In the Matter of The United Effort Plan Trust

This opinion is subject to revision before final
publication in the Pacific Reporter.

2013 UT 5

IN THE
SUPREME COURT OF THE STATE OF UTAH
———————
IN THE MATTER OF THE UNITED EFFORT PLAN TRUST
———————
JOHN E. SWALLOW,
Petitioner and Appellee,
BRUCE WISAN; WILLIAM JESSOP; RICHARD JESSOP REAM; THOMAS
SAMUEL STEED; DON RONALD FISCHER; DEAN JOSEPH BARLOW;
WALTER SCOTT FISCHER; RICHARD GILBERT; BRENT JEFFS; HELAMAN
BARLOW; HILDALE CITY; COLORADO CITY; TWIN CITIES WATER
AUTHORITY; DAN JOHNSON; MERLIN JESSOP; SNOW, CHRISTENSEN &
MARTINEAU; and STATE OF ARIZONA,
Other Parties and Appellees,
v.
WILLIE JESSOP; DAN JOHNSON; MERLIN JESSOP; LYLE JEFFS;
and JAMES OLER
Intervenors and Appellants.
———————
No. 20090691
Filed January 29, 2013
———————
Third District, Salt Lake
The Honorable Denise P. Lindberg
No. 053900848
———————
Attorneys:
Bridget K. Romano, Utah Solicitor Gen., Timothy A. Bodily, Asst.
Att‘y Gen., Jeffrey L. Shields, Zachary T. Shields, Mark L.
Callister, Spencer E. Austin, Mark W. Dykes, Brandon J. Mark,
Salt Lake City, David Weinzweig, Phoenix, AZ,
for appellees
James C. Bradshaw, Rodney R. Parker, Richard A. Van Wagoner,
Frederick Mark Gedicks, Kenneth A. Okazaki, Stephen C. Clark,
Salt Lake City, for appellants
———————
JUSTICE LEE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE DURHAM, and JUSTICE PARRISH joined.
———————
 IN RE UNITED EFFORT PLAN TRUST
Opinion of the Court

JUSTICE LEE, opinion of the Court:
¶1 This case arises out of the district court‘s denial of several
motions to intervene in the ongoing state administration of the
United Effort Plan Trust. This charitable trust was originally es-
tablished by members of what is now referred to as the Funda-
mentalist Church of Jesus Christ of Latter-Day Saints. In 2006, fol-
lowing allegations of trustee mismanagement, the district court
removed these trustees, reformed the Trust according to secular
principles, and appointed a special fiduciary to manage the Trust
subject to the district court‘s ongoing supervisory jurisdiction.
¶2 When the special fiduciary sought court approval for the
sale of Trust property with alleged religious significance, the ap-
pellants in this case—members and bishops of the FLDS church—
asserted that their ecclesiastical interests in the Trust entitled them
to intervene as of right under rule 24 of the Utah Rules of Civil
Procedure in the ongoing administration proceedings. The district
court denied intervention, concluding that appellants‘ asserted
interests were inadequate. The potential intervenors appealed. We
affirm. Under standards of review clarified below, we uphold the
district court‘s determinations that appellants lacked a statutory
right to intervene under rule 24(a)(1) and also lacked a sufficient
interest in the subject matter of the litigation to intervene under
rule 24(a)(2).
I
¶3 The United Effort Plan Trust was originally established in
1942 by members of a religious movement known as the Priest-
hood Work, a predecessor to the Fundamentalist Church of Jesus
Christ of Latter-Day Saints. Adherents to the tenets of this move-
ment purchased a number of properties and deeded them to the
Trust. In 1998, following litigation with some disaffected Trust
beneficiaries, the trustees amended the Trust, rendering it a chari-
table trust under Utah law.
¶4 In 2004, the Trust was named as defendant in several tort
actions. The Trust faced a risk of defaulting in these suits because
the then-trustees failed to defend them. Consequently, in May
2005 the Utah Attorney General‘s Office petitioned the district
court to remove the trustees for breaching their fiduciary duties to
the Trust. The court granted that request and appointed a special
fiduciary to manage the Trust going forward. The court subse-

