On Wednesday, Democrats on the Utah Commission for the Stewardship of Public Lands were noticeably angry at the decision to press forward with a lawsuit against the federal government in an attempt to transfer lands to the state, claiming that the process has been railroaded and that the minority has been left in the dark.
At issue were the findings of the Davillier Law Group, a firm originating from New Orleans that was tapped by the Commission earlier this year to explore how successful and sound a lawsuit may be in federal court, or if such an option was wise at all.
The two Democrats sitting on the committee, Senator Jim Dabakis (Salt Lake City) and Representative Joel Briscoe (Salt Lake City) each claimed throughout the hearing that they were broadsided by the report, which they claimed they received just hours before the start of the meeting.
The report itself noted that a lawsuit against the federal government by the state would be a difficult and expensive prospect, with the estimate that a lawsuit, even if successful, could cost the state $14 million.
The report cited successful cases regarding land under water, case law which can be strung back to the founding of the country, and the overall mood of the current Supreme Court to favor states over the federal government in other legal decisions makes the possibility of success as good as it is going to be.
Dabakis and Briscoe were not convinced at the overall success of the lawsuit, however, wondering if the legal team and committee were wearing rose colored glasses. In Dabakis’ opening salvo, he opening accused Professor Ronald Rotunda, who was presenting the findings, that he and the Davillier Law Group had “a minority view with [its] view of the Constitution in the matter of sovereignty.” Dabakis then wondered aloud if the minority opinion was even considered in the creation of the 142-page document, noting that both he and Briscoe felt blocked out when they attempted to ask such questions in the past.
“When I look through the list of lawyers [who prepared the brief] and I compare them to where they stand ideologically, they seem to have a similar opinion on things, can you point to a lawyer you paid that has that other perspective?” Dabakis frustratedly asked Routunda, adding, “I see what appears to me be an avalanche of lawyers who all have a certain philosophy, and I look at it and it seems to be like asking a barber if you need a haircut.”
Representative Briscoe focused on the risk versus reward associated with any litigation, and how he was left in the dark.
“One of the issues for [Dabakis] and myself is whether we will be, as the minority party representatives on this commission, whether we will be in the loop on receiving updates and products – because we have not felt that we have been. If they are going to prepare a brief for Attorney General Sean Reyes, are we going to see what everyone else sees? I want to know at what point we will see this.”
Co-Chairman Representative Kevin Stratton (Republican – Orem) countered by noting that the commission charged the chairs with attorney/client privilege and that sensitive information has been traded between counsel and the chairs – something Briscoe took further umbrage, noting that he has been in the legislature for five years and should be trusted with such information.
“I am happy to sign a non-disclosure agreement,” Briscoe said, “I would also point out that members of the majority party, who are members of this commission, are well plugged in to the networks to find this to be a positive place to go for public policy – which we are not…I will be voting no and I am stunned by the $14 million figure…what could we do with that money otherwise?”
Representative Ken Ivory (Republican – West Jordan), who is president of the American Lands Council and has profited off of advocating for a land transfer, traded barbs with Dabakis at the prospect that the outside legal team was advocating for a lawsuit for a lawsuit’s sake.
“We have another perspective, we have another point of view,” Dabakis noted, “this should not be done without someone in the sausage making with another perspective…there is a minority on the panel and within the state, that feels totally isolated from this. The first time we saw this report was this morning – we are on the darn commission.”
Ivory appeared to take offense to the fact that Dabakis and Briscoe accused the committee of acting out of bad faith after releasing the report the day of the meeting – making an appeal to the authority of counsel. “I find it sad that, without looking at the credentials of [counsel they have accused counsel of deception] – they are only three pages long, single-spaced.”
Ivory didn’t end there, going on to chastise Briscoe and Dabakis after they stated that he would not vote for the proposal, noting that the federal government has growing debt and that the feds have failed to live up to their obligations.
Briscoe would quickly shoot back, stating that “I own my votes, they are public votes, you can call me on them, you can question me. What I will take issue with is a person who isn’t casting my vote characterizing my vote because I may not agree with you…it seems to me that the majority [feels that Utah needs to have federal lands transferred to it] is an a priori (inherently known) fact…I don’t take it on assumption that it would be better – show me.”
The other Republican lawmakers were quick to defend the decision to approve the advancement of a lawsuit. Senator Scott Jenkins (Republican – Plain City) made a passionate speech to the group that now was the time for the state to step forward, and consider future generations when making such a decision.
The decision to press forward with a lawsuit was approved along party lines. It is now up to Attorney General Sean Reyes (Republican) to decide if the state should, in fact, press forward with a court case.