Code of Judicial Administration – Comment Period Closed April 28, 2022

CJA01-0205. Standing and Ad Hoc Committees. (AMEND). Creates a Standing Committee on Working Interdisciplinary Network of Guardianship Stakeholders (WINGS).

CJA03-0421. WINGS Committee. (NEW). Outlines the roles and responsibilities of the new Standing Committee on Working Interdisciplinary Network of Guardianship Stakeholders (WINGS).

CJA06-0104. Water law judges. (NEW). New rule creating designated water judges in district court to handle cases involving water law and the adjudication of water rights.

Utah Courts

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4 thoughts on “Code of Judicial Administration – Comment Period Closed April 28, 2022
  1. Scott H. Martin

    RE: Comments re: [Proposed] CJA Rule 6-104. District Court
    Water Judges (Draft 1/5/22)

    Dear Judicial Council Members:

    On behalf of Snow, Christensen & Martineau (SCM), we offer the following comments to the above-referenced proposed rule. SCM enjoys a long-standing and diverse collection of water-related clients and holds itself out as a leader in Utah water law and practice. As part of its water-related practice, SCM is very involved in matters of policy and legislation – consistently participating in the Utah Water Task Force and numerous legislative and bar committees and organizations. We appreciate the opportunity to comment on this proposed rule.

    Generally, we are very supportive of the concept of water judges, and this proposed rule. We believe this is an idea whose time has come. As such, we urge the rule’s adoption and look forward to the installation of water judges and our practice before them.

    However, we offer a few conceptual suggestions that we ask guide some limited changes to the proposed rule.

    6-104 (1) Council Designation. We suggest that more than three judges be designated statewide. Specifically, we suggest that the Judicial Council formally designate at least six district court judges. We additionally suggest that the designation include a public comment process similar to that used for the appointment of judges, while ensuring confidentiality for those providing comments. We believe the opportunity for public comment is important given the substantial, important role the water judges will play in developing this area of the law.

    6-104(2) Request for Assignment. We agree with the concept that actions involving chapters 3 and 4 of Title 73 should be assigned to the sitting district water judge. However, we suggest that the scope of mandatory assignment be broadened to include all of Title 73, which is the entire Utah Water Code. More specifically, there are other chapters of Title 73 that would likely be better applied by a water judge – e.g., chapters 1 and 5 that include, among other things water right forfeiture claims, canal/ditch interference, and diligence claims, respectively. All of these are relatively common topics found in water litigation.

    We also suggest that it be clear the proposed rule does not affect Rule 63A of the Utah Rules of Civil Procedure, although it could provide that the reassignment will be to another water judge.

    6-104(3) Assignments. We understand that Rule 6-104(3) is not intended to change the venue of water cases. To minimize the travel burden on the parties in water cases in the event the case is assigned to a water judge outside of the district in which the case is filed, we suggest considering requiring the availability of remote, virtual proceedings or that the assigned judge travel to the district in which the case was filed (or a district agreed upon by the parties, including the judge’s district) for matters requiring in-person proceedings.

    6-104(5) Publishing Opinions. Paragraph (5) of the proposed rule raises some concerns. While it appears the rule may be intended to merely establish a repository of substantive decisions in water cases involving matters of first impression, that create new law, or give new guidance, the reference to “published” “opinions” may leave the impression that something more is required and the decisions have some new precedential value. We would suggest clarifying language to address these concerns, and the associated concern that district court judges’ role may be seen as transforming to a role better suited for the appellate courts.

    Thank you for your attention to this matter.

    Very truly yours,


    Scott H. Martin
    Shawn E. Draney
    Dani N. Cepernich


    From: Utah Water Task Force
    To: Utah Supreme Court and Utah Judicial Council
    Date: April 27, 2022
    Re: Comments to proposed rule for water law judges – CJA06-0104

    The Utah Water Task Force supports the designation of district court water judges and respectfully submits its comments. Members of the task force have long supported the concept of appointing district court water judges to maintain and enhance both Utah water common law and statutory cases.

    The Task Force was organized under the auspices of the Utah Department of Natural Resources in 2008 as a body that analyses state-wide water challenges and issues brought before it. The Task Force initiates and drafts proposed water legislation, and also reviews proposed water legislation brought to it by members of the Utah Legislature to provide recommendations. In addition, given the broad representation of interests represented on the task force, it assists in developing water policy and consensus solutions that consider the wide spectrum of interests represented by the task force members and the task force executive branch co-chairs. Please see the task force membership roster appended below. Task force projects and discussions are not limited to the members listed. Any interested person or organization is granted opportunity to participate in task force work committees and meetings, thus providing the benefit of diverse stakeholder engagement.

    The Task Force respectfully submits these specific comments to the proposed rule. This is not an exhaustive list describing all concerns raised by task force participants, but represent issues highlighted during one meeting of the Utah Water Task Force and which task force members and public participants expressed consensus. The Task Force also proposes the Judicial Council appoint a drafting committee to address certain matters raised in the comments and other items that may arise which require further thought and discussion.

