Big Game Forever v. Peterson

2024 UT App 78
THE UTAH C OURT OF APPEALS
BIG GAME F OREVER ,
Appellant,
v.
ERIC S. PETERSON , THE U TAH I NVESTIGATIVE JOURNALISM PROJECT,
U TAH DEPARTMENT OF NATURAL R ESOURCES ,
AND S TATE R ECORDS C OMMITTEE,
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. O RME authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and A MY J. O LIVER 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

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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,

Big Game Forever v. Peterson
20210792-CA 	4 	2024 UT App 78
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.