On October 27, a relatively unknown bureaucratic office of the state of Utah called the Division of Forestry, Fire, and State Lands formally rejected a long-debated proposal to build islands in Utah Lake for real estate development.
It is unlikely that more than a handful of Utahns will take the time to read through the nearly two dozen pages of analysis put forward by the state. Still, we hope that the state’s residents understand the bottom line: The state got this one right. The division put Utahns’ interests first instead of caving developers who have bullied to get their way.
The would-be island developers brushed aside the state’s decision saying it was based on “technical concerns,” but that is wrong. As the state made crystal clear in its decision, the proposal was rejected because it would have been a “gross infringement” of the Utah Constitution itself. The very basis of the project, in fact, flies in the face of the Utah Constitution.
In short, the Utah Constitution demands that public lands “shall be held in trust for the people.” The trust duties the state owes to its citizens are unique when it comes to the beds of natural water bodies like Utah Lake under something called the public trust doctrine.
Not only is the public trust doctrine baked into the Utah Constitution, it’s a part of federal common law and a shared obligation of all states. A long line of decisions by the Utah Supreme Court, the United States Supreme Court and various other state and federal courts have consistently found that the public trust doctrine voids all attempts to transfer these lands to developers or private parties, except in very narrow instances, such as the construction of docks or piers.
Thus, the state’s finding that giving up Utah Lake “is not in the best interests of the trust beneficiaries (present and future generations of Utah)” was the expected result of even cursory legal research on the question. Legally speaking, this wasn’t a tough case.
What did come as a surprise, however, was the state’s careful reasoning, exhaustive analysis of legal precedent and careful examination of the facts. The state noted that, beyond the insurmountable constitutional problems plaguing the proposal, the project was scientifically unsound, economically irresponsible and couldn’t deliver on its promises.
Perhaps even more surprising, the state didn’t just say no to the project, it did so clearly and unequivocally, calling the proposal a “gross interference and/or infringement” of the Constitution. Even if the Legislature insisted on the transfer, in fact, the state made clear that the Constitution has demarcated a clear boundary precluding the project. It’s rare that a state agency acknowledges the boundaries of its own authority — and that of the Legislature — to respect the limits on government put in place by the Constitution.
The decision highlights an important point: The public trust doctrine does not enforce itself. In the past, state agencies have punted their obligations, relying on the Utah Supreme Court to step in and protect Utahns by policing the boundaries of the Constitution. In many cases, it’s been left to federal agencies and courts to step in and say no to development projects that would violate the public trust doctrine or other laws.
But leaving decisions to those willing to sue — developers or environmental groups — is not good stewardship of the trust obligations held by the state. Some cases may be prohibitively expensive to pursue in court, and either way can take years to resolve.
It is gratifying to see the state proactively standing up for the interests of the public and doing it in a way that was so thorough, careful and well-reasoned, sparing the state of Utah and its taxpayers’ years of needless work and legal fees fighting a dead-end proposal.
Beyond a showing of strong legal analysis, the state agency’s decision to reject the project is a study in leadership and principled, courageous government.
Brigham Daniels
Brig Daniels is a visiting professor at the University of Utah’s S.J. Quinney College of Law and a professor at Brigham Young University Law School.
Andrew P. Follett
Andrew P. Follett is a student at Yale Law School and a graduate of the University of Utah. He is currently a lead research assistant at the Yale Center for Environmental Law and Policy.