Rivers v. DEQ

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 64
IN THE
SUPREME COURT OF THE STATE OF UTAH
LIVING RIVERS,
Petitioner,
v.
EXECUTIVE DIRECTOR OF THE UTAH DEPARTMENT OF
ENVIRONMENTAL QUALITY and the DIRECTOR OF THE
UTAH DIVISION OF WATER QUALITY, in their official capacity,
the UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY,
the UTAH DIVISION OF WATER QUALITY,
and U.S. OIL SANDS INC.,
Respondents.
No. 20160503
Filed September 20, 2017
On Appeal from Final Action of Administrative Agency
Attorneys:
Joro Walker, Charles R. Dubuc, Jr., Salt Lake City, for petitioner
Sean D. Reyes, Att’y Gen., Stanford E. Purser, Deputy Solic. Gen.,
Craig W. Anderson, Paul McConkie, Asst. Att’ys Gen.,
Salt Lake City, for respondents Utah Department of
Environmental Quality and Utah Division of Water Quality
A. John Davis, Christopher R. Hogle, M. Benjamin Machlis,
Salt Lake City, for respondent U.S. Oil Sands Inc.
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM and JUDGE BRADY joined.
Having recused himself, JUSTICE PEARCE did not participate
herein; DISTRICT COURT JUDGE M. JAMES BRADY sat.
JUSTICE HIMONAS, opinion of the Court:
LIVING RIVERS v. UDEQ
Opinion of the Court
INTRODUCTION
¶ 1 Living Rivers appears before this court for a second time
to challenge a decision by the Utah Department of Environmental
Quality (UDEQ) to issue a “permit by rule” to U.S. Oil Sands Inc.
(USOS) for a bitumen-extraction project in the Uintah Basin.
UDEQ first permitted this project in 2008, and Living Rivers filed
its first challenge to the project in 2011. In reviewing this first
challenge, we concluded that Living Rivers’ 2011 petition—
although framed as a challenge to UDEQ’s 2011 decision to allow
USOS to expand its project without seeking a discharge permit (a
more onerous process than obtaining a permit by rule)—was, in
substance, an untimely attack on UDEQ’s 2008 permit-by-rule
decision. See Living Rivers v. U.S. Oil Sands, Inc., 2014 UT 25, ¶ 21,
344 P.3d 568 [Living Rivers I]. In particular, we concluded that
Living Rivers was trying to attack the 2008 analysis that
supported UDEQ’s determination that USOS’s project qualified
for a permit by rule. According to UDEQ’s analysis, because the
project site was “not a part of the regional acquifer system” it
therefore posed only a de minimis risk to groundwater. Id. ¶¶ 7,
24.
¶ 2 This time, Living Rivers has asked UDEQ to review yet
another proposed modification to USOS’s project. Without first
assuring himself that Living Rivers had standing to request
agency action, UDEQ’s Executive Director dismissed Living
Rivers’ requests for agency action on two grounds: (1) because
they were the same sort of untimely attacks on the 2008
groundwater determination that this court rejected in Living
Rivers I and (2) because UDEQ’s declining to require USOS to
renew its permit by rule was not the kind of decision that Living
Rivers had a statutory right to challenge.
¶ 3 On appeal, Living Rivers attacks the Executive Director’s
conclusion that it lacks a statutory basis for challenging UDEQ’s
inaction. But it does not adequately challenge the Executive
Director’s other basis for dismissing its requests for agency
action—his conclusion that Living Rivers’ requests for agency
action are barred by Living Rivers I.
¶ 4 We first discharge our independent obligation to assure
ourselves that Living Rivers had standing to file its requests for
agency action. Then, despite reservations about the Executive
Director’s statutory analysis, we conclude that Living Rivers has
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Opinion of the Court
waived its challenge to UDEQ’s decision by failing to argue that
the Executive Director erred in concluding that Living Rivers I bars
Living Rivers’ requests for agency action.
BACKGROUND
¶ 5 This action is the second attempt by Living Rivers to
require UDEQ to scrutinize, and potentially curtail, USOS’s tar
sands mining and processing project in the Uintah Basin on the
grounds that it is polluting the waters of the state.
¶ 6 The Utah Water Quality Act “makes it unlawful for any
person to discharge any pollutant into the ‘waters of the state’
without a permit . . . .” Living Rivers v. U.S. Oil Sands, Inc., 2014 UT
25, ¶ 4, 344 P.3d 568. UDEQ is charged with administering this
Act. To do this, UDEQ has promulgated standards for the
issuance of discharge permits. See UTAH CODE § 19–5–108(1)
(“[UDEQ] may make rules . . . for and require the submission of
plans, specifications, and other information to [UDEQ] in
connection with the issuance of discharge permits.”).
¶ 7 In 2008—before Living Rivers had any involvement in
this matter—USOS applied to UDEQ for a “permit by rule” for its
Uintah Basin project. Living Rivers I, 2014 UT 25, ¶¶ 2, 6. The
permit-by-rule process is a “streamlined . . . permitting process”
that “allows certain applicants—including those [who show that
their project will] have a ‘de minimis actual or potential effect on
ground water quality’—to bypass some of the more rigorous
regulatory requirements generally imposed on other applicants”
for discharge permits. Id. ¶ 5 (quoting UTAH ADMIN. CODE
r. 317-6–6.2.A). In 2008, UDEQ concluded that USOS’s project
posed a de minimis risk to groundwater quality and therefore
qualified for permit-by-rule status. Id. ¶¶ 6–8. As we explained in
Living Rivers I, UDEQ based its decision on four factual
determinations:
First, . . . that the substances that would be used
were ‘generally non-toxic’ and would for the most
part ‘be recovered and recycled in the extraction
process.’ Second, . . . that the extraction would be
done in tanks, and not in impoundments or process
water ponds, and that most of the water would be
recovered and recycled. Third, . . . that the excess
material would not be free draining, would have a
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Opinion of the Court
low moisture content, and would not contain any
added constituents not present naturally in the rock.
