IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

In the Matter of the General

Determination of the Rights to the Use

of All the Water, Both Surface and

Groundwater, within the Drainage Area

of Utah Lake and Jordan River in Utah,

Salt Lake, Davis, Summit, Wasatch,

Sanpete, and Juab Counties.

____________________________________

Magna Water Company and South

Farm, LLC,

Appellants,

v.

Strawberry Water Users Association,

Strawberry High Line Canal Company,

Central Utah Water Conservancy

District, and Utah State Engineer, et al.,

Appellees.

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OPINION

Case No. 20100921‐CA

F I L E D

(July 6, 2012)

  2012 UT App 184

‐‐‐‐‐

Third District, Salt Lake Department, 360057298

The Honorable Kate A. Toomey

Attorneys: J. Craig Smith, David B. Hartvigsen, Matthew E. Jensen, and Bryan C.

Bryner, Salt Lake City, for Appellants

Edwin C. Barnes, Steven E. Clyde, and Wendy Bowden Crowther, Salt

Lake City, for Appellee Central Utah Water Conservancy District
Mark L. Shurtleff, Norman K. Johnson, L. Ward Wagstaff, and Michael

M. Quealy, Salt Lake City, for Appellee Utah State 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, Salt Lake City, for Appellee

Strawberry High Line Canal Company

‐‐‐‐‐

Before Judges Orme, Thorne, and Christiansen.

THORNE, Judge:

¶1 Magna Water Company and South Farm, LLC (collectively, Objectors) appeal

from the district court’s judgment granting Strawberry Water Users Association and

Strawberry High Line Canal Company’s (collectively, SWUA) motion for summary

judgment.  The district court determined that Objectors lacked standing in the matter

and dismissed their claims with prejudice.  We reverse and remand.

BACKGROUND

¶2 This matter concerns SWUA’s rights to the use of the return flow of imported

water from the Strawberry Valley Project (SVP).  We briefly provide the background

information on the SVP that is relevant to understanding and considering the issue on

appeal.1

¶3 The SVP is a federal reclamation project created in the early 1900s that imports

water (SVP water) from the Uintah Basin, in the Colorado River drainage, over the

Wasatch Mountains and into the Utah Lake Basin and Jordan River.  The SVP water is

then administered and used by SWUA pursuant to federal contracts with the United

States Bureau of Reclamation.  After its use by SWUA, a portion of the imported SVP

1

An informative history of federal water reclamation projects including the

particular history of the Strawberry Valley Project and the origin of the original dispute

between SWUA and the United States can be found in In re Uintah Basin, 2006 UT 19, ¶¶

1–6, 8–33, 133 P.3d 410.

20100921‐CA 2
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

their rights to the SVP return flow water.  This case concerns SWUA’s petition pursuant

to Utah Code section 73‐4‐24 (Section 24 proceeding) filed in the Third District Court

seeking an interlocutory decree in the general adjudication of water rights for the Utah

Lake and Jordan River drainage.  The district court ordered the Utah State Engineer to

prepare a mailing list of specified categories of water right owners in the Utah Lake‐

Jordan River drainage and ordered SWUA to notify those owners of the pending

Section 24 proceeding and to also publish an appropriate notice.  The court also ordered

the State Engineer to prepare a proposed determination and recommendation on the

return flow issues.  Thereafter, the State Engineer issued his proposed determination

supporting the recapture and reuse of SVP water after the return flow has commingled

with water naturally occurring in the Utah Lake‐Jordan River drainage.  Objectors filed

an objection to the State Engineer’s proposed determination and recommendation,

arguing that the proposed determination departs from long‐established Utah law and

will adversely affect Objectors’ water rights and interests.

¶5 The parties conducted discovery related to Objectors’ standing, after which

SWUA filed a motion for summary judgment challenging Objectors’ standing to

participate in the Section 24 proceeding.  The State Engineer and the Central Utah Water

Conservancy District filed separate briefs in support of SWUA’s summary judgment

motion.  After a hearing on SWUA’s summary judgment motion, the district court

found that Objectors had no standing in the matter based on the following grounds:

a.  There are no genuine issues as to material facts and

[SWUA is] entitled to this judgment as a matter of law;

b.  Based on the undisputed facts, Objectors’ ground

water rights with wells located on the west side of Salt Lake

County are up‐gradient from the Jordan River, are not

affected by the surface water levels in Utah Lake or the

Jordan River, and have no call on or a hydrologic connection

to the surface water of Utah Lake;

