One wrong move in executive session

A secret vote sank Flagstaff’s helium lawsuit ... Schweikert's hot seat ... And who furloughed the Hatch Act?

The City of Flagstaff went to court to protect its most precious resource — its drinking water.

What it lost was something else entirely: the ability to argue its case.

At the center of the dispute was Red Gap Ranch, a massive 8,500-acre parcel located about 40 miles east of the city that Flagstaff bought two decades ago to secure a long-term future water supply.

When a private company began to drill nearby to mine helium, experts hired by the city warned the Council the drilling could potentially contaminate Flagstaff’s yet-untapped aquifers. In 2020, the Council formally instructed its lawyers to sue to block the drilling.

The only issue? The Council voted in the wrong place — behind closed doors.

A map of Red Gap Ranch from Flagstaff’s “pipeline feasibility study.”

What is an open meeting?

At the heart of the story is Arizona’s Open Meeting Law, which requires decisions by local officials to be made in public. Councils can confer with their attorneys in executive sessions under certain conditions, but their final votes must be taken in open meetings.

The Flagstaff City Council thought they were dancing a delicate legal waltz correctly: listen to the attorneys in executive session, then quietly greenlight the case.

Five years later, the Arizona Court of Appeals ruled otherwise.

The city did try to address the mistake three years later, publicly voting to take legal action against the Vancouver, Canada-based Desert Mountain Energy Corporation. But it was too late.

The city had failed to meet strict deadlines under the Open Meeting Law, so the lawsuit against Desert Mountain Energy was dismissed, the Court of Appeals ruled.

That meant Flagstaff never got to argue whether drilling near Red Gap Ranch to mine helium could contaminate its water supply. The case collapsed on a procedural technicality rather than the underlying facts.

The Arizona Supreme Court declined to hear the City’s appeal, leaving a precedent in place: a closed-door vote, even one based on attorney advice, can doom an entire lawsuit.

Another lawsuit?

Another fight with Desert Mountain Energy is still possible, Flagstaff Mayor Becky Daggett told the Arizona Agenda.

“The decision of the Supreme Court not to review the Court of Appeals ruling is disappointing, given the extra burden it will now place on all public bodies in the State,” Daggett said. “But it will not hamper in any way the City’s ability to protect its precious water resources. Our commitment to the public on that issue remains absolute.”

Last month, the Council publicly voted to give Flagstaff City Attorney Sterling Solomon the power to take “all actions necessary to ensure that the City’s regional water resource at Red Gap Ranch is not impaired by helium exploration operations.”

This could mean a new lawsuit, but Desert Mountain Energy is not currently drilling new wells near Red Gap Ranch.

The well that sparked the legal action is located about two miles upstream of the city’s future water supply.

Flagstaff briefly had a memorandum of understanding with Desert Mountain Energy, but canceled the agreement related to seismic testing at Red Gap Ranch. However, the cancellation of the MOU does not impact the ground leases the company secured with the state and the U.S. Department of the Interior’s Bureau of Land Management.

Amend the law?

The legal fight between Flagstaff and Desert Mountain Energy has gotten the attention of the League of Arizona Cities and Towns, which filed an amicus brief supporting Flagstaff in its fight with the company.

In its filing, the League argued that it was a narrow interpretation of Arizona’s Open Meeting Law to assume it forbids any authorization in executive session. The League said such a reading undermines attorney-client privilege for municipalities.

Attorney-client privilege may allow elected officials to talk privately, but the action — whether it’s suing a developer, fighting a state law, or challenging a mining permit — must still be approved in public.

Solomon said the city will lobby the Legislature to reform public meeting laws.

“The city intends to work with the League and other affected cities, towns and counties to seek a legislative correction urging the legislature to clarify the application of the ruling to protect executive session confidentiality as intended under the authorizing statute,” Solomon said.

Flagstaff’s fight is more than a fight over mining or water.