2
 Cite as: 2013 UT 5
Opinion of the Court

quently confirmed that the Trust was now a charitable trust and
held that it needed to be reformed because several of its provi-
sions were unworkable. The district court did so in an October
2006 court order, and nearly three years passed before any party
sought to appeal or otherwise challenge it. When a challenge
eventually reached this court, we held that it was barred by lach-
es. See Fundamentalist Church of Jesus Christ of Latter-Day Saints v.
Lindberg, 2010 UT 51, ¶ 1, 238 P.3d 1054.
¶5 As reformed by the 2006 court order, the Trust provides
that the ―Trust Property shall be held, used and distributed to
provide for [beneficiaries], . . . according to their wants and their
needs insofar as their wants are just.‖ ―[J]ust wants and needs
concern primarily housing‖ and ―secondarily . . . education, . . .
occupational training[,] and economic development,‖ although
they ―may also include food, clothing, [and] medical needs‖ and
even ―community development, including, but not limited to,
community buildings and places, schools, parks and cemeteries,
etc.‖
¶6 Potential beneficiaries are defined as those ―(1) who can
demonstrate that they have previously made Contributions to ei-
ther the Trust or the FLDS Church; or (2) who subsequent to the
date of this Agreement make documented Contributions to the
Trust which Contributions are approved by the Board.‖ Thus,
―the beneficiaries of the Trust are large in number‖ and although
they ―constitute a definite class,‖ ―the beneficiaries within the
class are indefinite.‖
¶7 Most significantly for purposes of this appeal, the reformed
Trust is decidedly secular. The reformed Trust declaration states
that the ―administration of the Trust shall be based on neutral
principles of law,‖ and ―shall not be based on religious doctrine or
practices.‖ It expressly prohibits ―attempt[ing] to resolve underly-
ing controversies over religious doctrine,‖ although it does note
that ―[t]he reformation shall allow for ecclesiastical input of a non-
binding nature.‖ This input may include ―recommendations re-
ceived from an authorized representative of the FLDS Church
concerning‖ whether ―a particular Trust Participant‘s‖ ―wants
and needs‖ are ―just . . . in light of the religious principles of the
FLDS Church,‖ although such recommendations are ―non-
binding and shall be only one criterion to be considered and shall
not be the controlling criterion.‖

3
 IN RE UNITED EFFORT PLAN TRUST
Opinion of the Court

¶8 After the Trust was reformed, the district court retained
supervisory jurisdiction over its administration. In May 2009, the
special fiduciary sought court approval for the sale of certain
property in order to meet the Trust‘s ongoing financial obliga-
tions. In particular, the fiduciary sought to sell the Berry Knoll
Farm. Within the weeks immediately following the fiduciary‘s
application to sell Berry Knoll, two motions to intervene were
filed based on rule 24(a) of the Utah Rules of Civil Procedure. This
rule provides:
Upon timely application anyone shall be permitted to
intervene in an action:
(1) [W]hen a statute confers an unconditional right to
intervene; or
(2) [W]hen the applicant claims an interest relating to
the property or transaction which is the subject of
the action and he is so situated that the disposition
of the action may as a practical matter impair or
impede his ability to protect that interest, unless
the applicant‘s interest is adequately represented
by existing parties.
UTAH R. CIV. P. 24(a).
¶9 The first of the two rule 24(a) motions was filed by appel-
lants Willie Jessop, Dan Johnson, and Merlin Jessop (the ―Appel-
lant Church Members‖). They filed this motion in their capacity as
FLDS Church members, claiming that they had ―been granted a
stewardship over the specific Trust property that is the subject‖ of
the proposed sale and that the property was essential to the ―dis-
charge [of] their sacred priesthood stewardships.‖
¶10 The second rule 24(a) motion was filed by appellants Lyle
Jeffs and James Oler (the ―Appellant Bishops‖). The Appellant
Bishops claimed that their priesthood ―responsibilities extend to
ascertaining and meeting the just wants and needs of Trust bene-
ficiaries.‖ They noted that their ecclesiastical position as bishops
gave them a ―unique interest in Berry Knoll,‖ because ―as Bish-
ops, they ha[d] the sacred priesthood charge, pursuant to scrip-
ture and belief, to ensure that the just wants and needs of their re-
spective congregations are met,‖ and further asserted that their
―eternal salvation [was] intimately connected with how well they
discharge[d] this duty.‖

