Utah State Eng'r v. Johnson (In Re Utah Lake & Jordan River) , 427 P.3d 558 ( 2018 )

2018 UT App 109THE UTAH COURT OF APPEALS
IN THE MATTER OF THE GENERAL DETERMINATION OF THE RIGHTS TO
THE USE OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND,
WITHIN THE DRAINAGE AREA OF UTAH LAKE AND JORDAN RIVER IN
UTAH, SALT LAKE, DAVIS, SUMMIT, WASATCH, SANPETE AND JUAB
COUNTIES, IN UTAH.
UTAH STATE ENGINEER, PROVO RIVER WATER USERS ASSOCIATION,
METROPOLITAN WATER DISTRICT OF SALT LAKE & SANDY, UTAH
LAKE DISTRIBUTING COMPANY, CENTRAL UTAH WATER
CONSERVANCY DISTRICT, AND UNITED STATES OF AMERICA,
Appellees,
v.
EVAN JOHNSON,
Appellant.
Opinion
No. 20160547-CA
Filed June 14, 2018
Third District Court, Salt Lake Department
The Honorable Laura Scott
No. 360057298
Cole S. Cannon and Jared C. Clark,
Attorneys for Appellant
Sean D. Reyes, Sarah M. Shechter, Benjamin J. Jensen,
Margaret C. Osswald, and Norman K. Johnson,
Attorneys for Appellee Utah State Engineer
Shawn E. Draney, Scott H. Martin, and Danica N.
Cepernich, Attorneys for Appellees Provo River
Water Users Association, Metropolitan Water
District of Salt Lake & Sandy, and Utah Lake
Distributing Company
Utah State Engineer v. Johnson
Steven E. Clyde, Edwin C. Barnes, Aaron D. Lebenta,
and Emily E. Lewis, Attorneys for Appellee Central
Utah Water Conservancy District
John C. Cruden, Nicholas A. Dimascio, Jeannette F.
Swent, and Katherine W. Hazard, Attorneys for
Appellee United States of America
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.
POHLMAN, Judge:
¶1 Evan Johnson appeals the district court’s grant of
summary judgment to the Utah State Engineer (Engineer),
whereby the court dismissed Johnson’s objection to Engineer’s
Amendment to the Proposed Determination (the Amendment)
for the Goshen Valley Subdivision and affirmed the
Amendment. We affirm.
BACKGROUND
¶2 This case involves adjudication of water rights within the
drainage area of Utah Lake and Jordan River. In 1981, Johnson’s
predecessor in interest, the East Warm Creek Irrigation and
Canal Company (the Company), filed a statement of water user’s
claim (the Original Claim) in the Utah Lake and Jordan River
adjudication. The Company claimed right to 4.96 cubic feet per
second of water from Warm Springs to irrigate 407.5 acres of
land and water 250 livestock units based on a priority date
before 1900. In 1985, Engineer prepared and filed with the
district court a Proposed Determination for the Goshen Valley
Subdivision, of which the Original Claim was a part. No party—
including the Company or Johnson—filed an objection to the
Proposed Determination.
20160547-CA 2 2018 UT App 109Utah State Engineer v. Johnson
¶3 In 1999, nearly fourteen years later, the Company filed a
diligence claim (the Diligence Claim) with Engineer in which it
claimed water rights from Warm Springs to irrigate an
additional 64.6 acres of land. In its explanatory remarks, the
Company represented that the “owner for this diligence claim is
the same as the original diligence claim,” referring to the
Original Claim filed in 1981. It also explained that “[t]he original
claim only accounted for 407.5 acres and the company wants to
apply for the 64.6 acres that were left off and have always been
used by [the Company].” Approximately two weeks after filing
the Diligence Claim, the Company transferred a fifty percent
interest in the Diligence Claim to Johnson.
¶4 In October 2000, and after conducting some on-site
evaluation of the Diligence Claim, Engineer filed with the
district court the Amendment, which recommended to the court
that the Diligence Claim be disallowed. Johnson objected to the
Amendment. After many years of discovery and negotiations
between Johnson and Engineer—which included a failed
stipulation between the two as to the Diligence Claim—Engineer
in 2016 moved for summary judgment on Johnson’s objection.
Engineer characterized the Diligence Claim as “an attempt to
claim additional acreage that the Company failed to include” in
the Original Claim. Engineer argued that the Diligence Claim
was barred by Utah Code section 73-4-9 due to the Company’s
failure to timely file a claim for the water identified therein.
Engineer also asserted that the Diligence Claim could not be
used to modify the Proposed Determination, “because the only
proper mechanism for correcting or modifying a proposed
determination is through filing an objection [to it] with the
district court,” which neither Johnson nor the Company filed.
¶5 Johnson opposed the summary judgment motion, arguing
that it was improper for Engineer to amend the Proposed
Determination regarding “property and water rights not
previously included in the Determination without giving an
affected party sufficient opportunity to be heard.” He contended
20160547-CA 3 2018 UT App 109Utah State Engineer v. Johnson
that due process required that he have an opportunity to be
heard regarding the water rights he asserted in the Diligence
Claim. He also asserted a laches defense, contending that the
parties who had objected to the Diligence Claim had waited
fifteen years to pursue their objections and that he was
prejudiced by the delay. He contended that the evidence
establishing the Diligence Claim faded and became harder to
obtain, and that during the delay he had also relied on the rights
he asserted in the Diligence Claim. And he argued that the
objecting parties’ failure to pursue remedies constituted a fatal
failure to prosecute.
