Searle v. Milburn Irrigation Company, 2005 UT 58 (UT 9/2/2005)
| Decision Date | 02 September 2005 |
| Docket Number | No. 20040406.,20040406. |
| Citation | 2005 UT 58 |
| Parties | Lawrence W. Searle and Ann C. Searle, Plaintiffs and Appellants, v. Milburn Irrigation Company, William M. Hamilton, and The Utah State Engineer, Jerry D. Olds, P.E., Defendants and Appellees. |
| Court | Utah Supreme Court |
Bryan J. Pattison, St. George, for plaintiffs.
Mark L. Shurtleff, Att'y Gen., Heather B. Shilton, Norman K. Johnson, Asst. Att'ys Gen., Salt Lake City, for defendant Utah State Engineer Jerry D. Olds, P.E.
John H. Mabey, Jr., David C. Wright, Salt Lake City, for defendant Milburn Irrigation Company
¶1 In this case, we are called upon to address several questions concerning the procedure applicable to the approval or rejection of applications proposing a change in water use. More specifically, we must determine whether the district court properly invoked the preponderance of the evidence standard of proof and correctly allocated the burden of proof when rejecting a change application. Additionally, we must decide whether a change applicant's prima facie showing that no impairment of vested water rights will result from application approval can be successfully undermined by circumstantial evidence demonstrating the probability of impairment.
¶2 When considering the change application at issue in this case, the district court utilized a burden-shifting approach whereby the change applicant was first required to show "reason to believe" that approval of the application would not result in impairment of vested water rights. After that initial showing, the district court shifted the burden to the protesting party to show, by a preponderance of the evidence, that approval of the application would result in impairment of vested rights. We conclude that the approach adopted by the district court is inharmonious with our case law and that a remand is therefore necessary. We hold that an applicant seeking a change in water use need only show reason to believe that approval of the application will not result in impairment of vested water rights and that the applicant bears the burden of persuasion throughout the application process. A protestant may, however, successfully oppose application approval by producing either direct or circumstantial evidence that sufficiently undermines the applicant's showing that the use proposed can be accomplished without impairing vested rights. After explaining the factual background of the present case, we will analyze each of the issues identified above.
¶3 Appellants Lawrence and Ann Searle own property on the Wasatch Plateau, which plateau forms the east boundary of the Sanpete Valley in Sanpete County, Utah. The Searles purchased the property in 1999, intending to construct a cabin on the site. However, in order for the Searles to obtain a building permit, they were required to establish the presence of an on-site source of water sufficient to meet the needs of the cabin.
¶4 In an effort to satisfy this requirement, the Searles purchased water right number 65-2977, which carries a priority date of 1956. As owners of that water right, every year the Searles are entitled to one half-acre foot of water, to be used for irrigation purposes, from April 1 to October 31. The point of diversion for the Searles' water right is a well located near the town of Chester, Utah, in the Sanpete Valley. The Chester well is a significant distance from the Searles' cabin property, and thus the Searles' water right does not currently satisfy the requirement of on-site water. Therefore, after acquiring the water right, the Searles sought to change the point of diversion, place of use, and nature of use of the water right. Specifically, the Searles desired to change the point of diversion to an existing well, known as the Jacobsen well, located near their cabin property, and to use the water for stockwatering and domestic purposes year round, rather than for seasonal irrigation. Taking the first step in the process to perfect such a change in use, the Searles properly completed and filed a change application with the State Engineer. The change application was advertised as required by the Utah Code, Utah Code Ann. § 73-3-6 (Supp. 2004), and Appellee Milburn Irrigation Company ("Milburn") timely protested the Searles' application.
¶5 Milburn is a Utah corporation consisting of approximately twenty-six shareholders and is operated with the purpose of distributing water to its shareholders via gravity-pressurized sprinkler irrigation systems. Milburn owns water right number 65-2256, which carries a priority date of 1876. Milburn's water right entitles the company to divert 8.875 cubic feet of water per second from the South San Pitch River, also known as the South Fork of the San Pitch River, annually during the period of April 1 to October 15, to irrigate 639.9 acres. Typically, Milburn is not able to satisfy the entire amount of its water right during that period, as water flow slows as the summer wears on. By August, Milburn is usually only able to divert just one cubic foot per second.