4
 Cite as: 2013 UT 5
Opinion of the Court

¶11 Following oral argument, the district court denied both
motions to intervene. The court‘s ruling stated:
Categorical assertions of interest with respect to Trust
property are insufficient to establish a right to inter-
vene under Rule 24(a). What proposed Intervenors
must show—which they have not—is that they have a
legally cognizable interest in any Trust property. Any
―claim of interest‖ under Rule 24 must have a legal
basis; without it, no claimant has a right to a remedy
and, therefore, no right to participate in the case as a
party. . . . It is black letter law that potential benefi-
ciaries of charitable trusts have no right to make
claims upon such trusts. Because the UEP Trust is a
charitable trust, the only individuals with legally cog-
nizable interests are the Utah and Arizona Attorneys
General . . . as representatives of the community, and
the Court-designated Special Fiduciary.
¶12 Although the court denied the intervention motions, this
ruling did not prevent the potential intervenors from participating
in the dialogue relating to the proposed sale of Berry Knoll. In
fact, the same order that denied the intervention motions sched-
uled a public hearing on the proposed sale. At this hearing, both
current and former members of the FLDS Church were allowed to
give their input. Following the hearing, the district court issued a
written order allowing the sale of the Berry Knoll Farm.
¶13 Despite the participation they were afforded at the public
hearing, both groups of potential intervenors appealed the denial
of their motions to intervene. We held oral argument in late 2010,
but subsequently stayed further proceedings pending the resolu-
tion of parallel proceedings in federal court. These parallel pro-
ceedings were resolved in a November 5, 2012 opinion by the
Tenth Circuit, Fundamentalist Church of Jesus Christ of Latter-Day
Saints v. Horne, 698 F.3d 1295, 1299, 1302 (10th Cir. 2012), clearing
the way for our resolution of the potential intervenors‘ appeal.
II
¶14 Appellants challenge the denial of their motion to intervene
under rule 24(a) of the Utah Rules of Civil Procedure. They make
two principal arguments in support of this contention, one based

5
 IN RE UNITED EFFORT PLAN TRUST
Opinion of the Court

on rule 24(a)(1) and the other on rule 24(a)(2). We affirm under
standards of review clarified below.
A
¶15 Before considering the merits, we address the appropriate
standards of review under rules 24(a)(1) and 24(a)(2). In our prior
cases, we have sometimes stated that the appropriate standard of
review under rule 24(a) is de novo.1 But in our most recent opin-
ion addressing the rule 24(a) standard of review, Taylor-West We-
ber Water Improvement District v. Olds, 2009 UT 86, ¶ 3, 224 P.3d
709, we clarified that a motion to intervene sometimes ―involves
questions of law and fact,‖ id. (citing Moreno v. Bd. of Educ., 926
P.2d 886, 888 (Utah 1996)), and noted that while ―[w]e review the
district court‘s legal determinations for correctness,‖ we will not
disturb the court‘s factual findings ―unless they are clearly erro-
neous,‖ id. (citing Moreno, 926 P.2d at 888). Thus, our recent rule
24(a) jurisprudence evidences movement toward a more nuanced
understanding of the appropriate standard for reviewing rule
24(a) intervention decisions. And our recent decision in Manza-
nares v. Byington (In re Adoption of Baby B.), 2012 UT 35, __ P.3d __,
provides insights that permit further refinement.
¶16 In Baby B we started with the ―key‖ threshold question
―whether the trial court‘s decision qualifies as a finding of fact, a
conclusion of law, or a determination of a mixed question of law
and fact.‖ Id. ¶ 40. We also clarified the boundaries of each of the-
se categories and explained the theoretical underpinnings of the
standards of review that apply to each.
¶17 Findings of fact ―entail[] the empirical, such as things,
events, actions, or conditions happening, existing, or taking place,
as well as the subjective, such as state of mind.‖ Id. (alteration in
original) (internal quotation marks omitted). And factual deter-
minations are ―entitled to the most deference‖ (review for ―clear
error‖), because (a) a ―lower court often has a comparative ad-
vantage in its firsthand access to factual evidence,‖ and (b) there is
―no particular benefit in establishing settled appellate precedent
on issues of fact,‖ since such issues are unique to each case. Id. ¶¶
40, 52. Given this highly deferential standard, fact findings should

1See, e.g., Parduhn v. Bennett, 2005 UT 22, ¶ 13, 112 P.3d 495; In re
Marriage of Gonzalez, 2000 UT 28, ¶ 16, 1 P.3d 1074.

