An informal attorney general's opinion regarding the sale of trust land in Washington County to James W. Doyle is being interpreted differently by parties involved in a lawsuit concerning the sale.
The opinion, issued Feb. 9, 1989, looked at three issues raised by the sale: the right of holders of residential and unit development leases to initiate a sale process, rather than wait for the state's discretion; offering a sale without competition; and the barring of new leases for residential purposes.In a Deseret News story Sunday, the reporter concluded that the writer of the opinion had found these issues to be unconstitutional. The implication was that the Division of State Lands and Forestry had proceeded with a sale that had legal problems.
However, a spokesman for the Division of State Lands and Forestry said this section of the opinion simply outlined matters that were "legally suspect" that the attorney was going to address in the body of the document.
"We did not ignore our attorney's opinion and go ahead with a sale that was legally questionable," said Kevin Carter, acting division director.
David Christensen, who was then assistant attorney general assigned to the division, issued the informal opinion and ultimately signed the certificate of sale that allowed Doyle to purchase the property.
"If Mr. Christensen felt that aspect of the sale violated the constitution as interpreted by his opinion, he would not have signed the certificate of sale," Carter said.
Doyle's purchase of trust lands in Washington County has been central to several lawsuits, including one filed in January by the Utah Education Association, asking that the sale be nullified.
The division asked for the opinion to clarify a law passed by the 1988 Legislature. The law allowed certain lessees of trust land the right to require sales and to buy the land without competition from other potential buyers.
Christensen concluded in his analysis that it was clearly contrary to trust principles to allow lessees to have power to decide when a sale was to proceed, but that "a noncompetitive sale of trust lands may be constitutionally permissible."
Christensen's answer about noncompetitive sales was equivocal and sidestepped the question, say critics of the sale.
"The question of whether such a sale was constitutional remains unanswered," said UEA attorney Michael McCoy. The UEA suit main-tains the sale violated constitutional protections of the trust lands.
Based on the opinion, the division continued to negotiate with Doyle, but maintained the discretion of whether to sell or not, Carter says.
McCoy said, however, that to all appearances, Doyle took the initiative in the sale. It went ahead only after he had submitted an application more than a year after the law was passed. He selected an appraiser, with division concurrence. Terra Title, a St. George title insurance firm, was allowed to become an intermediary between Doyle and the division, handling the financial transactions. The terms ultimately worked out were more favorable to Doyle than to the trust, the UEA lawsuit says.
At best the division had a conflicting situation, with the law passed by the Legislature legally in effect, guaranteeing Doyle a competition-free sale but countered by an informal opinion stating the law was constitutionally suspect in some respects.