Big Game Forever v. Peterson

2024 UT App 78

THE UTAH COURT OF APPEALS

BIG GAME FOREVER,
Appellant,
v.
ERIC S. PETERSON, THE UTAH INVESTIGATIVE JOURNALISM PROJECT,
UTAH DEPARTMENT OF NATURAL RESOURCES,
AND STATE RECORDS COMMITTEE,
Appellees.

Opinion
No. 20210792-CA
Filed May 23, 2024

Third District Court, Salt Lake Department
The Honorable Kara Pettit
No. 200902471

Trinity Jordan and Paul L. Brusati,
Attorneys for Appellant
Jeffrey J. Hunt, David C. Reymann, and Sara Meg
Nielson, Attorneys for Appellees Eric S. Peterson and
The Utah Investigative Journalism Project

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.

ORME, Judge:

¶1 Eric S. Peterson, on behalf of the Utah Investigative
Journalism Project (collectively, Peterson), made a records request
for the expenditure reports of Big Game Forever (Big Game)
relating to its contract work with the State. The Utah Department
of Natural Resources (the Department) granted the request in
part, providing the records with certain information redacted. In
response to Peterson’s subsequent challenge to the redaction, the
State Records Committee (the Committee) reversed the
Department’s decision to redact the records. Big Game
Big Game Forever v. Peterson

subsequently sought judicial review of the Committee’s reversal,
and the parties filed cross-motions for summary judgment. The
district court ultimately granted summary judgment in Peterson’s
favor and denied Big Game’s motion for summary judgment.

¶2 Big Game then appealed to this court. Because Big Game’s
principal brief does not meaningfully challenge the district court’s
balancing-of-interests analysis under Utah Code section
63G-2-404(7)(a), which served as an independent alternative basis
for the court’s summary judgment rulings, we affirm.

BACKGROUND

¶3 In the words of Big Game, “Utah is home to world-class
wildlife herds and a $2.4 billion outdoor and hunting industry.”
Also according to Big Game, “[t]he rapid growth of Canadian
Gray Wolf populations and the resulting decline of key elk,
moose, deer, and other wildlife populations in the Northern
Rockies has been a significant conservation issue in the western
United States.” Based on this premise, Big Game has endeavored
to remove the Canadian Gray Wolf from protections under the
federal Endangered Species Act by working “with State and
Federal agencies to pursue legal and legislative solutions to
achieve legal and management authority over wolves to protect
wildlife in the State of Utah.” See Utah Code Ann.
§ 23A-15-102(10) (LexisNexis Supp. 2023) (“It is the policy of the
state to legally advocate and facilitate the delisting of wolves in
Utah under the Endangered Species Act and to return wolf
management authority to the state.”). 1 The State of Utah has
supported Big Game’s efforts to delist the Canadian Gray Wolf as
a protected species by awarding it a grant of $100,000 in 2011 and

1. Because the applicable provisions of the Utah Code in effect at
the relevant time do not differ in a way material to this appeal
from those in the most recent printed version of the code, we cite
that version for convenience.

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by entering into two contracts with Big Game through the
Department in 2012 and 2017 that collectively totaled $5.1 million.

¶4 Big Game has subcontracted with numerous vendors, and
it claims to have dealt with two consistent problems: (1) “frequent
death threats and harassment regarding the work it (and its
vendors) performs” and (2) competitors’ efforts to poach its
subcontractors in an attempt to compete for future contracts.
Thus, Big Game has taken, in its judgment, “all reasonable
measures” to maintain and protect the confidentiality of its
subcontractors’ identities.

¶5 In 2013, referring to Big Game’s first contract with the State,
the Office of the Legislative Auditor General issued an audit
report stating that “[t]he upfront payment, lack of accounting
review, and lack of a current-year plan leads us to believe that the
contract lacks sufficient safeguards” and, regarding the
possibility of the comingling of state and private funds for
lobbying efforts, “we cannot ensure that state funds were used
appropriately.” See generally id. § 63J-1-210(2) (“An agency to
which money is appropriated by the Legislature may not expend
any money to pay a contract lobbyist.”). Based on this report, the
Department indicated that “it had already required additional
accounting data . . . and would pass along the recommendation to
work with State Purchasing to address vendor comingling of
funds without separate accounting of state funds to State
Purchasing for consideration of future contracts.”

