Rivers v. DEQ
2017 UT 64
| Utah | 2017Background
- U.S. Oil Sands (USOS) obtained a 2008 "permit by rule" from the Utah Department of Environmental Quality (UDEQ) after the agency found the project posed a de minimis risk to groundwater, in part because the site was not connected to the regional aquifer.
- In 2011 Living Rivers challenged agency action relating to USOS; this court held the 2011 challenge was in substance an untimely collateral attack on the 2008 permit determination (Living Rivers I) and dismissed it.
- In 2014–2015 USOS proposed modifications to its project. Living Rivers submitted requests for agency action (RAAs) in Feb. 2015 asking UDEQ to require a full discharge permit or otherwise reevaluate permit-by-rule status, attaching new hydrogeologic and tailings evidence.
- The ALJ recommended dismissal of the RAAs on three grounds: (1) statutory provisions cited did not authorize review of agency inaction; (2) the RAAs were untimely because Living Rivers knew of UDEQ’s inaction earlier; and (3) the RAAs were, in substance, collateral attacks on the 2008 groundwater finding barred by Living Rivers I. The Executive Director adopted the ALJ’s recommendations.
- Living Rivers appealed. The Supreme Court first confirmed Living Rivers had standing based on member affidavits, but affirmed the Executive Director’s dismissal because Living Rivers failed to adequately brief or challenge the independent ground—that its RAAs were barred collateral attacks under Living Rivers I.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to file RAAs | Living Rivers: members’ recreational/spiritual/aesthetic use will be harmed by pollution; affidavits show injury and redressability | UDEQ/USOS did not contest standing in agency proceedings | Court: Living Rivers has standing (traditional test satisfied) |
| Whether RAAs could challenge UDEQ inaction under Utah Code § 19‑1‑301/301.5 | Living Rivers: statutory text allows challenges to agency decisions not covered by §301.5; regs shouldn’t override plain statutory scope | UDEQ/USOS: statutes/regulations limit §301 challenges to enforcement/initial orders and §301.5 covers only permit orders; thus agency inaction here isn’t challengeable | Court: did not decide statutory question on merits because plaintiff failed to press other independent ground adequately |
| Timeliness / collateral attack (Living Rivers I) | Living Rivers: RAAs target 2014 modifications and thus legitimately seek new review; new evidence warrants reexamination of 2008 permit-by-rule factors | UDEQ/USOS: RAAs are in substance the same attack on the 2008 groundwater finding barred by Living Rivers I and thus untimely | Court: Executive Director’s alternative basis (RAAs are impermissible collateral attacks under Living Rivers I) was not adequately challenged on appeal; affirmed dismissal on that procedural ground |
| Adequacy of briefing on appeal | Living Rivers: focused on statutory right to challenge inaction and recharacterized RAAs as modification challenges | USOS/UDEQ: contend Living Rivers failed to challenge the independent ground (Living Rivers I bar) and raised new arguments only in reply | Court: Living Rivers waived review of the independent ground by not adequately briefing it in opening brief; cannot raise new theories in reply; affirm dismissal |
Key Cases Cited
- Living Rivers v. U.S. Oil Sands, Inc., 344 P.3d 568 (Utah 2014) (recurring precedent holding 2011 challenge was untimely collateral attack on 2008 permit-by-rule)
- Utah Chapter of Sierra Club v. Utah Air Quality Bd., 148 P.3d 960 (Utah 2006) (standing in administrative proceedings and independent obligation to assure standing)
- Brown v. Div. of Water Rights of the Dep’t of Nat. Res., 228 P.3d 747 (Utah 2010) (standing is jurisdictional)
- Utah Physicians for a Healthy Env’t v. Exec. Dir. of the Utah Dep’t of Envtl. Quality, 391 P.3d 148 (Utah 2016) (scope of appellate review of final agency action)
- City of Grantsville v. Redevelopment Agency of Tooele City, 233 P.3d 461 (Utah 2010) (injury, causation, redressability for standing)
- State v. Sims, 881 P.2d 840 (Utah 1994) (if appellant fails to challenge an independent ground for a decision, the issue may be moot on appeal)
- Bank of Am. v. Adamson, 391 P.3d 196 (Utah 2017) (adequate briefing requirement and appellant’s burden of persuasion)