District Court, Brigham City Department The Honorable Brandon
J. Maynard No. 090100270
E. Mansfield, Steven J. Joffee, Megan E. Garrett, and Gregory
H. Gunn, Attorneys for Appellants and Cross-appellees
Matthew Moscon, Cameron L. Sabin, and R. Chad Pugh, Attorneys
for Appellee and Cross-appellant
Kate A. Toomey authored this Opinion, in which Judges Gregory
K. Orme and David N. Mortensen concurred.
This appeal stems from Rocky Mountain Power's (Rocky
Mountain) condemnation to obtain easements across Randy E.
Marriott's (Marriott) property. Marriott appeals, arguing
that the district court erred in excluding evidence of
damages resulting from the easements' interference with
potential mining. Rocky Mountain cross-appeals, asserting
that the district court erred in granting Marriott partial
summary judgment on a provision in Rocky Mountain's
amended condemnation complaint. We affirm the district
court's grant of partial summary judgment to Marriott.
But we reverse the district court's ruling that excluded
evidence of damages resulting from lost potential mining and
remand to that court for further proceedings consistent with
Seeking to construct an electric transmission line (the New
Line), Rocky Mountain filed a complaint for condemnation to
obtain easements across approximately 453 acres of land (the
Property) belonging to Marriott. Soon after, the parties
stipulated to Rocky Mountain's occupancy of the
easements, and Rocky Mountain began construction on the New
Line. Marriott then requested that a jury determine the
appropriate amount of "just compensation."
At the time of the condemnation, Marriott possessed two small
mining permits, which authorized him to mine for sand and
gravel aggregate on a ten-acre portion of the Property.
Although the mining operation was relatively small, Marriott
had applied for a large mining permit from the Division of
Oil, Gas and Mining (DOGM). In the application (the Proposed
Permit), Marriott provided plans to mine 145 acres of the
Property in two phases. Phase one consisted of 35 acres, and
phase two consisted of 110 acres. The Proposed Permit
estimated that it would take "between 8 and 15
years" to complete phase one and did not include a time
frame for phase two. DOGM had indicated to Marriott that the
Proposed Permit would be approved.
To support his proposed "just compensation,"
Marriott provided evidence of the market value of the land
supporting the New Line. That evidence included lost value
because of the New Line's interference with potential
mining on the Property. Marriott asserted that the New Line
"greatly diminishes the ability to mine gravel products
not only directly beneath the [New Line] . . . but also the
areas surrounding [it]." Although the land supporting
the New Line was not included in the Proposed Permit,
Marriott asserted that he planned to eventually exploit
"all mineable areas of the [P]roperty."
Accordingly, Marriott argued that the loss of potential
mining should be included in his award of just compensation.
Rocky Mountain disagreed with Marriott's proposed
damages. It asserted that damages should be based solely on
uses to which the Property could have been put at the time of
the condemnation. Rocky Mountain pointed to various
preexisting encumbrances on the Property, which created legal
barriers to Marriott's proposed mining development. Given
those legal barriers, Rocky Mountain believed that
Marriott's alleged mining plans were speculative, and
therefore the lost value of that potential mining should not
be considered in determining Marriott's award of just
For example, the Property was bisected by an irrigation canal
(the Canal), which the federal government owned in fee.
Although Marriott conceded he did not have the unilateral
right to relocate the Canal, he asserted that he always
planned to move the Canal and believed a relocation was
possible. Thus, Marriott included losses of potential mining
that would have required the Canal's relocation.
Rocky Mountain attempted to avoid these potential damages by
amending its condemnation complaint. It added a provision
(the Canal Provision), which provided that, if Marriott
received written approval from the federal government to
relocate the Canal, Marriott had the right to request that
Rocky Mountain relocate portions of the New Line to allow
mining operations on the Property. If that happened, Rocky
Mountain would be obligated either to relocate the New Line
at its own expense or pay Marriott "the fair market
value of the Deposits that would otherwise be made accessible
for mining by the relocation of the [New Line]."
