Crafts v. Hansen, s. 18053

• Decision Date: 14 June 1983
• Docket Number: 18056,Nos. 18053,18055,18057,18054,s. 18053
• Citation: 667 P.2d 1068
• Parties: Mrs. Dudley CRAFTS, et al., Plaintiffs and Appellants, v. Dee C. HANSEN, State Engineer of Utah; Intermountain Power Project; et al., Defendants and Respondents. Mrs. Dudley CRAFTS, et al., Plaintiffs and Appellants, v. Dee C. HANSEN, State Engineer of the State of Utah, et al., Defendants and Respondents. Bernard JACKSON, et al., Plaintiffs and Appellants, v. Dr. Clark COX, et al., Defendants and Respondents. Ray BROWN, et al., Plaintiffs and Appellants, v. Dee C. HANSEN, State Engineer of the State of Utah, et al., Defendants and Respondents. Gerald MOODY, et al., Plaintiffs and Appellants, v. CENTRAL UTAH WATER COMPANY, et al., Defendants and Respondents.
• Court: Utah Supreme Court

Page 1068

667 P.2d 1068

Mrs. Dudley CRAFTS, et al., Plaintiffs and Appellants, v. Dee C. HANSEN, State Engineer of Utah; Intermountain Power

Project; et al., Defendants and Respondents.

Mrs. Dudley CRAFTS, et al., Plaintiffs and Appellants, v. Dee C. HANSEN, State Engineer of the State of Utah, et al.,

Defendants and Respondents.

Bernard JACKSON, et al., Plaintiffs and Appellants, v. Dr. Clark COX, et al., Defendants and Respondents.

Ray BROWN, et al., Plaintiffs and Appellants, v. Dee C. HANSEN, State Engineer of the State of Utah, et al.,

Defendants and Respondents.

Gerald MOODY, et al., Plaintiffs and Appellants, v. CENTRAL UTAH WATER COMPANY, et al., Defendants and Respondents.

Nos. 18053, 18057, 18054, 18055, 18056.

Supreme Court of Utah.

June 14, 1983.

E.J. Skeen, Salt Lake City, for plaintiffs and appellants.

David L. Wilkinson, Atty. Gen., Dallin W. Jensen, Michael M. Quealy, Asst. Attys. Gen., Joseph Novak, Wayne L. Black, Robert D. Moore, Salt Lake City, Thorpe A. Waddingham, Delta, Edward W. Clyde, Salt Lake City, for defendants and respondents.

DURHAM, Justice:

This appeal involves five lawsuits which have been consolidated and which were filed in the district court by the appellants pursuant to U.C.A., 1953, § 73-3-14, to seek review of the decisions of the Utah State Engineer which approved various change applications. Although each lawsuit involves separate change applications, all of the cases raise common questions. The trial court granted the Utah State respondents' motions for partial summary judgment in all five cases, and later granted motions for summary judgment made by the remaining corporate and individual respondents. The orders of the trial court are essentially identical in each case and they affirm the decisions of the State Engineer approving the change applications. The sole issue on appeal is whether there are genuine issues of material fact which preclude summary judgment. See Utah R.Civ.P. 56. We conclude that there are, and we reverse and remand all five cases for trial.

The factual context of this dispute is as follows: A group of shareholders in five Utah corporations ¹ and a group of water well owners in Millard County, Utah, formed a joint venture for the purpose of selling 45,000 acre feet of water to the The change applications in four of these lawsuits were filed by the owners of the water rights to change the permitted use of the water from its historical irrigation and stockwatering uses to industrial and domestic uses in connection with the proposed IPP. The fifth lawsuit, Brown v. Hansen, No. 18056, concerns a change application which seeks an amendment of the water rights to conform to proofs of appropriation which differed from the original applications. All of the change applications were advertised as required by law and were protested by various individuals and organizations. Following the necessary administrative hearings, the State Engineer approved each of the applications, subject to certain conditions and limitations which were intended to protect the vested rights of others in the geographical areas in question. Thereafter, the appellants in these five cases filed complaints in district court for review of the State Engineer's decisions. After discovery, the respondents filed their motions for summary judgment.

Intermountain Power Agency (hereafter "IPA"), a political subdivision of the State of Utah. The water is intended for use in the construction and operation of the Intermountain Power Project (hereafter "IPP") in Millard County. Contracts for the sale of the water were executed and the change applications which are the subject of these lawsuits were filed with the State Engineer in September and October of 1979.

