O’Leary Digital, Box Elder County press court to dismiss data center foes’ lawsuit

BRIGHAM CITY — O’Leary Digital and Box Elder County seek dismissal of the lawsuit filed against them by a coalition of Box Elder County residents pressing for a public vote on whether the controversial O’Leary data center project should proceed.

It’s the latest sally in the simmering controversy over O’Leary Digital plans to build a data center complex and natural gas-fired power production operation on a swath of undeveloped Box Elder County land to support it. Canadian businessman Kevin O’Leary is one of the key forces behind the project, decried by critics worried about its potential environmental impact.

Related: Cache County Council joins other Utah counties by placing a hold on data center approval

In their respective responses filed late last week to the initial June 3 lawsuit by data center opponents, O’Leary and Box Elder County maintain that there’s no legal basis to challenge the two resolutions at the center of the legal tussle at the ballot box, as sought by the data center critics. That’s the same argument Box Elder County officials made last May in rebuffing the data center foes’ efforts to petition to force a referendum on the issue, which gave rise to the legal fight.

“The issue turns on whether the commission’s decisions, which merely implemented existing law — namely MIDA’s implementing statute — were administrative. Because the resolutions were administrative, plaintiffs’ lawsuit fails as a matter of law,” O’Leary Digital wrote in its response, filed last Thursday. The Utah Military Installation Development Authority, or MIDA, a state entity, has teamed with O’Leary in pursuing the data center project.

In the response by Box Elder County officials, filed Friday, they too note that the approvals of the two resolutions constituted administrative action, not legislative action. Accordingly, they can’t be challenged via the mechanism outlined in state law that permits citizens to petition to force up-and-down votes on controversial public decisions.

“Neither of the resolutions at issue here is legislative,” the county states in its legal response, referencing the measures targeted in the legal fight, resolution 26-11, a consent resolution, and resolution 26-12, approving an interlocal agreement between the county and MIDA. “Through the consent resolution, the county merely agreed to MIDA’s and the private landowners’ request that their property be included in the project area. By the interlocal agreement resolution, the county set forth the negotiated terms of its agreement with MIDA regarding services to be provided to the included property and project revenue to be shared with the county.”

The Box Elder County Commission approved the two resolutions, key to the data center plans, at a boisterous May 4 meeting, attended by hundreds of people largely opposed to the project. The lawsuit by the data center opponents to reverse the action was filed in First District Court in Brigham City, but it’s not the only legal action spawned by the plans.

Alliance for a Better Utah, a Salt Lake City-based nonprofit group, and five unnamed Box Elder County plaintiffs filed a suit on June 3 in 3rd District Court in Salt Lake City in the matter. They ask that actions by MIDA and Box Elder County commissioners approving the data center plans be nullified, thus halting the project. The defendants, Box Elder County officials, have not yet responded.

At the same time, several opponents of the data center project are suing Kevin O’Leary and the Fox News Network for defamation after the businessman claimed opponents of the plans had links to China. That suit is filed in federal court.