¶6 The district court granted summary judgment in favor of
Engineer. The court made four determinations. First, the court
concluded that the Diligence Claim was “untimely and that the
water right had already been addressed in the original Proposed
Determination.” In particular, the court determined that the
Diligence Claim was “an expansion of the water rights claimed
in [the Original Claim],” and the court concluded that the
Company was “forever barred and estopped” under section
73-4-9 from asserting the Diligence Claim, that the Company
“forfeited” the Diligence Claim water, and that “the 2000
Amendment properly disallowed” the claim. (Internal quotation
marks omitted.)
¶7 Second, the court determined that the 2000 Amendment
“did not revive Mr. Johnson’s right to assert a claim for
additional water in the Goshen Valley adjudication or to
challenge the original Proposed Determination.” Rather, the
court noted that the “only way” to challenge the Proposed
Determination was through filing an objection under section
73-4-11, and it concluded that the “time to file an objection to the
original Proposed Determination passed in 1985.” As a result,
the court concluded that Johnson could not “rely on the 2000
Amendment to revive any right to assert a claim for water in the
20160547-CA 4 2018 UT App 109Utah State Engineer v. Johnson
general adjudication or object to the State Engineer’s
recommendations in the original Proposed Determination.” 1
¶8 Third, the court concluded that the Company and
Johnson “were afforded the process due to them” under the
general adjudication statutes. The court determined that the
Company “was afforded sufficient due process in connection
with the original Proposed Determination in the 1980s,” and that
Johnson, as the Company’s successor in interest, was “not
entitled to any more rights than the Company had, and thus is
bound by the timeframes for filing a water user’s claim and an
objection that apply to the Company.”
¶9 Fourth, the court was “not persuaded” by Johnson’s
laches argument. The court explained that “[n]ot only did Mr.
Johnson have both the opportunity and responsibility to pursue
his own objection, he did not demonstrate that he would suffer
any injury or prejudice in his ability to support his objection.”
¶10 The court therefore granted Engineer’s motion for
summary judgment, dismissed Johnson’s objection, and affirmed
the Amendment. Johnson appeals that order.
ISSUES AND STANDARDS OF REVIEW
¶11 Johnson makes several arguments on appeal. First, he
argues that the district court incorrectly interpreted and applied
the general adjudication statutes to bar the Diligence Claim, and
that thereby he has been improperly denied his due process
rights. He also argues that the district court incorrectly
determined that laches and/or failure to prosecute did not bar
1. The court additionally noted that Johnson had “not requested
an extension of time to file an objection to the original Proposed
Determination” under Utah Code section 73-4-10.
20160547-CA 5 2018 UT App 109Utah State Engineer v. Johnson
Engineer from opposing the Diligence Claim or third parties
from continuing to assert their objections to the Diligence Claim.
¶12 Johnson’s arguments of error all flow from the district
court’s summary judgment decision. “We review a district
court’s legal conclusions and ultimate grant or denial of
summary judgment for correctness, and view the facts and all
reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party. Likewise, we review a district
court’s interpretation and application of a statute for
correctness.” Timothy v. Pia, Anderson, Dorius, Reynard & Moss
LLC, 2018 UT App 31, ¶ 9 (quotation simplified), petition for cert.
filed, Mar. 26, 2018 (No. 20180228).
ANALYSIS
¶13 Johnson argues that the district court erred by dismissing
his objection and affirming the Amendment on summary
judgment. He contends that the Diligence Claim is not
statutorily barred, as the district court concluded. Rather, he
argues that he is entitled to the opportunity to perfect his
Diligence Claim and that the Amendment filed by Engineer
improperly and prematurely denied him that opportunity. As
support for his argument, he makes several contentions.
¶14 He contends that diligence claims are different in kind
from other water claims and that they may be made at any time,
regardless of whether an action for a general adjudication of
water rights is ongoing. He also contends that the Amendment
effectively revived his opportunity to challenge the Proposed
Determination and that due process requires that he now have
the opportunity to prove his claim. Relatedly, he also argues that
the district court’s decision that the doctrines of laches and/or
failure to prosecute did not apply was incorrect.
20160547-CA 6 2018 UT App 109Utah State Engineer v. Johnson
¶15 We begin by describing the statutory landscape involving
diligence claims and the general adjudication process. We then
address Johnson’s arguments.
I. Diligence Claims and General Adjudication
¶16 In Utah, rights to the use of water may be established
through two methods: the statutory appropriation application
process, as described in Utah Code sections 73-3-1 to -31, or
diligence claims, as described in Utah Code section 73-5-13. See
East Jordan Irrigation Co. v. Morgan, 860 P.2d 310, 312–13 (Utah
1993); Eskelsen v. Town of Perry, 819 P.2d 770, 771 n.1 (Utah 1991).