And finally, . . . that there was only a limited
amount of shallow, localized ground water at the
site that is not part of a regional aquifer system.
Id. ¶ 7.
¶ 8 In 2011, USOS informed UDEQ of four changes to its
proposed project. After considering these changes, UDEQ
concluded that they “did not affect the original permit-by-rule
determination and that the project would [continue to] have a
de minimis effect on ground water quality.” Id. ¶ 9.
¶ 9 At this point, Living Rivers mounted its first challenge to
USOS’s permit by rule. Intervening as an “aggrieved party” under
Utah Code section 63G-4-301, Living Rivers asked UDEQ to
revoke USOS’s permit by rule and require USOS “to comply with
the full range of regulatory requirements” necessary to obtain a
full-blown discharge permit. Id. ¶ 10. After a lengthy adjudicative
proceeding, UDEQ affirmed USOS’s permit-by-rule status, in part
based on its conclusion that substantial evidence supported the
determination that USOS’s project “did not present a greater than
de minimis risk to ground water.” Id. ¶ 11.
¶ 10 Living Rivers appealed to this court, and we affirmed
but on different grounds. We noted that Living Rivers’ challenge
to the project’s permit by rule, although styled as a challenge to
UDEQ’s 2011 determination, was in substance an attack on the
agency’s 2008 determination that the project was isolated from
regional aquifers and therefore posed a de minimis risk of
contaminating groundwater. We reached this conclusion because
Living Rivers’ challenge focused entirely on errors that UDEQ
had allegedly made during the original permit-by-rule process.
See id. ¶¶ 20–25. Thus, instead of addressing the merits of Living
Rivers’ challenge (as the agency did), we concluded that Living
Rivers’ challenge was untimely. In order to challenge the agency’s
2008 groundwater analysis and determination, we held, Living
Rivers needed to have intervened within thirty days of the
agency’s 2008 permit-by-rule determination. Id. ¶ 19. “Because
[Living Rivers] . . . addressed only issues presented and resolved
in 2008, in a decision that was unchallenged and thus immune
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from collateral attack, we [therefore] deem[ed] its [2011] petition
untimely.” Id. ¶ 25.
¶ 11 This brings us to Living Rivers’ current challenge to
USOS’s project. In November 2014, USOS notified the Utah
Division of Oil Gas & Mining (DOGM)—which oversees a
separate, operating permit that USOS is required to maintain—of
planned modifications to its project. A couple of months later, on
January 13, 2015, Living Rivers’ counsel sent an email to UDEQ
asking whether USOS had submitted an application for a
discharge permit or to renew its permit-by-rule status. On
January 15, 2015, UDEQ responded that it was “aware that US Oil
Sands has submitted revisions to its mine permit for DOGM,” but
that UDEQ “has not required an application [for a discharge
permit or renewed permit by rule] because the changes in
configuration of the mine pits are within the original footprint and
do not constitute a change in the operation which would change
any of the permit by rule factors.”
¶ 12 On February 17, 2015, after confirming that UDEQ did
not intend to take any action with respect to USOS’s proposed
modifications, Living Rivers filed requests for agency action
under Utah Code sections 19-1-301 and 19-1-301.5, and,
contemporaneously, a “statement of standing” in which Living
Rivers explained why it was an appropriate party to bring this
agency action. In its action, Living Rivers sought “review and
remand of the Director’s decision not to undertake a permitting
process open to the public and not to require [USOS] to obtain a
Ground Water Discharge Permit . . . in response to the company’s
notification to the Director that it intends to significantly increase
the size, scope and impact of its PR Spring mining operation.”
¶ 13 Living Rivers’ requests for agency action centered on
three key allegations: (1) that a study of the project site
undertaken by Dr. William Johnson, a professor at the University
of Utah, demonstrated a “hydrologic connection between the area
[of the project] and perennial springs located below the mine”;
(2) that DOGM was concerned that the project might have an
impact on groundwater in the area, and had asked USOS to
undertake an analysis aimed at assessing the possible impacts of
its project on area seeps and springs, “to begin in the spring of
2015”; and (3) that another expert, Elliott Lips, had identified
various deficiencies in USOS’s regulatory submissions all of
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Opinion of the Court
which reflected that USOS was not adequately accounting, or
monitoring, for the presence of groundwater at the project site.
(Living Rivers also contended that certain mine tailings deposited
at the project site were toxic, but, according to its own pleadings,
the significance of this turned on the presence or absence of a
“hydrologic connection between the area of the mine and the
springs located below the mine in Main Canyon[.]”)
¶ 14 USOS and UDEQ did not challenge Living Rivers’
standing to file its requests for agency action. Instead, they moved
to dismiss those requests on three separate grounds.
