concurring in the result:
I concur in the result reached by the majority. However, I disagree with the suggestion that the state must always give the economic interests of the school trust priority over all other considerations in managing trust lands. The majority is correct that the state has a significant duty to the beneficiaries of the school trust, which ordinarily will prevail, but I believe that in some situations it is permissible for the state to give priority to factors besides economic gain to the school trust.
The majority reasons that (1) the state holds section 16 in trust for the school system, (2) the state is subject to the same duties as a private trustee, and (3) a private trustee has a duty of undivided loyalty to the beneficiaries of a trust, therefore (4) the state has a duty of undivided loyalty to the school system, and (5) economic gain to the school system is the only proper consideration in managing section 16. This reasoning is faulty in treating a state exactly the same as a private trustee. A state has powers and duties far beyond those of an ordinary citizen. It has both the power to make almost any law or regulation, limited only by the state and federal constitutions, and the responsibility to legislate in the interest of its citizens. A state can never have “undivided loyalty” to a single interest group; it must consider the health, safety, and welfare of all its people. It also has the duty to manage and preserve public lands for the benefit of present and future generations. These responsibilities may occasionally conflict with the duty to maximize income for the school trust. While the state’s duties to the school system are important, they cannot and do not override every other obligation.1
Taken to its logical extreme, a strict requirement of undivided loyalty in managing trust land would lead to absurd results. It would require the state to allow any use of any tract of trust land, free from all regulation, as long as the trust received enough money. In theory, a business using trust land should be exempt from safety, pollution, and similar laws because compliance with these laws would make the enterprise less profitable, thereby reducing the amount a business would be willing to pay for the land. The state’s obligation to obtain the greatest possible financial return on school trust land obviously cannot outweigh every other social concern.
To illustrate, suppose an applicant proposes to build a toxic waste disposal facility on trust land at the head of a major water source. If the applicant offers more money than the trust could ever hope to receive from any other use, a strict requirement of undivided loyalty to the school trust arguably would require the state to accept the project. However, such a project could seriously *924threaten several communities’ drinking water, and the legislature has enacted laws designed to avoid such threats.2 It would be ludicrous to force the state to make the sale and allow the project, notwithstanding health, environmental, or other consequences, simply because approval would provide the greatest monetary return to the school trust fund. Nothing in the Utah Constitution or Enabling Act would require such a result. In such a situation, the Board would be able to refuse the application.
None of the cases upon which the Board and the majority rely address the situation in which the use of trust land is at issue. For the most part, those cases consider only the amount of money a state must get in return for any chosen use. For example, in Lassen v. Arizona Highway Department, 385 U.S. 458, 87 S.Ct. 584, 17 L.Ed.2d 515 (1967), the issue was not whether the state highway department could build roads through trust lands, but whether and how much the department had to compensate the schools. In Oklahoma Education Ass’n v. Nigh, 642 P.2d 230 (Okla.1982), the court held simply that the school trust had to receive full value for land used in a low-income farming program. And in County of Skamania v. State, 102 Wash.2d 127, 685 P.2d 576 (1984), the question was not whether the land had to be used for timber production, but whether the state could release the timber producers from their contracts, thus settling for less money than they were owed. No authority has been cited holding that school trust responsibilities require a state to choose a specific land management option solely because it would result in the greatest profit to the trust fund.3
Indeed, the Colorado Supreme Court held recently that the state did not violate trust obligations by allowing consideration of non-economic factors, including the scenic and aesthetic effects of a proposed use, in managing trust lands. In State Land Commissioners v. State Mined Land Reclamation Board, 809 P.2d 974 (Colo.1991), the court considered the validity of a statute that conditioned the issuance of a mining permit on compliance with local zoning ordinances. Plaintiff Conda sought to engage in a major mining operation on state trust lands that Boulder County had zoned for forestry. The County denied Conda’s application for a special use permit, primarily on scenic, aesthetic, and other noneconomic grounds.4 Conda sought review in the district court, but the district *925court affirmed the Reclamation Board’s denial of a mining permit.
The supreme court affirmed. Among other things, the court concluded that the state constitution did not prohibit the consideration of noneconomic factors in managing school trust lands, even when the trust would receive less money as a result. The court noted:
So also, the fact that the Reclamation Board adheres to the statutory standards for the issuance of a mining permit does not result in diverting revenues from the public school fund. The constitutional grant of authority to the School Land Board to dispose of school lands in such manner as tvill secure the “maximtim possible amount therefor,” Colo. Const. art. IX, § 10, was not intended as a license to disregard reasonable legislative regulations simply because compliance with such regulations might reduce the amount of revenues otherwise available from the leasing of school lands.
Id. at 987 (emphasis added) (citation omitted). Thus, Colorado has determined that a state may choose a less-than-economieally-optimal land management strategy in pursuit of other goals.5
The majority opinion acknowledges that failure to preserve scenic, paleontological, or archaeological values may occasionally be “unconscionable,” but the alternatives it proposes are inadequate. The majority concludes that in such a situation, the state may have to consider either exchanging other state lands for school trust lands or leasing or buying the lands from the trust. Neither of these options would be satisfactory.
First, a land exchange would usually be impractical. Someone seeking to buy or lease a tract of trust land most often does so because he or she has a site-specific plan for that land. Most applicants simply would not be willing to use any other state land. For example, in this case, Garfield County wants section 16 precisely because the Burr Trail runs through it. The County would have no reason to purchase a different tract of state land. Thus, an exchange process would in most cases deprive the trust of the money it would receive under the applicant’s proposal. The majority apparently would deem this a breach of the trust.
