October 28, 2011 Utah Supreme Court Opinion

In Jensen v. Jones, 2011 UT 67, the Supreme Court of Utah ruled that the state engineer lacked statutory authority to consider non-adjudicated forfeiture of water rights in Spring Creek, a tributary of the Provo River, when making a decision to approve or reject a permanent change application.

Jones, the Utah State engineer, had denied Marilyn Hamblin’s (the petitioner at the district court level) permanent change application which sought to change her water right’s place of use and point of diversion to Highland City, Utah. The state engineer denied the application based on his finding that the water right had not been used for over 20 years, and may have ceased as a result of the nonuse. The district court granted the state engineer’s motion for summary judgment, and denied Ms. Hamblin’s cross motion because it concluded a forfeiture occurred automatically by operation of the version of Utah Code section 73-1-4 in effect at the time of Ms. Hamblin’s nonuse.

The Supreme Court reasoned that the state engineer has no authority to adjudicate the issue of forfeiture in the context of a change application proceeding. Instead, the state engineer was to follow the statutory guideline for approving or denying a change application in section 73-3-8(1) Utah Code Ann. The state engineer may stay change application proceeding while pursuing an adjudication of forfeiture.