¶17 At issue in this case are diligence claims. “A diligence
claim is a claim to a water right established by putting water to
beneficial use prior to March 12, 1903, when the statutes creating
the mandatory appropriation application process went into
effect.” Provo River Water Users’ Ass’n v. Morgan, 857 P.2d 927,
929 n.4 (Utah 1993). Once a diligence claim is filed, the state
engineer will “conduct a field investigation of each claim filed”
and “prepare a report” of that investigation. Utah Code Ann.
§ 73-5-13(5)(a) (LexisNexis Supp. 2013). While the state engineer
acts only “in an administrative capacity” by “administering and
supervising the appropriation of the waters of the state” and the
district court has the duty to adjudicate the claims, see Jensen v.
Jones, 2011 UT 67, ¶¶ 10–11, 270 P.3d 425 (quotation simplified),
the state engineer’s diligence claim report becomes part of the
claim file and may be “admissible in any . . . judicial proceeding
on the validity of the claim,” Utah Code Ann. § 73-5-13(5)(b).
¶18 One type of judicial proceeding used to determine the
validity of water claims is a general adjudication, which is
employed to resolve “all competing claims to water use in [a
particular] area.” Green River Canal Co. v. Olds, 2004 UT 106, ¶ 4,
110 P.3d 666. See generally Utah Code Ann. §§ 73-4-1 to -24
20160547-CA 7 2018 UT App 109Utah State Engineer v. Johnson
(Michie 1989) (providing for and prescribing the general
adjudication process). 2 “The 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.”
Olds, 2004 UT 106, ¶ 5 (quotation simplified); see also Green River
Adjudication v. United States, 404 P.2d 251, 252 (Utah 1965) (“The
objective of an adjudication . . . is to determine and settle water
rights which have not been adjudicated or which may be
uncertain or in dispute.”). In this regard, “the basic goal of
general adjudication is to record all water claims from a
particular source which subsequent appropriators can rely upon
before making their investments.” Provo River, 857 P.2d at 935
(quotation simplified); see also Olds, 2004 UT 106, ¶ 41 (“One of
the key goals of the general adjudication process is to remove
doubts about the validity of water rights.”).
¶19 The process for asserting and adjudicating water rights
through a general adjudication is established by Title 73, Chapter
4 of the Utah Code. See Utah Code Ann. §§ 73-4-1 to -24 (Michie
1989). Once a general adjudication is initiated, the state engineer
must first notify all known water rights holders and also publish
notification of the adjudication. Id. § 73-4-4. Claimants then have
2. As Engineer notes in his briefing, many of the relevant general
adjudication provisions in sections 73-4-1 to -24 were left
unrevised between 1979 and the latter part of the first decade of
2000. For example, section 73-4-9 remained the same between
1979 and 2009, when it was then amended. Compare Utah Code
Ann. § 73-4-9 (Michie 1989), with id. (LexisNexis Supp. 2009). We
rely on the pre-amended provisions that were in effect during
the relevant proceedings in the 1980s in this decision, unless
otherwise noted. Apart from Johnson’s attempt to rely on a 2013
amendment in the diligence claim statute as persuasive
authority, the amendments do not substantively affect the issues
or the arguments.
20160547-CA 8 2018 UT App 109Utah State Engineer v. Johnson
ninety days from the date of notice to file with the district court a
statement of claim for water rights of the water source being
adjudicated. Id. § 73-4-5. If a claimant fails to timely file its claim,
the claimant “shall be forever barred and estopped from
subsequently asserting any rights, and shall be held to have
forfeited all rights to the use of the water theretofore claimed by
him.” Id. § 73-4-9.
¶20 After the water claims have been filed, the state engineer
evaluates all of the submitted claims. Id. § 73-4-3. After a “full
consideration of the statements of claims, and of the surveys,
records, and files,” the engineer will prepare and file with the
district court a proposed determination of the water rights for
that area, which includes the engineer’s recommendation to the
court for the establishment of the water rights in the area. Id.
§ 73-4-11. A copy of the proposed determination is mailed to
each claimant, along with a notice that any claimant dissatisfied
with the proposal may file a written objection within ninety
days. Id. If no objection is filed by the close of the objection
period, the district court must enter “judgment in accordance
with such proposed determination,” id. § 73-4-12, “rendering the
proposed determination the final adjudication of water rights for
the given area,” Olds, 2004 UT 106, ¶ 7; see also United States Fuel
Co. v. Huntington-Cleveland Irrigation Co., 2003 UT 49, ¶ 15, 79
P.3d 945; Jensen v. Morgan, 844 P.2d 287, 290 (Utah 1992).
