This opinion is subject to revision before final

publication in the Pacific Reporter

2017 UT 64

IN THE

SUPREME COURT OF THE STATE OF UTAH

LIVING RIVERS,

Petitioner,

v.

EXECUTIVE DIRECTOR OF THE UTAH DEPARTMENT OF 

ENVIRONMENTAL QUALITY and the DIRECTOR OF THE 

UTAH DIVISION OF WATER QUALITY, in their official capacity, 

the UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY,

the UTAH DIVISION OF WATER QUALITY,

and U.S. OIL SANDS INC.,

Respondents.

No. 20160503

Filed September 20, 2017

On Appeal from Final Action of Administrative Agency

Attorneys:

Joro Walker, Charles R. Dubuc, Jr., Salt Lake City, for petitioner

Sean D. Reyes, Att’y Gen., Stanford E. Purser, Deputy Solic. Gen.,

Craig W. Anderson, Paul McConkie, Asst. Att’ys Gen.,

Salt Lake City, for respondents Utah Department of 

Environmental Quality and Utah Division of Water Quality

A. John Davis, Christopher R. Hogle, M. Benjamin Machlis, 

Salt Lake City, for respondent U.S. Oil Sands Inc.

JUSTICE HIMONAS authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE DURHAM and JUDGE BRADY joined.

Having recused himself, JUSTICE PEARCE did not participate 

herein; DISTRICT COURT JUDGE M. JAMES BRADY sat.

JUSTICE HIMONAS, opinion of the Court:
LIVING RIVERS v. UDEQ

Opinion of the Court

2

INTRODUCTION

¶ 1 Living Rivers appears before this court for a second time

to challenge a decision by the Utah Department of Environmental 

Quality (UDEQ) to issue a “permit by rule” to U.S. Oil Sands Inc. 

(USOS) for a bitumen-extraction project in the Uintah Basin. 

UDEQ first permitted this project in 2008, and Living Rivers filed 

its first challenge to the project in 2011. In reviewing this first 

challenge, we concluded that Living Rivers’ 2011 petition—

although framed as a challenge to UDEQ’s 2011 decision to allow 

USOS to expand its project without seeking a discharge permit (a 

more onerous process than obtaining a permit by rule)—was, in 

substance, an untimely attack on UDEQ’s 2008 permit-by-rule 

decision. See Living Rivers v. U.S. Oil Sands, Inc., 2014 UT 25, ¶ 21, 

344 P.3d 568 [Living Rivers I]. In particular, we concluded that 

Living Rivers was trying to attack the 2008 analysis that 

supported UDEQ’s determination that USOS’s project qualified 

for a permit by rule. According to UDEQ’s analysis, because the 

project site was “not a part of the regional acquifer system” it 

therefore posed only a de minimis risk to groundwater. Id. ¶¶ 7, 

24. 

¶ 2 This time, Living Rivers has asked UDEQ to review yet 

another proposed modification to USOS’s project. Without first 

assuring himself that Living Rivers had standing to request 

agency action, UDEQ’s Executive Director dismissed Living 

Rivers’ requests for agency action on two grounds: (1) because 

they were the same sort of untimely attacks on the 2008 

groundwater determination that this court rejected in Living 

Rivers I and (2) because UDEQ’s declining to require USOS to 

renew its permit by rule was not the kind of decision that Living 

Rivers had a statutory right to challenge. 

¶ 3 On appeal, Living Rivers attacks the Executive Director’s 

conclusion that it lacks a statutory basis for challenging UDEQ’s 

inaction. But it does not adequately challenge the Executive 

Director’s other basis for dismissing its requests for agency 

action—his conclusion that Living Rivers’ requests for agency 

action are barred by Living Rivers I. 

¶ 4 We first discharge our independent obligation to assure 

ourselves that Living Rivers had standing to file its requests for 

agency action. Then, despite reservations about the Executive 

Director’s statutory analysis, we conclude that Living Rivers has 
Cite as: 2017 UT 64

Opinion of the Court

3

waived its challenge to UDEQ’s decision by failing to argue that 

the Executive Director erred in concluding that Living Rivers I bars 

Living Rivers’ requests for agency action.

BACKGROUND

¶ 5 This action is the second attempt by Living Rivers to 

require UDEQ to scrutinize, and potentially curtail, USOS’s tar 

sands mining and processing project in the Uintah Basin on the 

grounds that it is polluting the waters of the state. 

¶ 6 The Utah Water Quality Act “makes it unlawful for any 

person to discharge any pollutant into the ‘waters of the state’ 

without a permit . . . .” Living Rivers v. U.S. Oil Sands, Inc., 2014 UT 

25, ¶ 4, 344 P.3d 568. UDEQ is charged with administering this 

Act. To do this, UDEQ has promulgated standards for the 

issuance of discharge permits. See UTAH CODE § 19–5–108(1) 

(“[UDEQ] may make rules . . . for and require the submission of 

plans, specifications, and other information to [UDEQ] in 

connection with the issuance of discharge permits.”). 

¶ 7 In 2008—before Living Rivers had any involvement in 

this matter—USOS applied to UDEQ for a “permit by rule” for its 

Uintah Basin project. Living Rivers I, 2014 UT 25, ¶¶ 2, 6. The 

permit-by-rule process is a “streamlined . . . permitting process” 

that “allows certain applicants—including those [who show that 

their project will] have a ‘de minimis actual or potential effect on 

ground water quality’—to bypass some of the more rigorous 

regulatory requirements generally imposed on other applicants” 

for discharge permits. Id. ¶ 5 (quoting UTAH ADMIN. CODE

r. 317-6–6.2.A). In 2008, UDEQ concluded that USOS’s project 

posed a de minimis risk to groundwater quality and therefore 

qualified for permit-by-rule status. Id. ¶¶ 6–8. As we explained in 

Living Rivers I, UDEQ based its decision on four factual 

determinations:

First, . . . that the substances that would be used 

were ‘generally non-toxic’ and would for the most 

part ‘be recovered and recycled in the extraction 

process.’ Second, . . . that the extraction would be 

done in tanks, and not in impoundments or process 

water ponds, and that most of the water would be 

recovered and recycled. Third, . . . that the excess 

material would not be free draining, would have a 
LIVING RIVERS v. UDEQ

Opinion of the Court

4

low moisture content, and would not contain any 

added constituents not present naturally in the rock. 

