Saturday, May 29, 2010

Bingham v. Roosevelt City

The Utah Supreme Court recently issued its opinion in Bingham v. Roosevelt City. The case centered around five City wells, known as the Hayden Well Field, through which the City pumped water out of an unconfined, shallow aquifer underlying the Hayden area. The water level in the area dropped significantly due to the City's pumping. For example, the static water level at one well dropped from 14.3 feet to 94.6 feet.

A group of people who owned land near the Hayden Well Field were affected by the decreased water levels. The landowners found that when they applied water to their fields, the water was quickly drawn down deep into the soil. Thus, the landowners found it more costly and, in some instances, practically impossible to raise crops and livestock. The landowners filed suit against the City, claiming three causes of action: interference with water rights, takings, and negligence.

In the district court, the City moved for summary judgment on all three of the landowners' causes of action. The district court granted summary judgment, so the landowners filed an appeal with the Utah Supreme Court. The Utah Supreme Court affirmed in part and reversed in part.

First, the Court held that there was no taking because the City was using its lawfully appropriated water rights. The Court determined that the landowners' interest in the water table underlying their property was not a protectable interest under the Utah Constitution or the United States Constitution.

Second, the Court held that the landowners' interference claimed failed as a matter of law. Although the Court acknowledged that the City's pumping from the Hayden Well Field affected the soil saturation and the water table, the City was not interfering with the landowners' rights and ability to divert their water rights (which were diverted from surface sources).

Third, the Court held that the district court erred when it granted summary judgment in favor of the City on the landowners' negligence claim. The Court held that the negligence claim was not barred by the statute of limitations because the City's pumping--which caused the alleged damage--was a continuing tort. The Court also held that the City did owe a duty to the landowners to exercise reasonable care in obtaining its water. The Court recognized that the landowners would be able to prevail on their negligence claim if the facts support the landowners' assertion that there were alternative means for the City to obtain its water without adversely affecting the landowners. The case was remanded to the district court for additional proceedings on the negligence claim.

To read the full opinion, click here.

Thursday, May 20, 2010

Utah Waterways Task Force

The Utah Waterways Task Force has set its first meeting for June 24, 2010 at 10:00 am at the Department of Natural Resources building (1594 West North Temple, Salt Lake City). The meeting notice can be viewed here.

Senator Dennis Stowell, the sponsor of the bill that established the Task Force, explained the purpose of the Task Force as follows:

"This task force will be made up of 12 legislators that will study . . . areas of the state which have conflicts between fishermen and landowners. The task force will hold public hearings to allow the landowners and fishermen testify about the conflicts in these areas. This process will help the legislature better understand how the problem may be solved. The task force will also address funding issues in regards to expanding the DWR Walk-in Access program, funding to permanently purchase access rights from landowners, and establishment of cooperative fishing management units (CFMU’S)."
(Click here for source of quote.)

The Task Force is made up of the following six representatives and six senators:
Rep. Melvin R. Brown (Co-Chair)
Sen. Dennis E. Stowell (Co-Chair)
Sen. Curtis S. Bramble
Sen. Margaret Dayton
Rep. Jack R. Draxler
Rep. Ben C. Ferry
Rep. James R. Gowans
Rep. Lynn N. Hemingway
Sen. Peter C. Knudson
Sen. Benjamin M. McAdams
Rep. Kay L. McIff
Sen. Karen W. Morgan