¶ 15 First, they argued that neither section of the Utah Code
under which Living Rivers filed its requests—neither section 19-1-
301 nor section 19-1-301.5—authorized Living Rivers to seek
review of agency inaction. Sections 301 and 301.5—along with
their implementing regulations—together define the universe of
permissible adjudicative challenges to UDEQ activity. Under Utah
Code section 19-1-301.5, a party is authorized to commence a
“special adjudicative proceeding” if, but only if, that party seeks
to challenge a “financial assurance determination” or (of relevance
to this case) a “permit order.” UTAH CODE § 19-1-301.5(1)(g). A
“permit order,” in turn, is “an order issued by a [UDEQ] director
that: (A) approves a permit; (B) renews a permit; (C) denies a
permit; (D) modifies or amends a permit; or (E) revokes and
reissues a permit.” Id. § 301.5(1)(f)(i). Thus, in relevant part, a
party may only invoke Utah Code section 301.5—commencing a
special adjudicative proceeding—if that party files a challenge to a
UDEQ order that approves, renews, denies, modifies, amends,
revokes, or reissues a permit.
¶ 16 If a party wishes to challenge UDEQ activity that does
not amount to the issuance of a permit order, that party must
pursue its challenge under Utah Code section 19-1-301. Section
301 “governs [all] adjudicative proceedings that are not special
adjudicative proceedings as defined in Section 19-1-301.5.” Id.
§ 301(2). By its terms, section 301 appears to be a catch-all,
authorizing challenges to any agency activity that section 301.5
does not cover. But section 301’s implementing regulations
contemplate that “[f]or the most part, proceedings under [section
301] will be enforcement proceedings and proceedings to
terminate permits.” UTAH ADMIN. CODE r. 305-7-301. And they
anticipate that parties will file requests for agency action under
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section 301 to contest “[a] Notice of Violation or an Initial Order.”
Id. r. 305-7-303(1). (The administrative regulations define a
“Notice of Violation” as “a notice of violation issued by the
Director that is exempt from the requirements of [the Utah
Administrative Procedures Act] under [Utah Code section] 63G-4-
102(2)(k).” Id. r. 305-7-102. An “Initial Order,” for its part, is
defined as “an order that is not a Permit Order, that is issued by
the Director and that is the final step in the portion of a
proceeding that is exempt from the requirements of [the Utah
Administrative Procedures Act] as provided in [Utah Code
section] 63G-4-102(2)(k).” Id.)
¶ 17 Despite the apparently sweeping scope of agency
activity that sections 301 and 301.5 jointly authorize parties to
challenge, USOS and UDEQ argued—and the Executive Director
held—that Living Rivers could not challenge UDEQ’s decision not
to require USOS to submit a new application for a permit by rule.
They argued that this decision did not fall within section 301.5’s
definition of a challengeable “permit order” because it did not
approve, renew, deny, modify, amend, revoke, or reissue a
permit. They also argued that UDEQ’s decision could not be
challenged under Utah Code section 301—the section of the Water
Quality Act that, by its terms, “governs [all] adjudicative
proceedings that are not special adjudicative proceedings as
defined in Section 19-1-301.5.” UTAH CODE 19-1-301(2). Largely
focusing on section 301’s implementing regulations rather than
the statutory text, they argued, and the Executive Director
concluded, that section 301 only authorized challenges to
“(1) proceedings contesting a Notice of Violation; (2) proceedings
contesting an Initial Order; (3) enforcement proceedings; and
(4) proceedings to terminate permits”—categories that did not
cover UDEQ’s failure to require USOS to submit a new
application for a permit by rule.
¶ 18 In addition to arguing that Living Rivers lacked
statutory authorization to file its challenges, UDEQ and USOS
argued that Living Rivers’ requests were untimely because Living
Rivers had known that UDEQ declined to take action with respect
to USOS’s project as early as November 2014, yet Living Rivers
failed to submit its requests for agency action until February
2015—well after thirty days had elapsed.
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Opinion of the Court
¶ 19 Finally, UDEQ and USOS argued that Living Rivers’
requests for agency action were, in substance, the same sort of
attacks on UDEQ’s 2008 groundwater determination that this
court, in Living Rivers I, held to be impermissible collateral attacks.
¶ 20 After briefing and oral argument, the ALJ declined to
make a recommendation on the second ground—when Living
Rivers had learned about UDEQ’s declining to take action with
respect to USOS’s project. But he recommended that the Executive
Director dismiss the requests for agency action on the other two
grounds advanced by USOS and UDEQ. The ALJ agreed that
sections 301 and 301.5 did not authorize Living Rivers’ requests
for agency action because they did not allow challenges to agency
inaction. The ALJ also agreed that Living Rivers’ requests for
agency action were, in substance, challenges to “the ground water
findings which were the important fourth ‘relevant factor’ in the
Director’s 2008 [permit-by-rule] determination,” and that Living
Rivers was barred from bringing such a challenge under Living
Rivers I.
¶ 21 After the ALJ transmitted his recommendations to the
Executive Director, Living Rivers submitted comments to the
Executive Director, which focused exclusively on the ALJ’s
recommendation that the Executive Director should conclude that
Living Rivers’ requests for agency action were not authorized
under sections 301 and 301.5. The Executive Director then
adopted the ALJ’s recommendation in full. That is, the Executive
Director adopted the ALJ’s recommendation to deny Living
Rivers’ requests for agency action because they were not
statutorily authorized—as we have already explained—and he
also adopted the ALJ’s recommendation that the Executive
Director find Living Rivers’ challenges to be barred by Living
Rivers I. The Executive Director accordingly dismissed Living
Rivers’ requests for agency action.
¶ 22 Living Rivers appealed to the Utah Court of Appeals,
which certified the matter to this court. Utah Code section 78A-3-
102(3)(b) gives us jurisdiction.