And finally, . . . that there was only a limited 

amount of shallow, localized ground water at the 

site that is not part of a regional aquifer system.

Id. ¶ 7. 

¶ 8 In 2011, USOS informed UDEQ of four changes to its 

proposed project. After considering these changes, UDEQ 

concluded that they “did not affect the original permit-by-rule 

determination and that the project would [continue to] have a 

de minimis effect on ground water quality.” Id. ¶ 9.

¶ 9 At this point, Living Rivers mounted its first challenge to 

USOS’s permit by rule. Intervening as an “aggrieved party” under 

Utah Code section 63G-4-301, Living Rivers asked UDEQ to 

revoke USOS’s permit by rule and require USOS “to comply with 

the full range of regulatory requirements” necessary to obtain a

full-blown discharge permit. Id. ¶ 10. After a lengthy adjudicative 

proceeding, UDEQ affirmed USOS’s permit-by-rule status, in part 

based on its conclusion that substantial evidence supported the 

determination that USOS’s project “did not present a greater than 

de minimis risk to ground water.” Id. ¶ 11.

¶ 10 Living Rivers appealed to this court, and we affirmed 

but on different grounds. We noted that Living Rivers’ challenge 

to the project’s permit by rule, although styled as a challenge to 

UDEQ’s 2011 determination, was in substance an attack on the 

agency’s 2008 determination that the project was isolated from 

regional aquifers and therefore posed a de minimis risk of 

contaminating groundwater. We reached this conclusion because 

Living Rivers’ challenge focused entirely on errors that UDEQ 

had allegedly made during the original permit-by-rule process. 

See id. ¶¶ 20–25. Thus, instead of addressing the merits of Living 

Rivers’ challenge (as the agency did), we concluded that Living 

Rivers’ challenge was untimely. In order to challenge the agency’s 

2008 groundwater analysis and determination, we held, Living 

Rivers needed to have intervened within thirty days of the 

agency’s 2008 permit-by-rule determination. Id. ¶ 19. “Because 

[Living Rivers] . . . addressed only issues presented and resolved 

in 2008, in a decision that was unchallenged and thus immune 
Cite as: 2017 UT 64

Opinion of the Court

5

from collateral attack, we [therefore] deem[ed] its [2011] petition 

untimely.” Id. ¶ 25.

¶ 11 This brings us to Living Rivers’ current challenge to 

USOS’s project. In November 2014, USOS notified the Utah 

Division of Oil Gas & Mining (DOGM)—which oversees a 

separate, operating permit that USOS is required to maintain—of 

planned modifications to its project. A couple of months later, on 

January 13, 2015, Living Rivers’ counsel sent an email to UDEQ 

asking whether USOS had submitted an application for a 

discharge permit or to renew its permit-by-rule status. On 

January 15, 2015, UDEQ responded that it was “aware that US Oil 

Sands has submitted revisions to its mine permit for DOGM,” but 

that UDEQ “has not required an application [for a discharge 

permit or renewed permit by rule] because the changes in 

configuration of the mine pits are within the original footprint and 

do not constitute a change in the operation which would change 

any of the permit by rule factors.” 

¶ 12 On February 17, 2015, after confirming that UDEQ did 

not intend to take any action with respect to USOS’s proposed 

modifications, Living Rivers filed requests for agency action 

under Utah Code sections 19-1-301 and 19-1-301.5, and, 

contemporaneously, a “statement of standing” in which Living 

Rivers explained why it was an appropriate party to bring this 

agency action. In its action, Living Rivers sought “review and 

remand of the Director’s decision not to undertake a permitting 

process open to the public and not to require [USOS] to obtain a 

Ground Water Discharge Permit . . . in response to the company’s 

notification to the Director that it intends to significantly increase 

the size, scope and impact of its PR Spring mining operation.” 

¶ 13 Living Rivers’ requests for agency action centered on 

three key allegations: (1) that a study of the project site 

undertaken by Dr. William Johnson, a professor at the University 

of Utah, demonstrated a “hydrologic connection between the area 

[of the project] and perennial springs located below the mine”; 

(2) that DOGM was concerned that the project might have an 

impact on groundwater in the area, and had asked USOS to 

undertake an analysis aimed at assessing the possible impacts of 

its project on area seeps and springs, “to begin in the spring of 

2015”; and (3) that another expert, Elliott Lips, had identified 

various deficiencies in USOS’s regulatory submissions all of 
LIVING RIVERS v. UDEQ

Opinion of the Court

6

which reflected that USOS was not adequately accounting, or 

monitoring, for the presence of groundwater at the project site.

(Living Rivers also contended that certain mine tailings deposited 

at the project site were toxic, but, according to its own pleadings, 

the significance of this turned on the presence or absence of a 

“hydrologic connection between the area of the mine and the 

springs located below the mine in Main Canyon[.]”)

¶ 14 USOS and UDEQ did not challenge Living Rivers’ 

standing to file its requests for agency action. Instead, they moved 

to dismiss those requests on three separate grounds. 