    (1) Council Designation. The knowledge and experience of judges to be considered for appointment as water judges are tied to “cases involving the adjudication of water rights.” To broaden the types of cases described elsewhere in the Rule, the task force recommends changing the proposed rule to read “cases involving water law, including the adjudication of water rights.” The Task Force suggests for your consideration that three district court water judges may not be sufficient for addressing water cases throughout the state. Please see our comment under (3)(a).

    (2) Request for Assignment. The proposed rule states that if a party in a Title 73, Chapter 4 general determination of water rights proceeding requests to have the case assigned to a water judge, the case will be so assigned. There is concern that numerous general determination cases have been pending for years before various district court judges across the state. In some instances, assignment of the pending general adjudication cases, or new filings in such cases, should remain with those judges because of their case knowledge regardless of whether they volunteer to be water judges.

    (3) Assignments.

    a. There are various factors and criteria that should be considered. For example, should it always be a random assignment from the total pool of water judges, or should other criteria be controlling in certain circumstances, such as designating a water judge, along with an alternate water judge, to all cases within a certain water drainage basin? Most drainage basins have controlling decrees and other circumstances that are unique to the basin. Having one judge interpreting the same decree(s) could lead to more consistent rulings. This would also allow an assigned judge to develop familiarity with the unique basin hydrology and the appropriation and distribution of water within the basin. River drainage basins often travers several judicial districts, and for that reason, it may make sense to appoint judges to the position of water judges on a river basin basis rather than based on the boundaries of a judicial district.

    b. The general venue rule for water cases should likely continue to be where the water source point of diversion is located. This minimizes the travel burden on the parties. This may require assigned judges to travel to a different district than where the judge resides for matters requiring in-person proceedings.

    c. If the need arises to seek removal of a water judge assigned to a case, there must be a sufficient pool of other water judges available from which to assign a new water judge.

    (4) Supervising Water Judge. No specific comments.

    (5) Publishing Opinions. This section has raised numerous questions and concerns, as follows:

    a. Rather than an “opinion,” are they better termed “rulings” or “decisions,” or is the contemplated opinion something in addition to or separate from typical district court rulings or decisions?
    b. Who determines and how is it determined that a water law case warrants an opinion?
    c. A definition of “opinion” is needed.
    d. How and where is a district court water judge’s opinion published?
    e. Does a district court water case opinion have any precedential value or force outside the given case? If so, what is the scope of the precedent?
    f. May non-parties potentially affected by any precedent be given an opportunity to intervene or otherwise participate?

    Again, the Utah Water Task Force fully supports the appointment of district court water judges. Water issues will only become more critical and new significant matters will emerge. We support the Supreme Court and Judicial Council’s efforts. The Task Force desires that the adopted rules sufficiently address the unique nature of Utah water cases. We recommend that a water judge rule drafting committee be appointed before the proposed rule is adopted to advise on these issues and others that may arise during the rulemaking process. The task force offers the assistance of its members to serve on the drafting committee, if so requested.

    Respectfully Submitted,

    Brian C. Steed, Co-Chair and
    Executive Director of the Utah Department of Natural Resources

    March 2022

    Co-Chair – Brian C. Steed, Executive Director
    Department of Natural Resources
    1594 West North Temple, Suite 3710
    PO Box 145610
    Salt Lake City, UT 84114-5610
    Exec. Asst. Kaelyn – 801-538-7201

    Co-Chair – Craig Buttars, Commissioner
    Department of Agriculture and Food

    Co-Chair – Kim Shelley, Executive Director
    Department of Environmental Quality

    Steve Clyde
    Clyde, Snow & Sessions

    Warren H. Peterson
    Frontier Resource Consulting LC

    Calvin Crandall
    Utah Association of Irrigation & Canal Companies

    John H. Mabey, Jr.
    Mabey, Wright & James

    Craig E. Johansen, Civil Engineer
    Johansen & Tuttle Engineering, Inc.

    Ed Bowler
    Board of Directors
    Washington County Water Conservancy District

    Dale Pierson, Executive Director
    Rural Water Associations of Utah

    David Decker, Director
    Provo City Public Works

    Mark H. Stratford, General Counsel
    Jordan Valley Water Conservancy District

    William Merkley
    Uintah Water Conservation District

    Trevor Nielson
    Bear River Canal Company

    Jody L. Williams, Partner
    Holland & Hart LLP

    Wade Garrett, VP-Strategic Relationships and Public Policy
    Utah Farm Bureau

    RECENTLY RETIRED with open seats:

    Tage Flint, General Manager/CEO
    Weber Basin Water Conservancy District

    Dave Ure,
    SITLA, Director (Retired)

  3. Sarah Shechter

    To: Utah Judicial Counsel
    From: Norman Johnson, Gordon Rowe, and Sarah Shechter, Assistant Attorneys General, Counsel for the Utah State Engineer

    Date: April 28, 2022

    RE: Utah State Engineer’s Comments Regarding CJA06-0104 – Water Law Judges


    The State Engineer appreciates the opportunity to review and comment on the proposed amendments to Rule 6-104 of the Code of Judicial Administration, which would designate certain district court judges as water judges and establish procedures for the water judges to handle cases involving water rights. As the State water rights administrator and the Director of the Utah Division of Water Rights, the State Engineer has a statutory duty to participate in actions brought under Utah Code Title 73, Chapters 3 and 4, as well as other water rights disputes brought before the Utah courts. Due to her critical role in the water rights cases contemplated by the proposed rule, the State Engineer has a unique and important interest in the potential designation of water law judges and their administration.

