Jensen v. Jones
2011 UT 67
| Utah | 2011Background
- Marilyn Hamblin owned Water Right No. 55-11041, a right from Spring Creek, Provo River system, as alleged tenant in common.
- Spring Creek reportedly flowed with enough water for all rights until January 1, 2002, and has been completely dry since then.
- In 2004 Hamblin filed a permanent change application to move use to Highland City; the State Engineer denied it in 2006 after field reviews indicated no beneficial use for over 20 years and possible cessation under Utah Code § 73-1-4.
- The State Engineer stated he would adjust figures if later adjudication showed more or less water, but he declined the change due to nonuse and potential forfeiture.
- Hamblin sought judicial review; the district court granted summary judgment for the State Engineer based on presumed forfeiture under the prior statute.
- The Utah Supreme Court reversed, holding the State Engineer lacks authority to adjudicate forfeiture in a change application and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State Engineer may adjudicate forfeiture in a change application | Hamblin contends the Engineer cannot declare forfeiture in reviewing a change. | Jones argues forfeiture can be used as a basis to deny a change application. | State Engineer lacks authority to adjudicate forfeiture in a change application. |
| Whether amendments to the forfeiture statute apply retroactively | Hamblin argues retroactive application would prevent automatic forfeiture. | Jones contends amendments are not retroactive and would have foregone forfeiture anyway. | Court does not decide retroactivity; not addressed on this record. |
| What tools remain for the State Engineer if forfeiture may be at issue | Engineer should not be allowed to declare forfeiture; adjudication should occur in court. | Engineer may stay proceedings or pursue other options but cannot simply deny under forfeiture. | Engineer must follow 73-3-8 criteria and may stay proceedings pending adjudication, but cannot adjudicate forfeiture himself. |
Key Cases Cited
- Daniels Irrigation Co. v. Daniel Summit Co., 571 P.2d 1323 (Utah 1977) (state engineer lacks authority to adjudicate all issues in a change application)
- Whitmore v. Murray City, 154 P.2d 748 (Utah 1944) (state engineer acts in administrative capacity, not to determine rights)
- Nephi City v. Hansen, 779 P.2d 673 (Utah 1989) (forfeiture considerations discussed; authority not raised in that context)
- Wash. Cnty. Water Conservancy Dist. v. Morgan, 2003 UT 58 (Utah) (forfeiture issues acknowledged in change applications)
- Searle v. Milburn Irrigation Co., 2006 UT 16 (Utah) (statutory criteria govern change applications; adjudication left to courts)
- Badger v. Brooklyn Canal Co., 922 P.2d 745 (Utah 1996) (state engineer constrained to statutory review criteria in change applications)