¶ 15 First, they argued that neither section of the Utah Code 

under which Living Rivers filed its requests—neither section 19-1-

301 nor section 19-1-301.5—authorized Living Rivers to seek 

review of agency inaction. Sections 301 and 301.5—along with 

their implementing regulations—together define the universe of 

permissible adjudicative challenges to UDEQ activity. Under Utah 

Code section 19-1-301.5, a party is authorized to commence a 

“special adjudicative proceeding” if, but only if, that party seeks 

to challenge a “financial assurance determination” or (of relevance 

to this case) a “permit order.” UTAH CODE § 19-1-301.5(1)(g). A 

“permit order,” in turn, is “an order issued by a [UDEQ] director 

that: (A) approves a permit; (B) renews a permit; (C) denies a 

permit; (D) modifies or amends a permit; or (E) revokes and 

reissues a permit.” Id. § 301.5(1)(f)(i). Thus, in relevant part, a 

party may only invoke Utah Code section 301.5—commencing a 

special adjudicative proceeding—if that party files a challenge to a 

UDEQ order that approves, renews, denies, modifies, amends, 

revokes, or reissues a permit.

¶ 16 If a party wishes to challenge UDEQ activity that does 

not amount to the issuance of a permit order, that party must 

pursue its challenge under Utah Code section 19-1-301. Section 

301 “governs [all] adjudicative proceedings that are not special 

adjudicative proceedings as defined in Section 19-1-301.5.” Id. 

§ 301(2). By its terms, section 301 appears to be a catch-all, 

authorizing challenges to any agency activity that section 301.5 

does not cover. But section 301’s implementing regulations 

contemplate that “[f]or the most part, proceedings under [section 

301] will be enforcement proceedings and proceedings to 

terminate permits.” UTAH ADMIN. CODE r. 305-7-301. And they 

anticipate that parties will file requests for agency action under 
Cite as: 2017 UT 64

Opinion of the Court

7

section 301 to contest “[a] Notice of Violation or an Initial Order.” 

Id. r. 305-7-303(1). (The administrative regulations define a 

“Notice of Violation” as “a notice of violation issued by the 

Director that is exempt from the requirements of [the Utah 

Administrative Procedures Act] under [Utah Code section] 63G-4-

102(2)(k).” Id. r. 305-7-102. An “Initial Order,” for its part, is 

defined as “an order that is not a Permit Order, that is issued by 

the Director and that is the final step in the portion of a 

proceeding that is exempt from the requirements of [the Utah 

Administrative Procedures Act] as provided in [Utah Code 

section] 63G-4-102(2)(k).” Id.)

¶ 17 Despite the apparently sweeping scope of agency 

activity that sections 301 and 301.5 jointly authorize parties to 

challenge, USOS and UDEQ argued—and the Executive Director 

held—that Living Rivers could not challenge UDEQ’s decision not 

to require USOS to submit a new application for a permit by rule. 

They argued that this decision did not fall within section 301.5’s 

definition of a challengeable “permit order” because it did not 

approve, renew, deny, modify, amend, revoke, or reissue a 

permit. They also argued that UDEQ’s decision could not be 

challenged under Utah Code section 301—the section of the Water 

Quality Act that, by its terms, “governs [all] adjudicative 

proceedings that are not special adjudicative proceedings as 

defined in Section 19-1-301.5.” UTAH CODE 19-1-301(2). Largely 

focusing on section 301’s implementing regulations rather than 

the statutory text, they argued, and the Executive Director 

concluded, that section 301 only authorized challenges to 

“(1) proceedings contesting a Notice of Violation; (2) proceedings 

contesting an Initial Order; (3) enforcement proceedings; and 

(4) proceedings to terminate permits”—categories that did not 

cover UDEQ’s failure to require USOS to submit a new 

application for a permit by rule.

¶ 18 In addition to arguing that Living Rivers lacked 

statutory authorization to file its challenges, UDEQ and USOS

argued that Living Rivers’ requests were untimely because Living 

Rivers had known that UDEQ declined to take action with respect 

to USOS’s project as early as November 2014, yet Living Rivers 

failed to submit its requests for agency action until February 

2015—well after thirty days had elapsed. 
LIVING RIVERS v. UDEQ

Opinion of the Court

8

¶ 19 Finally, UDEQ and USOS argued that Living Rivers’ 

requests for agency action were, in substance, the same sort of 

attacks on UDEQ’s 2008 groundwater determination that this 

court, in Living Rivers I, held to be impermissible collateral attacks. 

¶ 20 After briefing and oral argument, the ALJ declined to 

make a recommendation on the second ground—when Living 

Rivers had learned about UDEQ’s declining to take action with 

respect to USOS’s project. But he recommended that the Executive 

Director dismiss the requests for agency action on the other two 

grounds advanced by USOS and UDEQ. The ALJ agreed that 

sections 301 and 301.5 did not authorize Living Rivers’ requests 

for agency action because they did not allow challenges to agency 

inaction. The ALJ also agreed that Living Rivers’ requests for 

agency action were, in substance, challenges to “the ground water 

findings which were the important fourth ‘relevant factor’ in the 

Director’s 2008 [permit-by-rule] determination,” and that Living 

Rivers was barred from bringing such a challenge under Living 

Rivers I. 

¶ 21 After the ALJ transmitted his recommendations to the 

Executive Director, Living Rivers submitted comments to the 

Executive Director, which focused exclusively on the ALJ’s 

recommendation that the Executive Director should conclude that 

Living Rivers’ requests for agency action were not authorized 

under sections 301 and 301.5. The Executive Director then 

adopted the ALJ’s recommendation in full. That is, the Executive 

Director adopted the ALJ’s recommendation to deny Living 

Rivers’ requests for agency action because they were not 

statutorily authorized—as we have already explained—and he 

also adopted the ALJ’s recommendation that the Executive 

Director find Living Rivers’ challenges to be barred by Living 

Rivers I. The Executive Director accordingly dismissed Living 

Rivers’ requests for agency action. 

¶ 22 Living Rivers appealed to the Utah Court of Appeals, 

which certified the matter to this court. Utah Code section 78A-3-

102(3)(b) gives us jurisdiction.

