Judge rules racism wasn’t behind the Ute Tribe not getting Tabby Mountain land

A federal judge has ruled it was not racist for state officials to suspend a land sale around eastern Utah’s Tabby Mountain — even though it expressly prevented the Ute Indian Tribe from buying back some of its ancestral homelands.

In a significant and sweeping decision earlier this month, U.S. District Judge David Barlow threw out all claims of discrimination and racism from the Ute Tribe’s ongoing lawsuit over its interrupted 2018 bid for surface rights to the property.

“Discriminatory intent requires more than mere acquiescence,” Barlow wrote in his decision, siding with the state’s arguments.

Under federal Title VI law, he explained, discrimination requires a decision maker — in this case the named Utah leaders and state trust lands agency — to have consciously chosen a course of action because it would result in harm to a specific protected class, not in spite of.

Barlow rules that the defendants did not aim, in particular, to hurt the Ute Tribe by pulling the sale, even if harm still happened incidentally. The state trust lands agency, he added, did not end up selling the land to any bidders, including another state agency. The judge also pointed to the agency’s stated intention: That pausing the sale was to get a better appraisal for the property so it would fetch a fair price.

The judge also completely dismissed Utah Gov. Spencer Cox from being named as a defendant in the case, both with the state and federal claims, ultimately concluding that the governor played no direct role in the contested land sale.

Barlow tossed all of the tribe’s claims of violations of state law, as well, including breach of trust, breach of contract, fraud and conspiracy to commit fraud.

The Ute Tribe’s lawsuit, the judge said, was filed after the four-year statute of limitations that applies in the case for state claims in Utah. And since the land did not end up being sold, there was no physical contract that could be breached, according to his decision, despite a deposit being placed.

And finally, all federal claims from the Utes’ lawsuit were dismissed with regards to the Utah Trust Lands Administration (UTLA) — which was recently renamed from what it’s more commonly known as: the Utah School and Institutional Trust Lands Administration, or SITLA.

The administration was responsible for listing the land for sale and then ultimately pulling it after the tribe had the initial highest bid. But Barlow rules that because UTLA is an arm of the state, it has immunity from being sued in this case. With that and the dropped state claims, UTLA is no longer a named party to the suit.

The long list of dismissals is certainly a blow to the tribe’s case, but it doesn’t entirely end it.

The case will move forward on what’s left: A claim of conspiracy to violate the law against the then-UTLA director and claims against three Utah officials for violating the tribe’s U.S. constitutional equal protection and due process rights in the “rigged bid.”

The Ute Tribe’s attorney did not immediately respond to a request for comment from The Salt Lake Tribune on the ruling.

Meanwhile, UTLA celebrated. In a statement Tuesday, the administration said it was “pleased” by Barlow’s analysis and conclusions.

“We emphatically deny any claims that the agency factors in race in any of its business activities,” it said.

Judge dismissals on Tabby Mountain case by Courtney on Scribd

The 2018 deal that started the lawsuit

UTLA is charged with managing millions of acres of trust lands — by collecting on mineral rights, timber sales, water leases, other shares or by selling the property. It’s supposed to get the most money it can, and then the funds go into a trust primarily for Utah’s schoolchildren.

In 2018, the administration put the surface rights to the 28,500-acre plot surrounding Tabby Mountain up for bid. That area was once part of the tribe’s reservation before it was taken by the federal government roughly a century ago. It is named for the late tribal chief, Tabby-To-Kwanah. The Tribe retains only mineral rights there at this time.

The acreage was also coveted by the Utah Department of Natural Resources, though, which wanted it for a public nature preserve and hunting haven that it could capitalize on for years to come. It originally offered $41 million.

The tribe had the initial highest bid at $47 million. UTLA then allowed DNR to counter with a higher offer, but the department wasn’t able to actually secure the funds. Instead of taking the tribe’s offer, the lands administration pulled the parcel off the market and suspended the sale.

Later, in 2022, a whistleblower revealed that behind the scenes the trust administration had been pressured by state lawmakers to keep the sale of Tabby Mountain off the radar of other buyers, to not drive the price up. That way the Utah Department of Natural Resources could acquire it at an amount that state legislators were willing to pay (as they appropriate funding for the department).

The tribe still found out about the sale and was the only other bidder. But it never got the property.

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In May 2023, the Ute Tribe filed suit. It alleged “back-room shenanigans” and discrimination by the state. And it demanded the land be sold to the tribe under the original offer.

The state, in its response in court, countered there was no racism involved and the trust administration has the right to cancel a sale of its lands at any point before a contract is signed.

One major win for the tribe and remaining claims

The state had also claimed the tribe couldn’t sue for equal treatment under the law because that only applies to “persons” and “citizens,” and the Ute Tribe is a sovereign nation.

In a big win for the Ute Tribe, though, Barlow ruled that the tribe, as a whole, actually can be considered the individuals harmed in the case and is entitled to collectively sue for civil rights for all its members.

That’s what is driving most of the remaining claims in the case. And it has the potential to set precedent for similar tribal lawsuits in Utah in the future.

With UTLA and Cox dismissed, only three defendants now remain named in the case. Those are: current UTLA Director Michelle McConkie, then-UTLA Director David Ure and former DNR director Mike Styler.

With the ruling on civil rights, all three can still be tried for alleged violations of the 5th and 14th Amendments on due process and equal protection under the law.

And those also cannot be dismissed by the four-year statute of limitations, Barlow said, because the timing on that clock would’ve actually started on Aug. 20, 2022 — instead of from the letter dated Feb. 26, 2019, from UTLA telling the tribe that the sale was suspended.

That August date is when the whistleblower came forward and the tribe learned of possible back-door dealings. Barlow said the statute shouldn’t apply until the tribe had notice of the alleged violation of its rights.

Finally, Barlow determined in his ruling that the claims against Ure for conspiracy will move forward.

Based on the information from the whistleblower, Barlow said it appears “plausible” that Ure structured the Tabby Mountain sale so DNR would win and “may have been motivated because of the tribe’s protected status.” At one point the whistleblower alleged that Ure said he wasn’t going to let the tribe know about his actions, the judge noted.

Styler and McConkie are dismissed from conspiracy claims.

Meanwhile, the Utah Legislature drafted and Gov. Cox signed a bill this spring that changes the UTLA bid process. Now, the Utah DNR has preferential and exclusive first access, without any other private bidders like the tribe, to buy the largest plots put up for sale by UTLA. Ute Chairman Julius T. Murray III called the measure “clearly” retaliatory for what’s happened with Tabby Mountain — and an effort to make sure the tribe doesn’t bid highest again.

(Francisco Kjolseth | The Salt Lake Tribune) Ute Chairman Julius T. Murray III, pictured Tuesday, Aug. 22, 2023. (Francisco Kjolseth/)

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