6
 Cite as: 2013 UT 5
Opinion of the Court

be ―overturned only when clearly erroneous.‖ Id. ¶ 40 (internal
quotation marks omitted).
¶18 Conclusions of law, by contrast, involve ―abstract legal
questions.‖ Id. ¶ 41. They are reviewed under a standard ―at the
other end of the spectrum‖: de novo. Id. ―No deference is given to
the lower court‘s analysis of abstract legal questions . . . because
the lower court has no comparative advantage in resolving legal
questions and settled appellate precedent is of crucial importance
in establishing a clear, uniform body of law.‖ Id.
¶19 ―Mixed questions fall somewhere in the twilight between
deferential review of findings of fact and searching reconsidera-
tion of conclusions of law.‖ Id. ¶ 42. They ―involv[e] application of
a legal standard to a set of facts unique to a particular case.‖ Id.
The standard of review applied to these types of questions ―de-
pends on the nature of the issue and the marginal costs and bene-
fits of a less deferential, more heavy-handed appellate touch.‖ Id.
In circumstances where we afford ―deference‖ to mixed-question
determinations, this deference ―rests on the notion that the mixed
finding is not ‗law-like‘ because it does not lend itself to consistent
resolution by a uniform body of appellate precedent, and/or on
the premise that the mixed finding is ‗fact-like‘ because the trial
court is in a superior position to decide it.‖ Id.
¶20 A determination of ―negligence in a personal injury suit
arising out of an automobile accident,‖ is just such a determina-
tion because ―[t]he particular facts and circumstances of the driv-
ers‘ conduct are likely to be so complex and varying that no rule
adequately addressing the relevance of all these facts can be
spelled out.‖ Id. ¶ 43 (internal quotation marks omitted). On the
other hand, whether a common set of recurring law enforcement
practices qualifies as a ―reasonable‖ search or seizure warrants
more searching review. Id. ¶ 44 (internal quotation marks omit-
ted). There is a significant upside to such probing review because
―both law enforcement and the general public ought to be able to
rely on a consistent rule established by set appellate precedent as
to the reasonableness of certain law enforcement procedures,‖ and
these decisions ―turn on the general reasonableness of those prac-
tices and not so much on the demeanor or credibility of a particu-
lar witness.‖ Id.

7
 IN RE UNITED EFFORT PLAN TRUST
Opinion of the Court

¶21 These principles inform our analysis of the standard of re-
view under rule 24(a). A determination under rule 24(a)(1), which
permits intervention ―when a statute confers an unconditional
right to intervene,‖ UTAH R. CIV. P. 24(a)(1), implicates two ques-
tions. The first—whether a particular statute affords a particular
class of persons an unconditional intervention right—is a pure
question of law because it involves abstract statutory construction.
A district court would not be entitled to any deference to the ex-
tent it misinterpreted an intervention statute in the abstract. But
the second question—whether a particular individual actually fits
within the class of persons entitled to intervene under a statute—
presents a classic mixed question because it ―involv[es] applica-
tion of a legal standard to a set of facts unique to a particular
case.‖ In re Adoption of Baby B., 2012 UT 35, ¶ 42. These mixed-
question determinations would be entitled to varying degrees of
deference. Id. Some determinations might turn on statutory classi-
fications that were sufficiently clear-cut and recurring that they
would be subjected to fairly searching appellate review, much like
―reasonableness‖ determinations under the Fourth Amendment.
Other determinations might instead turn on nuanced, fact-
intensive assessments more akin to negligence determinations in
auto accident cases. These types of determinations would be given
significant deference under the framework articulated above.
Thus, rule 24(a)(1) mixed determinations are entitled to varying
degrees of appellate deference.
¶22 Rule 24(a)(2) intervention determinations likewise impli-
cate a range of degrees of deference. Under this provision, a dis-
trict court must assess (a) whether the potential intervenor claims
an interest relating to the property or transaction that is the sub-
ject of the action, (b) whether the intervenor‘s ability to protect
that interest may be practically impaired or impeded by the dis-
position of the action, and (c) whether the intervenor‘s interest is
adequately represented by existing parties. See UTAH R. CIV. P.
24(a)(2); Parduhn v. Bennett, 2005 UT 22, ¶ 13, 112 P.3d 495. The
first of these inquiries involves a cold-paper review of the plead-
ings—to evaluate whether the would-be intervenor ―claims‖ an
interest in the subject-matter of the litigation. Although the in-
quiry might not lend itself to clear resolution by extensive appel-
late precedent, it is not a fact-intensive one on which the district
court would enjoy a comparative advantage, as we are in as good
a position as the district court to review the pleadings. The analy-

8
 Cite as: 2013 UT 5
Opinion of the Court

sis of whether an intervenor ―claims‖ an interest in the subject-
matter of the litigation, therefore, is a matter for relatively rigor-
ous appellate scrutiny, with little deference to the district court‘s
analysis of the claims in the pleadings. Cf. Hudgens v. Prosper, Inc.,
2010 UT 68, ¶¶ 2, 14, 243 P.3d 1275 (holding that assessment of
―claim[s]‖ under rule 12(b)(6) is subject to de novo appellate re-
view because it depends on allegations appearing on the face of
the complaint (internal quotation marks omitted)).
¶23 The other two inquiries are more fact-intensive, however,
and thus subject to deferential review. In analyzing whether an
intervenor‘s interest may be impaired or impeded as a practical
matter, or whether existing parties will adequately represent the
intervenor‘s interest, the district court typically will draw upon its
knowledge and understanding of the facts and circumstances of
the case. These are fact-bound inquiries requiring first-hand
knowledge of the nuances of a case. Review of these mixed de-
terminations is accordingly deferential.
¶24 And of course the ultimate determination regarding inter-
vention under rule 24(a)(2) would also be subject to deferential
review. By nature, this determination—balancing the three inquir-
ies outlined above—is a discretionary, case-specific one that does
not ―lend itself to consistent resolution by a uniform body of ap-
pellate precedent.‖ In re Adoption of Baby B., 2012 UT 35, ¶ 42.2 We
accordingly review rule 24(a)(2) determinations deferentially,
even though at least one element of the analysis (regarding the
assertion of a ―claim‖) is reviewed de novo.
B
¶25 Appellants advance two principal contentions subject to
our review under the above standards. First, they assert that the

