Live the Outdoors

The landowner of a coveted piece of property is moving forward to mine his land, even with all the legal attempts to stop him.

Richard Davis got a victory in 4th District Court on Thursday morning when Judge James Taylor refused to grant a preliminary injunction that would block Davis from excavating rocks from his land in Rock Canyon on the west side of Provo. It was the latest decision in a legal battle that’s raged for several years and involves a number of parties, including state Senate President John Valentine, R-Orem, who is one of the parties being sued.

The injunction was premature, Taylor said, although Davis has applied for a conditional use permit from Provo city and has begun the application process for a permit from the Utah Division of Oil, Gas and Mining to begin.

Michael Zundel, his attorney, said once the paperwork is in place, his client will move forward with the mining, which has halted in October 2003 when residents near Rock Canyon called the city in protest.

“If he gets the permits, he’ll mine,” Zundel said. “Whether he can get those permits while it’s still tied up in court, I suppose is a question.”

The 84.5 acres at the mouth of Rock Canyon is co-owned by Davis and Red Slab, LLC, which Valentine and associate Phil Lowry began for the specific purpose of preserving the land. They gave their interest to Provo city as a conservation easement, thus ensuring it cannot be developed. Lowry and Valentine are contending that as co-owners of the land, they have a say in what happens and Davis can’t develop without their cooperation.

Zundel, however, said they were overstepping their bounds and illegally blocking his client from doing as he wished with his half interest in the property. He argued that by giving away a conservation easement, Red Slab “encumbered” Davis and deprived him of the full value of his interest.

“It is a cloud on this property,” he said.

Lowry disagreed, saying the conservation easement was not what the argument between the two co-owners was about; the focus instead should be on co-tenancy law and what expectations each side has. If Davis wanted the discussion to be a partition action, in which the property would just be divided up and half given to each co-owner, they should be looking at that, he said.

“He can’t sue us simply because we have a disagreement over how the property is supposed to be used,” Lowry said.

Valentine’s personal involvement also came under scrutiny; Davis and Zundel allege that because he took illegal actions against Davis, he should be held personally liable and thus be sued individually. Zundel acknowledged that Valentine’s actions were on behalf of Red Slab but said that didn’t protect him, particularly given the arrangement with Provo city that Red Slab would take on all of the costs of the conservation easement.

“This lawsuit’s simply what they were expecting,” he said.

Not so, said Lowry, who did all the legal representation in court Thursday since Valentine is a defendant.

“We haven’t sued Mr. Davis on the basis that he has committed a tort against us because he wants to mine,” he said, arguing that Red Slab’s intentions had always been clear; the two men wanted to preserve the land, and Davis’s responsibility as a co-owner was to consider their desires as well. Valentine shouldn’t be held liable, he said, because neither he nor the company had acted illegally.

“The fact that we have disagreements is not a tort.”

There is also a question of how much of an interest Red Slab actually owns. Red Slab bought a quarter interest from part owner Greg Sperry, then purchased an option from part owners Stephen and Loren Kapelow for their quarter interest. Different interpretations of the agreement and a sudden reluctance from the owners to sell resulted in the issue being turned over to Taylor to decide.

Heidi Toth can be reached at 344-2543 or htoth@heraldextra.com. The original story is at http://www.heraldextra.com/content/view/175291/4/