full market value.

Such a deal was in the pipeline in 2018 with a $40 million offer from DNR, then led by Mike Styler, a tireless champion of preserving the mountain’s habitat and public access.

Then came the curveball.

A sealed bid was submitted by the Ute Indian Tribe to pay more for Tabby Mountain. A lot more. Under SITLA’s statutory mandate, agency bosses had to sell to the tribe or demand a higher price from DNR, which then offered $50 million.

With DNR unable to actually secure the additional $10 million, SITLA killed the sale to avoid risking the wrath of Utah lawmakers who were threatening to rein in the agency’s independence if Tabby wound up in the tribe’s hands, according to a whistleblower complaint filed by the former SITLA staffer who oversaw the failed sale.

The agency’s then director David Ure rigged the sales process with the aim of getting the land into DNR’s control — at a price the Legislature was willing to pay — to appease key leaders in state government, Tim Donaldson alleged in a complaint filed Aug. 30 with State Auditor John Dougall.

This arrangement constituted “fiduciary violations and discrimination against an Indian Tribe by SITLA and the State of Utah,” Donaldson wrote in his complaint.

While acknowledging the appearance of irregularities that were questioned at the time, SITLA officials denied the process was handled improperly.

“SITLA’s director [Ure] and board weighed all of the issues surrounding the sale and decided that it was in the best interests of the beneficiaries to not move forward with the 2018 effort,” said SITLA director Michelle McConkie, who succeeded Ure in March.

As a matter of policy, SITLA does not divulge the identity of bidders and their bids. Accordingly, officials declined to comment on Donaldson’s contention that the tribe may have been cheated out of a shot to acquire a landscape that holds cultural significance to the Utes.

Ure did not respond to a voicemail.

(Christopher Cherrington | The Salt Lake Tribune)

Putting public land in private hands

The Tabby fiasco illustrates the tensions that have been brewing for years over SITLA’s decisions that elevate making money for the school trust over the public’s interest in trust lands, even over vast contiguous blocks where people have long enjoyed unfettered access.

Reached last week, House Majority Leader Mike Schultz, R-Hooper, acknowledged playing a role in thwarting Tabby’s sale to the tribe.

“You take 40,000 acres that currently has public access and put it into private ownership, regardless of who it is, whether it’s the [Ute] tribe or anybody else, we’re going to get significant backlash that ultimately doesn’t reflect well for SITLA,” Schultz said. “The public does not understand SITLA’s role. All they see is the fact that 40,000 acres of their property was taken away from them by the state of Utah.”

The Ute tribe’s elected leaders did not respond to invitations to comment delivered by voicemail and through the tribe’s lawyers.

During his many years as DNR director, Styler constantly angled for Tabby Mountain. He envisioned it being kept open for public hunting and recreation, managed as a state forest by multiple DNR divisions.

But the Utes apparently had other plans for Tabby, which falls inside the historic boundaries of the Uintah and Ouray Indian Reservation. The mountain is named for Chief Tabby-To-Kwanah, who led the Timpanogos Nation when its people were forcibly evicted from Utah Valley in the 1850s by Mormon settlers.

When SITLA solicited outside bids for Tabby, the Ute tribe submitted one for nearly $47 million, according to Donaldson, whose complaint marks the first public disclosure of the tribe’s involvement.

Tabby’s acquisition by the tribe — or any private party for that matter — would have monkey-wrenched DNRs plans. And possibly prompt lawmakers to draft legislation that could curb SITLA’s independence and alter its mission, according to Schultz.

“I think we need to look at the statute and find a better pathway forward,” Schultz said. “The state of Utah ought to have every chance to match the final bid in order to keep the public interest there.”

Correcting a century of abuse

SITLA’s job is to manage Utah’s 3 million acres of trust lands — ceded by the federal government at the time of statehood in 1896 — as a revenue source for schools and other public beneficiaries.

For Utah’s first century as a state, these lands were managed more as a way to distribute political favors than to support education. That changed in 1994 when the Legislature established SITLA, giving it near complete independence and a strict mandate to manage trust lands to “optimize” revenue generation. Thanks to these reforms, the school trust now exceeds $3 billion, and the money keeps pouring in, much of it from lucrative land deals.

The state acquired the Tabby land from the U.S. Forest Service in 1970s in a land swap, but the subsurface remained with the tribe, meaning mineral extraction remains a possibility no matter who owns the mountain. SITLA collects revenue off Tabby from livestock grazing, timber harvest and hunting, but it’s not much.

Champion of the trust

A long-time fixture in Utah’s trust lands affairs, Donaldson filed his complaint last month shortly after he was forced out as head of the Land Trust Protection and Advocacy Office, where he served at the pleasure of State Treasurer Marlo Oaks.

In that role, he functioned as the beneficiaries’ watchdog responsible for ensuring SITLA complies with its mandates. But over the past year, he alleged, SITLA officials increasingly kept him out of the loop, making it impossible for him to carry out his duties.

When he was terminated in late August, he was told that the State Treasurer’s Office wanted him to act in more of a public relations capacity for SITLA, rather than its overseer.

“I just wasn’t wired that way,” he wrote in the complaint, which seeks an investigation into numerous concerns, starting with the botched sale of Tabby Mountain.

Dougall’s office declined to comment on Donaldson’s complaint.

SITLA routinely sells small to large parcels at biannual auctions without controversy, but major sales like last year’s 8,107-acre Cinnamon Creek block occur hardly once a decade, if that often. A Tabby sale would have dwarfed Cinnamon Creek, which DNR purchased for about $20 million and remains SITLA’s largest land sale to date.

Donaldson had previously served as trust lands director for the Utah State Board of Education before joining SITLA in 2017. That’s when Ure hired him as the agency’s assistant director for special projects.