2 See also United States v. Hooker Chems. & Plastics Corp., 749 F.2d
968, 983 (2d Cir. 1984) (―The various components of [rule 24(a)(2)]
are not bright lines, but ranges—not all ‗interests‘ are of equal
rank, not all impairments are of the same degree, representation
by existing parties may be more or less adequate . . . . Application
of the Rule requires that its components be read not discretely, but
together . . . [and] common sense demands that consideration also
be given to matters that shape a particular action or particular
type of action.‖).

9
 IN RE UNITED EFFORT PLAN TRUST
Opinion of the Court

district court erred in declining to allow intervention under rule
24(a)(1), which provides for mandatory intervention ―when a
statute confers an unconditional right to intervene.‖ UTAH R. CIV.
P. 24(a)(1). They claim that Utah Code section 75-7-405(3) gives
them such a right. It states that ―[t]he settlor of a charitable trust,
among others, may maintain a proceeding to enforce the trust.‖
UTAH CODE § 75-7-405(3) (emphasis added). According to appel-
lants, the statute‘s reference to ―others‖ refers to those individuals
satisfying the ―special interest‖ exception to the general rule deny-
ing charitable beneficiaries standing to enforce a trust. They fur-
ther assert that they fall within this exception.
¶26 Under the common law rule, suits to enforce the terms of
charitable trusts generally may not be maintained by trust benefi-
ciaries. See RESTATEMENT (SECOND) OF TRUSTS § 391 (explaining
that only a few limited groups of individuals—including ―the At-
torney General or other public officer‖—are entitled to enforce a
charitable trust). This general rule denying standing to potential
trust beneficiaries is not surprising. In its absence, charitable trusts
could ―frequently be subjected to unreasonable and vexatious liti-
gation‖ because beneficiaries are generally ―some or all of the
members of a large shifting class of the public.‖ GEORGE G.
BOGERT ET AL., THE LAW OF TRUSTS AND TRUSTEES § 411 (2d ed.
1991). This potential for unlimited litigation would be problematic
given that charitable trusts are created to serve the public good
and have finite resources. The larger the group of individuals that
is permitted to meddle with charitable trust management deci-
sions, the more likely that trust resources will be diverted from
the trust‘s charitable, public-good purposes and devoted instead
to litigation costs and attorney fees.
¶27 But despite the powerful policy considerations underlying
this general rule, it is not absolute. Some courts have created a
narrow exception for beneficiaries deemed to have a ―special in-
terest‖ in the administration of a charitable trust. See, e.g., Hooker
v. Edes Home, 579 A.2d 608, 614 (D.C. 1990). We have not yet rec-
ognized this ―special interest‖ exception. And examination of the
―special interest‖ jurisprudence in other jurisdictions demon-
strates that the contours of the exception are ill-defined.3 To the

3 See Mary Grace Blasko et al., Standing to Sue in the Charitable
Sector, 28 U.S.F. L. REV. 37, 61 (Fall 1993) (identifying five ―ele-

10
 Cite as: 2013 UT 5
Opinion of the Court

extent there is consensus, however, appellants assert that the
―special interest‖ caselaw has primarily focused on two factors:
(1) whether the person invoking the exception is among a class of
potential beneficiaries that is sharply defined and limited in num-
ber, and (2) whether the challenge is to an act of ―fundamental‖
nature, rather than a challenge to the trustee‘s normal exercise of
discretion.
¶28 For purposes of our analysis here, we need not decide
whether Utah Code section 75-7-405(3)‘s reference to ―others‖ en-
compasses the special interest exception as defined by the caselaw
cited by appellants. Even assuming arguendo that it does, appel-
lants‘ reliance on the special interest exception is unavailing for
two reasons.
¶29 First, the mere statement that certain other individuals
―may maintain a proceeding to enforce [a] trust,‖ see UTAH CODE §
75-7-405(3), does not obviously trigger rule 24(a)(1), which allows
intervention only where ―a statute confers an unconditional right
to intervene,‖ UTAH R. CIV. P. 24(a)(1). This statutory section, after
all, says nothing about intervention. And courts interpreting the
federal counterpart to our rule 24 ―have been hesitant to find an
unconditional statutory right of intervention‖4 unless a statute ex-
pressly grants such a right. 7C CHARLES ALAN WRIGHT ET AL.,
FEDERAL PRACTICE AND PROCEDURE § 1906 (3d ed. 2012).5 Thus,

