The question is whether the meeting was about policy.
The counties, along with the Public Lands Policy Coordination Office Director Kathleen Clarke, met in a session that Uintah County posted as closed "to discuss pending or reasonably imminent litigation."
That language mirrors an exception that Utah's Open Meetings Act makes for legal strategy talks, but Common Cause and others, including Sierra Club representatives, have questioned whether a potential lawsuit over the Bureau of Land Management's oil shale leasing is all they discussed.
In the weeks after the meeting, the various counties passed essentially the same resolution lambasting the agency's pending decision to scale back territory in the three states that the Bush administration had opened to prospective leasing. The lands remained unleased because oil shale, a waxy rock that needs heating to extract oil, hasn't yet proved economically viable.
The resolution opposes the downsizing for policy reasons such as a potential hit to energy security, but also details a number of legal or rule missteps that the counties assert the BLM made. If a lawsuit by the states or counties indeed is imminent, attorney and University of Utah media law professor Randy Dryer said, Uintah County could make a case that the resolution is a warning, and therefore a proper topic for closed meetings.
"This is akin to notice of intent to sue," Dryer said after reading the resolution that Uintah County adopted two weeks after the closed session. "They do everything but say, 'We're going to sue your butt if you don't cease and desist.' "
Common Cause also questions whether Colorado officials may legally participate in a closed session out of state. "The public's business should be done in public," Nunez said.
The group is requesting information about who paid for travel and lodging, Nunez said, because if it was industry, the Colorado officials may have violated their state's ethics law.
Efforts to reach Uintah County officials were unsuccessful. Commissioner Mike McKee last month said his county organized the meeting and closed it to discuss potential litigation.
Clarke, the governor's public-lands adviser, had every right to be there, spokeswoman Ally Isom said. Whether the meeting was open wasn't her call, Isom said.