Case Information
*1 IN THE UTAH COURT OF APPEALS
‐‐‐‐ ooOoo ‐‐‐‐ Matter General ) OPINION
Determination Rights Use ) All Water, Both Surface ) Case No.
Groundwater, within Drainage Area ) Utah Lake Utah, )
Salt Lake, Davis, Summit, Wasatch, ) F I L E D Sanpete, Juab Counties. ) (July 2012) ____________________________________ )
) App Magna Water Company South )
Farm, LLC, )
)
Appellants, )
)
v. )
)
Strawberry Water Users Association, )
Strawberry High Line Canal Company, )
Central Water Conservancy )
District, Engineer, et al., )
)
Appellees. )
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Third District, Salt Lake Department, Honorable Kate A. Toomey
Attorneys: J. Craig Smith, David B. Hartvigsen, Matthew E. Jensen, Bryan C.
Bryner, City, Appellants Edwin C. Barnes, Steven E. Clyde, Wendy Bowden Crowther, Salt City, Appellee Central Water Conservancy District *2 Mark L. Shurtleff, Norman K. Johnson, L. Ward Wagstaff, and Michael M. Quealy, Salt Lake City, for Appellee Engineer Shawn E. Draney, Keith A. Call, Scott H. Martin, and D. Jason Hawkins, Salt Lake City, for Appellee Strawberry Water Users Association John H. Mabey Jr. and David C. Wright, City, Appellee Strawberry High Line Canal Company
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Before Judges Orme, Thorne, and Christiansen.
THORNE, Judge:
¶1 Magna Water Company South Farm, LLC (collectively, Objectors) appeal from judgment granting Strawberry Water Users Association Strawberry High Line Canal Company’s (collectively, SWUA) motion summary judgment. The determined lacked matter dismissed claims prejudice. We reverse remand.
BACKGROUND
¶2 This concerns SWUA’s use imported Strawberry Valley Project (SVP). We briefly provide background information SVP is relevant understanding considering on appeal.
¶3 The federal reclamation project created early 1900s imports (SVP water) Uintah Basin, Colorado drainage, over Wasatch Mountains into Basin River. is then administered used SWUA pursuant federal contracts United States Bureau Reclamation. After its use SWUA, portion imported SVP An informative history federal reclamation projects including particular history Strawberry Valley Project origin original dispute between SWUA United States can found re Uintah Basin ¶¶ 1–6, 8–33, 410.
water returns to the natural hydrologic system of Utah Lake and the Jordan River as return flow through either seepage into the groundwater aquifers or surface runoff into streams and lakes.
¶4 SWUA and the United States both claim the right to use the return flow water after it commingles with water in the hydrologic system. Both made efforts to establish rights to the return flow water. This case concerns SWUA’s petition pursuant Utah Code section ‐ ‐ (Section 24 proceeding) filed in the Third District Court seeking an interlocutory decree the general adjudication water rights the Utah Lake Jordan River drainage. The ordered the Utah State Engineer to prepare mailing list specified categories water right owners the Utah Lake ‐ Jordan River drainage ordered SWUA notify those owners pending Section proceeding also publish an notice. The also ordered State Engineer prepare proposed determination recommendation on return flow issues. Thereafter, State Engineer issued his proposed determination supporting water after commingled naturally occurring Utah ‐ Jordan drainage. filed objection proposed determination recommendation, arguing determination departs long ‐ established Utah law and adversely affect Objectors’ rights interests. ¶5 The conducted discovery related Objectors’ standing, after which SWUA filed motion summary judgment challenging to participate Section proceeding. Engineer Central Water Conservancy District filed separate briefs support SWUA’s summary judgment motion. After hearing on SWUA’s summary judgment motion, court found had no matter based on following grounds:
a. There no genuine as material facts [SWUA is] entitled judgment as law; b. Based on undisputed facts, ground wells located on west side Lake
County up gradient Jordan River, not affected surface levels or River, no call hydrologic connection surface Lake; *4 c. Based on undisputed facts, do not
have legally protectable interest in this controversy; d. Based on undisputed facts, not parties in this matter because not
interested or positioned this matter such way to effectively assist Court;
e. Based on undisputed facts, raised in Utah Proposed Determination been, or likely be, other a this matter; f. As matter of law, do not standing matter based ownership shares stock in Lake/Jordan companies; g. presented evidence supporting finding suffer palpable,
particularized due Engineer’s Proposed determination. particular, did file affidavits opposition [SWUA’s] motion affidavit under Rule 56(f) Rules Civil Procedure stating reasons could file affidavits supporting their opposition.