STANDARD OF REVIEW
¶ 23 This case presents three issues for potential resolution:
(1) a standing issue, (2) an issue concerning the correct
interpretation of the Environmental Quality Code, and (3) an
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adequate briefing question. With respect to standing, we review
whether a party has standing in an agency proceeding for
correctness, granting the agency’s decision no deference. Utah
Chapter of Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶ 15,
148 P.3d 960.
¶ 24 With respect to the correct interpretation of the
Environmental Quality Code, the Utah Administrative Procedures
Act authorizes us to grant relief from an agency’s erroneous
interpretation or application of law if we determine “that a person
seeking judicial review has been substantially prejudiced”
thereby. Utah Physicians for a Healthy Env’t v. Exec. Dir. of the Utah
Dep’t of Envtl. Quality, 2016 UT 49, ¶ 12, 391 P.3d 148 (citing UTAH
CODE § 63G-4-403(4)(d)).
¶ 25 Finally, appellants bear the burden of adequately
briefing all independent bases of the order from which they
appeal. See id. ¶ 13; see also Simmons Media Grp. v. Waykar, LLC,
2014 UT App 145, ¶ 32, 335 P.3d 885 (“’This court will not reverse
a ruling . . . that rests on independent alternative grounds where
the appellant challenges only one of those grounds.’” (citation
omitted)).
ANALYSIS
I. STANDING
¶ 26 Before we consider the arguments before us on appeal,
we must evaluate whether Living Rivers had standing to file its
requests for agency action. As we have explained, Living Rivers
submitted a “statement of standing” alongside its requests for
agency action. Curiously, however, the Executive Director did not
make a finding about whether Living Rivers had standing to
bring its administrative action. Instead, the Executive Director
assumed, without deciding, that Living Rivers had standing and
proceeded to analyze whether Living Rivers’ requests for agency
action could proceed.
¶ 27 We remind the Executive Director of the obligation to
make sure that parties have standing before proceeding to the
merits of their case. This is because “standing is a jurisdictional
requirement,” Brown v. Div. of Water Rights of the Dep’t of Nat. Res.,
2010 UT 14, ¶ 12, 228 P.3d 747, that “triggers the court’s, or the
agency’s, subject matter jurisdiction,” Utah Chapter of Sierra Club v.
Utah Air Quality Bd., 2006 UT 74, ¶ 13, 148 P.3d 960 [Sierra Club].
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Courts and administrative tribunals therefore have “an
independent obligation” to ensure that the parties before them
have standing. In re Adoption of Baby E.Z., 2011 UT 38, ¶ 36, 266
P.3d 702. Indeed, because of its jurisdictional implications,
“’[s]tanding is an issue that a court can raise sua sponte at any
time.’” Gregory v. Shurtleff, 2013 UT 18, ¶ 11, 299 P.3d 1098
(alteration in original) (citation omitted).
¶ 28 Having independently reviewed the record, we hold that
Living Rivers had standing to bring its administrative actions.
Under our traditional standing test, a party has standing if (1) it
has a legally cognizable interest that “has been or will be
‘adversely affected by the [challenged] actions,’” Utah Chapter of
Sierra Club, 2006 UT 74, ¶ 19 (citing Jenkins v. Swan, 675 P.2d 1145,
1150 (Utah 1983)), (2) there is “a causal relationship ‘between the
injury to the party, the [challenged] actions and the relief
requested,’” id. (alteration in original), and (3) “the relief
requested [is] ‘substantially likely to redress the injury claimed,’”
id. (citation omitted). We have held that an association may
establish standing under the traditional standing test by having its
members attest that an agency’s action or inaction will result in
judicially remediable harm to their specific livelihood, health,
property, or recreational interests. Id. ¶¶ 22–24.
¶ 29 Here, Living Rivers submitted an affidavit prepared by
John Weisheit, Living Rivers’ Conservation Director. Mr. Weisheit
stated that he has used and will continue to use the land where
USOS’s project is located—as well as neighboring lands—for a
variety of aesthetic, spiritual, and recreational purposes,
specifically, “to watch birds and wildlife, hike, enjoy the solitude
and views, take photographs, and otherwise use and enjoy the
public lands.” He further stated that other Living Rivers members
“also use the land in the area for hunting, hiking, spiritual, and
recreation purposes.” And he averred that if USOS was allowed to
proceed with its project, his “uses and interests [would be]
immediately and irreparably harmed” because USOS’s
groundwater discharges would “degrade the environment and
irreparably alter [his] use and enjoyment of the area.” These
attestations suffice to establish that Living Rivers has traditional
standing because they allege that Living Rivers’ members have
interests in the area surrounding the USOS project area and that
those interests will be harmed by environmental degradation
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caused by the expansion of USOS’s mining operation unless that
expansion is enjoined. This meets the traditional standing test’s
requirement of “a showing of injury, causation, and
redressability.” City of Grantsville v. Redevelopment Agency of Tooele
City, 2010 UT 38, ¶ 14, 233 P.3d 461.
¶ 30 Discharging our independent obligation to assure
ourselves of the parties’ standing, we conclude that Living Rivers
had standing to file its requests for agency action.