STANDARD OF REVIEW

¶ 23 This case presents three issues for potential resolution: 

(1) a standing issue, (2) an issue concerning the correct 

interpretation of the Environmental Quality Code, and (3) an 
Cite as: 2017 UT 64

Opinion of the Court

9

adequate briefing question. With respect to standing, we review 

whether a party has standing in an agency proceeding for 

correctness, granting the agency’s decision no deference. Utah 

Chapter of Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶ 15, 

148 P.3d 960.

¶ 24 With respect to the correct interpretation of the 

Environmental Quality Code, the Utah Administrative Procedures 

Act authorizes us to grant relief from an agency’s erroneous 

interpretation or application of law if we determine “that a person 

seeking judicial review has been substantially prejudiced” 

thereby. Utah Physicians for a Healthy Env’t v. Exec. Dir. of the Utah 

Dep’t of Envtl. Quality, 2016 UT 49, ¶ 12, 391 P.3d 148 (citing UTAH 

CODE § 63G-4-403(4)(d)). 

¶ 25 Finally, appellants bear the burden of adequately 

briefing all independent bases of the order from which they 

appeal. See id. ¶ 13; see also Simmons Media Grp. v. Waykar, LLC, 

2014 UT App 145, ¶ 32, 335 P.3d 885 (“’This court will not reverse 

a ruling . . . that rests on independent alternative grounds where 

the appellant challenges only one of those grounds.’” (citation 

omitted)).

ANALYSIS

I. STANDING

¶ 26 Before we consider the arguments before us on appeal, 

we must evaluate whether Living Rivers had standing to file its 

requests for agency action. As we have explained, Living Rivers 

submitted a “statement of standing” alongside its requests for 

agency action. Curiously, however, the Executive Director did not 

make a finding about whether Living Rivers had standing to 

bring its administrative action. Instead, the Executive Director 

assumed, without deciding, that Living Rivers had standing and 

proceeded to analyze whether Living Rivers’ requests for agency 

action could proceed. 

¶ 27 We remind the Executive Director of the obligation to 

make sure that parties have standing before proceeding to the 

merits of their case. This is because “standing is a jurisdictional 

requirement,” Brown v. Div. of Water Rights of the Dep’t of Nat. Res., 

2010 UT 14, ¶ 12, 228 P.3d 747, that “triggers the court’s, or the 

agency’s, subject matter jurisdiction,” Utah Chapter of Sierra Club v. 

Utah Air Quality Bd., 2006 UT 74, ¶ 13, 148 P.3d 960 [Sierra Club]. 
LIVING RIVERS v. UDEQ

Opinion of the Court

10

Courts and administrative tribunals therefore have “an 

independent obligation” to ensure that the parties before them 

have standing. In re Adoption of Baby E.Z., 2011 UT 38, ¶ 36, 266 

P.3d 702. Indeed, because of its jurisdictional implications, 

“’[s]tanding is an issue that a court can raise sua sponte at any 

time.’” Gregory v. Shurtleff, 2013 UT 18, ¶ 11, 299 P.3d 1098

(alteration in original) (citation omitted). 

¶ 28 Having independently reviewed the record, we hold that 

Living Rivers had standing to bring its administrative actions. 

Under our traditional standing test, a party has standing if (1) it 

has a legally cognizable interest that “has been or will be 

‘adversely affected by the [challenged] actions,’” Utah Chapter of 

Sierra Club, 2006 UT 74, ¶ 19 (citing Jenkins v. Swan, 675 P.2d 1145, 

1150 (Utah 1983)), (2) there is “a causal relationship ‘between the 

injury to the party, the [challenged] actions and the relief 

requested,’” id. (alteration in original), and (3) “the relief 

requested [is] ‘substantially likely to redress the injury claimed,’” 

id. (citation omitted). We have held that an association may 

establish standing under the traditional standing test by having its 

members attest that an agency’s action or inaction will result in

judicially remediable harm to their specific livelihood, health, 

property, or recreational interests. Id. ¶¶ 22–24.

¶ 29 Here, Living Rivers submitted an affidavit prepared by 

John Weisheit, Living Rivers’ Conservation Director. Mr. Weisheit 

stated that he has used and will continue to use the land where 

USOS’s project is located—as well as neighboring lands—for a 

variety of aesthetic, spiritual, and recreational purposes, 

specifically, “to watch birds and wildlife, hike, enjoy the solitude 

and views, take photographs, and otherwise use and enjoy the 

public lands.” He further stated that other Living Rivers members 

“also use the land in the area for hunting, hiking, spiritual, and 

recreation purposes.” And he averred that if USOS was allowed to 

proceed with its project, his “uses and interests [would be] 

immediately and irreparably harmed” because USOS’s 

groundwater discharges would “degrade the environment and 

irreparably alter [his] use and enjoyment of the area.” These 

attestations suffice to establish that Living Rivers has traditional 

standing because they allege that Living Rivers’ members have 

interests in the area surrounding the USOS project area and that 

those interests will be harmed by environmental degradation 
Cite as: 2017 UT 64

Opinion of the Court

11

caused by the expansion of USOS’s mining operation unless that 

expansion is enjoined. This meets the traditional standing test’s 

requirement of “a showing of injury, causation, and 

redressability.” City of Grantsville v. Redevelopment Agency of Tooele 

City, 2010 UT 38, ¶ 14, 233 P.3d 461.

¶ 30 Discharging our independent obligation to assure 

ourselves of the parties’ standing, we conclude that Living Rivers 

had standing to file its requests for agency action.

