Ute Tribe alleges discrimination was behind rejected bid to buy Tabby Mountain

Suit alleges officials conspired to sabotage the tribe’s $47 million bid.

(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.

Utah’s Tabby Mountain was once part of the Uintah Valley Reservation, but it was pried out more than a century ago along with a million other acres when the federal government set aside the forested preserve that became the Ashley National Forest in the Uinta Mountains.

As luck would have it, a chance came up for the Ute Indian Tribe to return the landscape to the fold in 2018 when a subsequent Tabby owner, the Utah School and Institutional Trust Land Administration, or SITLA, solicited sealed bids for the 28,500-acre block.

But SITLA conspired with other state agencies to concoct a fraudulent pretext to reject the tribe’s high $47 million bid and illegally cheat the tribe from regaining control of this landscape on the western edge of the Uinta Basin, according to a lawsuit filed Friday in Salt Lake City’s U.S. District Court.

A ‘rigged’ process

“Monetary damages are also inadequate here because of the Tribe’s unique and specific interests in Tabby Mountain,” the suit states. “Tabby Mountain, and the plants, natural resources, springs, and medicines found on that property have unique religious and spiritual significance to the Tribe and to tribal members.”

Tribal officials are seeking a court order directing SITLA to sell Tabby to the 3,000-member tribe for $47 million and to cough up punitive damages.

The 28-page suit reads like a searing indictment of the state’s handling of the Tabby sale, alleging illegal discrimination based on religion, race, national origin and ethnicity in violation of the Constitution’s promise of equal protection under the law.

(Christopher Cherrington | The Salt Lake Tribune)

The tribe contends state officials rigged the sales process to ensure the land would be sold to the Utah Department of Natural Resources (DNR), which hopes to one day protect the land as a wildlife preserve, state forest and haven for big game hunting. The tribe’s $47 million bid, backed up by $1 million in earnest money, disrupted DNR’s plans, setting off backroom scheming to kill the sales process rather than enable a sale to Native Americans, the suit alleges.

“Nothing evinces racial animus more clearly than the intentional, purposeful and/or knowing diversion of land from a minority population in order to make that land available for the primary or exclusive benefit of the non-minority population,” the suit says. “It is an incontrovertible fact of American history that non-Indian greed for land and resources is what has motivated nearly all, if not all, of the racial cleansing and genocidal campaigns that non-Indians in the United States have waged against the Native America populations in the United States.”

DNR officials said they are “saddened” the tribe felt mistreated.

“The Utah Department of Natural Resources has worked cooperatively with the Tribe for many years,” DNR Director Joel Ferry said in a statement. “Preserving public access and maintaining habitat for wildlife have been and continue to be the singular goals of acquiring this property. Racial discrimination did not play any role.”

DNR’s proposed purchase would have enlarged the existing Tabby Mountain Wildlife Management Area to provide public access for wildlife watching and hunting.

“DNR’s bids were made in good faith, and the money pledged in those bids would have been paid to SITLA had the property been transferred to DNR,” Ferry said.

SITLA’s move not only discriminated against the tribe, it violated the agency’s mission to generate revenue off its 3.4-million acre portfolio of trust lands for schools, the suit alleges.

SITLA officials said the agency “strongly disagrees” with the tribe’s allegations.

“The 2019 sales effort was suspended in the face of criticisms from our beneficiaries about the appraisal and marketing process on such a large and unique block, along with questions concerning the State’s desire to ensure continued public access to the land,” they said in an emailed statement. “SITLA greatly appreciates its relationship with the Ute Tribe and its interest in this block. SITLA retains the property and continues to evaluate potential win-win outcomes.”

Who does SITLA answer to?

The sale, however, has yet to be restarted after more than four years. The agency’s statement illustrates how it is being pulled in opposite directions. State leaders, on the one hand, want public access to Tabby to be maintained, while SITLA’s trust beneficiaries expect to receive top dollar for the property.

These are mutually exclusive outcomes, suggesting a “win-win” would be hard to achieve.

It was not publicly known that the tribe’s bid for Tabby exceeded DNR’s $41 million bid until last year when a former SITLA staffer filed a whistleblower complaint with the Utah State Auditor John Dougall.