¶21 At that point, a claimant who has failed to timely object
under section 73-4-11 essentially takes on the role of a defaulting
party and is bound by its failure under section 73-4-12, unless
and until the claimant seeks leave from the court overseeing the
general adjudication to file an untimely objection under section
73-4-10. See Utah Code Ann. § 73-4-10; see also Olds, 2004 UT 106,
¶¶ 39, 41–44 (explaining that section 73-4-10 permits the district
court overseeing the general adjudication to “hear petitions for
an extension of the ninety-day objection period at any time
before a final judgment on the matter is entered” upon a
showing of due cause, and describing the required “due cause”
20160547-CA 9 2018 UT App 109Utah State Engineer v. Johnson
showing as “strict” in order to “give effect to the time limitation
of section 73-4-11 and to appropriately serve the goal of
establishing certainty” as to general adjudications); United States
Fuel, 2003 UT 49, ¶¶ 15–20 (explaining the interplay between
sections 73-4-10, 73-4-11, and 73-4-12, and stating that when a
party fails to timely object to a proposed determination, it takes
on “the status of a defaulting party in the general adjudication”).
II. The Diligence Claim and the Summary Judgment Ruling
¶22 Johnson’s argument—that the Diligence Claim is not
barred and that he is entitled to an opportunity to prove his
claim on its merits—requires us to interpret and apply the
relevant statutes. “When interpreting a statute, this court’s
paramount concern is to give effect to the legislative intent,
manifested by the plain language of the statute.” Green River
Canal Co. v. Olds, 2004 UT 106, ¶ 18, 110 P.3d 666 (quotation
simplified). We will “not look beyond the plain language of the
statute” if the statute is unambiguous. State v. Huntington-
Cleveland Irrigation Co., 2002 UT 75, ¶ 13, 52 P.3d 1257. In this
regard, “we assume, absent a contrary indication, that the
legislature used each term advisedly according to its ordinary
and usually accepted meaning,” and we presume “that the
expression of one term should be interpreted as the exclusion of
another” and “seek to give effect to omissions in statutory
language by presuming all omissions to be purposeful.” Aequitas
Enters., LLC v. Interstate Inv. Group, LLC, 2011 UT 82, ¶ 15, 267
P.3d 923 (quotation simplified). We also “read the plain
language of a statute as a whole and interpret its provisions in
harmony with other provisions in the same statute and with
other statutes under the same and related chapters.” H.U.F. v.
W.P.W., 2009 UT 10, ¶ 32, 203 P.3d 943.
¶23 As we explain below, we conclude that the district court
correctly interpreted and applied the plain language of the
relevant general adjudication statutes to bar the Diligence Claim.
Despite Johnson’s contentions to the contrary, the language of
20160547-CA 10 2018 UT App 109Utah State Engineer v. Johnson
the relevant statutes plainly forecloses Johnson’s arguments. As
the Company’s successor in interest, Johnson’s water rights do
not exceed that of the Company, Butler, Crockett & Walsh Dev.
Corp. v. Pinecrest Pipeline Operating Co., 2004 UT 67, ¶ 27, 98 P.3d
1, and he is likewise bound by the Company’s actions in the
general adjudication, see Penta Creeks, LLC v. Olds, 2008 UT 25,
¶¶ 2, 33–37, 43, 182 P.3d 362. And here, it is undisputed that the
Company failed to include the water represented by the
Diligence Claim in the Original Claim and that the Company
thereafter failed to object to the Proposed Determination when
provided with notice and the opportunity to do so. These
failures are fatal to Johnson’s attempt to make the Diligence
Claim now.
A. The Statutory Bar Under Section 73-4-9
¶24 The plain language of the general adjudication statutes
demonstrates that diligence rights, like all other water rights,
must be claimed according to the established general
adjudication procedures once a general adjudication for a
particular water area is initiated. Indeed, section 73-4-3 provides
that once a general adjudication action for a water area has been
filed with the district court, that filing sets in motion the general
adjudication procedures in sections 73-4-1 to -24. See Utah Code
Ann. § 73-4-3 (Michie 1989); see also United States Fuel Co. v.
Huntington-Cleveland Irrigation Co., 2003 UT 49, ¶ 16, 79 P.3d 945(providing that “[t]he entry of this order for a general
adjudication” for “all water rights within” the water area
identified “set[s] in motion [the] procedures” outlined in the
general adjudication statutes, including “giving notice to water
claimants, the filing of statements by claimants, and a
comprehensive and exhaustive investigation by the state
engineer”).
¶25 These procedures include the requirement that “all
claimants” in the water area must, after receiving notice of the
requirement to do so, timely “file a written statement with the
20160547-CA 11 2018 UT App 109Utah State Engineer v. Johnson
clerk of the court setting forth his respective claim to the use of
such water.” Utah Code Ann. §§ 73-4-3, 73-4-5 (Michie 1989)
(providing that “[e]ach person claiming a right to use any water of
such river system or water source shall, within ninety days after
the completed service of the notice . . . , file in the office of the
clerk of the district court a statement in writing” detailing the
claimed water use (emphasis added)). Thus, per the plain
language, and without exception, every claimant to water rights
in the area being adjudicated must timely file a statement of
claim, one that details the exact extent of the claimant’s water
use. There is no language suggesting that a claimant whose
water rights are based on pre-1903 beneficial use is excused or
excepted from these requirements. See Green River Adjudication v.
United States, 404 P.2d 251, 252 (Utah 1965) (noting that “it is
essential that everyone whose rights are involved or may be
affected be made parties to the [general adjudication]
proceeding” and that “they be required to assert whatever rights
they contend they are entitled to” (emphasis added)).
