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Humane Society of Utah v. Utah Wildlife Board | Complaint

15 October 1998 Published in Litigation Materials

Humane Society of Utah v. Utah Wildlife Board

STEPHEN C. CLARK (#4551)
American Civil Liberties Union
of Utah Foundation, Inc.
355 North 300 West, Suite I
Salt Lake City, UT 84103
Telephone: (801) 521-9862

CRAIG S. COOK (#0713)
ACLU Cooperating Attorney
3645 East 3100 South
Salt Lake City, Utah 84109
Telephone: (801) 485-8123

Attorneys for Plaintiffs

COMPLAINT

Civil No. 980910437CR
Judge Stirba

IN THE THIRD JUDICIAL DISTRICT COURT

SALT LAKE COUNTY, STATE OF UTAH

HUMANE SOCIETY OF UTAH a Utah non-profit corporation: PREDATOR EDUCATION FUND, a Utah non-profit corporation-, HIGH UINTAHS PRESERVATION COUNCIL, a Utah non-profit corporation- and SOCIETY OF PROFESSIONAL JOURNALISTS, a Utah professional association, Plaintiffs.

v.

UTAH WILDLIFE BOARD, MAX MORGAN, RICK DANVIR, RAYMOND HEATON, CONI BROOKS. CURTIS DASTRUP, COLLIN ALLAN and BRENDA FREEMAN, Defendants.

Plaintiffs, by and through their attorneys of record, hereby allege and complain as follows:

NATURE OF ACTION

1. This is an action pursuant to the Utah Open and Public Meetings Act, Utah Code Ann. § 52-4-1 et seq., and other statutory and common law, to preserve and protect the legitimacy of democratic institutions and processes in the State of Utah by ensuring that the people’s business be conducted openly and that public officials act in compliance with law when they, discuss, take positions or make recommendations on matters of significant public interest.

PARTIES

2. Plaintiff Humane Society of Utah ("HSU") is a non-profit corporation organized and existing under the laws of the State of Utah. The mission of HSU includes protecting Utah wildlife.

3. Plaintiff Predator Education Fund ("PEF") is a non -profit corporation organized and existing under the laws of the State of Utah. The mission of PEF is to protect and preserve mammal predators native to the Intermountain West through education and direct action.

4. Plaintiff High Uintahs Preservation Council ("HUPC") is a non-profit corporation organized and existing under the laws of the State of Utah. The mission of HUPC is to preserve the wild nature of the Uintah Mountain Range, including the ecologically important relationship between predator species and prey species.

5. Plaintiffs HSU, PEF and HUPC have worked together in opposing a proposed amendment to the Utah Constitution, commonly referred to as "Proposition 5," which would purport to require any citizen ballot initiative involving the taking of wildlife to pass with a two-thirds supermajority vote of the Utah electorate. As such these plaintiffs have an interest in the integrity of the electoral process surrounding the approval or disapproval of Proposition 5 and in the full, fair and accurate disclosure of all facts material thereto.

6. Plaintiff Society of Professional Journalists ("SPJ") is a professional association organized and existing under the laws of the State of Utah. The mission of SPJ includes ensuring public access to and information about public officials’ discussions and decisions affecting the public interest. As such SPJ has an interest in ensuring the integrity of the public decision-making process, of which compliance with the Open and Public Meetings Act is a key part.

7. Defendant Utah Wildlife Board (the "Board") is an administrative, advisory, executive or legislative body of the State of Utah. It consists of seven (7) members; it expends, disburses and/or is supported in whole or in part by tax revenue; and it is vested with the authority to make decisions regarding the public’s business.

8. Defendant Max Morgan is the chairman of the Board. Defendant Allan is vice-chairman of the Board. Defendants Danvir, Heaton, Brooks, Dastrup and Freeman are members of the Board, and they are sued in their official capacity as such. Some or all of these individual defendants participated in the conduct described below.

JURISDICTION AND VENUE

9. This Court has jurisdiction over this matter pursuant to Utah Code Aim. §§ 52-49(2) and 78-3-4.

10. Venue is proper in this Court pursuant to Utah Code Ann. § 78- 13-7 in that the cause of action arose in Salt Lake County and the Board’s principal office is in Salt Lake County.