ments‖ from the relevant caselaw ―across state jurisdictions‖ that
―influence a court‘s willingness to allow a private party to sue for
the enforcement of charitable obligations,‖ one of which is ―sub-
jective and case-specific factual circumstances,‖ and noting that
―[t]he presence of any one of these factors by itself can lead a
court to decide that the plaintiff has a special interest in a chari-
ty‖).
4 It is an ―unusual situation[] in which there is an unconditional
statutory right to intervene.‖ 7C CHARLES ALAN WRIGHT ET AL.,
FEDERAL PRACTICE AND PROCEDURE § 1908 (3d ed. 2012).
5 See also US W. Commc’ns, Inc. v. TCG Seattle, 971 F. Supp. 1365,
1368 (W.D. Wash. 1997) (concluding that 28 U.S.C. § 2403(a),
which provides that ―[i]n any action, suit or proceeding in a court
of the United States to which the United States or any agency, of-
ficer or employee thereof is not a party, wherein the constitution-

11
 IN RE UNITED EFFORT PLAN TRUST
Opinion of the Court

statutes providing express private rights of action do not automat-
ically trigger rule 24(a)(1). Id.6 That construction of the rule makes
good sense as a policy matter. Broadly permissive intervention
rules can allow a lawsuit to become ―fruitlessly complex or un-
ending.‖ Smuck v. Hobson, 408 F.2d 175, 179 (D.C. Cir. 1969) (plu-
rality opinion).7 And because a separate lawsuit does not create
the same risk of generating overly complex or never-ending litiga-
tion, there are good reasons for not presupposing that a statute
affording a private right of action also creates an unequivocal
right of intervention. Thus, section 75-7-405(3)‘s creation of a right
to ―maintain a proceeding to enforce [a] trust‖ does not appear to
afford appellants the right to intervene under rule 24(a)(1).
¶30 Second, even assuming that the cited statute were enough
to establish an unequivocal right to intervene in the class of per-
sons with a ―special interest,‖ it is not clear that appellants qualify
for that class. And the district court‘s ―mixed question‖ determi-
nation that they do not is entitled to deference. A district judge
who supervises a charitable trust‘s administration on an ongoing
basis is in a better position than we are to make the fact-bound as-
sessments of (a) whether allowing a particular group of benefi-
ciaries to intervene creates a significant risk of future, vexatious
litigation, and (b) whether a particular fiduciary decision is fun-

ality of any Act of Congress affecting the public interest is drawn
in question, the court shall certify such fact to the Attorney Gen-
eral, and shall permit the United States to intervene for presenta-
tion of evidence,‖ afforded a right to intervene under rule 24(a)(1)
of the Federal Rules of Civil Procedure).
6 For example, most courts have concluded that the Fair Labor
Standards Act does not provide an unconditional right to inter-
vene, even though it provides that a suit may be maintained ―by
any one or more employees for and in behalf of themselves and
other employees.‖ See 7C WRIGHT & MILLER, supra note 4, § 1906
(internal quotation marks omitted).
7 See also United States v. Pitney Bowes, Inc., 25 F.3d 66, 69 (2d Cir.
1994) (―Intervention is a procedural device that attempts to ac-
commodate two competing policies: efficiently administrating le-
gal disputes by resolving all related issues in one lawsuit, on the
one hand, and keeping a single lawsuit from becoming unneces-
sarily complex, unwieldy or prolonged, on the other hand.‖).

