Category Archives: Nonuse Application

Nonuse application cannot protect long-dormant water right from challenge, Fourth District Court Judge says in Christensen & Jensen case

nonuse applicationIn a recent Christensen & Jensen (“C&J”) state court water law case, C&J’s client, a large water conservancy district, and other water entities successfully fended off an attempt by Defendant South Utah Valley Municipal Water Users Association (“SUVMWA”) to resurrect a substantial but long-dormant water right. The water right at issue in the case was last used by Defendant’s predecessors more than 70 years prior to Defendant’s nonuse application.  At stake was approximately 4,000 acre feet of water that SUVMWA was trying to supplant from C&J’s client and others.

Court Grants Summary Judgment for Plaintiff

After hearing oral argument on the parties cross-motions for summary judgment, Fourth District Court Judge Lynn W. Davis granted plaintiff Central Utah Water Conservancy District’s motion for summary judgment.  In his opinion, Judge Davis agreed with plaintiff’s and intervenors’ argument that defendant’s approved nonuse application only preserved defendant’s nonuse of its water rights for a certain period of time, but did not protect those rights from “any claims of nonuse which arose prior to the nonuse application.”

An Exercise in Statutory Interpretation

The main issue focused on in the court’s opinion was the statutory interpretation of a previous version of Utah Code section 73-1-4, which governs how water rights could be reverted to the public by abandonment or forfeiture for nonuse.  Specifically, the portion of the former statute at issue between the parties, section 73-1-4(3)(b)(ii), read in pertinent part, “Approval of a nonuse application protects a water right from forfeiture for nonuse from the applicant’s filing date until the approved application’s expiration date.”  Thus, the issue to be resolved by the court was whether SUVMWA’s argument that “its approved nonuse application protects it from any claim of forfeiture for the duration of time approved by its successful nonuse application,” was in line with Utah’s history of water law, or if the Plaintiff and Intervenors offered a more consistent interpretation of the statute.

In its summary judgment briefing, C&J’s client argued that all that was required for Defendant to forfeit its water right was nonuse “for the statutory period of seven years.”  C&J’s client claimed that the State has a vital interest “in seeing that none of the waters are allowed to run to waste or go without being applied to beneficial use for any great number of years,” and that “[w]hile courts have not specified a particular number, no party in this case can seriously argue that the (at least) seventy-year gap between the closure of the sugar beet factory and the present action is not a ‘great number of years.’”

Nonuse Application Cannot Protect Long-Dormant Water Right

As it related to Defendant’s nonuse application, C&J’s client asserted that “[t]he purpose of the nonuse application is to inform the State Engineer of the owner’s inability to beneficially use the water and permit the appropriator to show ‘reasonable cause’ for the nonuse.”  “The nonuse application essentially acts as a tolling mechanism to extend the existing seven-year period.”  However, as C&J’s client pointed, and as the court had already held, Defendant’s “novel contention that this statute creates a retroactive, absolute protection against the adverse effects of decades of nonuse would create a result that is ‘without reason and devoid of purpose.’”

Returning to the issue forfeiture, C&J’s client alleged that the water right Defendant was trying to resurrect had been subject to forfeiture for quite some time before the nonuse application was filed.  C&J’s client said:

It is … undisputed that Defendant’s predecessors in interest did not beneficially use the water at issue for more than seventy years.  If is further uncontroverted that Defendant’s predecessor in interest did not file a nonuse application during that time.  Rather, it was not until 2010 when Defendant filed its nonuse application that any entity attempted to revive the corpse of this long-forfeited Factory Water Right.

C&J’s Client Argues that Defendant Never Had a Good Water Right to Begin With

While not addressed in the court’s decision portion of its opinion, C&J’s client asserted that Defendant actually never even acquired any water rights from its land purchase by appurtenance because the option to purchase the water rights was collateral to the purchase agreement, and therefore did not merge with the deed.  Defendant could not offer any legitimate exception to the doctrine of merger, which states that delivery and acceptance of a deed extinguishes or superseded the underlying contract for conveyance, C&J’s client said.

Public Policy Favors Beneficial Use

C&J’s client concluded its argument SUVMWA’s claim to the long-dormant water right by asserting that SUVMWA’s claim was void as against public policy.  There, C&J’s client said:

The water purportedly allocated under the Factory Water Right is already in use by junior appropriators, serving thousands of Utahns for decades.  Disturbing the delicate balance of appropriated rights in this arid state due to the machinations of water speculators is detrimental to our limited water supply, inapposite to legislative intent, and contrary to established public policy.

C&J’s client also pointed out that the court itself had already ruled that Defendant’s reading of the statute “would only serve to extend already long periods of time of nonuse which is counter to the State’s vital interest in seeing that the water it holds in trust for the public is put to beneficial use.”  The court quoted the preceding passage directly as part of its summary judgment ruling, stating that it “is the law of the case.”

C&J attorneys David C. Richards and Tanner Strickland Lenart represented intervenor Jordan Valley Water Conservancy District in the matter.  The case is Central Utah Water Conservancy v. South Utah Valley Municipal Water Association, Fourth Judicial District Court for Utah County, Civil No. 120400610.

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