¶26 The plain language of section 73-4-9, the time-bar section,
also makes no exception for diligence claimants (or any other
claimants, for that matter). That section provides in broad and
mandatory language that “any person” who fails to “make and
deliver such statement of claim to the clerk of the court within
the time prescribed by law shall be forever barred and estopped
from subsequently asserting any rights, and shall be held to have
forfeited all rights to the use of the water theretofore claimed by
him.” Utah Code Ann. § 73-4-9 (Michie 1989) (emphasis added).
And no language in section 73-5-13, the diligence claim statute,
otherwise abrogates or avoids this consequence.
¶27 Here, because the specific water area at issue became
subject to a general adjudication nearly forty years ago, the
Company was required, once it received notice, to timely file a
statement of claim for the extent of the water it claimed it had a
right to use from the water source. Id. §§ 73-4-3, 73-4-5, 73-4-9.
But the Original Claim did not include the diligence rights the
20160547-CA 12 2018 UT App 109Utah State Engineer v. Johnson
Company attempted to claim in 1999, despite the fact that the
Company and Johnson both acknowledged that those rights
should have been included in the Original Claim.
¶28 And the plain language of the general adjudication
statutes mandates a clear consequence for the Company’s failure
to timely include the additional water described in the Diligence
Claim: the Company became “forever barred and estopped
from” thereafter claiming it. Id. § 73-4-9. This bar is in line with
general adjudication’s overall purpose of providing certainty for
water users in a particular area. See, e.g., Green River Adjudication,
404 P.2d at 252; see also Green River Canal Co. v. Olds, 2004 UT 106,
¶ 18, 110 P.3d 666. As the Company’s successor in interest, this
bar necessarily extends to Johnson. 3 See Penta Creeks, LLC v. Olds,
2008 UT 25, ¶¶ 2, 33–37, 43, 182 P.3d 362.
¶29 Johnson’s arguments to the contrary are unpersuasive,
given the statutory language. 4 Indeed, the case Johnson
3. We therefore reject Johnson’s contention that, because the
Diligence Claim was corrective, the water represented by the
Diligence Claim was implicit in the Original Claim and was not
an unclaimed right. No language in either the diligence claim
statute or the general adjudication statutes suggests that
allegedly corrective claims are an exception to the statutory bar
when they are untimely filed in a general adjudication or that it
is procedurally proper to untimely assert a corrective claim
through the filing of a new diligence claim outside of the general
adjudication proceedings already underway. Rather, the plain
language of both sections 73-4-5 and 73-4-9 require a claimant to
describe and claim the full extent of his water rights within the
time frame required and in the general adjudication proceedings
or suffer the consequence for failing to do so.
4. Johnson also argues that a 2013 amendment to the diligence
claim statute, section 73-5-13, see Utah Code Ann. § 73-5-13(7)
(continued…)
20160547-CA 13 2018 UT App 109Utah State Engineer v. Johnson
primarily relies upon to argue that diligence claims are an
exception to general adjudication and the statutory bar, Bauer v.
Prestwich, 578 P.2d 1283 (Utah 1978), is inapposite. As Engineer
notes, Bauer involved the defendants’ application to appropriate
water that was already claimed by the plaintiffs under a
diligence claim. See id. at 1284–85. Bauer did not involve a
general adjudication or any application of the general
adjudication statutes to an untimely-filed diligence claim. See id.It therefore is not instructive to the case at hand.
B. Failure to Object to the Proposed Determination
¶30 The Company’s failure to make any objection to the
Proposed Determination—which apparently failed to describe
the full extent of the Company’s rights due to its failure to
include them in the Original Claim—is also fatal to Johnson’s
claims on appeal. Had the Proposed Determination misstated
the Company’s water rights, the Company could have objected
pursuant to section 73-4-11. See Utah Code Ann. § 73-4-11(Michie 1989) (providing that a claimant “dissatisfied” with the
proposed determination “may” file an objection within ninety
(…continued)
(LexisNexis Supp. 2013), as well as the state engineers’ historical
practice, which he contends has included accepting untimely
diligence claims in areas subject to general adjudication, support
his argument that we should interpret the diligence claim statute
as exempting diligence claims from the reach of the general
adjudication statutes. But here, we have concluded that the plain
language of the relevant statutory provisions bars the Diligence
Claim and, moreover, does not support Johnson’s suggested
interpretation. Thus, we have no need for “other interpretive
tools” to aid us, such as subsequent legislative history or the
state engineers’ historical practice, and “our task of statutory
construction is [therefore] at an end.” See Bagley v. Bagley, 2016
UT 48, ¶ 10, 387 P.3d 1000 (quotation simplified).
20160547-CA 14 2018 UT App 109Utah State Engineer v. Johnson
days from the date the proposed determination was mailed); see
also Olds, 2004 UT 106, ¶ 27 & n.7 (“Claimants are aware of the
claims they have submitted to the state engineer. If a proposed
determination does not match the contours of a submitted claim,
the party who submitted that claim is on notice that an objection
may be warranted.”). But if a claimant fails to make a timely
objection to a proposed determination, the plain and mandatory
language of section 73-4-12 assigns a clear consequence for that
failure upon expiration of the objection period: the district court
becomes bound to enter judgment in accordance with the rights
as described in the Proposed Determination. See Utah Code Ann.