In response to the amendment, Marriott filed a motion for
partial summary judgment, asking the court to strike the
Canal Provision. That motion first cited the Utah Code,
stating that "damages shall be considered to have
accrued at the date of the service of summons,"
see Utah Code Ann. § 78B-6-512(1) (LexisNexis
2012), and that the condemnor "shall, within 30 days
after final judgment, pay the sum of the money
assessed," see id. § 78B-6-514. Marriott
then asserted that the Canal Provision was impermissible
because it "propose[d] that some of the damages will
only be calculated and paid in the future."
After reviewing the arguments, the district court granted
Marriott's motion for partial summary judgment. It found
that there were no disputes of material fact, and that the
Canal Provision was "not permissible under Utah Law for
the reasons stated in" Marriott's motion. The court
therefore struck the Canal Provision from the condemnation
Apart from the Canal, two more preexisting encumbrances
created legal barriers to potential mining on the Property.
These encumbrances included a fifty-foot-wide easement owned
by Rocky Mountain that contained an electric transmission
line, and a thirty-foot-wide easement owned by Questar Gas
that contained a natural gas pipeline (collectively, the
Utility Lines). Marriott did not have the unilateral right to
relocate the Utility Lines. The relocation process involved
formal procedures, including the proposal of alternate routes
and the payment of assessment fees. Further, whether to grant
relocation requests was within the discretion of Rocky
Mountain and Questar, and their decisions were not subject to
review or appeal. But Marriott nonetheless claimed he
intended to relocate the Utility Lines to facilitate his
mining plans. And he claimed damages for the lost value of
potential mining that depended on their relocation.
Rocky Mountain opposed Marriott's proposed damages by
filing two motions to exclude evidence (the Motions to
Exclude). In the first motion, Rocky Mountain asked the court
to exclude evidence of losses that depended on Marriott's
ability to relocate the Utility Lines. That motion asserted
that Marriott's "position that the Utility Lines . .
. could be relocated is not a 'reasonable certainty.'
It is fantasy." Rocky Mountain noted that Marriott has
"no unilateral right to relocate the Utility Lines and
never obtained consent from [Rocky Mountain] or Questar to
relocate those lines." Further, Marriott had "never
asked [Rocky Mountain] or Questar to move the Utility Lines
or the Easements" and "it is impossible to know how
that request would have been received." Before approving
such a request, Rocky Mountain and Questar "would need
to consider many factors, including . . . the proposed new
locations and replacement routes of the easements, whether
other third parties would have to approve the relocations and
whether such approvals had been obtained, . . . the cost of
relocating the lines and the future maintenance costs,"
etc. The first motion also noted that Rocky Mountain and
Questar had complete discretion to grant or deny relocation
requests. In sum, Rocky Mountain argued that the
"hypothetical relocation of the [Utility Lines] . . .
cannot be a factor in determining the amount of reasonable
compensation to which [Marriott is] entitled."
In the second motion, Rocky Mountain asked the court to
exclude evidence of losses that depended on Marriott's
ability to obtain authorization to mine areas where mining
was not permitted at the time of the condemnation. To support
that request, Rocky Mountain noted "it was impossible to
know" whether DOGM would approve the Proposed Permit.
Further, even if the Proposed Permit were approved, Marriott
sought compensation for lost mining in areas the Proposed
Permit would not cover. Rocky Mountain stated,
"[Marriott's] claim that [he] would have received
DOGM's approval to revise a non-existent mine permit is
too speculative." Thus, it asked the district court to
exclude evidence of damages from potential lost mining in
areas that would be authorized only if the Proposed Permit
was approved. In the alternative, it asked the court to
exclude evidence of damages from lost mining in areas that
were not covered by the Proposed Permit.
When Rocky Mountain filed the Motions to Exclude, the parties
had not concluded fact discovery, and expert discovery had
not begun. Fact discovery was scheduled to end the following
month, initial expert disclosures were due approximately four
months later, expert rebuttal reports were due approximately