II. WE AFFIRM THE EXECUTIVE DIRECTOR’S DISMISSAL 

OF LIVING RIVERS’ REQUESTS FOR AGENCY ACTION 

BECAUSE LIVING RIVERS HAS NOT ADEQUATELY 

BRIEFED A CHALLENGE TO AN ALTERNATIVE 

GROUND FOR THE EXECUTIVE 

DIRECTOR’S DECISION

¶ 31 Living Rivers devoted the bulk of its opening brief to 

challenging the Executive Director’s conclusion that Living Rivers 

had no statutory right to challenge UDEQ’s decision to decline to 

review USOS’s permit by rule. See supra ¶¶ 14–17 (explaining the 

statutory framework and the basis for this conclusion). It suggests

that the plain language of the statutory scheme appears to 

authorize (1) “[s]pecial adjudicative proceeding[s]” to challenge 

“permit orders” and “financial assurance determination[s],” UTAH 

CODE § 19-1-301.5(1)(g); and (2) all challenges to UDEQ decisions 

that are not challengeable in “special adjudicative proceedings as 

defined by Section 19-1-301.5,” id. § 301(2). But instead of 

applying the text of this scheme, Living Rivers suggests, the 

Executive Director may have overstated the importance of 

implementing regulations that are arguably at odds with the 

legislature’s will—concluding that section 301 only authorizes 

proceedings to contest a Notice of Violation, an Initial Order, or 

enforcement proceedings, or to contest decisions with respect to 

the termination of permits. See UTAH ADMIN CODE r. 305-7-301 

(“For the most part, proceedings under [section 301] will be 

enforcement proceedings and proceedings to terminate 

permits.”); id. r. 305-7-303(1) (other proceedings under section 301 
LIVING RIVERS v. UDEQ

Opinion of the Court

12

include proceedings to contest “[a] Notice of Violation or an 

Initial Order”).1

¶ 32 We do not pass on Living Rivers’ argument, however, 

because Living Rivers’ appellate brief does not adequately 

challenge the Executive Director’s alternative basis for dismissing 

Living Rivers’ requests for agency action—his conclusion that 

they were impermissible collateral attacks on the agency’s 2008 

determination that USOS’s project was isolated from regional 

aquifers and therefore posed a de minimis risk to groundwater.

¶ 33 “[T]here is not a bright-line rule determining when a 

brief is inadequate.” Bank of Am. v. Adamson, 2017 UT 2, ¶ 12, 391 

P.3d 196. This is because “our adequate briefing requirement is 

not a hard and fast default notion. Instead, it is a natural extension 

of an appellant’s burden of persuasion.” 2010-1 RADC/CADC 

Venture, LLC v. Dos Lagos, LLC, 2017 UT 29, ¶ 30 n.8, —P.3d—

(internal quotation marks omitted). “An appellant who fails to 

adequately brief an issue ‘will almost certainly fail to carry its 

burden of persuasion on appeal.’” Adamson, 2017 UT 2, ¶ 12 

(quoting State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645). And it is 

incumbent on appellants to adequately brief all grounds for a 

court’s or agency’s disposition of a case. When a party appeals 

one basis for a lower court’s or agency’s disposition, but “does not 

challenge the court’s [or agency’s] separate [basis for its 

decision],” the “issue on appeal is considered moot [because] ‘the 

requested judicial relief cannot affect the rights of the litigants.’” 

State v. Sims, 881 P.2d 840, 841 (Utah 1994) (citation omitted).

¶ 34 As we have explained, the ALJ assigned to this matter 

recommended that the Executive Director dismiss Living Rivers’ 

requests for agency action for two independent reasons. First, as 

we have just discussed, he concluded that Living Rivers had no 

statutory authority to challenge the Executive Director’s decision 

not to require USOS to undertake a new discharge permit or 

 

1 Another implication of the Executive Director’s analysis may 

be that a class of potentially unlawful agency decisions—failures 

to take legally required action—is entirely insulated from judicial 

review. We would welcome clarification from the legislature on 

whether it did, indeed, intend to insulate illegal agency inaction 

from court challenge.
Cite as: 2017 UT 64

Opinion of the Court

13

permit-by-rule process. Second, based on USOS’s and UDEQ’s 

argument that the gravamen of Living Rivers’ requests for agency 

action was a new study purporting to show that the 2008 

groundwater determination was wrong, he concluded that Living 

Rivers’ requests for agency action were the same kind of 

impermissible collateral attack on the agency’s 2008 groundwater 

determination that we had addressed in Living Rivers I. This is the 

ALJ’s reasoning:

As directed by the Supreme Court [in Living 

Rivers I], ”if the substance of the petition is a 

collateral attack on the 2008 permit by rule, then it 

matters not whether Living Rivers has formally 

sought to tie its challenge to the 2011 modification 

decision.“ The [Living Rivers I] Court found that the 

petition for review was indeed directed to the 

Director’s 2008 [permit-by-rule] determination, and 

dismissed the petition as untimely, since no 

challenge had been brought within thirty days of the 

March 4, 2008 determination as required by [the 

Utah Administrative Procedures Act] and 

administrative rules.

It is clear from a reading of the [new requests for 

agency action] and their exhibits that Living Rivers 

is continuing to try to challenge the ground water 

findings which were the important fourth “relevant 

factor” in the Director’s 2008 [permit-by-rule] 

determination. Living Rivers acknowledges as 

much, where it argues that it ”centers its RAAs” on 

two new documents, including a hydrogeologic 

report and a report stating results of tests run on 

processed tailings from the mine site. . . . The 

hydrogeologic study would be used by Living 

Rivers to challenge the 2008 factual determination 

regarding ground water at the site, which would be 

barred as a collateral attack on the Director’s 2008 

decision. . . . The claims asserted and relief sought in 

Living Rivers’ RAAs hinge on the presence or 

absence of ground water, and guidance from the 

Utah Supreme Court directs that the RAAs must be 

dismissed as untimely collateral attack on the 
LIVING RIVERS v. UDEQ

Opinion of the Court

14

Director’s 2008 [permit-by-rule] determination, 

barring this tribunal from exercising jurisdiction. 