20100921‐CA 3
c.  Based on the undisputed facts, Objectors do not

have a legally protectable interest in this controversy;

d.  Based on the undisputed facts, Objectors are not

appropriate parties in this matter because they are not

interested or positioned in this matter in such a way to

effectively assist the Court;

e.  Based on the undisputed facts, the issues raised in

and by the Utah State Engineer’s Proposed Determination

have been, or are likely to be, raised by other parties with a

stake in this matter;

f.  As a matter of law, Objectors do not have standing

in this matter based on their ownership of shares of stock in

Utah Lake/Jordan River water companies; and

g.  Objectors have not presented evidence supporting

a finding that they would suffer a distinct and palpable,

particularized injury due to the Utah State Engineer’s

Proposed determination.  In particular, Objectors did not file

affidavits in opposition to [SWUA’s] motion or an affidavit

under Rule 56(f) of the Utah Rules of Civil Procedure stating

reasons that they could not file affidavits supporting their

opposition.

Thereafter, the district court dismissed Objectors’ claims with prejudice.  Objectors now

appeal.

ISSUE AND STANDARDS OF REVIEW

¶6 Objectors argue that the district court erred in concluding that Objectors lacked

standing in the matter and then granting SWUA’s motion for summary judgment

dismissing Objectors’ claims.  “Standing is a question of law that we review for

correctness, affording deference for factual determinations that bear upon the question

of standing, but minimal deference to the district court’s application of the facts to the

law.”  City of Grantsville v. Redevelopment Agency of Tooele City, 2010 UT 38, ¶ 9, 233 P.3d

20100921‐CA 4
461 (internal quotation marks omitted).  “We review a district court’s decision to grant

summary judgment for correctness, granting no deference to the district court’s

conclusions, and we view the facts in the light most favorable to the nonmoving party.”

Id. ¶ 8 (internal quotation marks omitted).

ANALYSIS

¶7 Objectors argue that they have established standing to object to the State

Engineer’s proposed determination under both traditional standing and alternative

standing tests.  Objectors also argue that they have statutory standing pursuant to Utah

Code section 73‐4‐24.  We hold that Objectors lack traditional standing but that they

nonetheless have standing in this dispute.2

I.  Traditional Standing

¶8 Objectors argue that the district court erred in concluding that they do not have

traditional standing because Objectors failed to establish the first prong of the

traditional test, that they would suffer a distinct and palpable, particularized injury

resulting from the Utah State Engineer’s Proposed Determination.3  Objectors assert

they presented evidence that demonstrates the State Engineer’s proposed determination

will have an adverse affect on their water rights and water shares.  Objectors assert, that

under the State Engineer’s proposed determination, they would be subjected to reduced

diversions during a drought year—reasonably probable given Utah’s thirty‐year

2

Because we determine that Objectors established standing under the alternative

test, we need not and do not consider Objectors’ statutory standing argument.

3

Objectors first argue that the district court, in finding that Objectors did not

present evidence to support a finding that they would suffer a distinct and palpable,

particularized injury because Objectors did not file affidavits in opposition to SWUA’s

motion for summary judgment, failed to consider Objectors’ verified objection and

answers to interrogatories, which set forth in detail the adverse effects to Objectors’

water rights.  Objectors do not direct us anywhere in the record where they preserved

this particular issue before the district court.  As a result, we do not consider this issue

further.  See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (“Issues that are

not raised at trial are usually deemed waived.”).

20100921‐CA 5
drought pattern—and adoption of the proposed determination will require Objectors to

expend significant resources to defend and protect their water rights from inflated and

incorrect return flow calculations.

¶9 “Utah’s traditional standing test requires a showing of injury, causation, and

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 to pursue its claim before the courts of this state.”  Sierra

Club, 2006 UT 74, ¶ 19.  “Under the first prong of the traditional test, the petitioning

party must allege that it has suffered or will suffer[ ] some distinct and palpable injury

that gives [it] a personal stake in the outcome of the legal dispute.”  Grantsville, 2010 UT

38, ¶ 14 (alterations in original) (internal quotation marks omitted).  “[A] plaintiff

seeking standing on the basis of a claim of future injury must, at a minimum, set forth

allegations establishing that a reasonable probability, as opposed to a mere possibility,

of future injury exists.”  Brown v. Division of Water Rights, 2010 UT 14, ¶ 19, 228 P.3d 747.