Thereafter, district dismissed claims prejudice. now appeal.
ISSUE AND STANDARDS OF REVIEW argue erred concluding lacked then granting SWUA’s motion summary judgment
dismissing claims. “Standing question law review for correctness, affording deference factual determinations bear upon question standing, but minimal deference application facts law.” City Grantsville Redevelopment Agency Tooele City P.3d *5 461 (internal quotation marks omitted). “We review district decision to grant summary judgment correctness, granting no deference to district court’s conclusions, we view facts light most favorable to nonmoving party.” Id. ¶ 8 (internal omitted).
ANALYSIS
¶7 Objectors argue that they have established standing object to State Engineer’s proposed determination under both traditional standing alternative standing tests. Objectors also argue that they statutory standing pursuant Utah Code section 73 ‐ 4 ‐ 24. We hold that Objectors lack traditional standing but that they nonetheless standing this dispute.
I. Traditional Standing argue that district erred concluding that they do not have
traditional standing because Objectors failed establish first prong traditional test, they would suffer distinct palpable, particularized injury resulting State Engineer’s Proposed Determination. [3] assert they presented evidence demonstrates Engineer’s proposed determination adverse affect shares. assert, under determination, would subjected reduced diversions during drought year—reasonably probable given Utah’s thirty year [2] Because we established under alternative test, we need not do not consider statutory argument. first argue court, finding did not present evidence support finding suffer palpable, particularized because did not file affidavits opposition SWUA’s motion summary judgment, failed consider verified objection answers interrogatories, which set forth detail adverse effects Objectors’ rights. do direct us anywhere record where preserved particular before court. As result, do consider this issue further. See Main St. Easy Heat, Inc. (“Issues are at trial usually deemed waived.”). *6 drought pattern—and adoption of the proposed determination will require to expend significant resources defend protect their water rights from inflated and incorrect return flow calculations.
¶9 “Utah’s traditional standing test requires a showing of injury, causation, redressability.” Grantsville , 2010 UT 38, ¶ 14 (citing Utah Chapter of the Sierra Club v. Utah Air Quality Bd. , 2006 UT 74, ¶ 21, 148 P.3d 960). “If the party can satisfy these three criteria, the party has standing pursue its claim before the courts of state.” Sierra Club , UT 74, ¶ 19. “Under the first prong of the traditional test, the petitioning party must allege it has suffered or suffer[ ] some palpable injury gives [it] a personal outcome of the legal dispute.” Grantsville , UT 38, ¶ (alterations original) (internal omitted). “[A] plaintiff seeking on basis claim future injury must, at a minimum, set forth allegations establishing reasonable probability, as opposed mere possibility, future exists.” Brown Division Water Rights 747. allege adoption Engineer’s determination supporting water after return flow commingled water naturally occurring Utah Lake ‐ Jordan drainage subject them reduced diversions during drought year require expend significant resources defend protect water rights from inflated incorrect calculations. Here, found that, based on undisputed facts,
Objectors’ ground water rights wells located on the west side Lake County up ‐ gradient from Jordan River, affected by surface water levels in Utah or Jordan River, no call on or a hydrologic connection surface Lake. SWUA argues because ground rights—taken from points up ‐ gradient Jordan River—are impacted proposed determination, lack traditional because cannot demonstrate personal interest matter. ¶11 Based on facts ground up gradient River, affected surface levels or Jordan River, no call hydrologic connection surface Lake, *7 we agree that Objectors alleged adverse effects are too attentuated to demonstrate they will suffer a distinct and palpable injury that gives them a personal the outcome matter. have not presented evidence to demonstrate how reduced diversions during drought year inflated and/or incorrect flow calculations resulting recapture and reuse affect up ‐ gradient rights. Without evidence support finding that their up ‐ gradient directly affected proposed determination support water, not adequately shown that they suffer palpable the determination. Because do not meet first element traditional standing test, full analysis traditional standing is unnecessary. See re Questar Gas Co. , 2007 UT 79, ¶ 59, 175 P.3d 545. Thus, we conclude that court did err finding lack traditional standing.