¶ 35 To be sure, the ALJ’s recommendation is not a final 

order. But the Executive Director’s decision is. See Utah Physicians 

for a Healthy Env’t v. Exec. Dir. of the Utah Dep’t of Envtl. Quality, 

2016 UT 49, ¶ 2, 391 P.3d 148 (“[Utah Code] [s]ection 63G-4-403 

authorizes us to review only a final agency action—in this case, 

the Executive Director’s final order.”). And the Executive Director, 

in his final order, “adopt[ed] the Administrative Law Judge’s 

Findings of Fact and Conclusions of Law”—including, 

necessarily, the ALJ’s conclusion that Living Rivers’ requests for 

agency action amounted to “an untimely collateral attack on the 

Director’s 2008 [permit-by-rule] determination.” As a result, when 

the Executive Director adopted the ALJ’s recommendation, the 

ALJ’s conclusion that Living Rivers’ requests for agency action 

were untimely collateral attacks—and its underlying analysis—

became a part of the Executive Director’s final, appealable order, 

which Living Rivers had a duty to challenge on appeal. See id.

¶ 32 (“The Director’s actions were litigated before the ALJ, and 

now, on appeal, we are to consider the Executive Director’s final 

order, which incorporated the findings of the ALJ.”).

¶ 36 The question, then, is whether Living Rivers adequately 

challenged this basis in its briefing to this court. That is, the 

question is whether Living Rivers adequately argued that its 

requests for agency action were not barred by the logic of Living 

Rivers I—that they were not, in substance, collateral attacks on the 

agency’s 2008 permit-by-rule determination, including the 

agency’s 2008 conclusion that the project posed a de minimis risk 

to groundwater because it was isolated from the regional aquifer.

¶ 37 Living Rivers had at least three basic options for 

challenging this determination. First, Living Rivers could have 

argued that the Executive Director misunderstood our decision in 

Living Rivers I when he concluded that it barred challenges to the 

2008 groundwater determination. Second, Living Rivers could 

have argued that the Executive Director misapplied our decision in 

Living Rivers I to the factual allegations before him. Third, Living 

Rivers could have argued that Living Rivers I was wrongly 

decided.

¶ 38 In its opening brief to this court, however, Living Rivers 

did not pursue any of these three options. It did not argue that 
Cite as: 2017 UT 64

Opinion of the Court

15

Living Rivers I allowed new challenges to the 2008 groundwater 

determination; it did not contend that its requests for agency 

action could prevail even if the 2008 groundwater determination 

remained in place; and it did not argue that Living Rivers I was 

wrongly decided and should be overruled. Indeed, Living Rivers’ 

opening brief did not even acknowledge that the Executive 

Director had dismissed Living Rivers’ requests for agency action 

on two independent grounds. Instead, the closest Living Rivers 

got to challenging this basis was in a part of the “Legal 

Background” section of its opening brief where Living Rivers 

argues that, under Living Rivers I, a petitioner may challenge a 

modification to a project and “the Director is required to assess 

the impact [any] modification will have on water quality.” This is 

the operative portion of Living Rivers’ opening brief:

Now, in seeking to challenge the Director’s 

permitting of the 2014 modification by rule, Living 

Rivers is not improperly concerned with issues 

presented and resolved in 2008. After all, under Rule 

317-6-6.2.A(25), the Director may permit by rule 

only those ”facilities and modifications thereto which 

the Director determines after a review of the 

application will have a de minimis actual or potential 

effect on ground water quality.“ Therefore, before 

permitting a modification by rule under A(25), the 

Director is required [to] assess the impact the 

modification will have on water quality. . . . Only if 

the modification will have minimal effect on water 

quality may the Director permit the modification by 

rule under A(25). . . . Plainly, the Director did not 

and could not undertake analysis of the 2014 

modification in 2008. Therefore, by challenging the 

Director’s evaluation of ground water quality 

impacts of the modified mining operations, 

including the newly configured footprint of the 

three ”mine pits” and the potential effects of the 

revised plan to backfill the pits with processed 

solids . . . Living Rivers is properly focused on the 

A(25) permitting decision. . . .

In its RAAs, Living Rivers is also appropriately 

“concerned” with “whether proposed modifications 
LIVING RIVERS v. UDEQ

Opinion of the Court

16

to the . . . Oil Sands facility [a]re significant enough 

to alter determinations leading to the permit-by-rule 

decision in 2008.” [(quoting Living Rivers I, 2014 UT 

25, ¶ 25)] In the RAAs and before the Executive 

Director, the organization has detailed the

“significant” alterations Oil Sands plans to make to 

its mining operations and has provided ample 

evidence that [the] proposed modifications . . . are 

sufficiently significant to warrant a reexamination of 

the 2008 permit-by-rule decision. In addition, as 

Living Rivers alleges, the 2014 changes “are material 

enough to change the ultimate conclusion that the 

effect on ground water would be de minimis” such 

that “[USOS] would no longer have permit-by-rule 

status.” . . . Thus, as the Supreme Court confirms, 

because Oil Sands has again proposed to alter its 

facility, Living Rivers is entitled to challenge the 

Director’s decision that those modifications are “not 

significant enough to alter the determinations 

leading to the permit-by-rule decision in 2008.”

¶ 39 Neither paragraph amounts to a challenge to the ALJ’s 

(and, hence, the Executive Director’s) determination that Living 

Rivers is unlawfully seeking to attack the 2008 groundwater 

determination. The first paragraph correctly points out that Living 

Rivers I did not purport to bar all challenges to proposed 

modifications to projects that have previously been upheld or 

inoculated from attack by the rules governing finality of agency 

decision-making, and that, consistent with Living Rivers I, a party 

could argue that modifications to a project would, themselves, 

change the factors that had previously justified the project’s 

permit-by-rule status. But the Executive Director did not base his 

determination that Living Rivers’ requests for agency action were 

impermissible collateral attacks on the conclusion that Living 

Rivers I was a categorical bar to any future attack on USOS’s 

project, including attacks predicated on modifications to that 

project. Instead, the Executive Director concluded that Living 

Rivers’ requests for agency action were in substance a renewed 

attack on the 2008 groundwater determination. As the ALJ put it 

in the recommendations that the Executive Director adopted, “[i]t 

is clear from a reading of the [new requests for agency action] and 

their exhibits that Living Rivers is continuing to try to challenge 
Cite as: 2017 UT 64

Opinion of the Court

17

the ground water findings which were the important fourth 

‘relevant factor’ in the Director’s 2008 [permit-by-rule] 

determination.” This is the conclusion that Living Rivers was 

obliged to challenge on appeal. But the first paragraph does not 

challenge this conclusion. While Living Rivers states that its 

requests for agency action are allowed by Living Rivers I because 

they are formally targeted at modifications to USOS’s project, it 

does not point to anything in those requests for agency action that 

rebut the ALJ’s determination that the substance of Living Rivers’ 

challenge is aimed at the 2008 groundwater determination. This is 

not enough.