¶10 Objectors allege that adoption of the State Engineer’s proposed determination

supporting the recapture and reuse of SVP water after the return flow has commingled

with water naturally occurring in the Utah Lake‐Jordan River drainage would subject

them to reduced diversions during a drought year and require Objectors to expend

significant resources to defend and protect their water rights from inflated and incorrect

return flow calculations.  Here, the district court found that, based on the undisputed

facts,

Objectors’ ground water rights with wells located on the

west side of Salt Lake County are up‐gradient from the

Jordan River, are not affected by the surface water levels in

Utah Lake or the Jordan River, and have no call on or a

hydrologic connection to the surface water of Utah Lake.

SWUA argues that because Objectors’ ground water rights—taken from points up‐

gradient from the Jordan River—are not impacted by the State Engineer’s proposed

determination, Objectors lack traditional standing because they cannot demonstrate that

they have a personal interest in the matter.

¶11 Based on the facts that Objectors’ ground water rights are up‐gradient from the

Jordan River, are not affected by the surface water levels in Utah Lake or the Jordan

River, and have no call on or a hydrologic connection to the surface water of Utah Lake,

20100921‐CA 6
we agree that Objectors alleged adverse effects are too attentuated to demonstrate that

they will suffer a distinct and palpable injury that gives them a personal stake in the

outcome of the matter.  Objectors have not presented evidence to demonstrate how

reduced diversions during a drought year or inflated and/or incorrect return flow

calculations resulting from the proposed recapture and reuse of SVP water would affect

their up‐gradient water rights.  Without evidence to support a finding that their up‐

gradient water rights are directly affected by the State Engineer’s proposed

determination in support of the recapture and reuse of SVP water, Objectors have not

adequately shown that they will suffer a distinct and palpable injury from the

determination.  Because Objectors do not meet the first element of the traditional

standing test, a full analysis of traditional standing is unnecessary.  See In re Questar Gas

Co., 2007 UT 79, ¶ 59, 175 P.3d 545.  Thus, we conclude that the district court did not err

in finding that Objectors lack traditional standing.

II.  Alternative Standing

¶12 Having concluded that Objectors lack traditional standing, we turn to the

question of alternative standing.  See Jenkins v. Swan, 675 P.2d 1145, 1150–51 (Utah 1983)

(recognizing that a failure to satisfy the traditional test is not necessarily fatal to a

party’s ability to assert an interest before a Utah court); see also Sierra Club, 2006 UT 74,

¶ 35.  “A party has alternative standing when it is able to show that it is ‘an appropriate

party raising issues of significant public importance.’”  Cedar Mountain Envtl., Inc. v.

Tooele Cnty., 2009 UT 48, ¶ 15, 214 P.3d 95 (quoting Sierra Club, 2006 UT 74, ¶ 35).  To

determine whether Objectors have alternative standing, we must first consider whether

they are an appropriate party.  See Sierra Club, 2006 UT 74, ¶ 41 (“If the party is not an

appropriate party, the court’s inquiry ends and standing is denied.”).

A.  Appropriate Party

¶13 Objectors argue that they are appropriate parties in this matter.  Objectors assert

that, as private and public water suppliers and users in the Utah Lake‐Jordan River

drainage, they have the interest and expertise to effectively assist the district court in the

matter.  The appropriate party requirement is met by showing that the party has “the

interest necessary to effectively assist the court in developing and reviewing all relevant

legal and factual questions and that the issues are unlikely to be raised if the party is

denied standing.” Id. ¶ 36 (internal quotation marks omitted).

20100921‐CA 7
¶14 Objectors are private and public water suppliers and users with extensive water

rights and water share interests in the Jordan River drainage in western Salt Lake 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 a working

knowledge of the laws and regulations controlling water rights and water distribution

systems.  Moreover, Objectors have extensive water rights and water shares, which

necessarily provides them with the incentive and interest in investigating and

reviewing all relevant legal and factual issues regarding the recapture and reuse of SVP

water.  Accordingly, we determine that Objectors have “the interest necessary to

effectively assist the court in developing and reviewing all relevant and legal factual

questions.” Utah Chapter of the Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶ 42, 148

P.3d 960 (internal quotation marks omitted).

¶15 Because we determine that Objectors have the interest necessary to effectively

assist the court in developing and reviewing all relevant legal and factual questions, we

consider whether the issues are likely to be raised if Objectors are denied standing.