GENERAL ALLEGATIONS

11. On or about September 23, 1998, Morgan and other individual defendants held a press conference and issued a press release to "officially announce the Board’s unanimous endorsement Of Proposition 5." According to the press release, Morgan "spoke on behalf of the entire Board" and indicated the Board members’ "unanimous decision to support" Proposition 5. A true and correct copy of the press release is attached hereto as Exhibit A and incorporated herein by reference.

12. The September 23 press release is not the only document stating or suggesting that the Board supports Proposition 5. The following, statement appears in the Utah Voter Information Pamphlet prepared under the direction of the Lieutenant Governor in connection with the November 3, 1998 General Election: ”Vote ”FOR” Proposition 5 and join Dr. Max Morgan. Chairman, and Utah Wildlife Board members in supporting professional management of Utah’s animals." That statement appears in the Pamphlet in a section entitled "Rebuttal To" arguments against the approval of Proposition 5. The Voter Information Pamphlet was distributed or made available to the public on or before October 9, 1998.

13. The purpose and effect of the above statements were to mislead the voters in the State of Utah and influence the imminent vote on Proposition 5 by expressing or implying the Board had taken action, in a manner consistent with its legal obligations, to discuss and decide upon an official position on Proposition 5, when in fact the Board had not acted in a manner consistent with its legal obligations.

14. Following the September 23 press conference and press release, Morgan issued a statement on his personal letterhead dated September 25, 1998, purporting to "clarify" the September 23 statements. Among other things, the "clarification" purported to retract statements in the September 23 press release and press conference. The Board has never officially made any such retraction, nor has any such retraction been directed to statements in the Voter Information Pamphlet, which remain in the public domain.

15. On information and belief, the statements in the September 23 press release and press conference were preceded by one or more "meetings" (as that term is used in the Open and Public Meetings Act) among four or more of the individual defendants (the "Closed Meetings") at which the subject of Proposition 5 was discussed. The only public meeting at which the subject of Proposition 5 was discussed was the regularly scheduled meeting of the Board on August 18, 1998. At that meeting the Board did not vote on or authorize the issuance of any of the above statements - the September 23 press release and press conference, the September 25 "clarification," or the statements in the Voter Information Pamphlet - nor has the making or attempted unmaking of those statements ever been discussed in a public meeting, only in the Closed Meetings.

16. The Closed Meetings were closed to the public.

17. The Board did not give public notice of the agenda, date, time and place of the Closed Meetings. At no time did the Board vote to prohibit public attendance at the Closed Meetings.

18. At no time did the Board state the reason or reasons for prohibiting public attendance at the Closed Meetings and record such reason or reasons in any minutes of the Board.

19. The Closed Meetings were not held for the purpose of discussing the character, professional competence, or physical or mental health of an individual.

20. The Closed Meetings were not held for the purpose of strategy sessions to discuss collective bargaining.

21. The Closed Meetings were not held for the purpose of strategy sessions to discuss pending or reasonably imminent litigation.

22. The Closed Meetings were not held for the purpose of strategy sessions to discuss the purchase, exchange, or lease of real property.

23. The Closed Meetings were not held for the purpose of strategy sessions to discuss the sale of real property.

24. The Closed Meetings were not held for the purpose of discussing the deployment of security personnel, devices, or systems.

25. The Closed Meetings were not an investigative proceeding held for the purpose of investigating allegations of criminal misconduct.

26. Upon information and belief the Board did not tape record or keep detailed written minutes of the Closed Meetings.

FIRST CAUSE OF ACTION
(Violation of Utah Code Ann. §§ 59-4-” )@ -4, -5)

27. Plaintiffs incorporate herein by this reference paragraphs 1 through 26 as if set forth fully herein. The Board held the Closed Meetings in violation of the Utah Open and Public Meetings Act, which declares that every meeting held by a public body should be open to the public unless closed through proper procedures and for proper reasons.

29. The Board had no legal reason for closing the meetings as permitted in very limited circumstances under the Utah Open and Public Meetings Act. Utah Code Ann. § 52-4-5. Even assuming the Board had a legal reason for closing the meetings, it failed to follow the proper procedures for closing the meetings as set forth by the Utah Open and Public Meetings Act, Utah Code Ann. § 52-4-4.

