*1 the circuit court for a remand his case to new

trial. CONSOLIDATION COAL COMPANY and Pittsburgh Midway Coal Com JJ., DURHAM,

HOWE and concur. Plaintiffs, pany, Appellants, and Cross- Appellees, GREENWOOD, Judge, concurring: concur, clarify I my but write to basis for v. doing agreement I am analy- so. in with the UTAH DIVISION OF STATE LANDS dissenting opinion sis contained in the FORESTRY; Ralph Miles, AND Di Justice Durham and Chief Justice Zimmer- rector Division of State Lands and Ohms, City man in Salt Lake Forestry; Utah Board of Lands (Utah 1994),regarding the constitutional- Forestry; Department of Nat 78-8-31(6) ity of section of the Utah Code. Resources; Hansen, ural Dee Executive judicial long So as Utah’s branch has control Department of Director of Utah Natural judicial exclusively over functions thus con- Resources, Defendants, Appellees, and trolling “judicial power,” I believe the consti- Cross-Appellants. addition, my tution is satisfied. in view in majority result arrived at Ohms No. 920321. provi- is unwarranted either constitutional sions or relevant case law. Supreme Court Utah. Furthermore, given ever-expanding courts, case Utah’s Dec. load commissioner system provides flexibility manage needed efficiently

our effectively dockets within jurisdiction judicia- ry. majority opinion, Absent the Ohms I would conclude that the statute is constitu- Taysom’s

tional and affirm conviction. I reluctantly majority therefore concur in the opinion in this case.

STEWART, Justice, Associate Chief concurring the result: I concur the result for the stat- reasons opinion majority ed City Salt Lake Ohms, (Utah 1994). 881 P.2d 844 GREENWOOD, PAMELA T. Court Appeals Judge, vacancy sat to fill the on the

court. added). process right (emphasis

that inmates have a due major- to review Id. Because the Ohms parole information the ing will board consider dur- ity heavily concluding relied Labrum in original grant parole hearing. Ohms should not be denied the benefit of his considering the issue of whether the rule should victory, retroactivity we conclude that the rule apply retroactively, this held Thus, applies set out Labrum here. because judicial integrity require considerations of us Taysom's pending claim was before this court at peti- extend benefit of our decision to Ohms, the time we decided conclude that currently tioner and to inmate who has a Taysom should denied the benefits of that pending appeal claim in the district court or on decision. See id. appeals this court or the court .... before

ZIMMERMAN, Chief Justice: Company

Consolidation Coal Pitts- (col- burgh Midway Mining Company Coal “Consol”) lectively appeal, and the Divi- Utah Forestry, sion Lands and *3 Forestry, Board of State Lands and Utah Resources, Department of Natural vari- and employed by ous individual defendants “State”) (collectively Utah State of cross- appeal, a decision of the Seventh Judicial Emery County. Court District of This case proper interpretation roy- involves the alty provision a in coal into lease entered between State and Consol and the royalties under interest due below, provision. that As discussed this case previously has this been before court and was Mining remanded in Plateau Co. Forestry, Utah Division State Lands & (Utah 1990). remand, 802 P.2d 720 On two-day trial, trial court held a bench after rejected regard- arguments it Consol’s ing proper interpretation royalty provision and found that Consol had under- royalties a State substantial amount. The trial court further determined Consol owed on royalties unpaid at an interest rate of 6%. appeal, time on This (i) rejecting trial erred inter- pretation of royalty provision purportedly conduct; parties’ established course of (ii) concluding interpretation royalty provision agreed allegedly was a modification (iii) provision; failing necessary to make fact; (iv) findings finding that the State estopped asserting a higher paid by than that which been (v) Consol; determining prejudg- unpaid royalties ment interest appropriate. Conversely, State contends that the trial court assessing erred 6% unpaid interest rate on the rather higher than penalties provided rates and Taylor, Barrett, Keith E. R. Kenneth Salt for under Utah Board of Lands and City, plaintiffs. Lake for Forestry’s regulations. reject rales and Dam, Atty. Gen., R. Paul agree Van David all of but S. Consol’s claims error Christensen, Alder, Attys. Steven F. Asst. State that the trial court erred in assess- Gen., Allred, City, Salt Lake B. Clark rate of interest. We remand MeKeachnie, Vernal, Gayle F. for defen- proceedings further the interest rate mat- dants. ter. Kemmerer never mined Lease in central operates a coal mine assigned ML- eventually Lease Consolidation Coal includes State Coal (the “Lease”). (“Consolidation”) that is sub- co-plain- land Company granted to the

