Wednesday, April 9, 2014

Central Utah Water Conservancy District v. Jensen

In 2011, the Utah Supreme Court issued its opinion in the Jensen v. Jones, in which the Court held that the State Engineer could not consider alleged forfeiture in determining whether or not to grant a change application.  The Court did not, however, determine whether the water right owned by Jensen had actually been forfeited. 

A few months after the Court's decision, Central Utah Water Conservancy District ("CUWCD") initiated a separate lawsuit in district court against Jensen seeking to have Jensen's water right declared forfeited.  On March 12, 2014, the district court issued a ruling in which the court concluded that the Jensen water right was forfeited for nonuse.

The district court first addressed Jensen's argument that CUWCD should be estopped from bringing the forfeiture action because a lawsuit alleging forfeiture should have been brought before Jensen spent significant time and money pursuing the change application.  Although the court acknowledged these costs, the court concluded that the legal standard of "manifest injustice" had not been met and that Jensen had not materially altered their course of conduct based on the CUWCD's alleged inaction.  The court also noted that the doctrine of beneficial use was established to protect the public and Utah's limited resource of water, and therefore it was in the public interest to allow CUWCD to pursue its forfeiture claim.

The court next addressed the primary issue of whether the Jensen water right had been forfeited.  The court focused primarily on Jensen's inability to produce any documents, records, or evidence that she or her predecessors had beneficially used the water right for at least 25 years, as well as prior acknowledgments that no beneficial use had occurred.  Although Jensen urged the court to balance the requirement of beneficial use of water against the public policy of protecting property rights, the court declined to do so, concluding that Utah Code section 73-1-4 did not require or allow any such balancing.  The court also rejected Jensen's arguments that forfeiture should not apply due to alleged unavailability of water in the source and due to the pending change application.

It is currently unknown if Jensen will appeal this decision.  If the ruling stands, it will surely result in an end to the still-pending case regarding the State Engineer's denial of the change application.  It is also unknown to what extent, if any, this ruling may have on future legislative considerations of legislation relating to the State Engineer's authority to review beneficial use and nonuse in the context of a change application.

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