¶6 In 2018, Big Game and the Department executed an
addendum to the second contract, adding, as later summarized by
the district court, the “requirement that Big Game provide
expenditure reports that shall include accounting records
detailing the billable hours of each contractor working under the
contract during the billing period and shall be tied to one of the
[contract’s] objectives.” But Big Game alleged in a declaration by
its CEO that the Department agreed that any information
contained in the reports “would remain protected.” To that end,

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the expenditure reports Big Game submitted under the
addendum “contain[ed] a claim of business confidentiality to
protect as trade secrets and commercially sensitive information
the specific names and hours worked by Big Game’s
subcontractors.”

¶7 In 2019, during the term of Big Game’s second contract,
Peterson made a records request for copies of Big Game’s
expenditure reports under Utah’s Government Records Access
and Management Act (GRAMA), id. §§ 63G-2-101 to -901 (2019
& Supp. 2023). The Department partially denied Peterson’s
request, providing him with the expenditure reports but
redacting the names of nine of Big Game’s subcontractors. The
Department explained the redactions by stating, “After
consulting with our legal team and [Big Game,] we have
determined that [subcontractor names] are protected records”
under Utah Code section 63G-2-305.

¶8 Peterson appealed to the Department’s Chief
Administrative Officer for GRAMA appeals, who upheld the
decision to redact the subcontractors’ identities on the ground that
Big Game’s “claim appears to fit the confidentiality provisions
referenced in GRAMA.” Peterson challenged the Chief
Administrative Officer’s decision before the Committee, which
reversed the decision. The Committee rejected Big Game’s
argument that the identity of its subcontractors constituted trade
secrets or commercial information under Utah Code section
63G-2-305, and it also determined that this was “information that
was normally public pursuant to” section 63G-2-301(3)(c). The
Committee was also persuaded “that there is a public interest in
the public obtaining access to information regarding the spending
of public funds.”

¶9 Big Game then petitioned the district court for review of
the Committee’s decision. See generally id. § 63G-2-404 (Supp.
2023) (detailing the process for pursuing a petition for judicial
review of an order or decision of the Committee). Big Game and

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Peterson eventually filed cross-motions for summary judgment
regarding whether the subcontractors’ identities were trade
secrets and commercially sensitive information and whether the
public interest in receiving the information outweighed the
interest in restricting it under section 63G-2-404(7)(a).

¶10 The district court granted Peterson’s motion and denied
Big Game’s motion. In its written decision, the court made three
distinct rulings: (1) “Big Game has not demonstrated that the
names of its nine subcontractors on the expenditure reports are
trade secrets”; (2) “Big Game has not demonstrated that
disclosure of the entire list of the nine subcontractors’ names
‘could reasonably be expected to result in unfair competitive
injury to [Big Game] or would impair the ability of the
governmental entity to obtain necessary information in the future’
as required to be protected as commercial information” under
section 63G-2-305(2); and (3) “even if the subcontractor list is
properly classified as protected, the interest favoring access is
greater than or equal to the interest favoring restriction of access.”
The court consequently concluded that the reports should be
released in their unredacted form.

¶11 Big Game appeals.

ISSUE AND STANDARD OF REVIEW

¶12 Big Game challenges the district court’s grant of summary
judgment in Peterson’s favor, arguing that the court erred in
concluding that the subcontractors’ names were neither trade
secrets nor commercially sensitive information. “We review a
district court’s legal conclusions and ultimate grant or denial of
summary judgment for correctness” while “view[ing] the facts
and all reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party.” R.O.A. Gen. Inc. v. Salt Lake
City Corp., 2022 UT App 141, ¶ 13, 525 P.3d 100 (quotation
simplified). But we do not apply this familiar protocol here

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because an important appellate doctrine carries the day and
requires affirmance. Specifically, “we will not reverse a ruling of
the district court that rests on independent alternative grounds
where the appellant challenges only [some] of those grounds.”
Kendall v. Olsen, 2017 UT 38, ¶ 12, 424 P.3d 12 (quotation
simplified).

