In the matter of the general determination of the rights to the use of all the water, both surface and underground, within the drainage area of Utah Lake and Jordan River in Utah, Salt Lake, Davis, Summit, Wasatch, Sanpete and Juab Counties, in Utah.
Evan Johnson, Appellant. Utah State Engineer, Provo River Water Users Association, Metropolitan Water District of Salt Lake & Sandy, Utah Lake Distributing Company, Central Utah Water Conservancy District, and United States of America, Appellees,
District Court, Salt Lake Department The Honorable Laura
Scott No. 360057298
S. Cannon and Jared C. Clark, Attorneys for Appellant.
D. Reyes, Sarah M. Shechter, Benjamin J. Jensen, Margaret C.
Osswald, and Norman K. Johnson, Attorneys for Appellee Utah
E. Draney, Scott H. Martin, and Danica N. Cepernich,
Attorneys for Appellees Provo River Water Users Association,
Metropolitan Water District of Salt Lake & Sandy, and
Utah Lake Distributing Company
E. Clyde, Edwin C. Barnes, Aaron D. Lebenta, and Emily E.
Lewis, Attorneys for Appellee Central Utah Water Conservancy
C. Cruden, Nicholas A. Dimascio, Jeannette F. Swent, and
Katherine W. Hazard, Attorneys for Appellee United States of
Jill M. Pohlman authored this Opinion, in which Judges
Gregory K. Orme and David N. Mortensen concurred.
Evan Johnson appeals the district court's grant of
summary judgment to the Utah State Engineer (Engineer),
whereby the court dismissed Johnson's objection to
Engineer's Amendment to the Proposed Determination (the
Amendment) for the Goshen Valley Subdivision and affirmed the
Amendment. We affirm.
This case involves adjudication of water rights within the
drainage area of Utah Lake and Jordan River. In 1981,
Johnson's predecessor in interest, the East Warm Creek
Irrigation and Canal Company (the Company), filed a statement
of water user's claim (the Original Claim) in the Utah
Lake and Jordan River adjudication. The Company claimed right
to 4.96 cubic feet per second of water from Warm Springs to
irrigate 407.5 acres of land and water 250 livestock units
based on a priority date before 1900. In 1985, Engineer
prepared and filed with the district court a Proposed
Determination for the Goshen Valley Subdivision, of which the
Original Claim was a part. No party- including the Company or
Johnson-filed an objection to the Proposed Determination.
In 1999, nearly fourteen years later, the Company filed a
diligence claim (the Diligence Claim) with Engineer in which
it claimed water rights from Warm Springs to irrigate an
additional 64.6 acres of land. In its explanatory remarks,
the Company represented that the "owner for this
diligence claim is the same as the original diligence claim,
" referring to the Original Claim filed in 1981. It also
explained that "[t]he original claim only accounted for
407.5 acres and the company wants to apply for the 64.6 acres
that were left off and have always been used by [the
Company]." Approximately two weeks after filing the
Diligence Claim, the Company transferred a fifty percent
interest in the Diligence Claim to Johnson.
In October 2000, and after conducting some on-site evaluation
of the Diligence Claim, Engineer filed with the district
court the Amendment, which recommended to the court that the
Diligence Claim be disallowed. Johnson objected to the
Amendment. After many years of discovery and negotiations
between Johnson and Engineer-which included a failed
stipulation between the two as to the Diligence
Claim-Engineer in 2016 moved for summary judgment on
Johnson's objection. Engineer characterized the Diligence
Claim as "an attempt to claim additional acreage that
the Company failed to include" in the Original Claim.
Engineer argued that the Diligence Claim was barred by Utah
Code section 73-4-9 due to the Company's failure to
timely file a claim for the water identified therein.
Engineer also asserted that the Diligence Claim could not be
used to modify the Proposed Determination, "because the
only proper mechanism for correcting or modifying a proposed
determination is through filing an objection [to it] with the
district court, " which neither Johnson nor the Company
Johnson opposed the summary judgment motion, arguing that it
was improper for Engineer to amend the Proposed Determination
regarding "property and water rights not previously
included in the Determination without giving an affected
party sufficient opportunity to be heard." He contended
that due process required that he have an opportunity to be
heard regarding the water rights he asserted in the Diligence
Claim. He also asserted a laches defense, contending that the
parties who had objected to the Diligence Claim had waited
fifteen years to pursue their objections and that he was
prejudiced by the delay. He contended that the evidence
establishing the Diligence Claim faded and became harder to
obtain, and that during the delay he had also relied on the
rights he asserted in the Diligence Claim. And he argued that
the objecting parties' failure to pursue remedies
constituted a fatal failure to prosecute.
The district court granted summary judgment in favor of
Engineer. The court made four determinations. First, the
court concluded that the Diligence Claim was "untimely
and that the water right had already been addressed in the
original Proposed Determination." In particular, the
court determined that the Diligence Claim was "an
expansion of the water rights claimed in [the Original
Claim], " and the court concluded that the Company was
"forever barred and estopped" under section 73-4-9
from asserting the Diligence Claim, that the Company
"forfeited" the Diligence Claim water, and that
"the 2000 Amendment properly disallowed" the claim.
(Internal quotation marks omitted.)
Second, the court determined that the 2000 Amendment
"did not revive Mr. Johnson's right to assert a
claim for additional water in the Goshen Valley adjudication
or to challenge the original Proposed Determination."
Rather, the court noted that the "only way" to
challenge the Proposed Determination was through filing an
objection under section 73-4-11, and it concluded that the
"time to file an objection to the original Proposed
Determination passed in 1985." As a result, the court
concluded that Johnson could not "rely on the 2000
Amendment to revive any right to assert a claim for water in
the general adjudication or object to the State
Engineer's recommendations in the original Proposed
Third, the court concluded that the Company and Johnson
"were afforded the process due to them" under the
general adjudication statutes. The court determined that the
Company "was afforded sufficient due process in
connection with the original Proposed Determination in the
1980s, " and that Johnson, as the Company's
successor in interest, was "not entitled to any more
rights than the Company had, and thus is bound by the
timeframes for filing a water user's claim and an
objection that apply to the Company."
Fourth, the court was "not persuaded" by
Johnson's laches argument. The court explained that
"[n]ot only did Mr. Johnson have both the opportunity
and responsibility to pursue his own objection, he did not
demonstrate that he would suffer any injury or prejudice in
his ability to support his objection."
The court therefore granted Engineer's motion for summary
judgment, dismissed Johnson's objection, and affirmed the
Amendment. Johnson appeals that order.
AND STANDARDS OF REVIEW
Johnson makes several arguments on appeal. First, he argues
that the district court incorrectly interpreted and applied
the general adjudication statutes to bar the Diligence Claim,
and that thereby he has been improperly denied his due
process rights. He also argues that the district court
incorrectly determined that laches and/or failure to
prosecute did not bar Engineer from opposing the Diligence
Claim or third parties from continuing to assert their
objections to the Diligence Claim.
Johnson's arguments of error all flow from the district
court's summary judgment decision. "We review a
district court's legal conclusions and ultimate grant or
denial of summary judgment for correctness, and view the
facts and all reasonable inferences drawn therefrom in the
light most favorable to the nonmoving party. Likewise, we
review a district court's interpretation and application
of a statute for correctness." Timothy v. Pia,
Anderson, Dorius, ...