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Dozens of law professors say Utah failed to protect Great Salt Lake

Brief filed in environmental lawsuit argues Utah violated its public trust responsibilities

By Kyle Dunphey - Utah News Dispatch | May 10, 2024

Rick Bowmer, Associated Press

A young person runs through the Great Salt Lake on June 15, 2023, near Magna. A coalition of environmental organizations sued the state of Utah on Wednesday, Sept. 6, 2023, based on accusations that it is not doing enough make sure enough water gets to the shrinking Great Salt Lake.

Law professors from around the country threw their support behind a lawsuit filed against the state of Utah, arguing officials haven’t done enough to help the Great Salt Lake.

In an amicus brief filed in Utah’s 3rd District Court last week, 36 law professors say Utah is violating public trust doctrine, which requires the state to protect cultural or natural resources for public use, including bodies of water, land, artifacts or wildlife.

It’s the latest in a lawsuit filed in September by Earthjustice, Utah Physicians for a Healthy Environment, American Bird Conservancy, Center for Biological Diversity, Sierra Club and Utah Rivers Council, all conservation groups.

Public trust doctrine was in place when Utah was granted statehood in 1896, according to the Utah Law Review, designed to ensure the state’s navigable waterways would be protected and available for public use. As the Utah Division of Forestry, Fire and State Lands noted in a 2023 presentation to lawmakers, “The beds of navigable bodies of water must be managed in a way that does not interfere with navigation, commerce, fishing, and the ecological value of the waterbody.”

The lawsuit notes that public trust doctrine is “well established” in Utah code and has been upheld by several state Supreme Court decisions. In the brief filed this week, the professors cited court rulings that found states have an obligation to preserve public resources.

“Consistent with this growing judicial chorus, Utah’s public trust duties are to protect and preserve the Great Salt Lake. Utah has not come close to meeting those responsibilities,” the brief reads.

In a statement given to Utah News Dispatch on Thursday, officials pushed back on that argument.

“We have been — and will continue to — work to protect the interests of the state of Utah. Each division within the Department of Natural Resources is mindful of its responsibilities. Together, we are addressing the need to protect the Great Salt Lake,” said Joel Ferry, executive director of the Utah Department of Natural Resources.

The lawsuit names several state agencies, including the Utah Department of Natural Resources, the Utah Division of Forestry, Fire and State Lands, and the Utah Division of Water Rights.

The state has filed motions to dismiss the lawsuit, writing earlier this year in court documents that “The legal solution offered by Plaintiffs is unsupported by Utah law and disregards the many and varied mechanisms the State is utilizing to manage Great Salt Lake.”

That sentiment was echoed in a social media post from Republicans in the Utah Legislature, which didn’t specifically reference the lawsuit, but criticized “litigious outside interests.”

“The Legislature’s progress on the Great Salt Lake has been nothing short of historic,” reads a post on X from the House Majority account. “To continue this work, we need real solutions — not symbolism and theatrics. We need local involvement, not litigious outside interests.”

The brief references several state actions it says endangered the public trust resources. That includes “actively authorizing water appropriations that divert upstream water.”

“Rather than address that problem, the state has instead focused on ‘trying to persuade individual water users to undertake voluntary measures to reduce their consumption,'” the professors write. “Seeking voluntary measures from water users is insufficient to meet the state’s duty to ensure against the ‘substantial impairment’ of the Great Salt Lake while the lake continues to shrink and its ecosystem is undergoing collapse,” the group of professors write, urging the court to force Utah to develop and enforce a plan to restore the lake.

That plan could include “changing surplus water management in wet years, managing flows outside the irrigation season for conservation, and requiring efficiency improvements with the conserved water released to the Lake,” according to court documents.

In a statement, Ferry said the department received and reviewed the brief, and plans to oppose it.

“It is largely duplicative of the Plaintiffs’ arguments and that Utah’s district court rules do not authorize such filings,” he said.

The brief was signed by law professors from around the country, including the Georgetown University Law Center, University of Baltimore School of Law, University of Oregon School of Law, and University of Houston. However, there were no Utah-based signatories.

An amicus brief is a court document usually filed by academics, businesses, subject-matter experts or trade associations who side with one party in a lawsuit. They typically present additional information, perspectives or precedent for the court to consider.

Utah News Dispatch is a nonprofit, nonpartisan news source covering government, policy and the issues most impacting the lives of Utahns.

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