UT AH BAR JOURNAL Published by The Utah State Bar Vol. 4, NO.1 January 1991 645 South 200 East Salt Lake City, Utah 84 i 11 Telephone (801) 531-9077

President Hon. Pamela T. Greenwood

President-Elect President's Message James Z. Davis By Hon. Pamela T. Greenwood 4 Board of Bar Commissioners H. James Clegg Commissioner's Report Randy L. Dryer J. Michael Hansen By Dennis V. Haslam 5 Dennis V. Haslam Jackson B. Howard Gayle F. McKeachnie An Introduction to the Law of Utah Water Rights James E. Morton J ody L. Wiliams 7 Paul T. Moxley Jeff R. Thome Ex-Offcio Members Update on Utah Case Law Relating to Water Rights Hans Q. Chamberlain H. Reese Hansen By Michael M. Quealy 12 Norman S. Johnson Reed L. Martineau Lee Teitelbaum State Bar News 17 Young Lawyers Section President Rièhard A. Van Wagoner Case Summaries 21

Bar Journal Committee Legislative Report and Editorial Board 23 Editor Calvin E. Thorpe The Barrister 25

Associate Editors Randall L. Romrell William D. Holyoak Utah Bar Foundation 27

Articles Editors Leland S. McCullough Jr. CLE Calendar 28 Glen W. Roberts

Letters Editor Classified Ads 30 Victoria Kidman

Views from the Bench Judge Michael L. Hutchings

Legislative Report Editor John T. Nielsen COVER: Five skiers enjoying the steep and deep on Flagstaff Mountain, which will open this year at Case Summaries Editor DEER V ALLEY RESORT. Our thanks to Robel1 B. Lence, a partner with the firm of Van Colt Bagley Clark R. Nielsen Cornwall & McCarthy, for obtaining this photograph, compliments of Deer Valley Resort. The Barrister Editors Patrick Hendrickson Members of the Utah Bar who are interested in having their color slides or oiher art form published on the Lisa Watts cover of the Utah Bar .1oul'al should contact Randall L. Romrell, Associate General Counsel, Huntsman Chemical Corporation, 2000 Eagle Gate Tower, Salt Lake City, UT 84111, 532-5200. The Final Say M. Karlynn Hinman . The Utah Bar Journal is published monthly, except July and August, by the Utah State Bar. One copy of Carol Barlow Lear each issue is furnished to members as part of their State Bar dues. Subscription price to others, $25; single Reid E. Lewis copies, $2.50; second-class postage paid at Salt Lake City, Utah. For information on advertising rates and Margaret R. Nelson space reservation, call or write Utah State Bar offices. J. Craig Smith Denver C. Snuffer Statements or opinions expressed by contributors are not necessarily those of the Utah State Bar, and E. Kent Sundberg Karen Thompson publication of advertisements is not to be considered an endorsement of the product or service advertised. Hon. Horner F. Wilkinson Copyright (Q 199 i by the Utah State Bar. All rights reserved.

