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

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,

SNOW CHRISTENSEN & MARTINEAU

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

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

INTRODUCTION

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.