ject Lease was ease, Pittsburgh Midway Coal in this tiff by the common schools support Midway”). (“Pittsburgh & Mining Company En- the Utah Congress States under United 22, 1977, Consol submitted to the On June 138, §§ Enabling ch. abling Act Act. Utah Oil, Gas and Utah State Division At all times relevant 28 Stat. 107 mine, plan. proposed mine proposed case, the lands were school trust Mine, Emery consisted of Deep known as the managed by the Utah Division private lands well state and (the “Division”) under Forestry Lands and leases, lease number including federal rules, regulations established policies, *4 payable royalty The rate on this U5287.3 Forestry of and the Utah Board State Lands per 17.5$ was coal ton. Consol federal lease “Board”). (the §§ Ann. Utah Code 65A-1- mining during quarter the of began second 1994).1 (1993) (amended -1-4, -4-3, -7-1 through to mine 1986. 1981 and continued time, royalties During paid it the State originally the The State issued Lease ton, 17.5$ view per coal on the basis of its of (“Kemmerer”) Company in Kemmerer Coal the on federal lease the same rate The January twenty-year for term. “rate ... for prevailing mine the constituted trans- a standard lease form its State used of land of character.” federal lessees similar Kemmerer. That form autho- action with assignees the or its extract rizes lessee When the State issued the Lease specified exchange royalties. coal royalty on government’s rate the federal royalties higher are at of These fixed the 15<f 15$ mining generally per ton.4 In leases was begin- prevailing, at per ton or the “rate the 1976, Congress enacted the Federal Coal payment ning quarter of for which is (“FCLAA”). Leasing Act Amendments made, of of being for federal lessees land (1976). 94-377, The Pub.L. No. 90 Stat. coal character under leases issued similar secretary inte- FCLAA authorized The Lease at that time.”2 United States royalty prescribe rior to increased federal subject granted in all also indicates that it “is newly on issued leases. 30 U.S.C. rates respects and the conditions of under § new rates were fixed at The rules existing of of Utah and laws the State produced from of value of the coal 8% the regulations operating and such rules any underground C.F.R. mines. approved regulations as hereafter 3473.3-2(a)(3) (1979). adopted by Land Board.” the State (a) per 15$ lbs. legislature ton extensive revi- at rate 1. In made dealing premises and produced Code with school the leased sions sections coal from of, disposed See Utah Code and institutional trust lands. or sold or otherwise revisions, §§ (b) beginning Ann. 53C-1-101 to -5-104. prevailing, at the rate at new, among things, independent made, create other being quarter payment is for which agency government entitled School within state land of similar character for federal lessees of (the and Institutional Trust Lands Administration the United States under coal leases issued "Administration"). Utah Code Ann. 53C-1- time, higher. is whichever control Administration vested with 201. The managed and is all lands in the state over trust men- no state leases were 3. Consol indicates that newly policies pursuant established plan. The Lease involved in tioned in the 1977 Institutional Trust Lands created School and however, was, present dispute within the Trustees. Id. Board of Mine, Emery regardless Deep of whether was plan. in the 1977 mentioned part, royalty provision reads: 2. In relevant Lessee, granting in consideration of cents-per-ton general Although the federal aforesaid, hereby rights privileges 15s, a rate federal lease carried was Consol's agrees as follows: covenants during period. 17.5$ per time ton relevant 17.5$-per-ton rate was that this quarterly, pay on or To to Lessor SECOND: prevailing land succeeding rate for lessees of federal day 15th month before the royalty character. quarter, similar each began December the State ble. Id. at 726. We concluded that leases, audit of including state coal Consol’s. ambiguity phrase this case arose The auditors discovered that prevailing “rate ... lessees newly rates coal issued federal land similar character.” Id. In other leases had increased to been 8% but Consol words, ambiguous Lease reported and others had not only in the sense exact alternative higher rates on their state leases. rate was not clear on the face of the docu- ment, ambiguity but this did not make the In October of the Division notified Instead, Lease unenforceable. Id. we indi- Consol that it owed State the difference cated fact finder should re- have per between ton and of the value of 17.5c any ambiguity by solved reference to extrin- up all coal mined from the Lease to that time parties’ sic evidence of the intent. Id. We and that all future would be 8% of remanded the case trial court to deter- receiving higher value. After notice of the rate, how “the mine federal rate was to Emery Consol continued to be calcu- mine the lated, was, only 17.5$ Mine what the rate pay per and when it became ton. ‘prevailing,’ if it did.” action, seeking Consol filed this a declara- tory judgment due un- Because matter had been decided 17.5$ der per the Lease coal. ton of It summary judgment, the trial court *5 based its claim the on terms of the Lease and determined whether had an Consol reached on agreed its assertion that the State had to “agreement” with the regarding State the 17.5$ royalty the rate. The State counter- proper interpretation royalty provi- claimed, asserting that the rate was 8% of agreement Id. sion. at 727. allegedly This coal, the value of the which the con- royalty set the rate on Consol’s Lease at represented tended prevailing the ton, 17.5$ per corresponded which with the entering rate. The State also denied into paying rate Consol was on federal lease any agreement royalty 17.5$ fix to the at rate the same mine. Id. We remanded the case per Finally, ton. the State claimed late- to the trial court to decide this issue on the payment penalties and on the Id. merits. alleged owing. to be short, questions relating two broad to initially granted The trial summary court proper interpretation the of the alternative judgment ground in favor of Consol on the provision rate were to be decided on remand. provision facially ambigu- rate was First, rate, prevailing what was the and when similarly ous. It ruled in three other declar- Second, did it become prevailing? did Con- atory judgment brought actions other “agree” upon sol and the State interpreta- an State, mining against companies the all in- royalty the provision, tion of or is the State volving royalty. the appealed The State estopped denying from agreement, such an court, the dismissals to which consolidat- 17.5$ which prevailing under would be the ed the cases. grants We reversed the rate for federal of land lessees of similar summary judgment and remanded the cases character? As to the issue interest on the with instructions to take further evidence on royalties, unpaid the trial was to deter- issues, several as discussed below. Plateau ap- mine whether interest was 802 P.2d at 732.5 propriate and the rate at it was to be question, On the primarily ad- computed. Id. at 732. dressed whether trial the court had erred in remand, ruling that provision the alternative rate On the trial court a was conducted ambiguous (i) two-day during and therefore bench trial. unenforceable. It found that at agreed period, 725-28. royal- We the trial court relevant “the same federal provision that ambiguous ty being somewhat charged rate the federal disagreed but government that this made it during period unenforeea- the audit for coal present 5. The panies longer case involves Consolidation are no involved in this suit. Pittsburgh Midway. com- other coal edly agreed parties to and in deter- whether it was on all land leases mine, canyon, personnel same mining the same that Division did have within area”; (ii) prevailing the “rate same authority agree a modification of of land of similar character” federal lessees that the trial the Lease. Consol (iii) value; had Division no was 8% of position. It court misunderstood denies Lease, authority modify the into arguing parties entered an case, agreed to set the parties agreement modify the Lease and admits (iv) ton; 17.5$ per at Consol had failed rate agreement. Rather, no that there was such estopped actions it prove State’s agree- claims that reached an asserting higher rate than interpretation of proper as to the ment (v) ton; 17.5$ per was entitled provision. rate It claims that the alternative unpaid on 6% the to interest implied to make a “Division had again appeals judg- royalties.6 Consol interpretation state- reasonable of’ Board whole, cross-appeals as a ment regarding meaning provi- ments to the interest rate issue. Consol, According Division sion. agreed alternative proper first state the standard pay rate it was required Consol the same previously the case of review. We remanded mine— paying on a federal lease in the same the trial court to hear evidence 17.5$per appeal ton. asserts prevailing-rate “agreement” questions. interpre- the trial court failed to address this arguments contrary, Despite Consol’s tive-agreement argument neglected to appeal primary in this is whether issue findings regarding make fact it. resolving trial these factu court erred questions. the trial court’s al We review correctly that the trial court asserts clearly findings of fact under the erroneous specifically finding negating did not enter fact, “Findings of standard. whether based interpretive agreement. the existence *6 evidence, documentary not on oral or shall Nevertheless, disagree we that the trial court erroneous, clearly unless and due set aside rejected improperly to and failed consider opportunity regard given shall be the argument. interpretive-agreement Consol’s credibility judge trial the of the the court (i) upon Our decision is based three factors: 52(a). party Utah R.Civ.P. witnesses.” opinion trial is import the fair of the court’s findings challenging the trial court’s factual rejected in- that it understood but Consol’s establishing heavy that has the burden of (ii) argument; the trial terpretive-agreement findings supported by substan those are evi- specifically negate court did Consol’s competent and evidence. Cambelt Int’l tial (iii) argument; in and support dence of the Dalton, 1239, 1242 Corp. v. 745 P.2d facially interpretation appears in- Consol’s 1987). burden, appellant To meet this “an language of the alterna- compatible with the support all evidence must first marshal provision. tive rate finding ing the and then demonstrate that support legally is insufficient to the evidence First, import fair of the trial court’s findings viewing light in it in the even whole, opinion, and as a when read context to the court below.” Reid most favorable interpretive- is it understood Consol’s Co., Ins. Mutual Omaha argument accept but agreement declined (Utah 1989); v. Rol see also Cornish Town trial, argued support of the it. At Consol (Utah 1988); ler, Cambelt argued the State alleged agreement, while Int’l, 745 P.2d at agreement against existence prevailing rate was argued instead claims re next address Consol’s