Objectors argue that the state water law issues regarding the recapture of SVP return

flows will not be raised if they are denied standing.  Objectors assert that no other

person or entity has timely objected to the State Engineer’s recapture and reuse

recommendation in the proposed determination.  Objectors identify, and the record

demonstrates, that only two parties, both of which import water into the basin, have

filed objections to the State Engineer’s proposed determination.  Those objections do

not, however, address the recapture of return flow water issue Objectors, as non‐

importers of water, present.4  Nor does the record provide any indication that other

parties with an interest in this matter will raise that issue.  Based on the record before us

that no other party has filed an objection to the recommendation, we do not agree with

the district court that “the issues raised in and by the Utah State Engineer’s Proposed

4

The United States filed an objection on July 7, 2009.  The United States objected

to paragraph four of the proposed determination, which provides “[t]ributary water

that is used in exchange for SVP return flow may be subject to priority calls in the Utah

Lake‐Jordan River drainage.”  The United States’ asserted objection claimed that the

“provision [was] potentially vague and ambiguous and in need of clarification.”

SWUA filed an objection on July 13, 2009, objecting to “the Proposed

Determination on a qualified basis to the extent that the State Engineer is

recommending that the ‘Strawberry Valley Project’ is an entity that retains the right to

use the SVP return flow water.”

20100921‐CA 8
Determination have been, or are likely to be raised by other parties with a stake in this

matter.”  As a result, we determine that the recapture and reuse of SVP water issues

Objectors raise are unlikely to be raised if they are denied standing.  We next consider

whether said issues are of sufficient public importance to warrant granting Objectors

standing in this matter.

B.  Issues of Significant Public Importance

¶16 “Once a party has established that it is an appropriate party to the litigation, it

must also demonstrate that the issues it seeks to raise are of sufficient public importance

in and of themselves to warrant granting the party standing.”  Id. ¶ 39 (internal

quotation marks omitted).

This requires the court to determine not only that the issues

are of a sufficient weight but also that they are not more

appropriately addressed by another branch of government

pursuant to the political process.  The more generalized the

issues, the more likely they ought to be resolved in the

legislative or executive branches.

Id. (citation omitted).

¶17 The State Engineer’s recapture and reuse recommendation and SWUA’s claims

to return flow water from the imported SVP water raise issues that appear to venture

into uncharted territory in Utah, see In re Uintah Basin, 2006 UT 19, ¶ 48, 133 P.3d 410; see

also id. ¶ 58 (“Whether or to what extent imported water is entitled to a different

treatment does not appear to have been squarely addressed by this court.”), and will

ultimately need to be addressed by Utah courts.  See id. ¶ 50 (“It seems elementary that

Utah courts must determine how the[] well‐established principles [of recapturing return

flow water] should be applied to imported water.”).  Additionally, the recapture and

reuse of the SVP water may affect a large number of water users in Utah, see id. ¶ 57

(stating that the resolution of this water right dispute “potentially reverberates all the

way from southern Utah Valley north to where the Jordan River enters the Great Salt

Lake”).  Because the dispute would resolve issues not previously adjudicated in Utah

with the potential to impact a large portion of the community, the public has an interest

in having this issue fully litigated.

20100921‐CA 9
¶18 While Objectors lack traditional standing, we determine that they have

alternative standing in this matter because they are appropriate parties and raise an

issue of public importance.

CONCLUSION

¶19 Because Objectors’ groundwater rights are up‐gradient from the Jordan River

and not affected by the surface water levels in Utah Lake or the Jordan River, we

determine the Objectors’ alleged adverse effects are too attentuated to demonstrate that

they will suffer a distinct and palpable injury that gives them a personal stake in the

outcome of the matter.  Thus, we affirm the district court’s finding that Objectors lack

traditional standing in this matter.

¶20 Although Objectors lack traditional standing, we determine that they have

alternative standing.  Objectors are private and public water suppliers and users with

extensive water rights and water share interests in the Jordan River drainage that have a

working knowledge of the laws and regulations controlling water rights and the interest

necessary to effectively assist the district court in the matter.  Moreover, Objectors raise

issues of public importance that are unlikely to be raised if Objectors are denied

standing.  Because Objectors have alternative standing, we conclude that the district

court erred in dismissing Objectors’ claims with prejudice and remand the matter for

further proceedings.

____________________________________

William A. Thorne Jr., Judge

‐‐‐‐‐

¶21 WE CONCUR:

____________________________________

Gregory K. Orme, Judge

____________________________________

Michele M. Christiansen, Judge

20100921‐CA 10