Water Right Transfer Request from Sandy to Albion Basin
In February, 2014 FOA filed a complaint against the State Engineer after he granted a permit application to transfer water rights from Sandy, upstream to privately owned undeveloped dry lots in Albion Basin. If left unchallenged, this decision provides incentive and a means for owners of undeveloped parcels to comply with building permit requirements previously unmet in Albion Basin. If allowed to stand, we see this decision as the tipping point development of Albion Basin. Seen as absolutely critical to our mission, we need to cover this increase to our annual budget. We ask that you consider a donation TODAY to support Friends of Alta and our actions against the State Engineer. Below, is a bit more detail about our complaint.
UPDATE: September 6, 2016 (from an email)
We received the final order, signed by Judge Stone dismissing the First and Third Causes of Action in our lawsuit against the State Engineer. This is a significant development for two reasons. First, SLC, was able to purchase the water interest from Kevin Tolton and Judith Maack. Both Tolton and Maack were named defendants in our case against the State Engineer. Once Salt Lake City obtained these water rights they requested the State Engineer to cancel them. As a result, there are now two remaining defendants in the lawsuit, Mark Haik and the Pearl Raty Trust. SLC, Sandy City, and FOA have filed for summary disposition of the remaining Second Cause of Action. It is being briefed and will be scheduled for a hearing by Judge Stone sometime this Fall.
Also of note, Albion Basin landowner Evan Johnson recently purchased the Tolton and Maack lots to add to his acreage and has filed a new water claim in Albion Basin. SLC filed a protest and FOA will be filing a protest as well should anything unforeseen happen.
While not over, there is light at the end of the tunnel on this particular dispute. We believe we have a strong case for a summary judgment motion on Count II and appreciate your support in helping us get this far. Unfortunately, given Haik’s proclivity to protract by appeal there will undoubtedly be an appeal.
There was also an engaging discussion about the future of Alta and all the proposals, plans, and threats looming. Yet, it was also a time to highlight the fruits of our efforts in the last year, namely the progress in litigation against the State Engineer’s decision, Alta Bird Study, Mountain Accord, and the Federal Designation of the Central Wasatch National Conservation and Recreation Area Act. Thank you for supporting our programs!
UPDATE: May 2016 (from the newsletter)
This decision to allow a transfer of a point of diversion from Sandy up-canyon to Albion Basin would set a devastating precedent that could result in large scale development by linking dry lots in the canyons with water rights downstream. For that reason, FOA will spend about $43,000 this fiscal year on representation, and we are expecting to spend at least that much in each of the next several years.
FOA has alleged that the State Engineer erred in granting the change of diversion points of the purported water right, and was improperly influenced in his decision. In April, the Judge ruled in favor of SLC and FOA by denying the defendants’ motion for a stay during the pendency of their appeal. As a result, discovery for the 2nd cause of action (of 3 actions, with SLC taking the lead on the 2nd) ended on May 10th. On May 5th we received news that the Utah Court of Appeals denied the defendants’ interlocutory appeal from the Judge’s decision regarding discovery schedule. This only leaves one appeal to the Utah Supreme Court, which we believe will be denied. This denial is very helpful and will set the 2nd cause of action up for a good summary judgment motion on the part of SLC and FOA. The litigation is moving in the right direction, albeit at a snail’s pace.
UPDATE: November 2015 (from the newsletter)
FOA and Salt Lake City are challenging whether it was proper and legal for the Utah State Engineer to allow a transfer of a point of diversion from Sandy up canyon to Albion Basin. This would be a devastating precedent resulting in large scale development pressures by linking dry lots in the canyons with water rights downstream.
At the September hearing, we motioned to dismiss all of the defendants’ counterclaims and equitable defenses. Judge Stone ruled in our favor except four factually based equitable defenses. At this point, without any discovery by either side, any factually based allegation can’t be dismissed. It was a good sign, both that Judge Stone is careful, as is his manner, and that the several issues in the form of counterclaims posed by the defense are dismissed.
However, at the hearing and subsequently Mr. Haik, representing the Haik Group and Butler Management asked Judge Stone to make a final ruling on the motion to dismiss so he could appeal the matter to the Court of Appeals or the Utah Supreme Court. The prevailing parties, FOA and SLC, submitted a draft which was objected to by Mr. Haik.Judge Stone took some time to issue his own order, which may be appealed, but is very strong and probably won’t be overturned. But, if it is appealed, and appellant review is granted, we are looking at least another five to six month delay before any discovery or other procedures can move forward.
UPDATE: May 2015 (from the newsletter)
A hearing on Defendant Haik’s motion to dismiss was held before Judge Stone on May 12th. The cases of Salt Lake City (SLC) and FOA against the State Engineer have been consolidated, but the FOA case alleges different causes of action – degradation of in stream flow and view shed interference. Once Judge Stone makes his ruling on the Haik motion, FOA will amend their complaint to explain the basis of our different claims. Most believe litigation is resolved in the Court Room, and that is generally true. The Judge or Jury does make a ruling, but in this case there are two additional forums, other government jurisdictions where decisions can be made and public opinion. Some of the defendants in the FOA/SLC case are encouraging third parties to convince the Department of Natural Resources and its Land Ombudsman to rule that there have been “takings” of private land by the Town of Alta and SLC. This allegation is false, but misleads the public about the government’s actions. As to public opinion, that is where FOA plays an extremely important role in informing the public about the importance of conserving and protecting our watershed. Your support and awareness are of the greatest importance.
UPDATE: November 2014 (from the newsletter)
Last February, FOA filed a complaint against the State Engineer after he granted a permit application to transfer water rights from Sandy, upstream to privately owned undeveloped dry lots in Albion Basin. If left unchallenged, this decision provides incentive and a means for owners of undeveloped parcels to comply with building permit requirements previously unmet in Albion Basin. We see this decision as the tipping point for development of Albion Basin. So this fiscal year, the FOA Board is investing significant funds, up to $40,000 to pursue this effort. Seen as absolutely critical to our mission, we need to cover this increase to our annual budget. We ask that you consider a donation TODAY to support Friends of Alta and our actions against the State Engineer. Below, is a bit more detail about our complaint.
This past spring, FOA’s complaint was consolidated with the complaint filed by SLC Department of Public Utilities – the consolidation has been favorable for FOA. In October during a hearing before Judge Stone the State Engineer’s motion to bifurcate the litigation into two matters was successful. This means that Judge Stone will first decide who actually owns the water right allegedly being transferred upstream. Then, if warranted the following three issues would be decided. This saves FOA time and money since, if there is no ownership of the water right, then the issues described below would be moot.
FOA’s complaint has three distinguishing causes of action which are independent from the other plaintiffs. First, we claim the proposed transfer of the water diversion point will adversely impact the “in stream flow” (this is the area of a stream where important microbes in essence seal the creek so water is not lost into the ground). Several states have recognized in stream flow as a legal right associated with fee title ownership to real property. There are Utah Supreme Court cases which include “dicta” favorably commenting on in stream flow, however there are no holdings and therefore no legal precedent recognizing this right in Utah. Second, we claim a “view shed right.” That is, a right of a fee owner not to have their view interrupted or lessened by a development on their boundary. Again, other states have recognized this right – Utah has not. And third, our complaint alleges undue political pressure on the State Engineer from people associated with the governor’s office – this is the most vulnerable to dismissal, but we believe we have a reasonable chance to do some preliminary discovery before the defendants would be entitled to make a summary judgment motion. A summary judgment motion is one in which there are no factual disputes and the judge can decide the matter as a matter of law.