§ 73-4-12 (Michie 1989) (“If no contest on the part of any claimant
shall have been filed, the court shall render a judgment in
accordance with such proposed determination, which shall
determine and establish the rights of the several claimants to the
use of the water of said river system or water source . . . .”). No
language in the diligence claim statute, section 73-5-13, alters this
result.
¶31 Likewise, this result cannot be collaterally challenged
through a separate proceeding, such as the filing of a separate
diligence action for rights to water that, at all relevant times, was
part of the water source already being adjudicated. See United
States Fuel Co. v. Huntington-Cleveland Irrigation Co., 2003 UT 49,
¶¶ 15–20, 79 P.3d 945. The Utah Supreme Court’s reasoning in
United States Fuel makes that clear. In that case, an irrigation
company filed a diligence claim in a general adjudication, and
United States Fuel (USF) objected to the proposed determination
one day after the statutory ninety-day deadline. Id. ¶¶ 3–4. In the
objection, USF asserted that it held a senior right to the water
claimed by the irrigation company. Id. ¶ 4. USF then filed a
separate action to quiet title to the water rights claimed by the
irrigation company. Id. ¶ 5.
¶32 The irrigation company moved to dismiss the separate
action or stay the proceedings, pending the outcome of the
general adjudication, and it also moved to bar any objections to
20160547-CA 15 2018 UT App 109Utah State Engineer v. Johnson
the validity of its diligence claim where USF filed an untimely
objection. Id. ¶¶ 6–7. The district court denied both motions. Id.Instead, the district court determined that it had jurisdiction over
the dispute and ultimately concluded that the evidence
demonstrated that USF, not the irrigation company, held priority
to the water. Id. ¶ 8.
¶33 On appeal, the supreme court reversed, holding that
USF’s failure to timely object was fatal to its attempt to have its
water right adjudicated in a separate action. Id. ¶ 21. The court
explained that filing the objection one day late “had
consequences,” specifically that where no timely objections to
the proposed determination were filed, the district court
overseeing the general adjudication became required under the
“clear mandate” of section 73-4-12 to “enter judgment consistent
with [the] uncontested elements of [the] proposed
determination.” Id. ¶¶ 12, 15, 17 (explaining that the “clear
mandate of section 73-4-12 is that courts must render judgment
in accordance with a proposed determination where the
proposed determination is uncontested at the close of the ninety-
day statutory period”).
¶34 The supreme court explained that by failing to timely
object, USF “took on the status of a defaulting party in the
general adjudication,” rendering USF unable to defeat the
irrigation company’s “right to obtain judgment” in accordance
with the proposed determination through “collateral attack in a
separate lawsuit.” Id. ¶ 20. Rather, the supreme court stated that
“it is the obligation of a trial court confronted with a private suit
seeking relief inconsistent with an uncontested proposed
determination in a general adjudication to abstain from
adjudicating the private claims.” Id. ¶ 18. In so doing, the court
noted that USF did have a potential remedy in the general
adjudication: it could seek leave from the court overseeing the
general adjudication “to excuse its tardy objection,” but
explained that “[u]nless and until” USF sought and obtained
leave, the court in the general adjudication was required to enter
20160547-CA 16 2018 UT App 109Utah State Engineer v. Johnson
judgment “perfecting [the irrigation company’s] claim.” Id.¶¶ 17–18.
¶35 While the jurisdictional question presented by United
States Fuel is not at issue in the present case, Johnson, like USF,
has effectively sought to collaterally challenge the water rights
described and established by the Proposed Determination
through the untimely filed Diligence Claim. But, as explained
above (and by the Company’s own admission), the water rights
represented by the Diligence Claim formed part of the water
source and the associated rights being adjudicated in the general
adjudication. Given the procedural stage of the general
adjudication and the failure of any party to timely object to the
Proposed Determination, the district court was required at the
close of the statutory objection period to enter judgment in
accordance with the water rights described therein. See United
States Fuel, 2003 UT 49, ¶¶ 15–20. That result cannot now be
collaterally challenged by the filing of a separate diligence claim.
Rather, as explained in United States Fuel, the rights described in
the Proposed Determination are now immune from attack absent
leave from the court overseeing the general adjudication to lodge
an untimely objection to the Proposed Determination. See id.¶36 Further, the Amendment, and Johnson’s objections to the
Amendment, did not open the door to an untimely challenge of
the Proposed Determination. The Amendment was a proposed
resolution of only the Diligence Claim, which represented water
rights that perhaps could have been included in the Proposed
Determination but, because the Company did not timely assert
them, were not. The Amendment did not propose any revision
to the Proposed Determination and instead allowed it to remain
untouched.
