Activists were fined over 50k after challenging officials for closed meetings. Now they are appealing in Utah’s Supreme Court.

A lawsuit headed to the Utah Supreme Court began, like many southern Utah disputes, as a fight over public lands. But it’s become a case about open government.

When President Donald Trump was considering whether to dissolve or shrink Grand Staircase-Escalante and Bears Ears national monuments, he sent then-Interior Secretary Ryan Zinke to Utah to speak with local leaders. The May 2017 trip caused controversy, not only because Trump ultimately rolled back protections for 2 million acres, but also because Zinke held private meetings with public officials from three southern Utah counties.

Members of the Southern Utah Wilderness Alliance alleged that those meetings violated Utah’s Open and Public Meetings Act. They sued Garfield and Kane counties jointly over their input on Grand Staircase, and San Juan county over Bears Ears, seeking a declaration of wrongdoing from district courts. San Juan officials had also met with Zinke on a trip to Washington, D.C.

(Steve Griffin | Tribune file photo) Proponents of the Bears Ears and Grand Staircase-Escalante national monuments rally outside the Salt Palace Convention Center in Salt Lake City, Feb. 9, 2018. SUWA organized the rally where then-U.S. Secretary of the Interior Ryan Zinke was scheduled to speak during the Western Hunting and Conservation Expo.

The activists lost — and then were hit with over $50,000 in punitive legal fees after judges agreed with the counties’ allegations that the lawsuits were undertaken frivolously and in bad faith.

Now SUWA is appealing to the Utah Supreme Court. The nonprofit environmental group submitted its opening brief last month. But environmentalists aren’t the only ones watching this case. Utah news media organizations are concerned about the broader ramifications for open government.

“I think the thing that bothered us is the slamming of that door … having the secret meetings without public notice,” said Eric Peterson, president of the Utah Headliners Chapter of the Society of Professional Journalists. “We don’t have any interest in the ideological fight SUWA might have with those county governments, but we are very concerned with the issues of access and the way the whole matter was handled.”

He added that punishing SUWA for bringing the suit sets a dangerous precedent for the ability of Utahns to challenge local government.

“That’s a really disturbing trend to set," he said, “that people could be punished for asking that officials be held accountable for closing these meetings.”

The editors of the Deseret News and FOX 13, who signed onto SPJ’s friend of the court briefs in support of SUWA’s motion, declined to comment.

The brief states that the lower courts’ decision to fine SUWA would undermine the purpose of the Open and Public Meetings Act — that government leaders “take their actions openly and conduct their deliberations openly” — and its enforcement mechanism, authorizing individuals to seek court relief if they feel their rights to attend a meeting have been violated. If entities like SUWA can be declared to be acting improperly by bringing such a suit, then the act “means very little if anything,” according to the brief.

“The law wouldn’t have any teeth to it,” Steve Bloch, SUWA’s legal director, said.

Sixth District Judge Marvin Bagley ruled that the discussions between Zinke and commissioners of Kane and Garfield counties did not count as meetings under the act because the commissioners do not have “jurisdiction or advisory power” over federal monuments.

SUWA’s appeal counters that the commissions had advisory power by nature of meeting with Zinke to advise him on how the monuments would affect their counties. Trump invoked the wishes of Utah elected leaders when he reduced the monuments’ size.

Bagley pointed to a 1995 case in which SUWA was denied a temporary restraining order by the 7th District Court in a similar case as proof that the nonprofit should have known it was a losing battle. SUWA originally filed the lawsuit in Salt Lake County before it was moved south, an act Bagley labeled “forum shopping” and evidence of bad faith.

Seventh District Judge Lyle Anderson made similar findings in ruling against SUWA in the San Juan County case.

SUWA alleges that attorney fees racked up by Garfield and Kane counties were inflated by tens of thousands of dollars because they brought in pricey attorneys from Salt Lake City. Bagley shot down the argument, saying because SUWA originally filed in the capital city, it made sense that the counties would retain local lawyers. (San Juan used its own county attorneys in the case.)

In its appeal, SUWA contends that the Kane and Garfield lawsuit was a last resort after county commissioners refused to resolve the issue outside the courthouse. Even after suing, the organization sought only a ruling that the counties held illegal closed-door meetings and did not ask for legal fees.

Attorney David Reymann, who is representing SUWA in the case against Kane and Garfield counties, called the 6th District Court’s ruling “profoundly troubling.”

“The idea that a public interest group could be sanctioned for tens of thousands of dollars … it poses a significant chilling risk on Utah citizens holding government accountable,” he said. “This is not just about SUWA. This is about the public’s ability to attend meetings, this is about journalists’ ability to gather news.”

Garfield County Commissioner Leland Pollock was adamant that the counties did nothing wrong by meeting with Zinke. Since rural counties often have limited resources, commissioners must also fulfill administrative duties including working with federal officials, he said.

(Steve Griffin | Tribune file photo) Garfield County Commissioner Leland Pollock talks with members of the Senate Business and Labor Standing Committee about HCR102 that seeks to reduce or modify the boundaries of the Grand Staircase-Escalante National Monument. The meeting was held in the Senate Building at the State Capitol in Salt Lake City, Feb. 2, 2017.

In an interview with The Salt Lake Tribune, Pollock said SUWA knew it wouldn’t win the lawsuit but pursued it anyway, at the financial expense of the counties, because the organization was unhappy with Trump’s decision.

“Justice was served,” he told the newspaper. “The attorney fees are simply because it is not right for any special-interest group to try to go after county governments that don’t have that big of a budget. We can’t afford that, so that goes right back on people of Garfield County.”

When asked about the high cost of the outside attorneys, Pollock laughed.

“When you get sued, you have to get a lawyer,” he said. “That’s kind of a frivolous point to make as well.”

San Juan County’s political situation has shifted since the suit began. Two Navajo representatives who support the original Bears Ears monument were elected last November, creating the county’s first Native American-majority commission. In fact, recently elected Commissioner Willie Grayeyes, who advocated for Bears Ears as then-board chairman of Utah Dine Bikeyah, said he was denied a meeting with Zinke.

Despite this, the county plans to fight SUWA’s appeal in the Supreme Court.

Zak Podmore, a Report for America corps member based in San Juan County, contributed to this report.