    The State Engineer supports the Judicial Council’s interest in designating water law judges in Utah. However, the State Engineer humbly suggests that the proposed rule could be more beneficial to the litigants as well as water users throughout the state with certain modifications, clarifications, and additional stakeholder input. The State Engineer specifically suggest the following items for the Judicial Council to consider:

    1. Additional stakeholder involvement in drafting the proposed rule

    During the April 13, 2022, meeting of the Utah Executive Water Task Force, the body passed a motion recognizing general support for the proposed rule and requesting the formation of a committee of stakeholders to help the Council develop the rule designating water law judges. Though not a member, the State Engineer supports Task Force’s motion. She believes that a committee of stakeholders could assist the Council in creating a rule that would benefit the courts as well as the Utah water law community.

    2. Designation of Water Judges

    As the Council is aware, the State Engineer has initiated general adjudications in all fifteen (15) of the river drainage systems in Utah. Twelve of those adjudications remain pending in district courts around the state. The State Engineer is concerned about transferring these adjudications out of their current venues. The State Engineer agrees with the Council that designating a water judge to hear the adjudications would be beneficial; however, she believes that each of the designated water judges should sit in the judicial districts in which the adjudications have been initiated. As currently formulated, Section (1) of the proposed rule does not specify which venues the water law judges would preside over. If each water judge could hear a case from any part of the state, the State Engineer reiterates her comments stated above about the general adjudications. In addition, the State Engineer is concerned that litigants would incur greater costs if they have to travel to a distant part of the state.

    The State Engineer has similar concerns for de novo review cases brought under Utah Code Title 73, Chapter 3. Currently, appeals from administrative orders of the State Engineer are entitled to de novo review in the local district court. These cases involve participation from local water users and the State Engineer’s regional offices. The State Engineer is concerned that if there are only three water law judges across all of the state’s district courts, the parties in these de novo review cases would be required to travel throughout the state to participate in the cases.

    Accordingly, the State Engineer recommends that the Judicial Council designate one water judge in each of the districts. For general adjudications, a single water judge could preside over all adjudications in their district. As an example, the First District has two pending adjudications – the Bear River adjudication and the Western Box Elder adjudication. The Judicial Council could designate single water judge for the First District, who would preside over both adjudications. In addition to allaying concerns about cases pending in geographically distant venues, this approach would also mirror the approach taken in Colorado of designating water judges by river basin. The Colorado system allows for the water judges to develop knowledge of regional issues and consistently apply the law throughout the entire drainage.

    3. Effect on the Role of the Special Master in Water Rights General Adjudications

    The two most active general adjudications pending in the state—the Utah Lake and Jordan River adjudication and the Virgin River adjudication—have been assigned to a Special Master to help handle objections to lists of unclaimed rights and proposed determinations. The State Engineer believes that the Special Master has been very effective in increasing the efficiency of these portions of water rights general adjudications. While the proposed rule does not contemplate removing the Special Master from his assignments, the State Engineer would prefer if the rule specifically stated that the Special Master could continue in his current assignment and that the water judges presiding over other adjudications could assign a special master.

    4. Publishing Opinions

    Section (5) of the proposed rule requires certain water law opinions to be published. This rule should be revised to clarify what types of “opinions” are to be published. The terminology in this rule is somewhat confusing as district court rulings are typically described as decisions, orders, or decrees. Additionally, the proposed rule should be modified to clarify what precedential value, if any, these decisions carry. The rule contemplates the ability of a district court judge to “create new law,” which seems to imply that their decisions could carry precedential value. The State Engineer requests that the rule be modified to establish that a decision of a district court is not binding on any other court and only carries persuasive value.

  4. Dave Decker

    I am generally supportive of the creation of water judges as currently outlined. Having judges with specific knowledge of water concepts and the associated law are generally helpful. However, care should be taken to protect the current process with adjudications and current level of review and opinions of the State Engineer’s office. While the legal process has an appropriate role in water and water rights, the involvement, review, and opinion of the State Engineer, in it’s current role and process, is important to maintain.

    The assignment of these judges should be random and the process of assignments must maintain a neutral, equal-footing for all parties involved. Having only one judge, as the only option in a water basin or specific area of the state, should be avoided.

    There are a number of questions related to publishing opinions which must be clarified in the current draft. The Utah Water Task Force members may be a good source to provide clarification language and to distinguish the potential precedent an opinion may set.