Crawford v. State

IN THE UTAH COURT OF APPEALS

----ooOoo----

Wayne G. Crawford,

Appellant,

v.

State of Utah, Division of Water Rights; Jerry Olds, Utah State Engineer; et al.

Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20031032-CA
 

F I L E D
(March 4, 2004)
 

2004 UT App 46

-----

Third District, Salt Lake Department

The Honorable Timothy R. Hanson

Attorneys: Donald F. Dalton, Salt Lake City, for Appellant

Steven E. Clyde, Edwin C. Barnes, and Wendy B. Crowther, Salt Lake City, for Appellees

Christopher E. Bramhall, Salt Lake City, for

Appellees

-----

Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

This case is before the court on Appellees' motion for summary disposition on the basis that the question presented for review is so insubstantial as not to merit further consideration by this court. See Utah R. App. P. 10. Appellant's request for a change application, with respect to water rights in the Big Cottonwood Creek, was denied by the State Engineer. Appellant subsequently appealed the denial to the district court. The district court granted summary judgment in favor of the Division of Water Rights. This appeal is from the grant of summary judgment.

Appellees argue that the issue on appeal is a clearly settled matter of law. The issue is whether Utah Code Annotated Section 73-3-8 (1999) applies, not only to new appropriations of water, but to change applications as well. Appellant argues that the matter was not settled by the Utah Supreme Court in Bonham v. Morgan, 788 P.2d 497 (Utah 1989), as Appellees contend, because the language of the court that the State Engineer must consider all of the factors in section 73-3-8 "when passing on a permanent change application under [Utah Code Annotated] [S]ection 73-3-3," is dicta and, therefore, not binding. We disagree. The supreme court clearly interpreted the water allocation statute's appropriation criteria as applicable to permanent change applications. See Bonham v. Morgan, 788 P.2d at 500.

Appellant contends that there was a material question of fact as to whether the change application would result in impairment. Even assuming Appellant was correct, the district court also found that Appellant had failed to meet his burden to demonstrate, under the criterion of section 73-3-8(1), that there exists unappropriated or uncommitted water in Big Cottonwood Creek. Appellant has not demonstrated this conclusion is in error.

The trial court's grant of summary judgment in favor of Appellees is summarily affirmed.

______________________________

James Z. Davis, Judge

______________________________

Norman H. Jackson, Judge

______________________________

William A. Thorne Jr., Judge