¶37 In this way, while it was filed as an inclusion to the
general adjudication, it is an amendment to the Proposed
Determination only insofar as it acts to further insulate the
Proposed Determination from collateral attack. Thus, regardless
20160547-CA 17 2018 UT App 109Utah State Engineer v. Johnson
of how the Amendment is characterized (housekeeping measure
or otherwise) or the path that Engineer took to file it, the
Amendment recommended a discrete and statutorily mandated
resolution of a diligence claim that improperly sought to disturb
the water rights established by the unopposed Proposed
Determination. On this basis, Johnson’s objections to the
Amendment therefore could only be objections to the
Amendment and the recommendation itself, not to the Proposed
Determination. 5 See, e.g., Butler, Crockett & Walsh Dev. Corp. v.
Pinecrest Pipeline Operating Co., 2004 UT 67, ¶¶ 22–23, 98 P.3d 1.
C. Due Process
¶38 We also conclude that Johnson’s due process rights
related to the Diligence Claim have not been violated. “At a
minimum, the right to due process requires that those with an
interest in a proceeding be given notice and an opportunity to be
heard in a meaningful manner before their interests are
adjudicated by a court.” Salt Lake Legal Defender Ass’n v. Atherton,
2011 UT 58, ¶ 2, 267 P.3d 227; see also Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950) (“An elementary and
fundamental requirement of due process in any proceeding
which is to be accorded finality is notice reasonably calculated,
under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to
present their objections.”).
¶39 Our supreme court has long held that the notice
provisions of the general adjudication statutes meet the
requirements of due process. See Eden Irrigation Co. v. District
5. We are also unpersuaded by Johnson’s contention that the
Amendment represented an improper adjudication by Engineer.
It did not. The Amendment was exactly what it purported to
be—a recommendation to the district court overseeing the general
adjudication that the claim be disallowed.
20160547-CA 18 2018 UT App 109Utah State Engineer v. Johnson
Court of Weber County, 211 P. 957, 959 (Utah 1922). Johnson is the
successor in interest to the Company, and it is without dispute
that the Company participated in and received the process it was
due under the relevant general adjudication provisions during
the 1980s proceedings. See Penta Creeks, LLC v. Olds, 2008 UT 25,
¶¶ 2, 17–19, 33–37, 182 P.3d 362 (considering the effect of the
predecessor’s actions, such as failure to properly file an
objection, on the successor’s interest in general adjudication).
Through the Company, Johnson therefore received the process
he would have been due in the general adjudication, including
the process afforded the Company to both claim the full extent
of its water rights under section 73-4-5 and to timely object to the
Proposed Determination under section 73-4-11. See id. Johnson is
not entitled to more process to try to prove on its merits an
improperly filed challenge to the Proposed Determination that,
at this stage in the proceedings, is statutorily barred by the
general adjudication statutes.
¶40 Furthermore, the case Johnson primarily relies on to make
this argument, Provo River Water Users’ Ass’n v. Morgan, 857 P.2d
927 (Utah 1993), is inapposite. There, Utah Supreme Court
concluded that the decree in that case resolving the general
adjudication was not intended to adjudicate the rights of users to
the water sources—isolated springs—at issue. Id. at 933. And, in
dicta, the court noted that even if the decree were intended to
adjudicate the rights associated with the isolated springs at
issue, it was unclear that the users of the isolated springs’ water
received the process and notice they were due of the
adjudication and of their duty to assert their rights in it,
particularly in light of a shift in law mid-proceedings. Id. at 933–
34.
¶41 Here, in contrast, the water represented by the Diligence
Claim had allegedly been used by the Company since before
1903 and apparently was part and parcel of the Original Claim.
Thus, the Company should have been aware that that water
formed part of its water rights in the area that became subject to
20160547-CA 19 2018 UT App 109Utah State Engineer v. Johnson
general adjudication. See generally Green River Canal Co. v. Olds,
2004 UT 106, ¶ 27 & n.7, 110 P.3d 666. And there is no question
that the Company was notified of the general adjudication and
of its duty to “assert [its water] rights” in that proceeding “or
lose them,” Provo River Water, 857 P.2d at 934. There is also no
question that the Company received the Proposed
Determination and the required notice that it had ninety days to
object, which it did not do. And although Johnson attempts to
argue that applying the statutory bars to diligence claims
represents a shift in law (like the shift in law at play in Provo
River, which affected the notice given to the isolated springs’
users), he has not demonstrated that this is so in light of the
plain statutory language and the precedent we have discussed.
As a result, Provo River does not assist Johnson in making his
case.
¶42 Accordingly, we also affirm the district court’s conclusion
that Johnson has received all the process he is due as related to
the water rights represented in the Diligence Claim. 6
6. Johnson does not appear to argue that he did not receive due
opportunity to object to the Amendment itself. Rather, we
understand his argument to be that due process requires that he
now be allowed to challenge the Proposed Determination,
particularly in light of the Amendment, which he characterizes
as itself a challenge to the Proposed Determination. We have
rejected that argument above. But to the extent that Johnson
might be arguing that he did not receive the process he was due
as related solely to the Amendment, we reject any such
contention as well. Johnson received notice of the Amendment,
which included notice that he had ninety days in which to object,
and he did object. Further, the court heard and resolved his
objection. This is sufficient for purposes of due process in these
circumstances. See Eden Irrigation Co. v. District Court of Weber
County, 211 P. 957, 959 (Utah 1922).
