Box Elder County officials rebuff effort to force ballot questions on data center plans

BRIGHAM CITY — Box Elder County officials say applications to launch challenges against two resolutions that pave the way for development of a controversial data center project failed to pass legal muster.

Thursday's determination after nearly three weeks of review stalls the efforts launched by opponents of the data center to force the issue to the ballot box, though they may appeal the decision in court.

The two Box Elder County Commission measures, resolutions 26-11 and 26-12, are "administrative actions," not new laws, Box Elder County Attorney Stephen Hadfield said in a statement. Thus they don't fit within guidelines of the state law allowing the public to seek ballot initiatives to challenge certain government decisions.

He's "legally bound to reject the applications for referenda of these resolutions," Hadfield said. "I fully anticipate and appreciate that this will allow referendum sponsors who disagree with my opinion to appeal to the state courts for further guidance and resolution."

Two groups filed three applications earlier this month between them to petition to challenge the two resolutions, one prong of their efforts to stall the data center plans. Had their applications been deemed compliant with state law, the opponents would have been able to gather signatures on petitions calling for ballot questions on whether the resolutions should be upheld or repealed. Petitions for each of the resolutions would have required signatures from 5,422 eligible Box Elder County voters.

"We're obviously disappointed by the county's decision, but we're not surprised. The county attorney adopted the position that these resolutions are administrative actions and therefore not subject to referendum," said Farrah Pliley, a member of Box Elder Accountability Referendum, which sought the ballot questions. "We disagree and believe these resolutions are legislative in nature because they permanently affect governance, taxation, development and the future of Box Elder County."

She said the group's attorneys are reviewing next steps, including an appeal in court.

"We remain committed to pursuing every lawful and peaceful avenue available to ensure local residents have a voice in decisions of this magnitude," Pliley said. The concerns of the project critics haven't gone away, she said, and the effort to challenge the two resolutions isn't the only alternative they are considering.

Canadian businessman Kevin O'Leary and O'Leary Digital are the moving forces behind the data center plans, touted by proponents as key to national security and an economic development driver. Over the long haul, the data center facilities would be accompanied by the development of up to 9 gigawatts of power-generation capacity to serve them.

Critics worry the data center operation would adversely impact air quality and tax already dwindling water supplies, placing additional pressure on the Great Salt Lake, already drying. They also say the proposal hasn't received enough study and was rushed.

Project proponents counter, saying they plan to use advanced technology that minimizes water use. They've also stressed that the plans would face scrutiny by Utah regulators and be required to abide by Utah environmental guidelines.

Thursday's statement from Box Elder County noted that state law contains limits on what sort of government actions can be challenged via the referendum process.

"Under Utah's election code, a proposed referendum is not referable if it challenges a government action that is administrative, rather than legislative, in nature. Legislative acts create new laws of general applicability based on weighing broad policy considerations, whereas administrative acts simply implement laws that already exist," the statement reads.

The statement also noted the financial impact of repealing the two resolutions in question, a required element in reviewing applications to challenge government action. Had the challenge proceeded and ultimately resulted in repeal of resolutions 26-11 and 26-12, the county would have lost out on $5.4 million per year initially and $108 million per year in the long term, reflecting expected tax revenue and other income from the data center operation.

Box Elder County commissioners approved resolutions 26-11 and 26-12 on May 4 despite the opposition of many, allowing the data center plans to proceed. The action followed approval on April 24 of four other resolutions and a tax ordinance key to project development by Utah's Military Installation Development Authority, or MIDA, a state entity that's teaming with O'Leary Digital in the initiative.

Resolution 26-11 provided consent for the Military Installation Development Authority to include Box Elder County land in the data center project area. Resolution 26-12 authorizes cooperative efforts between the county and and the development authority on the data center plan and outlines a range of guidelines governing the development.

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