We between these 8%. The court had to choose royalty rate fixed the alter lating to the mutually of the facts. The exclusive versions Consol provision of the Lease. native rate specif- required negate each reject was not court court erred in that the trial contends of the facts. ic of Consol’s version provision alleg- element interpretation of this ing the opinion separate lengthy find- only synopsis of memorandum is as a brief 6. This intended ings law. and conclusions of of fact entered The court trial court’s decision. Beers, neglected employees See Sorenson 160 had to inform Division (Utah 1980). simply It change found that the facts FCLAA federal addition, supported position the State’s and that rates. the trial court did not agree the rate at did to set find that Consol had the fact that disclosed it 17.5<t ton, per regardless alleged of whether the had several' federal leases in Utah and had agreement agreement as an unsuccessfully appealed government’s characterized re- modify agreement interpret adjustment or an royalty those leases to an 8% contract. or the fact that Consol had issued a been new federal lease that carried an 8% Second, specific the trial court made find- royalty. Lease, Under Consol had the ings regarding of fact the evidence that Con- responsibility calculating royalty presented support alleged sol inter- submitting required royalty information. pretive agreement. findings These are con- In Plateau noted: “The position, namely, sistent with the State’s plaintiffs responsible calculating were argument the trial court understood Consol’s royalty pay- alternative prevailing accept but heavily did not it. relies ments .... right rely The State had a meetings minutes held good faith of its calculating lessees in and 1975 well as on discussions with Divi- royalty submitting required informa- prior sion officials which occurred tion.” 802 at 727. The FCLAA and its opening mine. The trial court ex- change in federal rates have should raised a pressly adopt declined to interpreta- Consol’s question proper serious as to the tion of Board minutes. It found that a “clear rate, thus, have should disclosed reading ... of those minutes shows that agents. FCLAA to State’s there no discussion or conclusion sum, reached specific Board as trial court not fail did any meaning discussions, of’ terms in the consider the it nor did consider Lease.7 find no suggesting evidence them agreement relevant to an to modi clearly making Rather, fy court erred in this deter- the contract. we conclude from mination. findings the trial court’s and conclusions that binding agreement, declined to find court trial also addressed Consol’s doing permit because so would Consol to relating evidence to the discussions between take advantage its failure to disclose to the Division officials and Consol. Consol is cor- State facts that would have raised serious stating rect in trial did not *7 questions position. as to Consol’s See 3 Cor negate fact the that those discussions oc- § bin on Contracts We find no asserts, however, curred. incorrectly Consol error here. court findings trial failed to make of regarding fact them Finally, and therefore interpretation, must have Consol’s which it fact, failed to consider them. In agreed to, the trial claims particularly the State is court did accept, given address the discussions. It found difficult to significant its diver- discussions, during that the gence Consol had language provision. failed from the relevant provision required disclose information to payment Division The of the “rate employees whom Specifically, prevailing, with it dealt. beginning quarter at the the of for the expressly made, trial court payment found that Consol which being is for federal Moreover, 2(a)(3). government do not see only how minutes from The federal had one meetings readjusted held in newly 1973 and 1975 would be minimum for rate or issued persuasive, particularly underground if those even minutes leases in mines —8%. The trial exactly they Congress read as Consol regard- claims do. court found that this rate same was the pass area, did not the FCLAAuntil 1976. The FCLAA less of whether the leases canyon, were in result, same implementing regulations changed the feder- or As a mine. Board minutes al redefined pre-FCLAA rates and the classification of purport federal from the era that to define FCLAA, passage leases. After of what "land constitutes of similar character” are primary, arguably only, particularly present regulatory "characteristic” rel- not milieu, useful in the purposes royalty evant of generally only for federal rates is in which there are two underground. whether mine is dispositive surface federal rates and "characteristic” 207(a); See 30 U.S.C. 43 C.F.R. 3473.3- is the nature the mine. of next contends that the trial character.” Con- Consol of land of similar lessees necessary findings to make of court failed alleg- the Division interpretation, which sol’s Nevertheless, attacking other than fact. to, subtly this critical edly agreed alters adopt interpre trial court’s decision not First, ways. inter- phrase in two Consol’s Lease, specify tation of the Consol does only at rate pretation requires it to look missing findings. “[a] We reiterate that In- paid its lease the same mine. every conflicting trial court need not resolve paid by all focusing on the rates stead ‘[njor issue, evidentiary required lessees, highlights primarily federal Consol ” negate allegations findings in its of fact.’ mine, that only one lease it held in Richins, Sampson 17.5$ per had a rate of ton. which Sorenson, Ct.App.1989) (quoting 160). Rather, P.2d “[t]he [trial at court’s interpretation also “reads out” Consol’s findings must be articulated with factual] portion provision rate alternative ulti sufficient detail so that the basis requires determine and submit the Consol to mate conclusion can be understood.” Reid quarterly prevailing rate on a basis. Consol Co., Mutual Omaha Ins. arising agreement allegedly from relies an (Utah 1989). We have examined the trial between the State and Consol discussions findings of court’s memorandum decision and meetings during 1981 and Board 1978 and fact and find them be well-reasoned and agreement This purported held before 1976. fully supported by It the record. 17.5$royalty rate until binds the State to necessary negate for the trial court to Con- readjustment.8 interpreta- Under Consol’s point by point. The sol’s version of the case tion, 17.5$ long a as it held federal lease find trial court needed make those ton, per state leases bear the same would necessary decision, ings to its it has rate, regardless subsequent changes in the done. structure, the rates oth- alleges the trial court lessees, er or the number of other federal finding erred in that the State was not es- holding-leases that rate. The lessees with topped asserting royalty rate. an 8% Lease, however, fluctuating provided for a This is not first time we have addressed quarterly. redetermined The ob- estoppel issue this case. Plateau prevent purpose vious of this is to plaintiffs argued royalty lock-in that now asserts. acceptance State’s lower rates conclusion, the trial court vested collecting higher estopped it from later responsibility resolving factual rejected rate. 802 P.2d at 730. We prevailing fed- conflicts. amount of estoppel but remanded the case this basis non an eral rate and the existence vel give opportunity pres plaintiffs interpret might find agreement support the Lease are factual ent other evidence before, on solidly estoppel. Id. As noted questions within the discretion of the two-day the trial court held bench accepted remand trial court trial court. The *8 ultimately that had trial and found Consol rejected of the case and Con- State’s version proving that the State not met its burden that the evidence sol’s. We cannot conclude estopped. was clearly preponderates these on issues “so appellant people that reasonable favor arguments appeal four on Consol makes E.A. not differ on the outcome.” would support estoppel claim. It contends Foy (i) Realty Agency, W. Inc. v. W.C. Strout representations incon- that the State made 1983). (Utah (ii) Sons, Inc., 1322 position; later sistent with its as dili- prudence' affirm the trial court’s determination acted reasonable due We with (iii) injustice if the gence; rate. would suffer prevailing federal regarding submit the that Consol determine and discussion 8. Much of trial court's goes quarterly basis. The trial court on is in the context of the on modifications the Lease interpretation, if requirement. even quarterly determine that Consol's provision's reassessment it, required agreed have correctly to would that Consol’s inter- *9 Lands, Morgan 9. As we stated in v. prudence Board State diligence, relies and acts thereon of (Utah 1976): injustice so that he will suffer an if the former Estoppel acts, party permitted deny by arises when a ... ... is his the existence of such admissions, representations, by or ought or facts. his si- speak lence when he ... induces another ... to believe certain facts to 10. Consol exist relies on the same evidence it used to acting that such other support ... with reasonable reasonable-interpretation argument. which, representations on recognize is some evidence reasonable reliance that there made, subsequently rea- if supporting Consol’s claim it acted even once the State Nevertheless, sonably prudently. disavowed. otherwise, found and after examin-

