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Justices hear arguments on FLDS land trust

Lawyers argue the validity of the 'united order' agreement

SALT LAKE CITY — Some believe the action was, and is, a matter of protecting homes. Others, including those whose homes are at stake, believe it is a violation of their religious rights.

The Utah Supreme Court heard from both sides Wednesday in the ongoing fight over the state's decision to take over and reform a land trust held by the Fundamentalist LDS Church. Attorneys on both sides argued about the validity of the trust, which was created by the FLDS church in 1942 on the concept of a "united order," allowing followers to share in its assets.

Utah courts took control of the trust in 2005 following allegations that it had been mismanaged by church leader Warren Jeffs.

Members of the polygamous sect contend a judge changed the trust from a religious to a secular entity in violation of their First Amendment rights to practice their religion freely.

The state contends that the land in question had been abandoned and the time for appeal has passed.

The arguments directly addressed 3rd District Judge Denise Lindberg's 2006 decision to reform the trust, which is valued at more than $110 million and holds most of the property in Hildale, Utah; Colorado City, Ariz.; and Bountiful, British Columbia. Lindberg later authorized the sale of Berry Knoll, a 438-acre parcel of land the FLDS claim was consecrated for a temple, to repay the trust's $3 million in debt — largely incurred by the ongoing litigation.

Chief Justice Christine Durham asked attorneys for the trust whether they can even bring a "collateral attack" on an order that is now 3 1/2 years old.

Rod Parker, attorney for the FLDS, said church members initially saw the reformation as a "test of their faith." But when they felt their test was complete, they went to court to assert their rights over the trust and its $100 million-plus in assets.

Arizona assistant attorney general Bill Richards called the religious test explanation of the delayed legal action "far too convenient an exception for the court to accept."

Parker said liquidation of property is creating an "emergency" situation in regard to the trust. He told justices the state took a religious trust and transformed it into a secular one to justify its actions.

Jeff Shields, attorney for court-appointed fiduciary Bruce Wisan, who manages the trust, defended the trust, saying that much of the land had been all but abandoned by FLDS leaders five years ago.

"Lindberg reformed the trust, an extensive process by which those who consecrated property are restored to ownership. … Our job was to give them property," he said.

But there have been numerous difficulties returning land to those to whom it may belong, including questions as to who has legitimate rights to the land, he said. The situation has been further strained by the ongoing court battles and the increasingly "hostile" relationship between FLDS members and Wisan.

Shields defended Lindberg's decision, saying the judge had few options when it came to the trust: to administer the trust, terminate it and turn it over to sect leader Warren Jeffs (who was a fugitive from the law at the time), or reform it.

Justice Jill Parrish said those who contributed to the trust must have known that the trust would be turned over to church leaders in the event of termination. When Shields questioned the return of the trust's asset to the very leaders who had breached it, Parrish said the FLDS people may have the freedom to do that.

A second hearing addressed the judge's decision to forbid attorneys who represented the church from 1987 through 2004 from working with FLDS members now suing to regain control of the trust from the state.

Parker asked that the high court impose a stay that will prevent further action in regard to the trust until a decision is made. The justices are expected to issue a ruling in the coming months.