Direct Appeal, Eighth District, Duchesne The Honorable Samuel
P. Chiara No. 560800056
H. Mabey Jr., David C. Wright, Jonathan R. Schutz, Salt Lake
City, for appellant.
P. Matkin, Matthew E. Jensen, Salt Lake City, for appellee
D. Reyes, Att'y Gen., Stanford E. Purser, Dep. Solic.
Gen., Norman K. Johnson, Benjamin J. Jensen, Sarah M.
Shechter, Melissa Reynolds, Asst. Att'y Gens., Salt Lake
City, for appellee Utah State Engineer.
Justice Himonas authored the opinion of the Court, in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Pearce, and Judge Kate Toomey joined.
her retirement, Justice Durham did not participate herein;
Court of Appeals Judge Kate Toomey sat.
Petersen became a member of the Court on November 17, 2017,
after oral argument on this matter and accordingly did not
"Water rights in the State of Utah are of utmost public
concern. Water, in an arid state like Utah, is its
life-blood, measured in currency represented by survival
itself . . . . This court has likened a drop of water [to] a
drop of gold." Longley v. Leucadia Fin. Corp.,
2000 UT 69, ¶ 15, 9 P.3d 762 (second alteration in
original) (citations omitted) (internal quotation marks
omitted). Therefore, it is no surprise that, in Utah, water
rights have been preserved in our state constitution,
codified by our legislature, and oft-contested in our state
and federal courts.
This appeal stems from just such a contest over the state
water engineer's resolution of who owns the water rights
to Minnie Maud Creek, a tributary of the Green River.
EnerVest, Ltd. (EnerVest) asks us to review the district
court's grant of summary judgment, which upheld the state
engineer's proposed determination that The Minnie Maud
Reservoir and Irrigation Company (Minnie Maud) is the owner
of disputed water rights on Minnie Maud Creek and rejected
the objections to the proposed determination made on those
grounds. Before reaching this issue, however, we must first
decide whether we have jurisdiction over the case.
We conclude that we do not. The district court's
certification of its summary judgment ruling as final under
Utah Rule of Civil Procedure 54(b) was improper and thus we
do not have a final judgment before us for review. And we do
not consider whether we should treat the appeal as a petition
for interlocutory appeal under Utah Rule of Appellate
Procedure 5 because we conclude that EnerVest was not
aggrieved by the district court's decision and so lacks
appellate standing. Therefore, we dismiss the appeal for lack
of appellate jurisdiction.
GENERAL ADJUDICATION PROCESS
A general understanding of Utah's process for
adjudicating water rights in cases like this one is helpful
for grasping the issues in this appeal. When a justified
petition of "five or more or a majority of water
users" for a determination of water rights is given to
the state engineer, the engineer files an action in the
district court to determine the water rights (similar to a
quiet title action). Utah Code § 73-4-1 (1953). The
district court may then order a general adjudication, which
will provide it guidance in establishing water rights.
"[T]he purpose of the general adjudication process is to
prevent piecemeal litigation regarding water rights and to
provide a permanent record of all such rights by
decree." Jensen v. Morgan, 844 P.2d 287, 289
When a general adjudication is initiated, the state engineer
notifies all known water rights holders and provides public
notice of the adjudication by publication. After the state
engineer provides notice, all individuals and entities are
required to submit any water rights claims within the area in
question to the state engineer. Following the submission of
water rights claims, the state engineer conducts a
hydrographic survey of the water system and evaluates the
In re Gen. Determination of Rights to the Use of
Water, 2004 UT 106, ¶ 6, 110 P.3d 666 (citations
omitted). A party who fails to timely file a claim
"shall be forever barred and estopped from subsequently
asserting any rights, and shall be held to have forfeited all
rights to the use of the water theretofore claimed by
him." Utah State Eng'r v. Johnson, 2018 UT
App 109, ¶ 19 (citation omitted) (internal quotation
"When the survey is complete and all of the submitted
claims have been evaluated, the state engineer then prepares
a proposed determination of water rights for the area."
In re Gen. Determination of Rights to the Use of
Water, 2004 UT 106, ¶ 6. "A copy of the
proposed determination is mailed to each claimant, along with
a notice that any claimant dissatisfied with the proposal may
file a written objection within ninety days."
Johnson, 2018 UT App 109, ¶ 20. "[A]
claimant who . . . fail[s] to timely object . . . takes on
the role of a defaulting party and is bound by its failure .
. . unless and until the claimant seeks leave from the court
overseeing the general adjudication to file an untimely
objection . . . ." Id. ¶ 21. "If no
objection has been filed to a proposed determination, or if
all objections have been resolved, the district court must
enter judgment rendering the proposed determination the final
adjudication of water rights for the given area." In
re Gen. Determination of Rights to the Use of Water,
2004 UT 106, ¶ 7.
In the early 1900s, several owners of water rights on Minnie
Maud Creek filed articles of incorporation for Minnie Maud
and transferred their water rights to the newly formed
corporation. The relevant parties in this case transferred
their rights to Minnie Maud in exchange for shares in Minnie
In 1956, this general adjudication, which includes Minnie
Maud Creek, was initiated. The state engineer issued a
proposed determination in 1964, allocating twelve water
rights to Minnie Maud. In the following months, four
different objections were filed, challenging a total of eight
of the water rights provided to Minnie Maud. Each of the four
objections raise several different challenges, but all of the
objections argue that Minnie Maud could not be the owner of
the water rights, either because Minnie Maud never legally
existed or because it was a defunct corporation. EnerVest did
not file an objection, and the water rights it now claims are
not directly challenged by the objections.
In 2012, EnerVest filed a petition under Utah Code section
73-4-24(1) to expedite a hearing on the objections. The
district court granted the petition but limited the scope of
the section 24 hearing to whether the proposed determination
correctly lists Minnie Maud as the owner of the water rights.
Several parties participated in the section 24 hearing,
including non-objectors, EnerVest and Michael Carlson, and
objectors, the Willis A. and Wilma Hammerschmid Trust (the
Hammerschmid Trust) and Gary and Nancy Motte. Eventually the
parties filed cross-motions for summary judgment, with
EnerVest and the Hammerschmid Trust arguing that Minnie Maud
could not own the water rights and Carlson arguing that the
state engineer correctly deemed Minnie Maud the owner of the
water rights. The district court granted Carlson's motion
for summary judgment and denied EnerVest's and the
Hammerschmid Trust's motions for summary judgment. At the
parties' request, the district court certified its
decision as final under Utah Rule of Civil Procedure 54(b).
EnerVest and the Hammerschmid Trust appealed.
During the pendency of the appeal, before the briefing
schedule was even set, the Hammerschmid Trust's appeal
was voluntarily dismissed with prejudice. As a result,
Carlson challenges EnerVest's standing to appeal.