trial court sum, “[ejstoppel equity In a doctrine of is record, judgment ing the do not find that party loss purposed to rescue from a who clearly to be in error.11 has, fault, without been deluded into course wrong particular, neglect action the trial court found that or of another.” Any “only cor- Id. at 697. Consol is not without fault. action to determine the Consol’s resulted, royalty employees part, to talk to of delusion in this case at least in rect rate was understanding steps inadequate their from its to determine the the Division - royalty royalty provision without correct rate and its concurrent failure meaning of the all making any inquiries.” never to disclose relevant information to the other Consol legal duty sought agents. from the Board State’s Consol had a written decision regarding proper royalty prepare rate. and forward a certified statement indicating produced coal amount of important, More the trial court found proper royalty compe- find rate.12 We employ- to inform Consol had failed Division tent evidence the record to and admissible regarding the ees and the Board FCLAA support trial court’s determination that earlier, if royalty. As and the 8% noted prudence not act with Consol did reasonable appropriate there was doubt as diligence fulfilling duty. and due Be- rate, royalty Consol should disclosed have cause Consol has failed to meet its burden of to the Board the existence FCLAA proving pru- it acted with reasonable sought and then written and the Division dence, necessary prerequisite is a which Consol, withholding clarification. after infor- estoppel, not we need address the remainder mation, protection to claim is entitled arguments. estoppel of its estoppel Morgan, doctrine. under See (“The equita- at 697 n. 4 doctrine of next contends trial Consol estoppel operate in favor of one ble does awarding prejudgment inter court erred knowledge of the facts or who has essential Consol, uncertainty According est. has convenient and available means who determining prevailing feder inherent obtaining knowledge.”). such royalty precludes imposition al It prejudgment interest in this case. relies prudence and Consol’s claims of reasonable Inc., Industries, Bjork primarily April diligence particularly given due are tenuous (Utah), denied, 431 cert. U.S. that Consol continued to mine coal and (1977), in 53 L.Ed.2d 245 S.Ct. 17.5$ receiving ton pay only per even after general restated the rule as which this court from the State of the results of notice interest: fact, royalty and the rate. Con-' audit 8% 251,245 judg- of coal As to the allowance of interest before an additional tons sol mined ment, Lease, spoken, equalled this Court has heretofore from the over half clear, law in Utah is viz: where from the Lease. and the the total mined damage complete successfully and the amount They claim continued cannot rate; (vii) estop- injustice requiring findings is no relevant to there trial court's (i) pel pay royalty. issue can be summarized follows: Consol to the 8% prevailing “federal lessees land under coal issued similar character leases Mining 12. In Plateau Co. Utah Division of 8%; (ii) that time” was Consol United States at knew Forestry, State Lands & should have known that this was 1990), "it be said on we concluded that cannot rate; (iii) prevailing with Consol did not act fault, plaintiffs were without this record that the prudence diligence in and due ascer- reasonable prudence they acted with or even that reasonable rate; (iv) taining the correct Consol failed to ascertaining diligence rate to correct that it was familiar with inform the State Upon paid." now examination the record thereunder; (v) rates FCLAAand us, appears appraisal of Con- before that our rely any represen- reasonably did not applies still in Plateau Co. sol’s conduct State; (vi) requested never tation equal force in this case. regarding decision *10 time, particular the loss is fixed as of a it is or was unable to determine the value of by that loss can be measured facts and Consequently, the coal mined. the amount of figures, interest should be allowed from unpaid royalties easily accurately can that time and not from the date of the by multiplying determined the value of the hand, judgment. On the other where dam- during royalty period by coal mined each 8% ages incomplete are or cannot be calculat- and then deducting amounts accuracy, ed with mathematical such as in timely paid period. were for that The death, personal injury, wrongful case of damages complete were and ascertainable as character, imprison- defamation of false royalty payment of the date each became due ment, etc., damages the amount of must be Therefore, owing. Consol owes interest by ascertained and assessed the trier of unpaid portion on the royalty pay- trial, the fact at the and in such cases payment ments from the date each became prejudgment interest is not allowed. due. (footnote omitted); Id. at 317 see also Jor Having gensen determined that an Clay award John (Utah 1983). prejudgment proper, Consol asserts interest is that this case is the next defamation, analogous imprisonment, appropriate false issue becomes the rate of inter fact, and similar cases in which a trier of est. prejudgment The trial court awarded extent, subjectively some must estimate provided at the 6% rate that was damages when complete are and the in section 15-1-1 at the time the Lease was damages. disagree. of those signed, $460,725.38 which would amount to argues interest.13 required The Lease The State pay Consol to its cross- appeal prevailing paid by that the trial court lessees of land should have of similar character. The trial awarded late-payment court found interest and assessed prevailing 8% was the penalties federal rate at all provided at the rates for in the relevant alleged times. Consol has not that Board’s regulations.14 rules and If the trial words, 13. Section 15-1-1 reads: provides a default interest rate when (1) parties parties The may specify to a lawful contract have failed to an interest rate agree any upon rate of interest for the loan or for "the any money, loan or forbearance of any money, goods, forbearance of or chose in goods, subject or chose in action that is the subject action that is the of their contract. subject their contract.” Id. present (2) Unless the to a lawful contract rights, contract is the sale of mineral not a loan interest, specify legal a different rate of or forbearance. This was also the case in SCM rate of interest the loan or forbearance of opinion adopted Land. That its view of section any money, goods, or chose in action shall be applicability 15—1—1 discussing ’s without the lim- per annum. Nevertheless, iting language of that section. be- (3) Nothing in this section be construed cause the State has failed to raise this issue and any way any penalty to affect or interest necessary disposition its resolution is not for a charge applies delinquent law or case, we decline to address it. any obligations other taxes or to contract or May made before concurring dissenting 14. In opinion, his added). (emphasis Utah Code Ann. 15-1-1 On Judge governed Bench asserts that this issue is the basis of our decision in SCM Land Co. v. appeals' the court of decision in Trail Moun Faber, (Utah 1986), Watkins & 732 P.2d 105 tain Coal Co. v. Utah Division State Lands & prejudgment interest rate Forestry, (Ct.App.1994), 884 P.2d 1265 a com in this case is locked into the section 15-1-1 rate panion present poured to the case that we in effect at the time the Lease was appeals Judge court of for decision. Bench signed, which is 6%. part maintains that Trail Mountain is now of our opinion The author of this has serious reserva- common law and that while we do have the tions about the initial correctness and therefore decision, power to overrule that our vitality the continued of SCMLand and other Menzies, do so is limited State v. 23 Utah purports case that to tie (Mar. 29, Adv.Rep. 1994). 1994 WL 110861 rates in all contract cases to the section Menzies, explained that under the doctrine signed. effect at the time the contract was decisis, See, Breuer-Harrison, Combe, e.g., prece of stare we will follow our "own Inc. v. clearly dents ... unless Ct.App.1990). plain [we are] convinced 731-32 language [precedent] originally of section 15-1-1 seems to indicate that erroneous or is no longer apply only changing the section was intended to sound because of to "loan conditions and "money, goods good or forbearance” of that more depart chose in than harm will come action." Utah Code precedent.” Ann. 15-1-1. In other (emphasis Id. at 25. add-

525 X, adoption article regu- rules of section 3 of the Board’s and applied court Const, X, penalties, regarding and Con- Constitution. Utah art. 3 lations Const, (current (1896) $1,473,856.09 X, in interest would have owed version at Utah art. sol (1986)). title, penalties.15 legal holds 5 The State thus trustee, lands to the school trust above, argues be- As noted State generated lands. Duchesne funds those lands, involved school trust cause Lease Comm’n, 365, County v. State Tax 104 Utah by statute and the Board was authorized (1943). 335, P.2d 140 336 compelled by state federal constitu- promulgate rates tions to its own duty fur- The has an irrevocable late-payment penalties.16 The State State prop- manage if Consol had trust lands for the sole benefit

