HB 392 and SJR 5 Unconstitutionally Hamstring Our Coalition’s Great Salt Lake Public Trust Lawsuit

Along with coalition partners, the Utah Rivers Council has been involved in litigation to hold the state accountable for the health of the Great Salt Lake through the Public Trust Doctrine. A similar lawsuit is the reason California’s Mono Lake exists today, as explained in this video. Unfortunately, the Utah Legislature just passed a new law that unconstitutionally imperils our court case and many others.

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On February 13, the Utah legislature passed HB 392, which Governor Cox signed into law the same day. The law, and its companion SJR 5, grants the State of Utah (and only the State) a unilateral and absolute right to remove the district court judge from a case against the State and transfer it to a brand-new, three-judge panel. The State can exercise this option at its sole discretion, and even after substantial decisions have been made in a pending case. The State can therefore pick and choose which cases to convert to three-judge courts based on its pleasure or displeasure with the rulings that have occurred in those cases. If the State decides to convene a three-judge panel, that decision and the transfer itself are purportedly immune from any challenge or judicial review.

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This means that for any civil case in which Utah is a party, including our longstanding Great Salt Lake Public Trust case, the state can arbitrarily and unilaterally send the case to alternative judges. It did just that in our case, just days before a scheduled hearing on a dispositive motion in the case.

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What makes this move particularly outrageous is that the State previously requested that our Public Trust lawsuit be reassigned to an expert water law judge, claiming the case presented issues “of sufficient legal complexity as related to water law to warrant assignment to a water judge.” That request was granted, but after the state largely lost its motions to dismiss the case, the state has apparently abandoned their interest in having a water judge preside on the case.