20160547-CA 20 2018 UT App 109Utah State Engineer v. Johnson
¶43 In sum, the Company failed to timely claim the water
represented by the Diligence Claim and thereafter timely object
to the Proposed Determination. See Utah Code Ann. §§ 73-4-3,
73-4-5, 73-4-9, 73-4-11, 73-4-12 (Michie 1989). Johnson is bound
by those failures. The Company and Johnson have also failed to
avail themselves of the proper procedural vehicle—a requested
extension under section 73-4-10—to try to remedy the failure to
include in the Original Claim the water represented by the
Diligence Claim or to object to the Proposed Determination. See
id. § 73-4-10. Further, the Company and Johnson, as its successor,
have received the process they are due, given that the Diligence
Claim represents an improper collateral challenge to the
Proposed Determination and that the Company received all the
process it was due in relation to the Proposed Determination.
And the Amendment, or the proceedings associated with the
Amendment, did not revive a right to challenge the Proposed
Determination. Thus, under the plain language of the statutes in
question, as well as precedent interpreting those statutes, we
affirm the district court’s determination that the Diligence Claim
was barred.
III. Laches Defense and/or Failure to Prosecute
¶44 Finally, Johnson argues that the district court erred when
it determined that laches and failure to prosecute did not apply
in these circumstances.
¶45 “Laches is designed to shelter a prejudiced defendant
from the difficulties of litigating meritorious claims after an
unexplained delay.” Fundamentalist Church of Jesus Christ of
Latter-Day Saints v. Horne, 2012 UT 66, ¶ 37, 289 P.3d 502. “It is a
negative equitable remedy which deprives one of some right or
remedy to which he would otherwise be entitled, because his
delay in seeking it has operated to the prejudice of another.” Id.(quotation simplified). “Laches has two elements: (1) lack of
diligence on the part of the claimant and (2) an injury to the
20160547-CA 21 2018 UT App 109Utah State Engineer v. Johnson
defendant because of the lack of diligence.” Plateau Mining Co. v.
Utah Div. of State Lands & Forestry, 802 P.2d 720, 731 (Utah 1990).
¶46 We agree with the district court’s determination that the
laches defense does not apply. For one thing, our supreme court
has rejected a similar argument in Green River Canal Co. v. Olds,
2004 UT 106, 110 P.3d 666, and we are persuaded by the
reasoning employed by the court there. In Olds, a canal company
asserted that the state engineer was barred from seeking
dismissal of its filings because the engineer waited nearly
twenty-seven years to file the motion to dismiss. Id. ¶ 12 n.4. The
Utah Supreme Court rejected the canal company’s assertion,
concluding that, “[g]iven the highly unusual nature of general
adjudication proceedings and the fact that [the canal company]
itself had an obligation and opportunity to litigate its objection
during that twenty-seven-year period, [the court was] not
inclined to hold the State Engineer accountable for the long
delay.” Id.¶47 Likewise, here, Johnson has not demonstrated why the
district court erred in determining that laches did not apply,
given the unusual nature of general adjudication proceedings,
Johnson’s obligation and opportunity to litigate the Diligence
Claim and the Amendment, and the various circumstances in
play, such as the lengthy negotiation proceedings between
Johnson and Engineer and the failed stipulation. See id.¶48 Similarly, Johnson has failed to demonstrate error in the
district court’s determination that he has not demonstrated
prejudice. In particular, Johnson has not shown that it was error
for the district court to discern no prejudice from the
disappearance of evidence to prove a claim the court determined
Johnson was barred from making under statute, a determination
we have affirmed above. And Johnson has not otherwise
demonstrated that his reliance on his alleged diligence rights
ought to have persuaded the court to reach a different
conclusion.
20160547-CA 22 2018 UT App 109Utah State Engineer v. Johnson
¶49 Johnson also has failed to demonstrate that the third
parties objecting to the Diligence Claim ought to be barred from
asserting their objections by a failure to diligently prosecute
them. He contends that the objecting parties did not pursue
remedies on their objections for over fifteen years, and cites a
provision of the Utah Code—section 73-3-15—which he claims
supports his assertion that the objections can be dismissed for
failure to prosecute diligently. But section 73-3-15 addresses
dismissal for failure to prosecute an informal adjudicative
proceeding, which the present case was not, and he does not
explain how this provision nonetheless applies. Moreover, other
than citing general cases for the basic proposition that a party
must diligently prosecute its claims, Johnson does not explain
how a failure-to-prosecute theory ought to apply in these
circumstances, given the nature of general adjudication
proceedings or the circumstances particular to this case. Cf. Olds,
2004 UT 106, ¶ 12 n.4.
¶50 Accordingly, we affirm the district court’s conclusion that
the doctrines of laches and/or failure to prosecute do not apply
under the circumstances present here.
CONCLUSION
¶51 For the reasons stated above, we affirm the district court’s
grant of summary judgment on Johnson’s objection.
20160547-CA 23 2018 UT App 109