II. WE AFFIRM THE EXECUTIVE DIRECTOR’S DISMISSAL
OF LIVING RIVERS’ REQUESTS FOR AGENCY ACTION
BECAUSE LIVING RIVERS HAS NOT ADEQUATELY
BRIEFED A CHALLENGE TO AN ALTERNATIVE
GROUND FOR THE EXECUTIVE
DIRECTOR’S DECISION
¶ 31 Living Rivers devoted the bulk of its opening brief to
challenging the Executive Director’s conclusion that Living Rivers
had no statutory right to challenge UDEQ’s decision to decline to
review USOS’s permit by rule. See supra ¶¶ 14–17 (explaining the
statutory framework and the basis for this conclusion). It suggests
that the plain language of the statutory scheme appears to
authorize (1) “[s]pecial adjudicative proceeding[s]” to challenge
“permit orders” and “financial assurance determination[s],” UTAH
CODE § 19-1-301.5(1)(g); and (2) all challenges to UDEQ decisions
that are not challengeable in “special adjudicative proceedings as
defined by Section 19-1-301.5,” id. § 301(2). But instead of
applying the text of this scheme, Living Rivers suggests, the
Executive Director may have overstated the importance of
implementing regulations that are arguably at odds with the
legislature’s will—concluding that section 301 only authorizes
proceedings to contest a Notice of Violation, an Initial Order, or
enforcement proceedings, or to contest decisions with respect to
the termination of permits. See UTAH ADMIN CODE r. 305-7-301
(“For the most part, proceedings under [section 301] will be
enforcement proceedings and proceedings to terminate
permits.”); id. r. 305-7-303(1) (other proceedings under section 301
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Opinion of the Court
include proceedings to contest “[a] Notice of Violation or an
Initial Order”).1
¶ 32 We do not pass on Living Rivers’ argument, however,
because Living Rivers’ appellate brief does not adequately
challenge the Executive Director’s alternative basis for dismissing
Living Rivers’ requests for agency action—his conclusion that
they were impermissible collateral attacks on the agency’s 2008
determination that USOS’s project was isolated from regional
aquifers and therefore posed a de minimis risk to groundwater.
¶ 33 “[T]here is not a bright-line rule determining when a
brief is inadequate.” Bank of Am. v. Adamson, 2017 UT 2, ¶ 12, 391
P.3d 196. This is because “our adequate briefing requirement is
not a hard and fast default notion. Instead, it is a natural extension
of an appellant’s burden of persuasion.” 2010-1 RADC/CADC
Venture, LLC v. Dos Lagos, LLC, 2017 UT 29, ¶ 30 n.8, —P.3d—
(internal quotation marks omitted). “An appellant who fails to
adequately brief an issue ‘will almost certainly fail to carry its
burden of persuasion on appeal.’” Adamson, 2017 UT 2, ¶ 12
(quoting State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645). And it is
incumbent on appellants to adequately brief all grounds for a
court’s or agency’s disposition of a case. When a party appeals
one basis for a lower court’s or agency’s disposition, but “does not
challenge the court’s [or agency’s] separate [basis for its
decision],” the “issue on appeal is considered moot [because] ‘the
requested judicial relief cannot affect the rights of the litigants.’”
State v. Sims, 881 P.2d 840, 841 (Utah 1994) (citation omitted).
¶ 34 As we have explained, the ALJ assigned to this matter
recommended that the Executive Director dismiss Living Rivers’
requests for agency action for two independent reasons. First, as
we have just discussed, he concluded that Living Rivers had no
statutory authority to challenge the Executive Director’s decision
not to require USOS to undertake a new discharge permit or
1 Another implication of the Executive Director’s analysis may
be that a class of potentially unlawful agency decisions—failures
to take legally required action—is entirely insulated from judicial
review. We would welcome clarification from the legislature on
whether it did, indeed, intend to insulate illegal agency inaction
from court challenge.
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permit-by-rule process. Second, based on USOS’s and UDEQ’s
argument that the gravamen of Living Rivers’ requests for agency
action was a new study purporting to show that the 2008
groundwater determination was wrong, he concluded that Living
Rivers’ requests for agency action were the same kind of
impermissible collateral attack on the agency’s 2008 groundwater
determination that we had addressed in Living Rivers I. This is the
ALJ’s reasoning:
As directed by the Supreme Court [in Living
Rivers I], ”if the substance of the petition is a
collateral attack on the 2008 permit by rule, then it
matters not whether Living Rivers has formally
sought to tie its challenge to the 2011 modification
decision.“ The [Living Rivers I] Court found that the
petition for review was indeed directed to the
Director’s 2008 [permit-by-rule] determination, and
dismissed the petition as untimely, since no
challenge had been brought within thirty days of the
March 4, 2008 determination as required by [the
Utah Administrative Procedures Act] and
administrative rules.
It is clear from a reading of the [new requests for
agency action] and their exhibits that Living Rivers
is continuing to try to challenge the ground water
findings which were the important fourth “relevant
factor” in the Director’s 2008 [permit-by-rule]
determination. Living Rivers acknowledges as
much, where it argues that it ”centers its RAAs” on
two new documents, including a hydrogeologic
report and a report stating results of tests run on
processed tailings from the mine site. . . . The
hydrogeologic study would be used by Living
Rivers to challenge the 2008 factual determination
regarding ground water at the site, which would be
barred as a collateral attack on the Director’s 2008
decision. . . . The claims asserted and relief sought in
Living Rivers’ RAAs hinge on the presence or
absence of ground water, and guidance from the
Utah Supreme Court directs that the RAAs must be
dismissed as untimely collateral attack on the
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Director’s 2008 [permit-by-rule] determination,
barring this tribunal from exercising jurisdiction.