ANALYSIS

¶13 By enacting GRAMA, our Legislature balanced “the
public’s [constitutional] right of access to information concerning
the conduct of the public’s business,” Utah Code Ann.
§ 63G-2-102(1)(a) (LexisNexis 2019), against the competing
“public policy interest in allowing a government to restrict access
to certain records . . . for the public good,” id. § 63G-2-102(2).
Under GRAMA’s framework, “[a] record is public unless
otherwise expressly provided by statute,” id. § 63G-2-201(2)
(Supp. 2023), but records “properly classified” into certain
categories—including, as relevant here, trade secrets and
commercial information—are statutorily “protected” from
disclosure under certain circumstances, id. § 63G-2-305(1), (2).

¶14 Our Legislature also intended, among other things, to
“favor public access when . . . countervailing interests are of equal
weight.” Id. § 63G-2-102(3)(e) (2019). To that end, GRAMA directs
that when considering a petition for judicial review, the district
court “may, upon consideration and weighing of the various
interests and public policies pertinent to the classification and
disclosure or nondisclosure, order the disclosure of information
properly classified as private, controlled, or protected if the
interest favoring access is greater than or equal to the interest
favoring restriction of access.” Id. § 63G-2-404(7)(a) (Supp. 2023).

¶15 Here, in addition to concluding that the subcontractors’
identities were not protected trade secrets or commercial
information, the district court alternatively affirmed the

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Committee’s decision based on the section 404(7)(a) balancing
test. 2 In applying this balancing test, the court weighed Big
Game’s interest in protecting against unfair competition and its
interest in protecting the subcontractors’ safety against the
public’s interest in knowing how public funds are spent. The
court stated that Big Game made only conclusory statements that

2. In its reply brief, Big Game asserts that the district court did not
engage in a section 404(7)(a) balancing because “[t]hat statute
does not appear anywhere in the district court’s order, much less
in the balance of interests section.” Although the court did not
invoke the section by name, it undisputably engaged in a
balancing of the competing parties’ interests, ultimately holding
that Peterson’s interest—and the public’s more generally—
weighed more heavily. In so doing, the court quoted section
404(7)(a) verbatim when it concluded that “the interest favoring
access is greater than or equal to the interest favoring restriction
of access.” See Utah Code Ann. § 63G-2-404(7)(a) (LexisNexis
Supp. 2023). Peterson also expressly argued in his motion for
summary judgment that section 404(7)(a)’s balancing test
weighed in his favor, so the statutory basis for the court’s ruling
should have come as no surprise to Big Game.
And contrary to Big Game’s contention, in conducting the
balancing test, the district court clearly did more than merely
apply the second element of the commercial information inquiry,
which requires that “the person submitting the information has a
greater interest in prohibiting access than the public in obtaining
access.” Id. § 63G-2-305(2)(b). As an initial matter, the court had
already concluded in a prior section of its order that the
subcontractors’ identities did not constitute commercial
information. But more importantly, after engaging in the
balancing of interests, the court held, with our emphasis, that
“even if the subcontractor list is properly classified as protected, the
interest favoring access is greater than or equal to the interest
favoring restriction of access.” For these reasons, section 404(7)(a)
was the sole possible basis for the court’s balancing ruling.

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its subcontractors had “historically been targeted by extremist
animal rights groups” without providing “any specifics as to the
conduct by animal rights groups.” Conversely, the court
determined that “the public’s interest in obtaining access to the
information regarding who is receiving public funds, and what
they are doing to perform the public contract, is high” and that
“[t]he public has a great interest in the accountability and
transparency of the expenditure of millions of dollars under the
public contracts with Big Game.” After balancing these
considerations, the court concluded that “even if the
subcontractor list is properly classified as protected, the interest
favoring access is greater than or equal to the interest favoring
restriction of access.”

¶16 In challenging the district court’s summary judgment
rulings, Big Game asserts in its principal brief that the court “gave
two overarching reasons for its ruling: (1) the names are not trade
secrets; [and] (2) the names are not commercially-sensitive
information” and, in this context, “Big Game did not meet its
burden to show that it has a greater interest in prohibiting access
than the public [has] in obtaining access.” See supra note 2. Big
Game’s challenge to each of those two conclusions contains no
discussion of the court’s section 404(7)(a) balancing of interests,
which formed a third and alternative independent ground for the
court’s decision. Because of this, we do not reach the merits of Big
Game’s arguments on those two reasons and instead are
constrained to affirm the district court’s summary judgment in
Peterson’s favor.