In each case, the respondents filed affidavits in support of their motions for summary judgment. The affidavits were prepared in each case by a civil engineer named Reed W. Mower and, in cases Nos. 18053, 18054 & 18057, by the then Sevier River Commissioner, Roger Walker. Opposing affidavits were filed in each case by the appellants from another civil engineer, Parley R. Neeley. These documents will be referred to hereafter as the "Mower affidavits," the "Walker affidavits," and the "Neeley affidavits." The trial court granted summary judgment based on the change applications, the decisions of the State Engineer, and the contents of the Mower, Walker, and Neeley affidavits. The central issue before this Court is whether any genuine issue of material fact is raised by the affidavits of the parties' respective experts.

The statutes governing these actions, U.C.A., 1953, §§ 73-3-14 & -15, specify that a party aggrieved by a decision of the State Engineer is entitled to "plenary review" in the district court, and that "[t]he hearing in the district court shall proceed as a trial de novo and shall be tried to the court as other equitable actions." The issues at such hearings are, however, strictly limited to those which were, or could have been, raised before the State Engineer. See, e.g., East Bench Irrigation Co. v. State, 5 Utah 2d 235, 300 P.2d 603 (1956). U.C.A., 1953, § 73-3-3 provides 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.

Thus, it is the State Engineer's obligation, before approving a change application, to determine that no vested water right will be impaired by the proposed change. On plenary review, the trial court has the same obligation. This Court has described the standard for that determination as follows:

If the evidence shows that there is reason to believe that the proposed change can be made without impairing vested rights the application should be approved. The owner of a water right has a vested right to the quality as well as the quantity which he has beneficially used. A change application cannot be rejected without a showing that vested rights will thereby be substantially impaired. While the applicant has the general burden of showing that no impairment of vested rights will result from the change, the person opposing such application must fail if the evidence does not disclose that his rights will be impaired.

Salt Lake City v. Boundary Springs Water Users Ass'n, 2 Utah 2d 141, 143-44, 270 P.2d 453, 455 (1954) (citations omitted).

                The question which must be decided in these cases is:  Do the affidavits raise a genuine issue of material fact as to whether there is reason to believe that the proposed changes can be made without impairing vested water rights?   If legitimate questions on that issue are raised by the affidavits, the cases must be remanded for a trial on their merits. 2  Preliminary to our analysis of the affidavits, we note that all of them have one feature in common.  For the most part, they recite expressions of expert opinion rather than factual data and the factual data upon which the opinions are based is either not set forth at all or only to a very limited extent.  Because the contents of the affidavits filed in each of these five cases vary somewhat, we will discuss them separately and in detail
                

I. Crafts v. Intermountain Power Project, No. 18053

The change application in this case, No. a-10864, requested changes of usage of the DMAD companies' Sevier River direct flow and storage water rights to permit industrial use at the IPP. The pleadings raise the following issues of fact: 1) whether the proposed changes will interfere with and damage the appellants' vested water rights, 2) whether it will result in an enlargement of the right sought to be changed, and 3) whether 27,000 acre feet, the approximate amount of water which will be pumped under the proposed change, has ever been pumped from the DMAD wells involved in the change application.

There are three affidavits in the record in this case--the Mower and Walker affidavits filed by the respondents, and the Neeley affidavit filed by the appellants. The Mower affidavit is directed exclusively to Change Application No. a-18064, which is the subject of this particular lawsuit. The Walker affidavit offers opinion testimony on three Change Applications, Nos. a-10863, a-10864 and a-10927. The effects of Change Applications Nos. a-10863 and a-10864 are treated jointly. The Neeley affidavit is identical to the ones filed in each of the five lawsuits consolidated in this appeal and is directed only in general terms to Change Application No. a-10864. It does not respond directly to the specific allegations of the Mower and Walker affidavits regarding this change application, but does challenge their conclusions in certain particulars pertinent to the change application. Because a careful comparison of their language is necessary in determining whether the affidavits raise genuine issues of material fact, we set forth relevant portions at some length below. We note that the experience, background and training recited in the Mower and Neeley affidavits constitute prima facie evidence that each is qualified to give an expert opinion as a civil engineer and hydrologist. Likewise, Walker, although not an engineer, establishes in his affidavit sufficient training and experience to permit an expression of expert opinion. There is no basis in the affidavits themselves for distinguishing between any of the affiants based upon professional qualifications, except for the fact that Neeley and Mower are professional engineers and Walker a layman with considerable experience The Mower affidavit sets forth the following opinion:

in water measurement and administration.

13. That the only section of the natural channel of the Sevier River which contributes to the natural recharge into the artesian aquifers ³ in the Sevier Desert ground-water basin is located in Leamington Canyon for a distance of...