12
 Cite as: 2013 UT 5
Opinion of the Court

damental, as opposed to being an ordinary exercise of discretion.
See supra ¶¶ 27–28.
¶31 In rejecting the intervenors‘ assertion that they fit within
the ―special interest‖ exception, the district court‘s order expressly
incorporated a portion of the Arizona Attorney General‘s brief.
This brief noted that the first element of the ―special interest‖ ex-
ception was not satisfied because the ―class of beneficiaries is po-
tentially in the thousands and is indefinite.‖ Additionally, it noted
that the second element of the ―special interest‖ exception was
unsatisfied because ―sale of property is an ordinary exercise of
discretion, and there is no credible allegation that the trust will
cease to exist if the farm is sold.‖ Appellants have offered no per-
suasive reason for rejecting either of these fact-bound determina-
tions, and we accordingly affirm them.
¶32 There was a substantial basis in the record for the district
court‘s determination that the class of beneficiaries was sufficient-
ly large and indefinite that permitting intervention would create
the possibility of vexatious litigation. After all, the group of poten-
tial Trust beneficiaries is still open because it includes both (a)
those ―who can demonstrate that they have previously made Con-
tributions to either the Trust or the FLDS Church,‖ and (b) those
―who subsequent to the date of this Agreement make documented
Contributions to the Trust which Contributions are approved by
the Board.‖ And, significantly, there are already many thousands
of potential trust beneficiaries. In light of these facts, the district
court reasonably could have concluded that the potential for bene-
ficiary intermeddling might overwhelm administration of the
Trust in a way that would cripple its ability to effectively pursue
its charitable objectives.
¶33 There is also a substantial basis for the district court‘s con-
clusion that the sale of the Berry Knoll property is nothing more
than an exercise of the trustee‘s ordinary discretion. Although a
fundamental change to the Trust did occur when it was reformed
by the district court in 2006 and subsequently began operating ac-
cording to secular principles, this reformation went unchallenged
and any further challenges to it are barred. See Fundamentalist
Church of Jesus Christ of Latter-Day Saints v. Lindberg, 2010 UT 51,
¶ 1, 238 P.3d 1054. And the action that the potential intervenors
seek to challenge—the sale of Trust property—falls squarely with-
in the powers granted to the trustee under the reformed Trust.

13
 IN RE UNITED EFFORT PLAN TRUST
Opinion of the Court

There is simply nothing within the Trust document that could
sustain a contrary conclusion grounded in the notion that a sale
would ―deprive Appellants and all FLDS faithful of physical and
spiritual and sacred benefits of the land.‖ The Trust does not re-
quire the trustee to take into account the religious significance of
trust assets when contemplating their sale, even though the trus-
tee may choose to take into account recommendations from author-
ized representatives of the FLDS Church. Appellants‘ reliance on
rule 24(a)(1) is accordingly unavailing.
C
¶34 Appellants also assert that the district court erred in not al-
lowing them to intervene under rule 24(a)(2). This rule permits
intervention of right when four criteria are satisfied: (1) the mo-
vant filed a timely motion, (2) the movant claims ―an interest in
the subject matter‖ of the litigation, (3) the movant‘s ―interest is or
may be inadequately represented‖ by the present parties, and (4)
the movant‘s interest may be impaired or impeded by a disposi-
tion in the action (so long as that interest is not adequately repre-
sented by existing parties). See UTAH R. CIV. P. 24(a)(2); Parduhn,
2005 UT 22, ¶ 13 (internal quotation marks omitted).
¶35 The district court based its denial of the rule 24(a) motion
primarily on the second criterion. It noted that ―categorical asser-
tions of interest with respect to trust property are insufficient to
establish a right to intervene‖ and concluded that the intervenors
had not asserted a sufficient interest to warrant intervention. And
although the specific aspect of the 24(a)(2) determination that re-
quires assessment of whether an appellant ―claims an interest re-
lating to the property or transaction which is the subject of the ac-
tion‖ is entitled to less deference than the other aspects of the
24(a)(2) determination, see supra Part II.A., in this instance we see
no reason to fault the district court‘s determination that appellants
failed to claim an interest sufficient to warrant intervention.
¶36 For reasons noted above, see supra Part II.B, appellants are
unable to demonstrate that they satisfy the ―special interest‖ ex-
ception to the general bar on charitable beneficiary standing. This
surely provides some support for the district court‘s conclusion
that appellants‘ ―interest‖ is insufficient to support intervention,
although there is some dicta in our cases indicating that inde-
pendently establishing ―standing‖ may be unnecessary where a