II. Alternative Standing
¶12 Having concluded lack traditional standing, we turn question alternative standing. See Jenkins Swan , 675 P.2d 1145, 1150–51 (Utah 1983) (recognizing failure satisfy traditional test is necessarily fatal a party’s ability assert an interest before court); see also Sierra Club , 2006 UT 74, ¶ 35. “A party has alternative when it is able show it is ‘an appropriate party raising issues significant public importance.’” Cedar Mountain Envtl., Inc. v. Tooele Cnty. , UT ¶ 15, 95 (quoting Sierra Club , 2006 UT 74, ¶ 35). To whether alternative standing, must first consider whether appropriate party. See Sierra Club ¶ (“If party is an appropriate party, inquiry ends is denied.”).
A. Appropriate Party argue appropriate matter. assert
that, as private public suppliers users River drainage, interest expertise effectively assist matter. party requirement met showing party “the interest necessary effectively assist developing reviewing all relevant legal factual questions unlikely if party is denied standing.” Id. (internal omitted). private and public water suppliers and users with extensive water
rights and water share interests in the Jordan River drainage in western Valley with an interest in preserving the state’s water resources and ensuring compliance with state laws and regulations. Objectors, as water suppliers and users, have working knowledge the laws and regulations controlling water rights and water distribution systems. Moreover, extensive and shares, which necessarily provides them the incentive and interest in investigating reviewing all relevant legal and factual issues regarding the recapture and SVP water. Accordingly, we determine that “the interest necessary to effectively assist the court in developing reviewing all relevant legal factual questions.” Chapter the Sierra Club Air Quality Bd. 74, 42, (internal omitted). ¶15 Because we that the interest necessary effectively assist the developing reviewing all relevant legal factual questions, we consider whether the issues likely be raised if denied standing. argue that the state law issues regarding the recapture SVP return flows will be raised if denied standing. assert that no other person entity has timely objected State Engineer’s recapture reuse recommendation proposed determination. identify, record demonstrates, that only two parties, both which import into basin, have filed objections State Engineer’s proposed determination. Those objections do not, however, address return flow Objectors, as non ‐ importers water, present. Nor does record provide any indication that other an interest raise that issue. Based on record before us no other party filed an objection recommendation, do agree with “the Proposed The United States filed an objection on July 7, 2009. The United States objected paragraph four determination, which provides “[t]ributary water is used exchange return flow may subject priority calls Utah drainage.” United States’ asserted objection claimed “provision [was] potentially vague ambiguous need clarification.”
SWUA filed an objection on July objecting “the Proposed Determination qualified basis extent Engineer is recommending ‘Strawberry Valley Project’ entity retains right to use water.”
Determination been, or are likely to be raised by other a in this matter.” As result, determine recapture reuse of SVP water issues raise are unlikely to be if are denied standing. We next consider whether said issues of sufficient public importance to warrant granting Objectors this matter. B. Issues Significant Public Importance
¶16 “Once party has established it is an party to litigation, it must also demonstrate issues it seeks to raise sufficient public importance themselves to warrant granting party standing.” Id. ¶ (internal omitted).
This requires to determine not only issues sufficient weight but also more appropriately addressed by another branch government pursuant to political process. more generalized the issues, more likely ought to be resolved legislative or executive branches.
Id. (citation omitted). ¶17 The recapture reuse recommendation SWUA’s claims flow imported water raise issues appear venture into uncharted territory Utah, s ee re Uintah Basin ¶ 410; see also id. ¶ (“Whether what extent imported entitled different treatment does appear been squarely addressed this court.”), will ultimately need be addressed courts. See id. ¶ (“It seems elementary courts must how the[] well established principles [of recapturing return water] should applied imported water.”). Additionally, may affect large number users Utah, see id. (stating resolution this right dispute “potentially reverberates all way southern Valley north where enters Great Salt Lake”). Because dispute resolve previously adjudicated Utah potential impact large portion community, public interest having fully litigated. *10 ¶18 While lack traditional standing, we determine they have alternative this matter because are raise an public importance.
CONCLUSION
¶19 Because Objectors’ groundwater rights are up gradient Jordan River affected surface levels Jordan River, we determine alleged adverse effects too attentuated demonstrate suffer palpable gives them personal outcome matter. Thus, we affirm finding lack traditional matter.
¶20 Although lack traditional standing, we have alternative standing. private public suppliers users with extensive rights share interests drainage a working knowledge laws regulations controlling interest necessary effectively assist matter. Moreover, raise public importance unlikely if denied standing. Because alternative standing, conclude district erred dismissing claims prejudice remand for further proceedings.
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William A. Thorne Jr., Judge
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¶21 WE CONCUR:
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Gregory K. Orme, Judge
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Michele M. Christiansen, Judge