It’s a warning shot for every city and county in Arizona: One missed vote after an executive session can doom an entire case before it even begins.

For public officials, the takeaway is simple — if you want your actions to survive in court, they need to happen in the sunlight.

The girls are fighting: Arizona’s far-right Republicans are throwing a fit over speculation that Arizona GOP Chair Gina Swoboda will run for the CD1 seat that Rep. David Schweikert is vacating to pursue a gubernatorial bid, the Republic’s Laura Gersony reports. Freedom Caucus Rep. Joseph Chaplik is also rumored to want the seat, and called Swoboda “a recent Hillary Clinton supporter.” Other potential candidates include Rep. Matt Gress, political operative Sean Noble and former ASU football coach Todd Graham. Kari Lake has also entered the chat.

The culture war tour: Arizona’s own conservative Christian law firm, the Alliance Defending Freedom, is behind the case the Supreme Court heard yesterday that challenges a ban on conversion therapy for minors, per the New York Times. The ADF is representing Kaley Chiles, a Colorado counselor who “wants to help young people distressed about their gender,” per the group’s press release. In the coming months, the Supreme Court is also set to hear ADF’s cases to bar transgender athletes from women’s sports and hide the identity of people who donate to anti-abortion pregnancy centers.

The sheriff’s call: Muslim women who were arrested during last year’s pro-Palestine protests at ASU are suing over allegations that ASU police forcibly removed their hijabs, the State Press’s Mia Osmonbekov reports. The Maricopa County Sheriff’s Office instructed university police to remove the hijabs, per police reports.

Where there’s smoke: A new study estimates more than 900 Arizonans could die from wildfire smoke inhalation by 2050, per the New York Times. The smoke pollution will be concentrated along the West Coast, but no one’s breathing easy as the Trump administration tries to roll back national air quality standards. Meanwhile, the smoke over west Phoenix yesterday was from a prescribed burn to get rid of invasive plant species and provide wildfire training for firefighters, AZFamily’s Brian Petersheim Jr. writes.

Presidential pouting: Trump went on a Truth Social tirade over Fox News airing a segment with Arizona’s U.S. Sen. Mark Kelly, who called on Republican leadership to negotiate an end to the shutdown, the Republic’s Stephanie Murray reports. The president declared, “Fox should either get on board, or get off board, NOW.”

THE FAKE NEWS MEDIA IS OUT OF CONTROL. SUBSCRIBE TO THE ARIZONA AGENDA! INCREDIBLE PEOPLE. VERY SMART READERS. THEY SHOULD WIN AN AWARD. MAYBE TWO. SUBSCRIBE IMMEDIATELY!!!

In other, other news

The Trump administration is deporting immigrants to African nations, even if they’re not from Africa, by way of the Mesa Gateway Airport (Jerod MacDonald-Evoy / Arizona Mirror) … Arizona’s Medicaid system now covers traditional Indigenous healing practices (Nada Hassanein / Stateline) … Cochise County Supervisor Frank Antenori is refusing to approve a superior court judge “based on her and her firm’s political philosophy and ideology.” The candidate is registered as a Democrat (Terri Jo Neff / Herald/Review) … Former Sen. Justine Wadsack doesn’t have to pay legal fees after dropping her speeding ticket case against Tucson (Howie Fischer / Capitol Media Services) … The newly incorporated town of San Tan Valley just got its first mayor (Nicole LaHendro / KJZZ) ... And “scoop machine” Yvonne Wingett Sanchez is leaving the Washington Post to cover Arizona politics for The Atlantic.

Remember those overtly political messages that started popping up on federal agency websites blaming “Radical Left Democrats” for the federal shutdown?

Well, the Hatch Act complaints are piling up… in inboxes no one’s around to check.

The Hatch Act limits certain government workers’ political actions, but the employees who handle those complaints were furloughed, Cronkite News’ Isabella Gomez reports.

If a Hatch Act violation falls in the forest and no one’s around to hear it, does it still count?