¶ 40 There is a sense in which the second quoted paragraph 

of Living Rivers’ opening brief is a “challenge” to the Executive 

Director’s decision: it states that Living Rivers “has provided 

ample evidence that [the] proposed modifications . . . are 

sufficiently significant to warrant a reexamination of the 2008 

permit-by-rule decision.” Plainly, if it is true that the proposed 

modifications “are sufficiently significant to warrant a 

reexamination of the 2008 permit-by-rule decision,” then Living 

Rivers’ requests for agency action are not impermissible collateral 

attacks on the 2008 groundwater determination—they are, 

instead, “warrant[ed].”

¶ 41 The problem is that this paragraph utterly fails to engage 

with the substance of the Executive Director’s ruling. The 

Executive Director concluded that Living Rivers was trying to 

innovatively characterize its way out of a timeliness problem—the 

same way it did in Living Rivers I. To be sure, Living Rivers’ 

requests for agency action were formally aimed at the 

modifications that USOS had proposed (just as in Living Rivers I). 

But the Executive Director understood Living Rivers’ requests for 

agency action to be elliptically stating a different claim: the claim 

that because new evidence indicates that the 2008 groundwater 

determination was incorrect—because the project site is actually 

connected to the regional aquifers—the modifications that USOS 

has proposed will have a nontrivial impact on groundwater. Thus, 

quoting our opinion in Living Rivers I, the Executive Director 

concluded that although Living Rivers had “formally sought to tie 

its challenge to the [proposed] modification,” it was, in actuality, 

seeking to challenge the 2008 groundwater determination. 
LIVING RIVERS v. UDEQ

Opinion of the Court

18

¶ 42 Now, on appeal, Living Rivers argues only that its

requests for agency action should be allowed to proceed because 

they have “detailed the ‘significant’ alterations [USOS] plans to 

make to its mining operations,” and because their claim is that 

those modifications are “sufficiently significant to warrant a 

reexamination of the 2008 permit-by-rule decision.” But this is just 

to reiterate the characterization that the Executive Director 

rejected. This is not to challenge the Executive Director’s rejection 

of Living Rivers’ characterization of its requests for agency action. 

Living Rivers cannot hope to defeat the Executive Director’s 

conclusion that its requests for agency action are formally aimed 

at the proposed modifications, but in substance aimed at the 2008 

groundwater determination, by restating that its requests for 

agency action are formally aimed at the proposed modifications. 

This does nothing to help us understand why the Executive 

Director was wrong to conclude—as he did—that Living Rivers’ 

requests for agency action were all rooted in the allegation that 

the 2008 groundwater determination was incorrect. Nor does it 

help us understand why the Executive Director was wrong to 

conclude that Living Rivers I barred such claims.

¶ 43 Put another way, the Executive Director concluded that 

while Living Rivers had formally sought to focus its requests for 

agency action on the new modifications proposed by USOS, those 

requests were actually aimed at the 2008 groundwater 

determination because they were ultimately grounded in new 

studies purporting to show that the 2008 groundwater 

determination was false. In challenging this conclusion, Living 

Rivers has not denied that its requests for agency action were 

premised on new studies purporting to show that the 2008 

groundwater determination was false. Instead, it has baldly

averred that the Executive Director is wrong because Living 

Rivers’ requests for agency action are focused on the new 

modifications proposed by USOS. The Executive Director’s 

conclusion was that Living Rivers had mischaracterized the 

substance of its requests for agency action; Living Rivers’ 

response is to restate this purported mischaracterization. This 

brings us no closer than we were before we received Living 

Rivers’ opening brief to knowing whether (1) Living Rivers could 

prevail in its new requests for agency action even if the 2008 

groundwater determination remains in place; (2) we should hold 

that Living Rivers I authorizes new challenges to old 
Cite as: 2017 UT 64

Opinion of the Court

19

determinations when they are based on new evidence; or 

(3) Living Rivers I should be overruled. And this, in turn, is just 

another way of saying that Living Rivers has impermissibly 

sought to “dump the burden of argument and research” onto this 

court. State v. Green, 2004 UT 76, ¶ 13, 99 P.3d 820 (citation 

omitted); see also 2010-1 RADC v. Dos Lagos, 2017 UT 29, ¶ 30 & 

n.8, —P.3d—.

¶ 44 Our conclusion that Living Rivers has not adequately 

challenged the Executive Director’s decision is reinforced by the 

course of events after Living Rivers filed its opening brief. In its

response brief, USOS argued that we should affirm the Executive 

Director’s decision “because Living Rivers does not challenge an 

independent basis for such dismissal”—namely, that “the 

Executive Director’s determination that the substance of [Living 

Rivers’ requests for agency action] is a challenge to the 2008 

[permit-by-rule] determination and the 2008 finding of an absence 

of ground water that could be impacted by the project.” USOS 

analyzed the portion of Living Rivers’ opening brief that came 

closest to challenging this basis for dismissing Living Rivers’ 

requests for agency action—the portion that we have just 

addressed ourselves. It urged us to conclude that this portion of 

the brief failed to show that Living Rivers’ requests for agency 

action were “appropriately directed at the impact that [USOS’s 

proposed] modifications . . . might have on the [project’s] permitby-rule status” as opposed to “call[s] for the rescission of the 2008 

[permit-by-rule] determination.”