ther these due, royalties the funds would have “full er when of the common schools and receive trust deposited in one of the school any disposition been of its trust value” school would have earned the same accounts and v. Arizona ex rel. Arizona lands. Lassen did other funds. 466, interest rates as trust 458, Highway Dep’t, 385 87 S.Ct. U.S. significantly more These trust funds earned 588, (1967);17 584, 17 L.Ed.2d Plateau 515 statutory period for the than the rate 729; at also see Radish 6%, statutory The rate of there- question. 484, Dep’t, Ariz. v. Arizona Land 155 fore, on funds fails to return “full value” (1987) 1183, 497, (holding un 747 1196 response, In the Lease. derived from fixing flat constitutional a statute not or contends that Utah law did authorize lands), for leases on school trust rate mineral penalties rates or require the Board set 605, 2037, aff'd, 490 104 U.S. S.Ct. empower did not the Board and the Lease (1989); As L.Ed.2d 696 Oklahoma Educ. cf. late-payment penalties. interest rates set (Okla.1982) 230, Nigh, 236-37 soc. agree the State. (holding a statute establish unconstitutional for chargeable school ing maximum rent background, necessary provide To lands). may not or The State alter trust trust briefly governing the law school review duty, any abrogate nor it make statehood, this attained Con- lands. When Utah property disposition which conflicts gress granted lands to the State for duty. this Trustees Vincennes Univ. En- with common support of the schools. Utah (14 How.) Indiana, 268, 10, 14 L.Ed. 138, 6, 55 U.S. §§ abling ch. Stat. Act (1852). accordance with the mandate accepted the conditions State, value, through its full obligations grant of this of federal lands to obtain Hanna, charged by ed) July present, the rates (quoting Role Precedent John Decision, 367, delinquent at 2 Vill.L.Rev. were times in Judicial State on (1957)). expansive reading Judge Bench’s high Under as 15%. however, Menzies, court would be bound precedents, our but also to follow not own Although argument might an be made 16. response, we appeals. those of the court penalty analyzing rate and the the interest issue Judge simply note Bench misreads Menzies differently, nor the has neither Consol issue understanding of stare decisis is and that his do so. We therefore decline to elected do. any support in case law in academic without by deci- This court is never bound literature. Arizona, 424 Co. v. In Alamo Land Cattle 17. appeals and does need sions 910, (1976), 47 L.Ed.2d U.S. 96 S.Ct. overruling any particular hurdles overcome Supreme held a state Court United States them. lands for than its school trust less could lease history briefly of the Board's 15.We review According to the Court: full value. payment penalties. Effective November late receive, at the time of trust is to [T]he disposition per month an interest of 1.5% land, the then interest in charged royalties. Decem- past due Effective particular interest which 31, 1983, full value of the per an interest rate 1.5% month ber Thus, being of trust dispensed.... if the lease past royalties, together with charged due substantially less lands rental of July calls penalty. late Effective fee 6% value, is null then fair rental than land's charged adjustable interest rate based charged and void.... Revenue the Internal at royalties. S.Ct. plus past From on all due Service *12 officers, manage the agencies regulations governing and must trust and leases mineral profitable with “prudent lands in the most and the State: possible.” v. Utah State law, manner Colman Except provided by as otherwise Bd., 781, 14, Land 17 Utah 2d 403 P.2d 783 regu- State Land Board shall rules and (1965).18 responsibili- To fulfill its duties and prescribe the application, lations form of ties, legislature rental, lease, established Board of the form the annual gave power it and au- State Lands and the amount of the basis and the lands, thority policy upon to set for all state includ- computed, which the shall be ing school trust Code Ann. lands. See Utah and such other details as it deem 1988).19 (1987) 65-1-1, necessary §§ -14 (repealed in the interest the State. (1987) §Ann. (emphasis Utah 65-1-23 Code authority to The Board’s vel non set inter- 1988). added) (repealed law is Our case penalties royalty pay- and est rates on late legislature give clear that the intended to law, question ments is a review particularly Board wide area discretion v. ANR for correctness. See Bennlon Prod. McKnight of state As we lands. noted v. (Utah 343, 1991); 346 Ward v. Board, 238, 14 Land Utah 2d (Utah 1990). 757, City, 798 P.2d Richfield (Utah 1963): 726, 731 above, As noted power Board full au- Land has and authority promulgate lacked the Board to thority prescribe necessary proper to and penalties interest rates and for leases and regulations pur- accomplish rules and to its governed by instead asserts that this case is objectives poses and as set stat- out agree section 15-1-1. We with Consol inso- provisions .... The govern- ute of the [act far as contends that under decision in our clearly lands] state indicate that Faber, Land Co. v. SCM Watkins & Legislature had in mind the distinction (Utah 1986), apply section 15-1-1 would positive between mandate Board authority if the Board set lacked permissive right and a to take ac- certain conclude, however, penalties. rates We tions in its discretion. authority. the Board had such Moreover, government charged entity executing the responsibilities with State’s case, allAt times relevant to this lands, trustee of school trust had Board had broad discretionary Board over powers implied reasonably “such as [were] lands, governance including of all state necessary” to effectuate its constitutional particular, legis- trust lands.20 In school prudently mandate to obtain full value and to power lature vested the Board with the profitably manage school trust lands. regulations “make and enforce rules and Bennion, 350; See 819 P.2d at Williams provisions inconsistent with the of this act for Comm’n, 41, Public Serv. the same into effect.” Utah Code carrying 1988). (1987) 1988). (repealed Ann. 65-1-97 Fur- ther, the provisions specifi- Code contained discretionary The Board utilized its au- cally authorizing the make thority promulgate Board to rules regulations rules and purposes, 18. Given the 20.Although trust’s the courts have the Board was authorized statute scrupulously guarded against attempts dispose lands, policy including to set for all state school See, e.g., of trust assets for less than full value. lands, prior to trust 1988 the Code did con- Dep't, Kadish v. 155 Ariz. Land Arizona specific tain discussions as to the duties Board’s (1987), aff'd, 747 P.2d 1183 U.S. regarding school trust lands. Code See Utah (1989); County S.Ct. L.Ed.2d 696 1988). §§ (repealed Ann. to -116 Washington, v. (1984); Skamania 102 Wash.2d legislature clarified that the Department P.2d 576 see also expansive statutory authority power Pettibone, Lands 216 Mont. 702 P.2d 948 “adopt policies rules” and consistent with proper administration of state school trust lands. (1993) (amended Ann. Utah Code 65A-1-2 earlier, responsibility 19. As noted and au- 1994). thority manage now trust lands is vested in government agency. supra another note 1 See (discussing changes manage- land trust system). ment lands, late-payment full trust provided for tain value for its school conjunction legislature’s grant broad penalties. find the Board’s rules authority to the Board our law case reasonably necessary, well regulations within indicating that the Board such further has statutory authority, and consistent with implied reasonably necessary powers as are duty manage lands. These school trust duties, carry out its constitutional man- significant purposes. at least two rules serve dates the conclusion the Board is em- First, with the constitu- consistent State’s *13 powered penalties to set interest rates and man- duty prudently profitably to and tional regarding Assuming that school trust lands. lands, ensuring in age they trust assist penalties adopted the interest rates and were timely royalties payment of proper and governing pro- in laws accordance with Second, perhaps more mineral leases.21 and mulgation regula- of administrative rules and guarantee important, they that the State re- argued has other- tions —and Consol not by setting trust lands ceives full value imposition and penalties wise—the of interest true interest rates that reflect value proper a exercise of authori- the Board’s royalties in which Consol withheld viola- ty over school trust lands.22 . tion of its Lease. below, short, specific Finally, argument we conclude that Consol’s court, requirement adopted by ob- trial that constitutional that the State which was lands, Enabling we Act 21. Outside the context of school trust Given that and state and upheld statutory au have thority as "unequivocally constitutional federal constitutions demand” impose regulatory agencies to civil that the trust fund be the full value of penalties. & v. Chris Dick’s Lumber Hardware it, we have serious minerals transferred Comm'n, 511, (Utah 1990) 791 P.2d 513-16 Tax application doubts that the this case imposition (upholding late- commission’s scrutiny. would withstand See constitutional pursuant statutory authority payment penalty to Highway Dep’t, Lassen v. ex rel. Arizona Arizona plus payments); tax J. interest on late & Thomas 458, 588, 466, 584, S.Ct. 385 U.S. 87 17 L.Ed.2d Sons, Comm'n, 700 Peck Inc. v. Public Seivice Kadish, (1967); 747 515 see also P.2d 1183. 1119, (Utah 1985) (holding public P.2d 1123 Nevertheless, we “[i]t is a fundamental rule that statutory authority im service to commission’s addressing should avoid a issue constitutional pose penalty civil failure adhere to Motor to corollary required unless do a of that to so. As constitutional); Wycoff Carrier Act is Co. v. Pub statutes, principle, possible, if to construe 123, Comm'n, 13 Utah 2d 369 P.2d lic Service running avoid the risk of afoul of constitutional 283, (1962) (indicating 285 estab that it is "well Wood, prohibitions.” 82 State v. public has lished" that the service commission denied, (Utah 1982) (citations omitted), cert. impose legitimate statutory authority to mon (1982); U.S. 103 S.Ct. L.Ed.2d 383 etary penalties for orders violation of lawful Bell, (Utah 1989). We regulations). v. and as therefore decline to construe section 15-1-1 Judge opinion, adopted, if de Bench’s would broadly, narrowly, or the Board’s prive the of the school trust lands of beneficiaries to Consol would have us do. We instead choose the difference between 6% and interest provision with the harmonize the interest rate trust earned Consol would have if provisions governing trust hold school lands words, violated the terms of the Lease. other ing power that the Board has the to set rules Consol, Judge ex Bench would reward manage regulations duty consistent with its beneficiaries, pense of the school trust allow recognized As we school trust lands. royalties portion it to retain Board, McKnight 2d v. State Land 14 Utah repaying and then them violation of Lease (1963): 381 P.2d 726 royalties that is at a below-market rate interest power made the exercise of dele- “Rules significantly less than the State would have made gated by together be construed statute should simply paid them on on the had Consol make, possible, statute an effectu- if would, effect, Judge Bench sanction time. harmony legislation piece with com- al of funds from de facto below-market-rate loan it can be mon sense sound reason.... If We seri trust lands to Consol. have the school done, fairly rule be [an administrative] should constitutionality questions of such ous about the 1183; Kadish, applied as make conform construed see also a result. Cf. upon Nigh, powers Educ. conferred the administrative Oklahoma (1982). Assoc. disallowing Similarly, analysis body, assumption being Consol's rather than as regulations governing in rules and the Board’s power conferred.” applying 15-1-1 would terest rates and section (quoting P.2d at 731 42 Am.Jur.Public lands in a de facto loan from school trust result 101). Admin.Law rates of interest. at below-market proper statutory regulations changed the terms of the were a exercise of its broad Lease, recognize authority manage the Lease is fads the trust lands and to subject expressly of Utah.23 guarantee the laws that the school trust fund receives “granted subject provides Lease it was full property. value for the trust We remand ... of the laws of the the conditions determine, [to] the trial case to Coal State of Rosebud Sales Co. Utah.” opinion consistent with this and the Board’s Cf. (10th Cir.1982) Andrus, F.2d regulations, proper rules and leases must (indicating that coal charges late-payment penalties. context of federal Mineral considered in We have considered the rest of Consol’s Act). Leasing include not laws Utah arguments and find them to be without mer- the statutes authorize part, it. affirm in reverse as to the lands, govern trust but also the school proper penalties, and re- requirement constitutional proceedings mand for further as indicated prudent manage lands in the most *14 above. profitable possible and receive full manner value school lands. In other for its trust JJ., DURHAM, and concur. HOWE words, subject expressly Lease to the is the BENCH, Judge, concurring and regulatory power trust the State’s to and dissenting: enforce terms of trust.24 the the id. Cf.