¶ 35 To be sure, the ALJ’s recommendation is not a final
order. But the Executive Director’s decision is. See Utah Physicians
for a Healthy Env’t v. Exec. Dir. of the Utah Dep’t of Envtl. Quality,
2016 UT 49, ¶ 2, 391 P.3d 148 (“[Utah Code] [s]ection 63G-4-403
authorizes us to review only a final agency action—in this case,
the Executive Director’s final order.”). And the Executive Director,
in his final order, “adopt[ed] the Administrative Law Judge’s
Findings of Fact and Conclusions of Law”—including,
necessarily, the ALJ’s conclusion that Living Rivers’ requests for
agency action amounted to “an untimely collateral attack on the
Director’s 2008 [permit-by-rule] determination.” As a result, when
the Executive Director adopted the ALJ’s recommendation, the
ALJ’s conclusion that Living Rivers’ requests for agency action
were untimely collateral attacks—and its underlying analysis—
became a part of the Executive Director’s final, appealable order,
which Living Rivers had a duty to challenge on appeal. See id.
¶ 32 (“The Director’s actions were litigated before the ALJ, and
now, on appeal, we are to consider the Executive Director’s final
order, which incorporated the findings of the ALJ.”).
¶ 36 The question, then, is whether Living Rivers adequately
challenged this basis in its briefing to this court. That is, the
question is whether Living Rivers adequately argued that its
requests for agency action were not barred by the logic of Living
Rivers I—that they were not, in substance, collateral attacks on the
agency’s 2008 permit-by-rule determination, including the
agency’s 2008 conclusion that the project posed a de minimis risk
to groundwater because it was isolated from the regional aquifer.
¶ 37 Living Rivers had at least three basic options for
challenging this determination. First, Living Rivers could have
argued that the Executive Director misunderstood our decision in
Living Rivers I when he concluded that it barred challenges to the
2008 groundwater determination. Second, Living Rivers could
have argued that the Executive Director misapplied our decision in
Living Rivers I to the factual allegations before him. Third, Living
Rivers could have argued that Living Rivers I was wrongly
decided.
¶ 38 In its opening brief to this court, however, Living Rivers
did not pursue any of these three options. It did not argue that
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Living Rivers I allowed new challenges to the 2008 groundwater
determination; it did not contend that its requests for agency
action could prevail even if the 2008 groundwater determination
remained in place; and it did not argue that Living Rivers I was
wrongly decided and should be overruled. Indeed, Living Rivers’
opening brief did not even acknowledge that the Executive
Director had dismissed Living Rivers’ requests for agency action
on two independent grounds. Instead, the closest Living Rivers
got to challenging this basis was in a part of the “Legal
Background” section of its opening brief where Living Rivers
argues that, under Living Rivers I, a petitioner may challenge a
modification to a project and “the Director is required to assess
the impact [any] modification will have on water quality.” This is
the operative portion of Living Rivers’ opening brief:
Now, in seeking to challenge the Director’s
permitting of the 2014 modification by rule, Living
Rivers is not improperly concerned with issues
presented and resolved in 2008. After all, under Rule
317-6-6.2.A(25), the Director may permit by rule
only those ”facilities and modifications thereto which
the Director determines after a review of the
application will have a de minimis actual or potential
effect on ground water quality.“ Therefore, before
permitting a modification by rule under A(25), the
Director is required [to] assess the impact the
modification will have on water quality. . . . Only if
the modification will have minimal effect on water
quality may the Director permit the modification by
rule under A(25). . . . Plainly, the Director did not
and could not undertake analysis of the 2014
modification in 2008. Therefore, by challenging the
Director’s evaluation of ground water quality
impacts of the modified mining operations,
including the newly configured footprint of the
three ”mine pits” and the potential effects of the
revised plan to backfill the pits with processed
solids . . . Living Rivers is properly focused on the
A(25) permitting decision. . . .
In its RAAs, Living Rivers is also appropriately
“concerned” with “whether proposed modifications
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Opinion of the Court
to the . . . Oil Sands facility [a]re significant enough
to alter determinations leading to the permit-by-rule
decision in 2008.” [(quoting Living Rivers I, 2014 UT
25, ¶ 25)] In the RAAs and before the Executive
Director, the organization has detailed the
“significant” alterations Oil Sands plans to make to
its mining operations and has provided ample
evidence that [the] proposed modifications . . . are
sufficiently significant to warrant a reexamination of
the 2008 permit-by-rule decision. In addition, as
Living Rivers alleges, the 2014 changes “are material
enough to change the ultimate conclusion that the
effect on ground water would be de minimis” such
that “[USOS] would no longer have permit-by-rule
status.” . . . Thus, as the Supreme Court confirms,
because Oil Sands has again proposed to alter its
facility, Living Rivers is entitled to challenge the
Director’s decision that those modifications are “not
significant enough to alter the determinations
leading to the permit-by-rule decision in 2008.”
¶ 39 Neither paragraph amounts to a challenge to the ALJ’s
(and, hence, the Executive Director’s) determination that Living
Rivers is unlawfully seeking to attack the 2008 groundwater
determination. The first paragraph correctly points out that Living
Rivers I did not purport to bar all challenges to proposed
modifications to projects that have previously been upheld or
inoculated from attack by the rules governing finality of agency
decision-making, and that, consistent with Living Rivers I, a party
could argue that modifications to a project would, themselves,
change the factors that had previously justified the project’s
permit-by-rule status. But the Executive Director did not base his
determination that Living Rivers’ requests for agency action were
impermissible collateral attacks on the conclusion that Living
Rivers I was a categorical bar to any future attack on USOS’s
project, including attacks predicated on modifications to that
project. Instead, the Executive Director concluded that Living
Rivers’ requests for agency action were in substance a renewed
attack on the 2008 groundwater determination. As the ALJ put it
in the recommendations that the Executive Director adopted, “[i]t
is clear from a reading of the [new requests for agency action] and
their exhibits that Living Rivers is continuing to try to challenge
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the ground water findings which were the important fourth
‘relevant factor’ in the Director’s 2008 [permit-by-rule]
determination.” This is the conclusion that Living Rivers was
obliged to challenge on appeal. But the first paragraph does not
challenge this conclusion. While Living Rivers states that its
requests for agency action are allowed by Living Rivers I because
they are formally targeted at modifications to USOS’s project, it
does not point to anything in those requests for agency action that
rebut the ALJ’s determination that the substance of Living Rivers’
challenge is aimed at the 2008 groundwater determination. This is
not enough.