Second, if the state wishes to protect environmental, social, or other noneconomic values, it is not required to lease or purchase the affected land.6 Even assuming that the Board has the power to take such action, the state does not necessarily have to pay compensation to prevent an “unconscionable” use of property. The state has broad authority to regulate or prevent certain uses of land under its police power; it need compensate a landowner only if the regulation deprives him or her of all economically viable use of the land, i.e., when it effects a “regulatory taking.” See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. -, -, 112 S.Ct. 2886, 2893-94, 120 L.Ed.2d 798 (1992). Thus, in the case of private ownership of land (even if the land is held in trust for the school system), the state has to pay compensation only if it effects such a taking. Therefore, by requiring the state to pay full compensation whenever a restriction on use prevents the trust from receiving the highest possible amount of money, the majority would in effect give state-owned trust land greater protection against government regulation than that provided to private land. Such a result seems illogical and unnecessary.
I do not mean to trivialize the state’s duty to manage trust lands for the benefit of the school system. Economic gain to the school trust is still the primary consideration in managing trust lands. The Utah Enabling Act granted the land to the state “for the support of common schools.” Utah Enabling *926Act § 6. The Utah Constitution provides that grant land shall be held in trust for the purposes for which it was granted. Utah Const. art. XX, § 1. These provisions impose on the state a strong obligation to manage trust lands for the benefit of the public school system, and most often this duty will prevail. However, this obligation cannot always override every other responsibility. Other state interests may at times outweigh the importance of financial gain to the trust. In such situations, it would be permissible for the Board to act in accordance with those other interests. Foregoing the most financially profitable alternative would not always be a breach of the trust.
In this case, however, I feel constrained to conclude that the Board did not act improperly when it refused to look at aesthetic and other noneconomic factors in considering the proposed land exchange. The Board has a constitutional and statutory duty to operate trust lands for the benefit of the school trust. While this duty does not trump every other state obligation, it is nonetheless very important. Further, statutes in effect both at the time the decision was made and at present dictate that trust responsibilities take priority over multiple-use principles in managing trust land. See Utah Code Ann. § 66-1-14 (1986 repl. vol.) (repealed); id. § 65A-1-2(4) (Supp.1992). Finally, the public trust doctrine, which applies to other public lands, does not apply to lands granted to the state for the benefit of the school system rather than for the public generally. In this situation, then, I cannot say that the interest in preservation outweighs the state’s responsibility to obtain the greatest possible economic return from trust land. I therefore concur in the result reached by the majority.
. Even a private trustee can never really have undivided loyalty to a beneficiaty, for a trustee is always subject to the broad powers of the state. A private trustee must manage trust property in accordance with the law, and a trustee's duty to obey the law is higher than his or her duty to the beneficiaries.
. The Hazardous Waste Facility Siting Act directs the Solid and Hazardous Waste Control Board to adopt guidelines for the siting of hazardous waste storage and disposal facilities. These guidelines shall "ensure that ... the wastes located [at the facilities] will not constitute an unacceptable health hazard or impact the environment in an unacceptable manner.” Utah Code Ann. § 19-6-204(1). The statute directs the Board to consider factors such as the risk of contamination to ground and surface water through leaching and runoff. Id. § 19-6-204(2). The regulations promulgated by the Board prohibit commercial hazardous waste facilities within certain distances of underground and surface water sources. Utah Admin.R. 315 — 3—36(b).
. Further, the most significant cases interpret and apply the New Mexico-Arizona Enabling Act of 1910, which contains specific provisions regarding disposition of trust lands and proceeds. See, e.g., ASARCO Inc. v. Kadish, 490 U.S. 605, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989); Lassen, 385 U.S. 458, 87 S.Ct. 584, 17 L.Ed.2d 515 (1967); Ervien v. United States, 251 U.S. 41, 40 S.Ct. 75, 64 L.Ed. 128 (1919). These cases do not necessarily control interpretation of the Utah Enabling Act, which does not contain such provisions.
.The Boulder County Board of Commissioners denied the application because
[the mining operations] would not be in harmony with the character of the neighborhood and would not be compatible with the surrounding area because of dust, noise, and traffic; they would adversely affect wildlife in the area and would result in removing an area of old forest growth; they would seriously affect the foothills scenic vista; they would place undue burdens on the existing community of Eldorado Springs; they would adversely affect the safety of recreational and destination bicycle traffic in the area; they would cause major increases in heavy traffic with resulting traffic hazards; they would cause a significant increase in air and noise pollution; they would not provide adequate visual mitigation during the mining phases of the operations; Conda’s proposal was lacking a proven reclamation plan; and the proposed mining operations would be detrimental to the health, safety, and welfare of present and future inhabitants of the county.
809 P.2d at 979.
. California also follows a multiple-use approach in managing school trust lands. A statute directs the state lands commission to consider "beneficial uses,” which include development and maintenance of hiking trails and primitive campsites. Cal.Pub.Res.Code § 6201.5 (West Supp.1993); see Kedric A. Bassett, Comment, Utah's School Trust Lands: Dilemma in Land Use Management and the Possible Effect of Utah's Trust Land Management Act, 9 J. Energy L. & Pol'y 195, 203 (1989).
. Such a scheme would force the state to match the highest bid for the land, since any lower level of compensation would presumably be a breach of the trust.