28. Based upon the Board’s acts and omissions alleged in this cause of action, Plaintiffs are entitled to declaratory and injunctive relief and to recover their attorneys’ fees and costs, as more particularly set forth in the prayer for relief.

SECOND CAUSE OF ACTION
(Violation of Utah Code Ann. § 52-4-6)

32. Plaintiffs incorporate herein by this reference paragraphs 1 through 31 as if set forth fully herein.

33. The Board did not give public notice of the agenda, date, time and place of the Closed Meetings as required by the Utah Open and Public Meetings Act, Utah Code Ann. § 52-4-6.

34. Based upon the Board’s acts and omissions alleged in this cause of action, Plaintiffs are entitled to declaratory and injunctive relief and to recover their attorneys’ fees and Costs, as more particularly set forth in the prayer for relief

THIRD CAUSE OF ACTION
(Violation of Utah Code Ann. §§ 52-4-7, -7.5)

35. Plaintiffs incorporate herein by this reference paragraphs 1 through 34 as if set forth fully herein.

36. Upon information and belief the Board did not tape record the Closed Meetings nor did it keep detailed written minutes of the Closed Meetings as required by the Utah Public and Open Meetings Act, Utah Code Ann. §§ 52-4-7, -7.5.

37. Based upon the Board’s acts and omissions alleged in this cause of action, Plaintiffs are entitled to declaratory and injunctive relief and to recover their attorneys’ fees and costs, as more particularly set forth in the prayer for relief.

FOURTH CAUSE OF ACTION
(For Ultra Vires Conduct)

38. Plaintiffs incorporate herein by this reference paragraphs 1 through 37 as if set forth fully herein.

39. By statute, the Board is authorized to establish wildlife policies only upon a determination of the facts relevant to the State’s wildlife resources by the Division of Wildlife Resources and upon the recommendations of re2ional advisory councils established by Utah Code Ann. § 23-14-2.6. The regional advisory councils are in turn required to gather information from the public in making their recommendations to the Board.

40. The statements described above were not based on any determination of relevant facts by the Division of Wildlife Resources or any recommendation of the regional advisory councils.

41. Defendants acted beyond the scope of their statutory authority in making the above statements and otherwise engaging in the acts and omissions described in this Complaint.

Wherefore, Plaintiffs pray for relief as follows:

a. For declaratory judgment that the actions and omissions of the Board in holding the Closed Meetings were in violation of law;

b. For declaratory judgment that the Board’s failure to provide public notice of the agenda, date, time and place of the Closed Meetings was a violation of law;

c. For declaratory judgment that the Board’s failure to tape record or keep detailed written minutes of the Closed Meetings was a violation of law:

d. For injunctive relief requiring the Board to publicly, fully and unequivocally retract any statement, including the September 23, 1998 press release and the statement in the Utah Voter Information Pamphlet, that in any way suggests or implies that the Board has taken a position on Proposition 5.

e. For an injunction prohibiting the Board from further violating any and all of the provisions of the Utah Open and Public Meetings Act;

f. For an injunction prohibiting the Board from making any further statements that suggest or imply that the Board has taken a position on Proposition 5

g. For Plaintiffs’ reasonable attorneys’ fees and costs in pursuing this action; and

h. For such other and further relief as the Court deems just and proper to undo the effects of the

Board’s false and misleading statements on the integrity of the electoral process surrounding Proposition 5.

DATED this 16th day of October, 1998.

STEPHEN C. CLARK
AMERICAN CIVIL LIBERTIES
UNION OF UTAH FOUNDATION, INC.

CRAIG R. COOK
ACLU COOPERATING ATTORNEY

FOR IMMEDIATE RELEASE

Contact: Dr. Max Morgan
Utah Wildlife Board
(435) 6-07-2300

Utah Wildlife Board Announces Unanimous Support for Proposition 5

SALT LAKE CITY -- (Wednesday, September 23, 1998) Max G. Morgan, MD. of Price, Utah, Chairman of the Governor-appointed Utah Wildlife Board, along, with the six other members of the Board, gathered today at a press conference to officially announce the Board’s unanimous endorsement of Proposition 5.

