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Polygamous church argues state-controlled land trust violates religious freedom

Published: Saturday, Dec. 4 2010 1:42 a.m. MST

This is a view from "Berry Knoll" with Colorado City, Arizona in the background on Oct. 1, 2010. The knoll is part of a $110 million communal land trust at the center of a dispute between the church and a court-appointed accountant managing its assets.

George Frey, Associated Press

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SALT LAKE CITY — Attorneys for a southern Utah polygamous church asked a federal judge Friday to bar the state from administering a communal land trust the sect once controlled because it tramples on principles of religious freedom.

The Fundamentalist LDS Church argued in U.S. District Court that the state of Utah violated its constitutional rights when it took over its charitable trust known as the United Effort Plan five years ago. Consequently, it doesn't have the right to put up for sale a 740-acre parcel known as Berry Knoll, a site FLDS members hold as a sacred site for a future temple. The FLDS Church wants Benson to issue an injunction that would halt administration of the trust.

FLDS lawyer Rod Parker likened the state's action to the federal government taking over the Mormon church in 1890 and seizing its property. "There are many parallels to what is happening here today," he told Judge Dee Benson.

At one point, Parker had the original trust document in one hand and a book of scripture in the other.

"What I really want to do is read from this," he said, holding up the black book. "It's the Doctrine and Covenants."

Attorneys for the trust contend the state stepped in because church leader Warren Jeffs and others used the assets for their own benefit and left holdings vulnerable to liquidation through default judgments in civil lawsuits.

"The church and the trust are not the same thing. There was no attempt by the state to take over the church," said Jerrold Jensen, an assistant Utah attorney general.

Benson heard arguments and asked questions of both sides for more than three hours, touching several times on whether the state considered its action a violation of religious freedom.

"It's not whether it's prudent. It's whether it's constitutional," Benson said. He told trust attorneys the issue really comes down to the establishment of religion clause in the First Amendment, saying all the other arguments are "smoke and mirrors."

UEP trust attorney Jeff Shields said the trust is not church doctrine. "This is just their way of administering some real estate," he said.

Attorneys for the trust also argued that the Utah Supreme Court has already ruled in favor of the trust on the same issues the FLDS Church raised Friday and that the federal court doesn't have jurisdiction in the case. The church's only remedy, they said, is the U.S. Supreme Court.

The trust, valued at more than $110 million, holds most of the property and homes in the FLDS-dominated communities of Hildale, Utah, and Colorado City, Ariz., which straddle the states' border. There are also properties in Bountiful, British Columbia. The church believes communal living is a religious principle and formed the trust so that faithful church members could share their collective assets.

In 2006, 3rd District Judge Denise Lindberg approved changes that stripped religious requirements from the trust, allowing former FLDS members to claim beneficiary rights.

Parker said the court "rewrote the core doctrines of religion to fit the state's needs. They can't do that. It wasn't legitimate."

Lindberg initially approved the sale of Berry Knoll in 2008. That sparked a legal battle, including a previous petition for a federal injunction, which has lasted two years and temporarily stopped plans for the sale, which trust managers say is needed to pay off debts. In 2008, Benson decided against an injunction so the matter could be argued in state court. The FLDS renewed its petition to block the sale in October after Lindberg ruled the sale should go forward.

Benson did not make a decision Friday, though lawyers for the UEP trust wanted him to act quickly because the bids for Berry Knoll are due Dec. 13. He said he won't be pressured to rule until he has carefully considered the issues.

Meantime, Benson asked both parties to agree by next Wednesday how to handle the pending sale. Shields said it will likely take postponing the bid deadline. Benson said if they don't come to an agreement by next Wednesday, he would freeze the sale until he rules.

Contributing: Associated Press

e-mail: romboy@desnews.com

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