Further, majority’s I concur in the if the did not determination even Lease contain express subjecting royal- that the is entitled to additional trust, dissent, however, took ties from I terms of the Consol the Lease Consol. from of, to, subject govern majority’s notice law conclusion section 15-1-1 ing responsi lands and trust in in apply school trust does not this case and its decision of State. v. unilaterally modify bilities See ASARCO Kad Board allow the ish, 605, 109 2037, 104 490 U.S. S.Ct. L.Ed.2d interest rate amounts owed under its ex- (1989). short, has isting reserved contracts. power of to enforce the terms the Lease Statutory Prejudgment regulations Interest and to make other rules duty its furtherance of constitutional to man clearly The trial court was correct age school trust lands. awarding prejudgment pursuant interest above, consistently On the basis hold that the section 15-1-1. This has we statute regulations prescribing interpreted specify prejudgment Board’s rules in- been penalties payments specified terest late rates and interest rate where it is not regulations change remedy provides, 23. Consol’s claim contract but what the law will recognize terms the Lease also provide of fails light to the State in Consol's breach. provid- fundamental difference between interest duty See id. Consol’s contractual was to deter- provided ed for ages: contract and interest dam- royalties timely mine and submit its aon basis. statutory duty The State's constitutional and A distinction exists between interest stated royalties manage to then take those them paid of a contract before terms to be its prudently profitably. breached by way breach and interest recoverable failing perform contract duties under the breach, although damages after the term contract, prevented the State invest- indiscriminately "interest” often used to de- is ing money in the state trust school funds and scribe both amounts. Contractual interest is thereby fulfilling duty. properly The State is the creature of contract and is recoverable "whole,” is, entitled made to be to recover provided by When the its terms. what it would have made in interest on the however, violated, agreement is the non-de- unpaid royalties royalties if Consol had faulting wrong party has sustained a for which timely in a manner. way gives damages, him law redress cases, many including, in interest retention example, recognized 24. For in Plateau Min due on funds breach. power Co. that the State had the to audit the (1988) (footnotes Damages § 22 Am.Jur.2d plaintiffs books and records of the to determine omitted). breached contract when it compliance, though language even there was no proper failed to and submit calculate issue, that effect the Lease. P.2d at quarterly aon basis. The therefore, necessarily remedy not what is See, present e.g., Prod. case.2 On basis the same Lone Mountain contract. facts, Pipeline appeals 984 F.2d relevant the court of deter- Co. v. Natural Gas (10th Cir.1992); 1551, 1561 mined, existing authority, Nielsen O’Reil in accordance with (Utah 1992) (section ly, 848 P.2d 669-70 in- prejudgment that section 15-1-1 controls legal prejudgment establishes 15-1-1 terest when contract silent. The claim); interest in breach of contract SCM appeals pertinent part: stated Faber, Land Co. v. Watkins ruled Land trial court that the State 1986) (Utah (section governs 15-1-1 108-09 unilaterally no prejudgment rate on interest interest change applicable rate of contract); specified by Lig no rate is where impose penalties not in the mentioned (Utah n. 14 Berg, nell v. noted, agree. previously lease. As 1979) (same); Trucking, Mont Inc. v. Entra prejudg- Utah the rate of law establishes Indus., (Utah Ct.App. da P.2d “[ejxcept parties ment interest to a when 1990) (Utah provides law that section 15-1-1 agree specified lawful contract on a rate.” governs when all contracts Ann. 15-1-1 Trail Code rate); Breuer-Harrison, specified have agree Mountain and the Division did not (Utah Combe, Inc. v. 731-32 specified on a rate of inter- (section governs pre Ct.App.1990) est, imposition penalties nor to the judgment contract interest where does royalties. payment rate); Ringwood late Foreign specify interest Works, Inc., Auto *15 Mountain, Trail P.2d at 1273. There- 884 Rollins, (same); Ct.App.1990) em v. Price-Or fore, only applicable is section Gunnell, 475, (Utah & P.2d 482 Broim 784 generally, prejudgment interest but there (same); Ct.App.1989) v. Mason Western jurisdiction specific holding in case this 984, 2 Mortgage Corp., Loan 754 P.2d 987 n. applicable precise 15-1-1 is section (Utah (same); Olson, Ct.App.1988) v. Davies in being interpreted lease this case. (Utah 264, Ct.App.1987) 270 (same).1 ap- By transferring the Trail Mountain appeals, peal the court of this court autho- Appeals recently ad-

The Utah Court of appeals court to address and rized the of very presented in dressed the issue here question, which it has now done answer the v. Trail Mountain Coal Co. Division State of existing authority. with See Forestry, P.2d In in accordance Lands & 884 1265 Assoc., fact, companion Trail A.L. Williams & 739 Mountain is case Conder v. mining companies, including dicta 1. Chief Justice Zimmerman’s individualized 2. Several attacking Mountain, well-established line of cases is entered with the and Trail into leases suggests that unfounded. Justice Zimmerman using lease of State Lands the same Division goods were the sale audit, because the contracts for of Following the Division of State form. an (mineral rights), they are not or a "loan forbear companies they Lands notified these misapprehends the ance." Justice Zimmerman compa- underpaid royalties. mining their purpose in of section 15-1-1 separate declaratory judgment brought ac- nies designed Prejudgment terest. interest is to com tions, seeking rights their determinations of itself, nonbreaching pensate party that finds obligations cases, agreement. under lease all In breach, loaning by position virtue in the of of granted in the trial court relief favor by money forbearing or what is owed breach mining companies. appealed rul- The State Damages § ing party. 82 See 22 Am.Jur.2d ings. and re- This consolidated cases (1988); Drywall, v. also L & A Inc. Whitmore see take versed and remanded for the trial court to 626, (Utah 1980) (pre 630 Constr. agree- interpretation of the lease evidence on represents judgment on amount ment, among things. other See Plateau damages party's or due to failure awarded as Forestry, v. 802 Co. Division State Lands of contract); Fitzger delay paying under (Utah 1990). Following a re- P.2d 720 trial on 301, Critchfield, Ct. v. 304 ald mand, the trial court ruled in favor of the State. (prejudgment that interest App.1987) interest is separate ap- Trail Consol and Mountain filed from debt became on overdue debt date owed peals. court transferred Trail Mountain’s This Therefore, entry judgment). be overdue until appeals appeal pursuant 42 to the court of to rule royalties by Con- underpayment cause sol, Appellate Procedure but Utah Rules position of loan found itself in the State appeal. retained Consol’s forbearing money it owed. or 530 (when