¶ 45 In its reply brief, Living Rivers does not dispute that its 

opening brief failed to challenge the Executive Director’s 

determination that the substance of Living Rivers’ requests for 

agency action was a challenge to the 2008 groundwater 

determination. Instead, rather than responding to USOS’s 

inadequate briefing argument, Living Rivers sets forth new 

arguments focused on the Executive Director’s determination that 

its requests for agency action were not barred by Living Rivers I. 

Among other things, it argues that its requests for agency action 

do not merely attack the 2008 groundwater determination, but 

instead also challenge the agency’s decision not to require USOS 

to apply for a new permit without first soliciting comments from 

the public on the propriety of this decision. It also suggests that 

USOS’s proposed modification is so significant that Living Rivers 
LIVING RIVERS v. UDEQ

Opinion of the Court

20

is, in effect, challenging an entirely different project from the 

project previously permitted by rule. And it states, for the first 

time, that the Executive Director “Wrongly Contends that 

Presentation of New Information Relating to Permit-by-Rule 

Factors Constitutes a Collateral Attack on the 2008 Permit.”

¶ 46 The newness of the arguments in Living Rivers’ reply 

brief—coupled with the fact that Living Rivers’ reply brief does 

not respond to USOS’s contention that Living Rivers failed to brief 

this ground in its opening brief—confirms our conclusion that 

Living Rivers has failed to adequately challenge the Executive 

Director’s determination that Living Rivers’ requests for agency 

action were impermissible collateral attacks on the 2008 

groundwater determination. See Allen v. Friel, 2008 UT 56, ¶ 8, 194 

P.3d 903 (“It is well settled that ‘issues raised by an appellant in 

the reply brief that were not presented in the opening brief are 

considered waived and will not be considered by the appellate 

court.’” (citation omitted)). 

¶ 47 Living Rivers’ reply brief is a posterchild for why we do 

not allow parties to make new arguments in their reply briefs. The 

reply brief’s arguments set forth a multitude of different possible 

resolutions to this case. For example, if we were persuaded only 

that Living Rivers had stated a procedural claim—the claim that 

the Executive Director had to solicit public comments before 

declining to require USOS to apply for a new discharge permit or 

permit by rule—then our opinion might not disturb the Executive 

Director’s decision to the extent it barred a challenge to the 2008 

groundwater determination. Instead, we might reverse and 

remand with instructions for the Executive Director to make the 

decision anew after allowing public comment. If we agreed with 

Living Rivers’ argument that USOS’s modification is, in reality, a 

completely different project, then we would potentially reverse 

and remand with instructions for the Executive Director to treat 

USOS as though it was an applicant for a discharge permit 

approaching UDEQ for the very first time. And if we disagreed 

that USOS’s proposed modification was functionally a new 

project, but agreed that Living Rivers could challenge the 2008 

groundwater determination based on new information, then we 

would potentially reverse and remand to allow Living Rivers to 

challenge this determination in the different context of assessing 

the continued viability of USOS’s permit-by-rule status. 
Cite as: 2017 UT 64

Opinion of the Court

21

¶ 48 In short, Living Rivers’ reply brief has the potential to 

entirely revolutionize this appeal. It implicates new arguments 

that, in turn, call for a wide variety of different remedies. But, 

because it is a reply brief, it does this belatedly—after USOS and 

UDEQ already had their one opportunity to submit appeals briefs, 

and after Living Rivers’ opening brief has already shaped the 

course of the appellate briefing. This is too much, too late. It 

underscores that Living Rivers’ opening brief failed to adequately 

challenge an independent ground for the Executive Director’s 

decision. 

¶ 49 We close with a candid admission: we are troubled that 

we have had to resolve this case on inadequate briefing grounds. 

Because of inadequate briefing, we are barred from wrestling with 

the significant questions of agency law this case presents—

questions that must, for now, remain open, unsettling the 

administrative law process for future participants in agency 

decisionmaking. 

¶ 50 But Living Rivers’ opening brief does not point to any 

error in the Executive Director’s conclusion that Living Rivers’ 

requests for agency action are impermissible attacks on the 2008 

groundwater determination of the sort that Living Rivers I bars. It 

has not explained in what way its requests for agency action are 

different from those that we held to be untimely in Living Rivers I. 

It has not explained why, if those requests are not meaningfully 

different from those that we held to be untimely in Living Rivers I, 

we should overrule or limit that opinion. Had Living Rivers 

adequately put these issues before the court, the course of 

argument and analysis in this case may have been very different. 

We would have been focused from the get-go on the import of 

Living Rivers I; we would have been focused on the specific 

exhibits and allegations that Living Rivers set forth in its requests 

for agency action that were either distinguishable (or not) from 

the claims at issue in Living Rivers I; we would have been focused 

on the policies underlying bars on collateral attacks on prior 

agency findings of fact; to the extent we agreed with some or all of 

Living Rivers’ arguments, we would have been focused on the 

appropriate appellate remedy. We would have, in short, been 

focused on important questions of agency law.

¶ 51 But that is not how this case has gone. Living Rivers has 

not timely explained how the Executive Director got it wrong. 
LIVING RIVERS v. UDEQ

Opinion of the Court

22

And, consistent with both appellate efficiency (which is just 

another way of saying, “fairness to other parties with pending 

appeals”) and our adversarial system of justice (which says that 

USOS gets the opportunity to respond to Living Rivers’ 

arguments), we will not independently root around in the record 

to try to figure out whether the Executive Director got it right.

CONCLUSION

¶ 52 We affirm the Executive Director’s decision on the 

ground that Living Rivers failed to adequately challenge his 

determination that its requests for agency action were untimely 

collateral attacks on the 2008 groundwater determination of the 

sort that Living Rivers I bars.