Wednesday, November 30, 2011

What Is a Pending Adjudication Claim?

According to the Utah Division of Water Rights, a Pending Adjudication Claim "is a water user claim submitted to the Division as part of a general adjudication, with no other basis for the claim in [the Division's] records, and without the benefit of being published in a proposed determination and affirmed by the district court."

The most common Pending Adjudication Claim is demonstrated by the following example (based on a real matter that I worked on):
Farmer Jones owns 20 acres of land that he irrigates with water from a small creek, just like his family has done since the 1890s. Although Farmer Jones has a valid water right based on diligence (i.e., pre-1903 water use), no diligence claim has ever been filed to put the water right on record. In the early 1970s, the Utah Division of Water Rights initiates a general adjudication in the area. Farmer Jones fills out and submits a Water Users Claim, under which he seeks to establish the 1890 right to divert water from the creek for the irrigation of 20 acres. Unfortunately, however, the general adjudication process is never completed, and no proposed determination or decree is ever published.

The Division of Water Rights would classify Farmer Jones' claimed water right as a Pending Adjudication Claim. Note that it is a "claimed" water right, as the Division does not recognize it as a fully-established water right. The Division of Water Rights will not allow Farmer Jones to take certain actions on his water right (like file a Change Application) until the water right is fully established, which requires that either (1) Farmer Jones files a diligence claim, or (2) a proposed determination or decree is published in the general adjudication. The likelihood of #2 occurring is very low, since it has been 40 years since the general adjudication began. Thus, Farmer Jones would need to file a diligence claim to establish the water right.

Water rights that are classified as Pending Adjudication Claims will also have a large warning on the water rights database that states "Please be aware that the claim under this Water Right has NOT been established in accordance with statute and its validity is in question. Therefore, CAUTION is advised when relying upon this record." For this reason, it may be difficult to sell a Pending Adjudication Claim unless the water right has been established by the filing of a diligence claim.

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