14
 Cite as: 2013 UT 5
Opinion of the Court

party otherwise meets the requirements of rule 24(a)(2). See Tay-
lor-W. Weber Water Improvement Dist. v. Olds, 2009 UT 86, ¶ 6 n.2,
224 P.3d 709. We need not, however, resolve here the open issue
of whether the standing question is dispositive of the rule 24 ―in-
terest‖ inquiry, because it is sufficiently clear that the district court
did not err in concluding that the express terms of rule 24(a)(2)
were not satisfied by appellants‘ asserted ―interests.‖
¶37 The Appellant Bishops asserted an ―interest‖ arising from a
―sacred priesthood charge, pursuant to scripture and belief‖ and
grounded in the ―tenets of the FLDS faith,‖ while the Appellant
Church Members claimed an ―interest‖ stemming from a ―priest-
hood stewardship that each was granted.‖ While we do not ques-
tion the importance of these interests in the abstract, that is not the
question under rule 24(a)(2). Rather, the rule requires an ―interest
in the subject matter of the litigation.‖ See UTAH R. CIV. P. 24(a)(2);
Parduhn v. Bennett, 2005 UT 22, ¶ 13.8
¶38 Rule 24(c) of the Utah Rules of Civil Procedure provides
helpful context for evaluating rule 24(a)(2)‘s ―interest‖ require-
ment. Under 24(c), a party moving for intervention must file an
accompanying ―pleading setting forth the claim or defense for
which intervention is sought.‖ Id. 24(c) (emphasis added). And
rule 8 of the Utah Rules of Civil Procedure, in turn, sets forth the
requirements for pleading claims and defenses, requiring for the
assertion of a ―claim‖: ―(1) [a] statement of the claim showing that
the party is entitled to relief; and (2) [a] demand for judgment for
specified relief.‖ Id. 8(a). Appellants have asserted no such claim.
Their purported ―interests‖ are abstract ones, disconnected from
any ―demand for judgment for specified relief.‖ Absent such a
claim, we affirm the determination of the district court that appel-

8 See Interstate Land Corp. v. Patterson, 797 P.2d 1101, 1108 (Utah
Ct. App. 1990) (―The applicant‘s interest in the subject matter of
the dispute must be a direct claim upon the subject matter of the
action such that the applicant will either gain or lose by direct op-
eration of the judgment to be rendered, not a mere, consequential,
remote or conjectural possibility of being in some manner affected
by the result of the original action.‖ (internal quotation marks
omitted)).

15
 IN RE UNITED EFFORT PLAN TRUST
Opinion of the Court

lants lacked an interest in the subject matter of the dispute suffi-
cient to sustain their intervention under rule 24(a)(2).9
¶39 This litigation involved the Trust and the property admin-
istered according to its terms. Thus, the Trust necessarily delimits
the scope of the ―interests‖ that can support intervention to those
that would provide an appropriate basis for granting a legal
judgment or relief to a participant in the ongoing Trust admin-
istration proceedings. And the Trust‘s express terms provide am-
ple support for the district court‘s conclusion that appellants‘ as-
serted religious interests were not interests of this type.
¶40 After all, the reformed Trust states that ―administration of
the trust shall be based on neutral principles of law‖ and ―shall
not be based on religious doctrine or practice.‖ And while the
Trust allows for the consideration of ―ecclesiastical input,‖ it ex-
pressly provides that such input is ―non-binding‖ and that reli-
gion is ―only one criterion to be considered, and shall not be the
controlling criterion.‖ The most generous possible reading of the-
se provisions indicates that religious interests are entitled to be
informally considered in the course of the Trust administration,10

9 This conclusion is particularly appropriate in a case like this
one where the potential intervenors sought to participate in the
ongoing administration of a charitable trust. In this context, allow-
ing a party who lacks a legally-supported claim or defense to in-
tervene would undermine the rationale underlying the general
rule of non-standing for charitable beneficiaries by permitting ex-
pansive intervention (and extensive litigation) premised on ab-
stract ―interests‖ not relevant under the terms of the charitable
trust at issue. See supra ¶ 26.
10 The district court judge‘s written order denying the motion to
intervene noted that she had worked to ensure that these religious
interests were adequately considered in the past and that she
would continue to ensure that they were adequately considered in
the future. Her summation of the matter shows the care the court
took in considering such views, and is worth quoting at length:
―Since the inception of this case the Court has agreed to consider
comments from various non-parties, including interested poten-
tial beneficiaries, and has broadly noticed its hearings to anyone
who is interested. Upon request, the Court has also been willing

16
 Cite as: 2013 UT 5
Opinion of the Court

not that these interests somehow entitle those asserting them to
the formal protections and rights afforded to those with party sta-
tus. And here the district court ensured that these interests were
informally considered in the making of the Berry Knoll sale deci-
sion by holding a ―public meeting‖ and permitting FLDS adher-
ents (including some of the appellants and their counsel) to partic-
ipate and present their views. Thus, in light of the secular refor-
mation of the Trust and the very limited role that religious inter-
ests now play under it, we affirm the district court‘s determina-
tion that the religious interests asserted by appellants were insuf-
ficient to sustain rule 24(a)(2) intervention.
———————

to include such individuals (or their counsel) in the distribution of
Court decisions. Those actions by the Court should not be under-
stood as anything more than what they are—a courtesy to inter-
ested individuals and as a way of ensuring that the Court receives
relevant input on issues affecting the Trust. The Court remains
committed to receiving input from non-parties in order for the
Court to be fully and fairly informed on the issues it must decide.
However, the Court‘s courtesies should not be misunderstood to
imply that the Court recognizes those individuals as having
standing in the case.‖

17