One of six 1998 proposed amendments to the Utah constitution, Proposition 5 would give all 700+ species of Utah’s Wildlife added protection from any special interests or politically motivated efforts that would be detrimental to wildlife habitat, health, and populations. The measure seeks to adopt a requirement for any ballot initiative affecting the taking of wildlife or the season or methods for taking wildlife to receive a two-thirds majority in order to become law.

Dr. Morgan, who worked toward a master’s degree in biology, earned his medical degree from the University of Utah, spoke on behalf of the entire Board and outlined the primary reason for supporting the ballot initiative.

"Our unanimous decision to support this important legislation is in direct response to powerful threats made by the Washington D.C.-based Humane Society of the United States (HSUS), and other groups. These threats, well-documented by Utah’s media, are targeted at the very heart of the process and system that has been so overwhelmingly successful in increasing Utah’s wildlife to a level of abundance never before known," he said.

"Claiming ”animal rights’ as their motive, these organizations have boldly pursued ill-guided ballot initiative campaigns that have attempted to tie the hands of effective wildlife management policy and in six of Utah’s neighboring states. As a Board, we have closely watched those groups’ campaigns and witnessed the detrimental effects on wildlife in the states where they have been successful Utah has been marked as their next target."

Thanks to the sound concept of scientific management using sportsmen and sportswomen dollars, as well as the process of vast public input into wildlife management, and cooperation of private land owners, all wildlife is prospering in Utah, including bears and mountain lions. Surveys also indicate that 80 to 90 percent of all Utahns enjoy interaction with wildlife through camping, hiking, hunting, fishing and photography.

Sighting recent figures from the Utah Division of Wildlife Resources, the Board offered some impressive wildlife population statistics. Since the early 1900s, mountain lion populations have increased from less than 1,000 animals to a population today of 3,000. Deer have gone from rare sightings to more than 300,000. Elk, which were nearly extinct, are now a healthy 60,000 or more. And wild sheep that once were only a scattered few now number more than 2,500 animals. Moose, mountain goats, antelope, buffalo, and many other species continue to prosper under Utah’s system of wildlife management.

"We endorse Proposition 5 because all wildlife is currently under attack from special interests, loss of habitat and human encroachment on all sides," added Collin Allan, graduate of BYU, vice chair of the Board, and a retired First Security Bank executive, from Utah County. "A higher level of protection is warranted for a system that has served Utah well for more than 75 years. In addition to protecting wildlife from politically motivated efforts, Proposition 5 will maintain the high degree of public input in the Wildlife management process."

"Proposition 5 is fair and treats equally all individuals and special interest groups who would change wildlife management for their own benefit. It guarantees that if the process of public input and scientific guidance that has proven itself overwhelmingly successful is to be overridden, there will be an overwhelmingly compelling reason to do so," he said.

"The undisputed key to the future of Utah’s wildlife is preservation of habitat," stressed Brenda Freeman, board member from North Ogden, a life-long Utahn who holds a master’s degree in Human Resources in Economics from Utah State University. "More than $500 million dollars were spent on hunting, fishing, and wildlife watching in Utah last year. More than $25 million is spent annually to protect Utah wildlife and Utah wildlife habitat. In officially supporting Proposition 5, we want to emphasize that without this financial dedication there would be far less wildlife for Utah families to enjoy."

The Board strongly encourages all Utah voters to vote for Proposition 5 on November 3.

"Utah voters have an unprecedented opportunity to decide for themselves how important wildlife is to them and their families," concluded Dr. Morgan. "It is the voters’ right to pass Proposition 5 to ensure that wildlife’s best interests will always be kept at the forefront of Utah wildlife policy in the future.

The seven-member Utah Wildlife Board is made up of citizens appointed by Governor Leavitt to set policy according to the laws and criteria spelled out by Utah’s legislature. All Board policy is made only after careful deliberation and consideration of; 1) extensive public input from each region of the state, 2) the best scientific information available, and 3) meaningful debate among Board members. The Board has received international recognition for its efforts in Wildlife conservation.