Tim Vandenack, Standard-Examiner file photo

Editor’s note: This article is published through the Great Salt Lake Collaborative, a solutions journalism initiative that partners news, education and media organizations to help inform people about the plight of the Great Salt Lake — and what can be done to make a difference before it is too late. Read all of our stories at greatsaltlakenews.org.

SALT LAKE CITY — A judge will decide if a lawsuit will proceed over whether the state of Utah has done enough to protect the Great Salt Lake from environmental catastrophe.

During a day-long hearing on Tuesday, 3rd District Court Judge Laura Scott heard arguments from state agencies, utilities, canal companies and water districts asking her to dismiss a lawsuit filed by a number of environmental groups. Utah Physicians for a Healthy Environment, American Bird Conservancy, the Center for Biological Diversity, the Sierra Club and Utah Rivers Council allege state leaders have breached the “public trust doctrine” of Utah’s constitution that requires they take measures to protect the lake for the people.

“The fundamental question we are asking ourselves today in this court of law is, should the Great Salt Lake exist in the future or not?” said Zach Frankel, the executive director of the Utah Rivers Council, one of the plaintiffs.

But in court, lawyers for the state argued that the public trust doctrine does not explicitly cover water.

“Taking that position to its logical extreme, then the state could divert or allocate all water that goes to the Great Salt Lake and eliminate it, is that correct?” Judge Scott asked an attorney for Utah’s Division of Forestry, Fire & State Lands.

“That’s correct, your honor,” Mike Begley replied.

That’s not to say the state doesn’t care.

“We do have public interest obligations to the lake,” he told the judge. “And those are mainly in the realm of management objectives.”

The plaintiffs sitting in the audience said they were stunned by the state’s legal stance.

“That seems like a very extreme position to take,” Deeda Seed with the Center for Biological Diversity told FOX 13 News outside of court, adding: “The state has not done enough to protect the lake. Even as we’re at this hearing today, the lake levels are declining. We’re going down. We need urgent action to protect the public interest, the public health.”

The environmental group plaintiffs urged the judge to keep their lawsuit alive, arguing that the state has failed to do enough.

“What we have here is a situation where the state has abdicated its trust obligations,” said Stuart Gillespie, an attorney with the environmental law firm Earthjustice. “It has denied it has any obligation for navigable waters and that appropriations can dry up the lake. You heard them affirm that this morning.”

The environmentalists’ litigation was borne out of frustration with Utah political leaders’ actions to get water into the Great Salt Lake. The Utah legislature has passed a series of conservation-minded bills and spent over $1 billion on efforts designed to reverse the lake’s declines and save water statewide. But environmentalists argue the state took very few concrete steps, instead relying on a series of record-breaking winters to prop up the lake.

“The state has effectively encouraged over-consumption and too many upstream water diversions and what we’ve heard today they’ve essentially abrogated responsibility to keep water in the lake which is in immense disagreement to the majority of Utahns,” Frankel said outside of court.

But in a statement to FOX 13 News, Utah Division of Forestry, Fire & State Lands Director Jamie Barnes said the legal implications are complicated.

“There are many complexities to the lawsuit and the oral arguments presented before the court today. The Great Salt Lake is an important resource to the state of Utah and the Division of Forestry, Fire & State Lands is proud to be one of many agencies that makes meaningful contributions to the lake. The state of Utah manages this resource in accordance with the public trust and must act within the parameters of the law as it is written,” she said.

The Great Salt Lake dropped to its lowest levels in recorded history in 2022 as a result of water diversions, drought and impacts from a changing climate. The lake’s decline presents a significant threat to the health and economy of the state — it helps generate snowpack which is a significant part of our water supply; an exposed lake bed has led to increases in dust blowing into populous area (and some of that dust has toxins in it); the lake is an important refuge for migratory birds and other wildlife; and minerals in it help a multi-billion dollar industry.

Judge Scott seemed to hint in her line of questioning on Tuesday she could ultimately side with the environmental groups about a breach of Utah’s public trust doctrine.

“The problem with that kind of a ruling is it would necessitate the creation of a super priority in essence,” argued Sarah Shechtor, an attorney representing the Utah State Engineer and the Utah Division of Water Rights.

“Well maybe, maybe not,” the judge replied.

But Judge Scott also signaled to the plaintiffs she might be unwilling to grant the remedy they sought — the courts taking over and ordering the state to make enough cuts to upstream water diversions that it would raise the Great Salt Lake to a level of 4,198 feet. The Great Salt Lake hasrisen thanks to record-breaking winters, but it is still several feet below what is considered ecologically healthy.

“I certainly have some skepticism about whether this court could wade into issues of determining lake level,” Judge Scott said.

Judge Scott, who is specially tasked by the judiciary with complex handling water law cases, took the case under advisement with no timeline for a ruling. She agreed to accept additional briefing by the environmental group plaintiffs, the state and the other interested parties.

The judge said she has not made up her mind over where she is leaning.

“Regardless of the ruling, I suspect this is an issue for the Supreme Court to decide,” she said.