There was only one special project on Donaldson’s plate and that was the sale of Tabby Mountain. This block is considered a “nonperforming asset” that would best be dropped from SITLA’s portfolio, according to statements former SITLA board member Tom Bachtell made at a 2019 meeting of the Land Trust Protection and Advocacy Committee.

(Rick Egan | The Salt Lake Tribune) Utah’s Tabby Mountain provides scenic big game habitat in the western Uinta Basin, on Thursday, Sept. 22, 2022. The Utah Department of Natural Resources has tried buying 28,400 acres of trust lands here to manage as wildlife preserve open to the public, but was outbid by the Ute Indian Tribe.

A flawed appraisal

As members of the advocacy committee, Bachtell and retired lawmaker Mel Brown sharply criticized how SITLA handled Tabby’s appraisal. This appraisal had been orchestrated by DNR’s Division of Wildlife Resources (DWR), they divulged at a 2019 meeting.

It would not be appropriate to allow a potential buyer to influence an appraisal, yet SITLA authorized a DWR staff member to accompany the appraiser on their tour of Tabby Mountain, said Brown, the Utah legislator who shepherded the 1994 legislation that created SITLA.

The appraisal came in at $41 million, which Bachtell and others believed was low, especially considering the increasing tendency of ultra-wealthy people to buy huge spreads of open land in Western states for top dollar.

SITLA negotiated a sale to DNR based on that “flawed” appraisal. Then, as per its rules, the agency solicited outside bids in late 2018 in search of better offers. Eight undisclosed parties expressed an interest, but it was the dead of winter, with the mountain under snow and largely inaccessible. There was little time to develop bids and only one actually came in — the tribe’s.

“The procedure happened so quickly,” Bachtell said. “It was favored toward DWR. We put it out for public bid and gave people 30 days to decide whether they wanted to put $1 million down to bid on it, which I wouldn’t have done, without doing due diligence about roads, zoning, water, everything you can think of including Indian minerals — what can that do to my surface.”

He complained that the appraisal was “one-sided” and unfair to the trust.

“The appraisal was down and dirty ... It is so restricted. They were told the uses weren’t going to change. There are a lot of new billionaires out there. Consideration was not given to the possibility of private owners … paying a heck of a lot of money for it,” he said “It’s within helicopter distance from an airport, which matters to billionaires. And it’s beautiful.”

While Bachtell argued SITLA could get more than $41 million for Tabby, he was also concerned about the Ute tribe acquiring the land with a higher bid.

“If they get it, they can convert that land into Indian land completely outside the bailiwick of the state. They will control the hunting, fishing on that land and the access. If they are the high bid, which I think maybe is likely, then there are political ramifications and issues,” Bachtell said. “What’s in the best interests of the beneficiaries isn’t always money. There are other things to consider.”

In interviews last week, SITLA officials did not deny the sales process could have been handled better.

The goal was to forge a deal that kept the land open to the public, while also getting the best deal for the trust, according to SITLA’s general counsel Mike Johnson.

“From the beginning of the sales process, SITLA’s beneficiaries questioned whether DNR was too involved with the appraisal of the land and whether the appraisal was accurate,” Johnson said. “They also expressed concern that the advertising timeframe was too short to get a true idea of the market value.”

But behind the scenes, according to Donaldson, extraordinary political pressure was being put on SITLA to make a deal that ensured Tabby Mountain landed in state ownership.

Two days before the sale was nixed in February 2019, Schultz, then the House majority whip, called Donaldson into his office at the Capitol, wanting to know why SITLA was insisting on getting an additional $10 million above the $40 million negotiated price for Tabby, according to Donaldson’s statement.

“I was interrogated about how the Ute Indian Tribe became aware of the potential sale. I was threatened with legislative action to destroy the trust mandate for the beneficiaries if I did not see to it that the sale went a certain way,” Donaldson wrote. “‘Sell it to the Tribe and see what happens to you,’ House Majority Leader Schultz said.”

Schultz said he doesn’t recall the particulars of that conversation, but he reaffirmed his belief that SITLA’s mission should be reevaluated if it pursues deals that privatize big blocks of land that Utah residents hold dear.

Legislation did materialize in last legislative session that would have constrained SITLA’s unilateral ability to sell blocks exceeding 5,000 acres. HB204 was introduced by Rep. Casey Snider, R-Paradise, who helped broker the 2021 Cinnamon Creek deal and is an outspoken supporter of public hunting.

After meeting with Donaldson during the session, Snider agreed to pull the bill before it ever got a committee hearing. Donaldson contends HB204 could have backfired by opening a legal pathway for the tribe to force Tabby’s sale.

Snider, however, said he pulled the bill because he has faith in SITLA’s new leadership to manage its large blocks with the public interest in mind, rather than simply selling to the highest bidder. Like Schultz, he believes the loss of public access to Tabby Mountain, the Book Cliffs, the La Sals and other large SITLA blocks would be a disaster for Utahns.

“Taking tens of thousands of acres off of half the public’s ability to access is always a tragedy,” he said. “On big consolidated blocks like Tabby, SITLA has a fiduciary responsibility as part of their stewardship. But they also have a broader duty, which is also in the best interests of the trust, I believe, to look at the other values that are not monetary on a piece of ground.”

Today Tabby Mountain remains open to the public, but it may eventually cost taxpayers and the hunting community dearly to keep it that way.

Editor’s note • This article has been updated to correct the timing of Tim Donaldson’s meeting with legislative leaders in regards to the Tabby Mountain sale. Donaldson’s complaint to the State Auditor provides the wrong year. The correct date is Feb. 20, 2022, according to Donaldson, two days before the SITLA board voted to suspend the sale process.