¶ 40 There is a sense in which the second quoted paragraph
of Living Rivers’ opening brief is a “challenge” to the Executive
Director’s decision: it states that Living Rivers “has provided
ample evidence that [the] proposed modifications . . . are
sufficiently significant to warrant a reexamination of the 2008
permit-by-rule decision.” Plainly, if it is true that the proposed
modifications “are sufficiently significant to warrant a
reexamination of the 2008 permit-by-rule decision,” then Living
Rivers’ requests for agency action are not impermissible collateral
attacks on the 2008 groundwater determination—they are,
instead, “warrant[ed].”
¶ 41 The problem is that this paragraph utterly fails to engage
with the substance of the Executive Director’s ruling. The
Executive Director concluded that Living Rivers was trying to
innovatively characterize its way out of a timeliness problem—the
same way it did in Living Rivers I. To be sure, Living Rivers’
requests for agency action were formally aimed at the
modifications that USOS had proposed (just as in Living Rivers I).
But the Executive Director understood Living Rivers’ requests for
agency action to be elliptically stating a different claim: the claim
that because new evidence indicates that the 2008 groundwater
determination was incorrect—because the project site is actually
connected to the regional aquifers—the modifications that USOS
has proposed will have a nontrivial impact on groundwater. Thus,
quoting our opinion in Living Rivers I, the Executive Director
concluded that although Living Rivers had “formally sought to tie
its challenge to the [proposed] modification,” it was, in actuality,
seeking to challenge the 2008 groundwater determination.
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¶ 42 Now, on appeal, Living Rivers argues only that its
requests for agency action should be allowed to proceed because
they have “detailed the ‘significant’ alterations [USOS] plans to
make to its mining operations,” and because their claim is that
those modifications are “sufficiently significant to warrant a
reexamination of the 2008 permit-by-rule decision.” But this is just
to reiterate the characterization that the Executive Director
rejected. This is not to challenge the Executive Director’s rejection
of Living Rivers’ characterization of its requests for agency action.
Living Rivers cannot hope to defeat the Executive Director’s
conclusion that its requests for agency action are formally aimed
at the proposed modifications, but in substance aimed at the 2008
groundwater determination, by restating that its requests for
agency action are formally aimed at the proposed modifications.
This does nothing to help us understand why the Executive
Director was wrong to conclude—as he did—that Living Rivers’
requests for agency action were all rooted in the allegation that
the 2008 groundwater determination was incorrect. Nor does it
help us understand why the Executive Director was wrong to
conclude that Living Rivers I barred such claims.
¶ 43 Put another way, the Executive Director concluded that
while Living Rivers had formally sought to focus its requests for
agency action on the new modifications proposed by USOS, those
requests were actually aimed at the 2008 groundwater
determination because they were ultimately grounded in new
studies purporting to show that the 2008 groundwater
determination was false. In challenging this conclusion, Living
Rivers has not denied that its requests for agency action were
premised on new studies purporting to show that the 2008
groundwater determination was false. Instead, it has baldly
averred that the Executive Director is wrong because Living
Rivers’ requests for agency action are focused on the new
modifications proposed by USOS. The Executive Director’s
conclusion was that Living Rivers had mischaracterized the
substance of its requests for agency action; Living Rivers’
response is to restate this purported mischaracterization. This
brings us no closer than we were before we received Living
Rivers’ opening brief to knowing whether (1) Living Rivers could
prevail in its new requests for agency action even if the 2008
groundwater determination remains in place; (2) we should hold
that Living Rivers I authorizes new challenges to old
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Opinion of the Court
determinations when they are based on new evidence; or
(3) Living Rivers I should be overruled. And this, in turn, is just
another way of saying that Living Rivers has impermissibly
sought to “dump the burden of argument and research” onto this
court. State v. Green, 2004 UT 76, ¶ 13, 99 P.3d 820 (citation
omitted); see also 2010-1 RADC v. Dos Lagos, 2017 UT 29, ¶ 30 &
n.8, —P.3d—.
¶ 44 Our conclusion that Living Rivers has not adequately
challenged the Executive Director’s decision is reinforced by the
course of events after Living Rivers filed its opening brief. In its
response brief, USOS argued that we should affirm the Executive
Director’s decision “because Living Rivers does not challenge an
independent basis for such dismissal”—namely, that “the
Executive Director’s determination that the substance of [Living
Rivers’ requests for agency action] is a challenge to the 2008
[permit-by-rule] determination and the 2008 finding of an absence
of ground water that could be impacted by the project.” USOS
analyzed the portion of Living Rivers’ opening brief that came
closest to challenging this basis for dismissing Living Rivers’
requests for agency action—the portion that we have just
addressed ourselves. It urged us to conclude that this portion of
the brief failed to show that Living Rivers’ requests for agency
action were “appropriately directed at the impact that [USOS’s
proposed] modifications . . . might have on the [project’s] permit-
by-rule status” as opposed to “call[s] for the rescission of the 2008
[permit-by-rule] determination.”