634, (Utah Ct.App.1987) disposition case is of its school trust lands.” The court, however, supreme ap- majority, support transferred from court of cases cited peals supreme “court’s shoes for all “full get stands notion that State must case”). purposes pertinent value” at the it enters time into a contract event, pub- disposition Trail Mountain was decided for the school trust For lands. appellate example, opinion by lished an court of this Land & Alamo Cattle Co. Arizona, jurisdiction, part and it is now of our common U.S. S.Ct. stated, (1976), Supreme law. this court Until altered the L.Ed.2d Court legislature, appraised it is the that must be “Full law followed value is to be determined jurisdiction by judges, practitioners, disposition in this and measured at the times of the interests, public. respective and the and if the State respective receives those values at those course, power Of has the this court to alter times, Enabling the demands of the are Act by overruling the common law Trail Moun- met.” Id. at 96 S.Ct. 918. A contract However, and the therein. tain cases cited value less than fair is to be considered overruling existing case law should not simply 304-05, “null and void.” Id. at Menzies, lightly. be done 235 Utah S.Ct. at 917. (Mar. Adv.Rep. WL 1994). case, present To overrule the rule of law In the no estab- there has been cases, allegation lished earlier this court should ex- prop- that Consol leased the trust plain how it came to “clearly convinced ^[1] erty for less than full value. fact, originally actually that the rule was erroneous lease or is included escalator longer changing no sound because condi- insure that received full value tions and ^[2] that more good than harm will the duration of the lease. require- precedent.” departing come from ment receive full value at Hanna, (quoting John The Role time of disposition Precedent of the State’s interest Decision, Judicial cry authorizing Vill.L.Rev. 367 is a far the State unilat- (1957)). disagreement erally Mere modify existing the com- material terms of its ’ *16 “certainly satisfy mon law not does contracts. by Menzies none the cases cited requirements overruling prior majority careful was the state allowed to enforce Deseelhorst, and, time, case law.” White contract vary at the same its (Utah 1994) 1371, (Zimmerman, C.J., 1377 terms. concurring). This court must therefore ei- support conclusion that its the Board or, existing precedent very ther follow in a modify contract, unilaterally can an existing disciplined way, existing precedent overrule majority *17 Mountain, appeals ex- the court of where 267, Ashby, 387 ing McCulloch N.M. pressly held: (1963)). as follows: Crowther held statutory rule- grant of regulations “may not con- Nor does the Administrative Board, Act, making to the State Land design of an and when flict with the (1986), duty in Utah Code Ann. 65-1-23 they do the court has a to invalidate found them_ change Furthermore, the material adminis- allow the Board when an by subsequent rule. lease a statute and terms trative official misconstrues 65-1-23 authorizes scope of a While section regulation beyond a issues by statute, Board, provided “[e]xcept as otherwise it is excess administrative law,” regulations rules and to establish authority granted.” Travelers Indem. Co. Barnes, prescribing application, form of 552 P.2d [191 278] Colo. lease, (Colo.1976). re- form the amount of prerogative is the It case, arbitrary by the Board majority's analysis of entitled to the interest set 3. this Under the majority majori- high can be entitled to what State defines as at as as 22 to Under rates 24%. majority "full value.” The defines analysis, ty's this case must be remanded own rate the State would have “full value” of "full value” in the context of a determination money Consol been earned had owed trust funds the interest earned other state a similar to other state trust in manner invested funds. The period question. during the law, not, a State is as matter of forth, nothing Burnham, 445, 449, says permitting so about State v. Utah retroactively (1935) (“It existing the Board to alter general is a rule of the “other leases. Nor does details” lan- statutory construction where two stat guage something contemplate signifi- subject-matter, utes treat the same the one generally pre- cant as a from the deviation general [specific] provi and the other in its vailing statutory interest scheme. As al- sions, controls.”); [specific] ac noted, ready Code Ann. Utah Gardner, 1207, 1209 cord Cannon v. (1992) statutory establishes rate for (Utah 1980); Floyd Surgical v. Western As prejudgment cases interest where the soc., (Utah Ct.App.1989). 773 P.2d 401 contractually agreed upon have not upon majority statutes relied do not a rate. even mention rates. interest Accordingly, we conclude that neither language contemplating the lease changes Impairment of Contract in operating grant nor rules of authori- correctly that if the Board ty provide[s] found section 65-1-23 a modify existing contracts, can then the altering monetary basis for terms upon statutes and rules run headlong relied lease, deviating either in terms of into prohibitions. constitutional The Federal statutory prejudgment interest provides protection Constitution for the assessing Therefore, or in late fees. rights by stating consensual contractual deny cross-appeal seeking Division’s any pass no State shall impairing “law higher rate and late fees and af- Const, obligations I, of contracts.” U.S. art. firm the trial court’s decision in that re- § 10. similarly Utah’s Constitution states spect. that no impairing obligations “law Mountain, Trail P.2d at Const, passed.” contracts shall be art. Certainly section 65-1-23 authorizes the I, § 18. negotiate Board to principle It is a fundamental of constitu higher provided by than that statute. If may tional law that pass a state a law lease, specified however, interest is not in the altering legal nature effect of an reasonably interpreted statute cannot be existing prejudice contract of either change statutory allow the Board to party James, to the contract. See Pulos v. plain language rate of interest. 261 Ind. 302 N.E.2d It permit agency, statute does not principle likewise fundamental of consti time, promulgate rules that are inconsis pass tutional law that the state a law provisions provided tent with “otherwise altering remedy a contractual when the rem law.” Id. An administrative rule out of edy is material to the contract. Kirkman v. harmony express or in conflict with the pro Bird, 100, 111-12, 22 Utah 61 P. 339-0 visions of a “would in statute effect amend (1900) (“The remedy subsisting in a state that statute.” Constr. Olson Co. v. State Tax when and where a contract is made and is to Comm’n, 42, 45, 12 Utah 2d performed part obligation, is a of its (1961). Therefore, even if section 65 — 1— any subsequent law state which so 23 could agency be construed allow the *18 remedy affects that substantially impair as to provide for prejudgment interest when not and lessen the value of contract is forbid contract, provided by agency rule cannot constitution, by den and is therefore “trump” Crowther, section 15-1-1. See void.”). P.2d at 1122.4 control, event, “Any Section in any changes 15-1-1 would law which the intention and specific legal original parties, because it is the statute. effect giving most See to majority policies proper The on Utah also relies Code Ann. with the consistent adminis- 4. (1993), § passed provision 65A-1-2 However, first tration of state trust school lands.” legislature long signed after the lease was 65-1-23, like section section 65A-1-2 does not promulgated. majority argues the rule was The change statutory authorize the Board that this statute clarifies that the "Board had of interest. expansive power 'adopt rules’ Lands, impair remedy a material interest or the other a less greater or one a contract, its obli in its with Con- impairs obligation own contract benefit Am.Jur.2d Constitutional own of over one million gations.” 16A sol to its benefit (1979) Kentucky Util. Co. (citing § impairment Law 695 of contract is dollars. Such Co., 585, 131 Ky. Ice S.W.2d prohibited Carlisle and State Consti- Federal (1939)). impair purposes “Law” for tutions.7 “[a]ny enact been defined to mean ment has ment, originates, it from whatever source Conclusion Id. gives the force of law.” which a state legislature, § This includes “acts of the 699. authority, existing in- In accordance with leg passed pursuant to municipal ordinances Mountain, cluding Trail I would hold that by an authority, orders rules and islative in- governs prejudgment section 15-1-1 exercising dele instrumentality of the state in the the State terest rate contract between authority, and state constitutions gated unilaterally may The not and Consol. § 701. Ab Id. constitutional amendments.” modify the terms of own contract to its interest, the state compelling state sent a impairs majority’s holding own benefit. con pass impairing a law its own may not between and Consol in the contract the State parties. 694.5 private tracts with and State Con- violation of both Federal case, parties did stitutions. present In the rate. Be- prejudgment interest

specify parties were on the issue silent cause Justice, herein; HALL, participate did not interest, by exist- prejudgment as indicated BENCH, Judge, Appeals sat. Court Mountain, including authority, sec- Trail Justice, STEWART, incorporated by operation of 15-1-1 was Associate does tion Chief in the contract.6 This participate law into the herein. penal- material in it set the

