Bonham v. Morgan, 880143

Decision Date23 February 1989
Docket NumberNo. 880143,880143
PartiesStanley B. BONHAM and Anne M. Bonham, Boyd F. Summerhays, and Arleen M. Summerhays, Plaintiffs and Appellants, v. Robert L. MORGAN, Utah State Engineer, Salt Lake County Water Conservancy District, a Political Subdivision of the State of Utah and a Body Corporate, and Draper Irrigation Company, a Utah Corporation, Defendants and Appellee.
CourtUtah Supreme Court

James A. McIntosh, Salt Lake City, for plaintiffs and appellants.

R. Paul Van Dam, Michael M. Quealy, John H. Mabey, Jr., Salt Lake City, for Utah State Engineer.

LeRoy S. Axland, Carl F. Huefner, Kendrick J. Hafen, Salt Lake City, for Salt Lake Water Conservancy Dist.

Lee Kapaloski, David L. Deisley, Salt Lake City, for Draper Irrigation Co.

William J. Lockhart, Salt Lake City, for Nat. Parks and Conservation Ass'n.

Dallin W. Jensen, Salt Lake City, for Weber and Davis Counties Canal Co.

Edward W. Clyde, Salt Lake City, for Central Utah Water Conservancy Dist.

Joseph Novak, Salt Lake City, for Provo River Water Users Ass'n.

Ray L. Montgomery, Salt Lake City, for Salt Lake City.

Thorpe A. Waddingham, Delta, for Delta Canal.


Plaintiffs appeal from a summary judgment which denied them standing to pursue count one of their complaint against the state engineer. The summary judgment was certified final under rule 54(b) of the Utah Rules of Civil Procedure to vest this Court with jurisdiction to hear the appeal. See Utah Code Ann. § 78-2-2(3)(e)(v) (Supp.1988).

Plaintiff Stanley B. Bonham, who is not a water user, protested against a permanent change application filed under Utah Code Ann. § 73-3-3 (1980) 1 in the office of the defendant state engineer (state engineer) in June of 1984 by defendants Salt Lake County Water Conservancy District and Draper Irrigation Company (applicants). Applicants sought to change the point of diversion, place, and nature of use of certain water rights in Bell Canyon, Dry Creek, Rocky Mouth Creek, and Big Willow Creek. At a subsequent hearing, Bonham produced evidence of substantial flooding and damage to plaintiffs' properties and adjacent public lands during 1983 and 1984. Bonham informed the state engineer that the flooding was the result of applicants' construction of a screw gate, pipeline, and diversion works after they obtained preliminary approval of their change application. According to Bonham, the flooding had occurred and would recur on a yearly basis whenever the applicants closed their screw gate, allowing the waters to be diverted down the hillside onto plaintiffs' properties and nearby property contemplated for use as a public park. Bonham objected that the proposed structures and improvements contemplated after final approval would detrimentally impact the public welfare.

The state engineer conducted on-site inspections but eventually issued his memorandum decision in which he concluded that he was without authority to address Bonham's claims in ruling on the permanent change application, as Bonham was not a water user, that the state engineer's authority was limited to investigating impairments of vested water rights, and that there was no evidence before him to indicate that the implementation of the change application would impair those rights. The state engineer then granted the permanent change application.

Plaintiffs sued in the district court in compliance with Utah Code Ann. § 73-3-14 (1980), which provides in pertinent part:

In any case where a decision of the state engineer is involved any person aggrieved by such decision may within sixty days after notice thereof bring a civil action in the district court for a plenary review thereof.... [N]otice of the pendency of such action ... shall operate to stay all further proceedings pending the decision of the district court.

