Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re General Determination of Rights to Use of all Water

Court of Appeals of Utah

June 14, 2018

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.
v.
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,

          Third District Court, Salt Lake Department The Honorable Laura Scott No. 360057298

          Cole S. Cannon and Jared C. Clark, Attorneys for Appellant.

          Sean D. Reyes, Sarah M. Shechter, Benjamin J. Jensen, Margaret C. Osswald, and Norman K. Johnson, Attorneys for Appellee Utah State Engineer

          Shawn 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

          Steven E. Clyde, Edwin C. Barnes, Aaron D. Lebenta, and Emily E. Lewis, Attorneys for Appellee Central Utah Water Conservancy District.

          John C. Cruden, Nicholas A. Dimascio, Jeannette F. Swent, and Katherine W. Hazard, Attorneys for Appellee United States of America.

          Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

          POHLMAN, JUDGE.

         ¶1 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.

         BACKGROUND

         ¶2 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.

         ¶3 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.

         ¶4 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 filed.

         ¶5 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.

         ¶6 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.)

         ¶7 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 Determination."[1]

         ¶8 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."

         ¶9 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."

         ¶10 The court therefore granted Engineer's motion for summary judgment, dismissed Johnson's objection, and affirmed the Amendment. Johnson appeals that order.

         ISSUES AND STANDARDS OF REVIEW

         ¶11 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.

         ¶12 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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.