contract ty charged was to be if became Consol royalty payments. At delinquent 15-1-1, specified by section interest $460,725.38 in owe the would interest, according unpaid prejudgment but majority, under Board’s later- in- promulgated governing prejudgment rule terest, $1,473,856.09 in would owe majority al- interest. has

prejudgment State, through the Division lowed the case, only damages “for recoverable Assuming, conceding, can but not that the state obligation money pay is the constitutionally impair obligations like the one in breach of due, case, legal given only thereon at ruling interest such can be the instant See, damages technically award- e.g., interest is prospective application. 16AAm.Jur.2d rate. The (1979) (statute tending delay 22 Am.Jur.2d payment.” ed for the Law 689 Constitutional damage type Damages § has obligations, This impair contractual if assumed pre- valid, consistently courts as given been defined our not be effect so retroactive See, Drywall, e.g., A Inc. judgment interest. L & impair already existence without contracts Constitution). Constr. violating v. Whitmore 1980); Critchfield, Fitzgerald v. (Utah Ct.App.1987). attempts operation majority to avoid 6. The by claiming there is a distinc- section 7.When, was amended to provided section 15-1-1 in this case between "interest tion 10%, damages." from 6 to provided increase contract and *19 expressly provided that legislature majority State is entitled contracts entered damages does not affect expectancy that the State amendment —the 15-1-1(3). §Ann. unpaid 1981. Utah Code into before have made interest on "would recognized legislature apparently royalties in a Consol had if constitutionally modify then majority may contracts timely could manner.” Whatever type damages applicable in in existence. to call the choose The trial court notes requirement of the Lease. pretation with the modification is inconsistent (iv) estopped; State is not estoppel estopped] State is not and there would be no this case would have no substantial adverse substantial public policy.” adverse effect on public policy. effect on Id.; see also Utah State Univ. v. Sutro & Co., (Utah 1982). 646 P.2d See attempts portray each of these generally Kirkpatrick, United States v. estoppel arguments raising legal both (9 Wheat.) 720, 735-37, U.S. L.Ed. examination, however, Upon factual issues. (1824) (discussing reasons for denying equi- it appears primarily that arguing Consol is table government). defenses actions that the trial court in finding erred Moreover, prerequisite as a finding to a Consol did not meet its proving burden of injustice, party asserting estoppel must estoppel against the State. Consol’s show that it acted with prudence “reasonable potential legal question relating estoppel is diligence” in relying on rep- the State’s public policy argument. Nevertheless, Morgan resentations. v. argument we do not reach this because we Lands, (Utah 1976).9 dispose estoppel issue on other grounds. Because we find dispositive, the issue We review a trial findings court’s of fact first address Consol’s assertion that it acted clearly under the erroneous standard. Utah prudence diligence. reasonable and due 52(a). Consol, R.Civ.P. party as the chal- argues It that it reasonably acted in deter- lenging findings, heavy those has the burden mining appropriate relying rate and in marshaling all support the evidence in alleged the State’s representations. It con- the trial findings court’s showing then tends that the alternative rate findings those are compe- not based on ambiguous and sought therefore it clarifica- tent, admissible evidence. Cambelt Int’l regarding tion proper rate from Division Dalton, (Utah Corp. personnel. above, As discussed per- Division 1987). Consol has not met its burden of sonnel told Consol that under the alternative marshaling the showing facts or of that the provision, pay it should the same rate it clearly trial court deciding erred in paying government federal under its estopped. State was not lease at the same mine.10 Consol had a federal lease at the same mine which at briefly applicable review law. all relevant times royalty. carried a It 17.5c equitable estoppel doctrine of has three “ argues that the represented to it that ‘(1) predicates: admission, factual state rate for the federal ment, 17.5c lease or act inconsistent with the claim after- represented same mine (2) “prevailing” asserted, wards party action the other being paid by “federal lessees of land of admission, statement, the faith of such or (3) similar act, character under coal leases issued injury party to such other result time,” the United States at required allowing party the first to contradict by the Lease. repudiate admission, statement, or such ” act.’ Plateau 802 P.2d at 728 Consol further although it was Club, (quoting Celebrity Liquor Inc. v. Utah aware of the FCLAA general and the Comm’n, Control royalty, a operator, reasonable mine looking 1979)). Utah, all the federal leases in would not requirements These expanded are necessarily have concluded that 8% was the party when a attempting estop prevailing Therefore, rate. argument agents. or its continues, “The State not be es- reasonably Consol acted in relying topped injustice unless would [if result on the alleged representations. Division’s

Notes

notes the lease between as to very so alter the common law. At the subject Consol and the is State to the laws minimum, Trail Mountain must be treated Utah in signed. existence when lease was persuasive authority. as The failure to ad- Consol, majority essentially points The at existing precedent “produce dress will unac- claiming that it should have known it was ceptable indeterminacy in the law and ... taking subject requirement a lease undermine its confidence institutions.” that the full any State receive value for dis Thurman, (Utah P.2d 1256 State 846 position majority of its trust lands. The 1993). however, ignores, the fact that section 15-1-1 majority give The lip does even was signed. service also effect when the lease was Trail majority’s analysis, Mountain and cases cited there- Consistent with the own Instead, majority in. strains to the lease avoid the between Consol and the is State by governed operation engaging of section 15-1-1 in a section 15-1-1. See Lone Mountain, 1561; Nielsen, analysis rather tortured of the State’s re- 984 F.2d at 848 Land, 669-70; sponsibilities Enabling under the Utah Act. P.2d at SCM 732 P.2d at 108- 09; majority correctly 14; Lignell, The indicates that P.2d at 593 809 n. Trail Mountain, 1273; responsibility manage has the trust 884 P.2d at Mont Truck 782; ing, Brewer-Harrison, lands “for the sole benefit of the 802 common P.2d at 731-32; 1358; Ringwood, and to ‘full value’ P.2d at schools receive 786 P.2d at 482; Mason, Price-Orem, policy sponsibility legislature to set 784 P.2d at 2; Davies, may responsibility and that not be consti- n. 746 P.2d at 270. P.2d tutionally agency an delegated to under signed in agreement The lease rule-making authority. 1968, 15-1-1, provided force in Section statutory rate prejudgment interest Crowther, 1122; 762 P.2d at see also Thus, the rules under contracts 6%. Bd., 238, McKnight v. State Land 14 Utah 2d formation, prejudgment (1963) (“[R]ules contract 726, P.2d integrated into contract of 6% was regulations agency administrative must See SCM between the State Consol. contrary in- to rather than be conform (rate Land, 732 P.2d at 108-09 of interest law.”). statutory consistent statutory governed by effect when majority Ann. The holds that Utah Code into); Lone entered accord contract was (1987) authority grants Mountain, at 1561. The State has 984 F.2d statutory rate change of interest modify, unilaterally at- authority no unilaterally thereby manipulate terms will, statutory interest rate in effect when 65-1-23, at existing Section contracts. into the contract.3 entered appeal, provided to this all times relevant follows: Agency The Rule law, Except'as provided otherwise majority that section 15-1-1 concedes regu- Land Board shall rules and authority if apply the Board lacked would prescribe applica- the form of the lations modify statutory rate of interest. tion, lease, the form annual erroneously majority concludes that then rental, the amount of and the basis authority. such Board had upon computed, shall which the possess agencies such Administrative may deem and such other details rule-making authority legislature as the has necessary in the interest the State. delegated expressly to them. See Crowther opinion), majority repealed (emphasis Ins. v. Nationwide Mut. “ Management Act ch. Trust Land ‘It Ct.App.1988). is well [set- Laws 566. Under 1988 Utah delegate legislature tled] language majority’s analysis, emphasized authority’ adopt regu- to a Board ‘to rules provides the State with carte in this section enlarge, abridge, extend or lations modify legal existing blanche modify creating right or im- the statute ” advantage. This to the State’s contracts duty.’ posing Freight, IML Inc. v. Trail very argument was addressed in (Utah 1975) Ottosen, (quot-