(Emphasis added.) In count one of their complaint, they claimed that the state engineer failed to review the plans and specifications of the improvements, failed to conduct an investigation as required by Utah Code Ann. § 73-3-8 (1985) to determine what damage the change application would have on private and public property, and failed to comply with section 73-3-3 (1980) by not considering the "duties" of the defendant applicants. Plaintiffs alleged that the state engineer's disclaimer of any authority to consider, in connection with a permanent change application, any damages caused to plaintiffs as a result of his approval of the application, was contrary to the clear mandate of section 73-3-8, which requires an evaluation of the factors there set out, including any and all damage to public and private property and the impact the application will have on the public welfare. Plaintiffs also alleged that they had owned and occupied their approximately ten acres of property for twenty years and that for the approximately one hundred years since Draper Irrigation first constructed open ditches, flumes, pipelines, and other aqueducts to carry water from Bell Canyon Reservoir to its water treatment plant in Draper, Utah, plaintiffs' properties had remained undisturbed. Since the construction of the screw gates, in furtherance of the applied-for change, that was no longer the case. Virtual waterfalls cascaded down the hillside immediately east of plaintiffs' properties whenever applicants closed that gate and caused tremendous damage to plaintiffs' properties and the public area in the vicinity.

Before any discovery was conducted, the district court granted the state engineer's motion for summary judgment after concluding that the change application process under section 73-3-3 did not contemplate a consideration of all the factors listed in section 73-3-8; that the issues raised by plaintiffs were outside the limited criteria governing approval and rejection of change applications contained in section 73-3-3; and that plaintiffs were, therefore, not "aggrieved persons" within the meaning of section 73-3-14 and could not bring an action to review the decision of the state engineer under section 73-3-3. The summary judgment lifted the stay imposed by section 73-3-14 on the approval of the permanent change application. The order was certified as final under rule 54(b) of the Utah Rules of Civil Procedure.

Plaintiffs appealed. This Court granted the request of the National Parks and Conservation Association (NPCA) to intervene as amicus curiae and granted a like request by Weber Basin Water Conservancy District, Weber River Water Users Association, Davis and Weber Counties Canal Company, Draper Irrigation Company, Sandy City, Central Utah Water Conservancy District, Salt Lake County Water Conservancy District, and Provo River Water Users Association (the water users).

Plaintiffs assigned errors in the trial court's ruling that (1) summary judgment in favor of the state engineer was proper; (2) plaintiffs were not "aggrieved persons" within the meaning of section 73-3-14; and (3) the state engineer's duties and responsibilities outlined in section 73-3-8 did not apply to permanent change applications covered by section 73-3-3. At oral argument, the parties conceded that the question of whether plaintiffs are aggrieved persons within the meaning of section 73-3-14 turns on whether the scope of the considerations appropriate for the state engineer under a section 73-3-3 proceeding for a permanent change application is the same as that listed in section 73-3-8. If it is, the state engineer concedes that plaintiffs are aggrieved persons; if it is not, plaintiffs concede that they are not aggrieved persons and that summary judgment was proper. The issues before us may therefore be reduced to the question of whether in permanent change applications (section 73-3-3) the state engineer has the same duties with respect to approval or rejection of applications as he has when considering appropriation applications (section 73-3-8). We hold that the state engineer's duties under the two statutes are the same and that plaintiffs therefore are aggrieved persons entitled to a trial on the merits of count one of their complaint.

Inasmuch as a challenge to summary judgment presents for review conclusions of law only, because, by definition, summary judgments do not resolve factual issues, this Court reviews those conclusions for correctness, without according deference to the trial court's legal conclusions. Madsen v. Borthick, 769 P.2d 245, (Utah 1988). That same lack of deference applies to the trial court's interpretation of statutes, which likewise poses a question of law. Asay v. Watkins, 751 P.2d 1135 (Utah 1988).

Utah Code Ann. § 73-3-3 (1980), 2 at the time the state engineer rendered his decision, read in pertinent part:

Any person entitled to the use of water may change the place of diversion or use and may use the water for other purposes than those for which it was originally appropriated, but no such change shall be made if it impairs any vested right without just compensation. Such changes may be permanent or temporary. Changes for an indefinite length of time with an intention to relinquish the original point of diversion, place or purpose of use are defined as permanent changes. Temporary changes include and are limited to all changes for definitely fixed periods of not exceeding one year. Both permanent and temporary changes of point of diversion, place or purpose of use of water including water involved in general adjudication or other suits, shall be made in the manner provided herein and not otherwise.

No permanent change shall be made except on the approval of an application therefor by the state engineer.... The procedure in the state engineer's office and rights and duties of the applicants with respect to applications for permanent changes of point of diversion, place or purpose of use shall be the same as provided in this title for applications to appropriate water; but the state engineer may, in connection...

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