¶6 Milburn's protest against the Searles' change application was motivated by Milburn's concern that the Jacobsen well, which is located in the drainage area that contributes to Milburn's sources of water, is connected in some degree with Milburn's water source and that the Searles' use of that well could further exacerbate water shortfalls that Milburn has been experiencing for many years.
¶7 The State Engineer convened a hearing to address the concerns raised by Milburn's protest. After hearing testimony and argument concerning the possibility of a connection between the Jacobsen well and Milburn's water source, the State Engineer rejected the Searles' change application, concluding that "the area proposed for diversion could serve as a contributing source for [Milburn's] water supply." After the Searles' request for reconsideration was denied, the Searles filed the current action, seeking judicial review of the State Engineer's decision.1
¶8 The district court, hearing evidence de novo, was supplied with testimony from three expert witnesses on the issue of impairment. The Searles' expert, Gerald B. Robinson, Jr., testified that the deep water aquifer supplying the Jacobsen well is not connected to Milburn's water source. According to Robinson, if Milburn's water source was connected to the Jacobsen well, Milburn would not experience water shortfall in the summer months because the deep aquifer would keep the river saturated at all times. Robinson also testified that Milburn's water source does not exhibit the artesian pressure found in the Jacobsen well and that is generally observed in the Sanpete Valley, an indication that the water sources are independent of one another.
¶9 Two expert witnesses countered Robinson's conclusion. Both experts were of the opinion that the two water sources are connected in some fashion. Kirk Forbush testified that, while Robinson may be correct that water from the Jacobsen well generally travels in such a fashion as to bypass Milburn's water source, some of that water is contributing to the base flow of the South San Pitch River. Forbush reasoned that since the South San Pitch River has a base flow regardless of whether there is snow melt, the river must have an additional source of water. He further testified that the Jacobsen well is located in a formation that supplies water from consolidated rock into springs and streams, which, in turn, augment the flow of the San Pitch River. Accordingly, Forbush concluded that if the Searles use water from the Jacobsen well, Milburn's water supply will suffer. Charles Williamson, a stream alteration specialist, essentially concurred in the reasoning of Forbush, but also suggested that the lack of artesian pressure at Milburn's water source and the presence of such pressure at the Jacobsen well could possibly be explained by elevation differences.
¶10 After hearing the evidence relevant to the impairment issue, the district court reached the same conclusion as the State Engineer, stating in a ruling from the bench that "I'm . . . convinced that there's—by a preponderance of the evidence, that the rights of [Milburn] will be impaired if the application is approved." The Searles now appeal from the district court's order denying their change application. On appeal, the Searles contend that the district court imposed an impermissibly light burden on Milburn.
¶11 Specifically, the Searles maintain that once they established a prima facie case that approval of their change application would not result in the impairment of vested rights, the burden shifted to Milburn to show that the approval of the application would actually result in such impairment, not merely that impairment would likely occur. Therefore, the Searles claim that the district court incorrectly required Milburn to meet its burden by a preponderance of the evidence. According to the Searles, Milburn's burden should have been much higher. Although the Searles shy away from labeling the standard they feel should be properly imposed in circumstances such as this, they are, in essence, requesting a rule that requires parties protesting change applications to provide clear and convincing evidence demonstrating impairment before a change application can be rejected.
¶12 Taking a different approach, the State Engineer urges us to affirm the result reached by the district court, but to repudiate the burden-shifting scheme it utilized. According to the State Engineer, the burden of persuasion remains on change applicants throughout the application process to establish by a preponderance of the evidence that application approval will not result in impairment. Milburn argues, however, that we should affirm the...
To continue reading
Request your trial