¶ 45 In its reply brief, Living Rivers does not dispute that its
opening brief failed to challenge the Executive Director’s
determination that the substance of Living Rivers’ requests for
agency action was a challenge to the 2008 groundwater
determination. Instead, rather than responding to USOS’s
inadequate briefing argument, Living Rivers sets forth new
arguments focused on the Executive Director’s determination that
its requests for agency action were not barred by Living Rivers I.
Among other things, it argues that its requests for agency action
do not merely attack the 2008 groundwater determination, but
instead also challenge the agency’s decision not to require USOS
to apply for a new permit without first soliciting comments from
the public on the propriety of this decision. It also suggests that
USOS’s proposed modification is so significant that Living Rivers
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Opinion of the Court
is, in effect, challenging an entirely different project from the
project previously permitted by rule. And it states, for the first
time, that the Executive Director “Wrongly Contends that
Presentation of New Information Relating to Permit-by-Rule
Factors Constitutes a Collateral Attack on the 2008 Permit.”
¶ 46 The newness of the arguments in Living Rivers’ reply
brief—coupled with the fact that Living Rivers’ reply brief does
not respond to USOS’s contention that Living Rivers failed to brief
this ground in its opening brief—confirms our conclusion that
Living Rivers has failed to adequately challenge the Executive
Director’s determination that Living Rivers’ requests for agency
action were impermissible collateral attacks on the 2008
groundwater determination. See Allen v. Friel, 2008 UT 56, ¶ 8, 194
P.3d 903 (“It is well settled that ‘issues raised by an appellant in
the reply brief that were not presented in the opening brief are
considered waived and will not be considered by the appellate
court.’” (citation omitted)).
¶ 47 Living Rivers’ reply brief is a posterchild for why we do
not allow parties to make new arguments in their reply briefs. The
reply brief’s arguments set forth a multitude of different possible
resolutions to this case. For example, if we were persuaded only
that Living Rivers had stated a procedural claim—the claim that
the Executive Director had to solicit public comments before
declining to require USOS to apply for a new discharge permit or
permit by rule—then our opinion might not disturb the Executive
Director’s decision to the extent it barred a challenge to the 2008
groundwater determination. Instead, we might reverse and
remand with instructions for the Executive Director to make the
decision anew after allowing public comment. If we agreed with
Living Rivers’ argument that USOS’s modification is, in reality, a
completely different project, then we would potentially reverse
and remand with instructions for the Executive Director to treat
USOS as though it was an applicant for a discharge permit
approaching UDEQ for the very first time. And if we disagreed
that USOS’s proposed modification was functionally a new
project, but agreed that Living Rivers could challenge the 2008
groundwater determination based on new information, then we
would potentially reverse and remand to allow Living Rivers to
challenge this determination in the different context of assessing
the continued viability of USOS’s permit-by-rule status.
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¶ 48 In short, Living Rivers’ reply brief has the potential to
entirely revolutionize this appeal. It implicates new arguments
that, in turn, call for a wide variety of different remedies. But,
because it is a reply brief, it does this belatedly—after USOS and
UDEQ already had their one opportunity to submit appeals briefs,
and after Living Rivers’ opening brief has already shaped the
course of the appellate briefing. This is too much, too late. It
underscores that Living Rivers’ opening brief failed to adequately
challenge an independent ground for the Executive Director’s
decision.
¶ 49 We close with a candid admission: we are troubled that
we have had to resolve this case on inadequate briefing grounds.
Because of inadequate briefing, we are barred from wrestling with
the significant questions of agency law this case presents—
questions that must, for now, remain open, unsettling the
administrative law process for future participants in agency
decisionmaking.
¶ 50 But Living Rivers’ opening brief does not point to any
error in the Executive Director’s conclusion that Living Rivers’
requests for agency action are impermissible attacks on the 2008
groundwater determination of the sort that Living Rivers I bars. It
has not explained in what way its requests for agency action are
different from those that we held to be untimely in Living Rivers I.
It has not explained why, if those requests are not meaningfully
different from those that we held to be untimely in Living Rivers I,
we should overrule or limit that opinion. Had Living Rivers
adequately put these issues before the court, the course of
argument and analysis in this case may have been very different.
We would have been focused from the get-go on the import of
Living Rivers I; we would have been focused on the specific
exhibits and allegations that Living Rivers set forth in its requests
for agency action that were either distinguishable (or not) from
the claims at issue in Living Rivers I; we would have been focused
on the policies underlying bars on collateral attacks on prior
agency findings of fact; to the extent we agreed with some or all of
Living Rivers’ arguments, we would have been focused on the
appropriate appellate remedy. We would have, in short, been
focused on important questions of agency law.
¶ 51 But that is not how this case has gone. Living Rivers has
not timely explained how the Executive Director got it wrong.
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And, consistent with both appellate efficiency (which is just
another way of saying, “fairness to other parties with pending
appeals”) and our adversarial system of justice (which says that
USOS gets the opportunity to respond to Living Rivers’
arguments), we will not independently root around in the record
to try to figure out whether the Executive Director got it right.
CONCLUSION
¶ 52 We affirm the Executive Director’s decision on the
ground that Living Rivers failed to adequately challenge his
determination that its requests for agency action were untimely
collateral attacks on the 2008 groundwater determination of the
sort that Living Rivers I bars.
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