IN RE RIGHTS TO THE USE OF WATER

• Decision Date: 21 December 2004
• Docket Number: No. 20030156.,20030156.
• Citation: 110 P.3d 666,2004 UT 106
• Parties: In the Matter of the GENERAL DETERMINATION OF RIGHTS TO THE USE OF WATER, Both Surface and Underground, Within the Drainage Area of the Price River and of the Drainage Area of the Green River from the Confluence of the Price and Green Rivers to the Confluence of the Green and Colorado Rivers Excluding the Drainage Area of the San Raphael River in Utah. Green River Canal Company, Appellee, v. Jerry D. Olds, State Engineer, Appellant.
• Court: Utah Supreme Court

110 P.3d 666

2004 UT 106

In the Matter of the GENERAL DETERMINATION OF RIGHTS TO THE USE OF WATER, Both Surface and Underground, Within the Drainage Area of the Price River and of the Drainage Area of the Green River from the Confluence of the Price and Green Rivers to the Confluence of the Green and Colorado Rivers Excluding the Drainage Area of the San Raphael River in Utah.

Green River Canal Company, Appellee, v. Jerry D. Olds, State Engineer, Appellant.

No. 20030156.

Supreme Court of Utah.

December 21, 2004.

Mark L. Shurtleff, Att'y Gen., Norman K. Johnson, L. Ward Wagstaff, Julie I. Valdes, Asst. Att'ys Gen. Salt Lake City, for Utah State Engineer Jerry D. Olds.

J. Craig Smith, Scott M. Ellsworth, R. Christopher Preston, Salt Lake City, for Green River Canal Company.

DURRANT, Justice:

INTRODUCTION

¶ 1 State Engineer Jerry D. Olds (the "State Engineer") filed this interlocutory appeal challenging the district court's conclusion that the Green River Canal Company ("GRCC") filed, in 1973, a timely objection to the Proposed Determination of Water Rights in the Price River and Lower Green River Drainage. To determine whether GRCC's 1973 objection was timely, we must decide whether section 73-4-11 of the Utah Code mandates that the state engineer serve proposed determinations of water rights only by regular mail or whether it allows personal service. Additionally, we must determine whether section 73-4-10 allows a district court overseeing a general adjudication of water rights to retroactively extend the time period in which objections can be filed. ¶ 2 In the proceedings below, the district court held that personal service of proposed determinations failed to meet statutory requirements. On the basis of that conclusion, the court imposed an equitable remedy that treated GRCC's 1973 objection as timely. This result made it unnecessary for the court to address GRCC's argument that section 73-4-10 allows for retroactive extensions to the objection time period. We find the district court's analysis unpersuasive and conclude that the state engineer may provide water claimants personal service of proposed determinations without offending section 73-4-11. That conclusion renders GRCC's 1973 objection untimely. However, we conclude that the district court may grant GRCC a retroactive extension if GRCC can show due cause excusing its late objection. Because our conclusion renders the district court's equitable remedy improper, we reverse and remand for further proceedings consistent with this opinion.

BACKGROUND

I. GENERAL ADJUDICATION OF WATER RIGHTS IN UTAH

¶ 3 The appeal currently before this court is a relatively small portion of an expansive adjudicative process that is utilized under Utah law when multiple water rights within a given area are disputed. In order to place the issues presented by this appeal in context, we first provide a brief summation of Utah's water rights adjudication process.

¶ 4 "Utah, along with the majority of western states, follows the appropriation doctrine: First in time, first in right for beneficial use is the basis of the acquisition of water rights." Estate of Steed v. New Escalante Irrigation Co., 846 P.2d 1223, 1224 (Utah 1992). "This court has likened `a drop of water [to] a drop of gold.'" Longley v. Leucadia Fin. Corp., 2000 UT 69, ¶ 15, 9 P.3d 762 (alteration in original) (quoting Carbon Canal Co. v. Sanpete Water Users Ass'n, 19 Utah 2d 6, 425 P.2d 405, 407 (1967)). Because water is so highly valued, disputes over water rights are inevitable and frequent. Due to the high volume of such disputes and the often technical nature of the process followed to resolve them, Utah law empowers the state engineer to analyze and settle competing water rights claims. See Utah Code Ann. §§ 73-4-1 to -24 (1989).¹ However, when a meritorious request for a large scale determination of water rights is made "by five or more or a majority of water users upon any stream or water source," the state engineer is required to initiate a general adjudication in state district court to resolve all competing claims to water use in the area. Id. § 73-4-1; see also id. § 73-4-18 (allowing district courts to initiate a general adjudication in certain situations).