¶17 “Our rules of appellate procedure place the burden on the
appellant to identify and brief any asserted grounds for reversal
of the decision below.” Kendall v. Olsen, 2017 UT 38, ¶ 12, 424 P.3d
12. Accordingly, “an appellant’s failure to challenge a final order
of the lower court places that final order beyond the reach of
further review,” and “we will not reverse a ruling of the district
court that rests on independent alternative grounds where the
appellant challenges only [some] of those grounds.” Id. (quotation

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simplified). In such cases, we are left “without a basis for anything
other than an affirmance of the district court’s” ruling. Id. ¶ 14. As
described above, this is exactly what happened in the current
appeal. Thus, we must affirm the district court’s summary
judgment rulings “without endorsing the merits of the district
court’s” decision. Id. ¶ 15.

¶18 Big Game resists this conclusion. In its reply brief, it
contends that it challenged any balancing of interests under
section 404(7)(a) by providing argument on the second element of
the commercial information analysis, which similarly requires a
showing that “the person submitting the information has a greater
interest in prohibiting access than the public in obtaining access.”
Utah Code Ann. § 63G-2-305(2)(b) (LexisNexis Supp. 2023). Big
Game asserts that this second element “requires the same balance
of interests” as that found in section 404(7)(a). See id.
§ 63G-2-404(7)(a) (stating that otherwise protected information
may nonetheless be disclosed “if the interest favoring access is
greater than or equal to the interest favoring restriction of
access”). But even if we were to accept Big Game’s argument that
the second element of section 305(2)(b) parallels the balancing of
interests under section 404(7)(a), Big Game has nonetheless failed
to satisfy its appellate burden of persuasion on this issue.

¶19 Rule 24 of the Utah Rules of Appellate Procedure requires
that an appellant’s “argument must explain, with reasoned
analysis supported by citations to legal authority and the record,
why the party should prevail on appeal.” Utah R. App. P. 24(a)(8).
In other words, “appellants carry the burden to persuade a
reviewing court through reasoned, supported argument that the
district court committed harmful, reversible error—a burden that
necessarily requires the appellant to address the reasoning and
basis of the district court’s ruling and to explain why that court
got it wrong.” Cottam v. IHC Health Services Inc., 2024 UT App 19,
¶ 15, 544 P.3d 1051 (quotation simplified). An appellant who
“does not meaningfully engage with the district court’s reasoning
. . . falls short of demonstrating any error on the part of the district

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court.” Federated Cap. Corp. v. Shaw, 2018 UT App 120, ¶ 20, 428
P.3d 12 (quotation simplified). See also Golden Meadows Props., LC
v. Strand, 2010 UT App 257, ¶ 17, 241 P.3d 375 (stating that an
appellant who “fails to attack the district court’s reasons” for its
ruling “cannot demonstrate that the district court erred”), cert.
denied, 247 P.3d 774 (Utah 2011).

¶20 Big Game’s argument on balancing in the
commercial-information context is limited to the assertions that it
“derives economic value from keeping the names of its
subcontractors confidential” and that “[c]onsidering the
consequences to Big Game if these names were disclosed, Big
Game’s interest in preventing disclosure outweighs the public’s
interest in learning them.” In the context of challenging the
district court’s section 404(7)(a) balancing of interests, these
conclusory statements do not meaningfully engage with the
district court’s reasoning and are thus insufficient to carry Big
Game’s burden of persuasion on appeal. See State v. Nelson, 2015
UT 62, ¶ 40, 355 P.3d 1031 (“Bald assertions and platitudes are not
enough to satisfy an appellant’s burden to provide an adequate
argument on appeal.”).

CONCLUSION

¶21 Big Game raised no appellate challenge to the district
court’s balancing of interests under Utah Code section
63G-2-404(7)(a), which provides an alternative ground for
affirming the Committee’s decision. Accordingly, we affirm the
district court’s summary judgment in Peterson’s favor without
considering the other rulings of the district court that were
robustly challenged by Big Game on appeal—namely that the
subcontractors’ names were not trade secrets or commercial
information.

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