The whistleblower, Tim Donaldson, was the official in charge of the Tabby sale in 2018-19. His complaint alleges top officials at SITLA were pressured by Utah lawmakers to manipulate the sales process to ensure that DNR would be the successful bidder. These lawmakers, which included House Majority Leader Mike Schultz, threatened to pass legislation that would rein in SITLA’s independence if Tabby was sold to the tribe, Donaldson’s complaint alleged.

SITLA’s land sales procedures, which rely on sealed bids, are carefully structured to ensure the agency receives the highest price possible for trust lands it seeks to sell. In the Tabby case, the agency bent its own rules to the detriment of Utah schools, whose trust fund stood to gain millions had the sale gone through, the suit alleges.

Generations of failed promises

In an interview in October, Shaun Chapoose, then the chairman of the tribal business committee, said the federal government’s failure to honor its obligations to the tribe is at the heart of the dispute.

“It’s laws or laws. I’m bound by them like anybody else. But it seems like they’re fudging the law when it suits their needs and forcing me to fight,” he said. “For me as a tribal leader and other tribal leaders, we’re tired of being painted as the villain in the room, like it’s us against them, when it’s not.”

Besides SITLA, the suit names various state officials, including former and current SITLA directors David Ure and Michelle McConkie, respectively, former DNR director Mike Styler and Gov. Spencer Cox.

For the many years Styler led DNR, he had sought to acquire Tabby to manage as a wildlife preserve, state forest and a haven for big game hunting. SITLA, whose mandate is to manage trust lands to raise revenue for schools, likewise wanted to offload the land because it had never made much money off it outside of grazing fees.

Styler and other officials had long been concerned about the possibility of rich individuals paying top dollar to acquire Tabby and fencing off one of Utah’s most cherished hunting areas. For more than a decade, DNR brass angled for a negotiated sale, but SITLA chose to solicit sealed bids in accordance with its normal process.

In 2018, the agency hired Highland Commercial to appraise the property and devise a marketing plan. The firm’s confidential appraisal set the market value at between $25 and $37 million, and recommended a $40 million list price with a 24-month marketing period, according to the suit.

SITLA wound up using a tight timeframe that made it difficult for private buyers to participate. While there was a great deal of interest in the property, only two bids came in, one from the state and one from the tribe, which had the cash on hand to make the purchase.

When SITLA discovered the tribe’s bid exceeded DNR’s by $6 million, it pressured DNR to respond with a $50 million counteroffer, knowing that the state agency did not have the financial means to make good on such a deal, according to the suit.

The mountain in western Duchesne County is named for the Ute chief Tabby-To-Kwanah, who led the Native Americans inhabiting Utah and Heber valleys at the time of Mormon settlement in the 1850s. It was included in the Uintah Valley Reservation, created by President Abraham Lincoln in 1861 as a homeland for various bands of the Ute Indians who were being pushed off their ancestral lands elsewhere in Colorado and Utah.

A sacred landscape

However, the Utes lost Tabby when the land was incorporated into a federal forest preserve created by President Theodore Roosevelt in the early 20th century when he opened tribal lands in the Uinta Basin for non-Indian settlement. Adding insult to injury, the U.S. Forest Service gave the land to SITLA’s predecessor agency in the 1960s in exchange for trust lands elsewhere without consulting the tribe, the suit says.

However, the rights to the minerals at Tabby remain partially with the tribe to this day. Today the land remains largely undeveloped habitat teeming with big game.

“The Tribe has hunted on Tabby Mountain since time immemorial. The Tribe’s intent if it had acquired Tabby Mountain was to allow tribal members to hunt on the land,” the suit states. “The Tribe’s members, including [elected leaders] Shawn Chapoose and Edred Secakuku, would have used Tabby Mountain for a variety of purposes, including cultural, religious, and spiritual purposes, and would have used its springs, plants, and medicines if the Tribe had acquired the surface estate of the property.”

Were this land adequately marketed, it could potentially fetch a massive price from wealthy private parties looking to create an exclusive redoubt in a gorgeous natural setting. The time for Utah state officials to get a good deal on Tabby has probably already passed.

Since the pandemic, Utah land values have skyrocketed, making large tracts of scenic land even more costly for public acquisition, putting them potentially out of reach. If the tribe prevails in the suit, Tabby won’t even be available, but at least it would likely remain undeveloped.

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