¶ 5 "[T]he purpose of the general adjudication process is to prevent piecemeal litigation regarding water rights and to provide a permanent record of all such rights by decree." In re San Rafael River Drainage Area, 844 P.2d 287, 289 (Utah 1992). General adjudication of water rights is a creature of statute, and title 73, chapter 4 of the Utah Code outlines the procedure the litigation should follow.

¶ 6 When a general adjudication is initiated, the state engineer notifies all known water rights holders and provides public notice of the adjudication by publication. Utah Code Ann. § 73-4-4. After the state engineer provides notice, all individuals and entities are required to submit any water rights claims within the area in question to the state engineer. Id. § 73-4-5. Following the submission of water rights claims, the state engineer conducts a hydrographic survey of the water system and evaluates the submitted claims. Id. § 73-4-3. When the survey is complete and all of the submitted claims have been evaluated, the state engineer then prepares a proposed determination of water rights for the area. Id. § 73-4-11.

¶ 7 Once a proposed determination has been created, section 73-4-11 of the Utah Code provides that a copy of that determination "shall be mailed by regular mail to each claimant with notice that any claimant dissatisfied therewith may within ninety days from such date of mailing file with the clerk of the district court a written objection thereto duly verified on oath." If no objection has been filed to a proposed determination, or if all objections have been resolved, the district court must enter judgment rendering the proposed determination the final adjudication of water rights for the given area. Id. § 73-4-12; see also Plain City Irrigation Co. v. Hooper Irrigation Co., 87 Utah 545, 51 P.2d 1069, 1073 (1935) (noting that judgment should not be entered until all protests "have been disposed of and determined").

II. THE GENERAL ADJUDICATION ADDRESSING THE LOWER GREEN RIVER AND PRICE RIVER DRAINAGE AREAS

¶ 8 The present appeal arises from a general adjudication that commenced nearly fifty years ago. While general adjudications take a significant amount of time to complete, this general adjudication, in particular, has frequently eddied within the stream of the adjudicative process. The adjudication began its course on March 20, 1956, when the general adjudication of water rights for the Lower Green River and the Price River was initiated via district court order. Pursuant to statute, the state engineer provided notice of the initiation of the general adjudication and prepared a hydrographic survey of the area. See Utah Code Ann. § 73-4-3. Additionally, the state engineer collected and analyzed all submitted water rights claims, including Water User's Claim 91-294, which was submitted by GRCC. After compiling and analyzing all of the relevant information, the state engineer prepared the Proposed Determination of Water Rights in the Price River and Lower Green River Drainage ("Proposed Determination"), which was published in six volumes. Book 5 of the Proposed Determination contains Water User's Claim 91-294, the GRCC claim at issue in the current case.

¶ 9 On December 15, 1972, Delbert Tidwell, the GRCC secretary, signed a document entitled "Notice Receipt and Waiver." This form indicates that Mr. Tidwell personally received copies of Book 5 and Book 6. The form also contains the following language immediately above the signature line, which echoes language appearing earlier in the form: "[T]he undersigned waives any further service in connection [with the Proposed Determination] and consents to the entry of a final decree in this cause unless a formal protest is made by the undersigned claimant to the above-entitled court within ninety (90) days from and after date hereof." In addition, the first page of each volume of the Proposed Determination contains a notice that states as follows:

Pursuant to Section 73-4-11 U.C.A.1953, you are hereby notified that any claimant dissatisfied with said Proposed Determination must file with the Clerk of the above entitled Court a written objection thereto duly verified on oath within ninety (90) days from and after the date of service of this Proposed Determination upon you.

If service was proper and complete when Mr. Tidwell signed the "Notice Receipt and Waiver" form, the ninety-day time period within which objections were required to be filed began to run no later than December 16, 1972. However, GRCC failed to file an objection to the Proposed Determination until June 20, 1973, well beyond the objection period.

¶ 10 GRCC's 1973 objection sought an increase of the irrigation duty² utilized by the state engineer when determining water rights for the Green River area. GRCC subsequently filed three additional protests, including two filed on June 18, 1993. One of the June 18, 1993 filings sought a further increase of the irrigation duty. The other claimed that a water right owned by Green River City should be disallowed due to the city's forfeiture. GRCC's last filing occurred on October 14, 1999, at which time GRCC asserted that the Proposed Determination inaccurately determined that GRCC was entitled to a water flow of sixty cubic feet per second during the irrigation season. GRCC claimed that the correct amount should be eighty cubic feet per second.³

¶ 11 On November 2, 2000, the State Engineer filed a motion to dismiss GRCC's 1973 objection as untimely. A dismissal of the 1973 objection would, in effect, render GRCC's subsequent filings inoperative, as those filings were either amendments to the 1973 objection or untimely because they were new objections filed...