December 1990 . mm

By Hon. Pamela T. Greenwood

ents exists amidst competing duties. We that she misunderstands the time limit for Recenta ABAgrowing surveys dissatisfaction have indicated with life are called upon as lawyers to shoulder re- filing her counter-affidavit and objection as a lawyer. Competition for clients and a sponsibilities not only to our clients but to your motion for summary judgment. If ,depressed economy have produced even also to the courts, to justice, to the pursuit you let it go, the motion will be granted , greater emphasis on the number of billable of truth and to our adversaries. Most trou- and subsequent relief for her is unlikely. If hours and lessened both job security and blesome is the fact that the adversary sys- you alert her, you lose the edge and know Job satisfaction. Concomitantly, there is a tem's word-warrior duty is in direct con- that material facts wil probably remain in perception that professional standards of flct with the highest personal ethical stan- dispute. What do you do? Do you win at courtroom conduct and lawyer-to-lawyer dard set by western moral traditions, the all costs? Do you stand by, on behalf of t, courtesy are declining. Weaifhave anob-. positive Golden Rule. . .it calls on us to your client, and let another lawyer fail? Or ligation to continue the struggle for high positively reach out to treat our neighbors do you make a moral judgment drawn ethical conduct and professional standards, as we would like to be treated. This call upon your own concept of right and wrong to shape the legal profession of the future. can never be completely harmonized with and help that lawyer out, so that she wil This struggle takes place among many the duty imposed by the adversary system be around to do battle with you for another conflcting pressures. John Bingler, presi- to wage word-war to win. Ethical, profes- day? dent of the Pittsburgh Bar Association, de- sional lawyers must live every day with Reactions to the hypothetical ranged scribed this conflct as follows: conflicting Rambo and Good Samaritan from a simple "yes" to absolute "no's." .I "Our system is designed as an adversary impulses." What do you think? Does it make a differ- ; system. Thus, just from the. system's de- To highlight this balancing act, the fol- ence that the lawyer is one you know 'sign, we have a duty to be effective word- lowing hypothetical was posed in connec- "only in passing?" What is the impact on warriors for our clients. But, our words are tion with a professionalism seminar: women lawyers who tend to be newer fashioned from the shifting sands of hu- You are engaged in litigation represent- members of the Bar and, therefore, less man language. This factor alone makes ing a longtime client, who is being sued by well known? I would be interested in hear- easy ethical and professional decisions im- a lawyer you know only in passing. In dis- ing your comments. possible. Beyond this, our duty to our cli- cussions with the other lawyer, you realize

4 Vol. 4 NO.1 By Dennis V. Haslam

. The II members of the Character and their problems with representatives of Folks isseem going to on ask at theme Bar?"lately, Or, "What Fitness Committee meet several times the Bar Association. Some complaints has the Bar done for me lately?" Well, at per year to review each student and at- have merit. Some don't. the risk of leaving somebody out and some torney application file (remember filing . The Client Security Fund Committee things unsaid, here's a little bit of what is those out?). When character or fitness has iO members. It meets several times' going on: questions are raised, . the Committee a year to review the complaints of cli~ . At last count, there were 5,286 members hòlds additional informal hearings to ents who have lost money as a result of of the Utah State Bar Association; about further investigate the applicants. a lawyer's misconduct. It recommends 4,127 are residents and 1,159 are non- . The Bar Examiner Review and Bar Ex- to the Board of Commissioners pay- residents; about 4,200 are active and aminer committees have approximately ments to the injured parties. 1,086 are inactive. 65 members. They draft (and redraft) the There is approximately $100,000 in this . l7 lawyers sit on the Board of Bar Com- 36 essay questions presented each year fund. missioners, 11 of whom are elected by to 325 applicants. They grade 11,700 . The Lawyer Referral Service Advisory the membership. The ex-officio mem- (36 x 325) answers. They don't get paid Committee has 10 members. The ser- bers include the Bar's past president, the for it. vice receives and processes approxi- deans from the University of Utah and . The Fee Arbitration Dispute Committee mately 15,000 inquiries per year. BYU law schools, our two ABA dele- has 24 members. A panel comprised of a . The Law Related Education and Law gates and the president of the Young lawyer, a judge and a non-lawyer meets Day Committee has 30 members. It dis~ Lawyers Section. The Board meets at monthly to review pending fee disputes. semi nates information about the law and least one full day per month to review . The Office of Bar Counsel (three law- lawyers. It facilitates high school mock and coordinate Bar affairs and activities. yers and staff) investigates and pro- trial competitions around the state and Commissioners act as liaison to commit- cesses 600 complaint files annually. involves scores of lawyers as judges and tees and work closely with them. Com- How many cases do you handle? advisors. missioners also sit on hearing panels to . The Ethics and Discipline Committee . The Young Lawyers Section has more review admissions, discipline and other has 21 members, four of whom are not subcommittees than can be counted, but matters. Additionally, Commissioners lawyers. Screening panels meet once include the Bill of Rights Commemora- are assigned specific responsibility for monthly to review complaints against tion Committee, the Community Ser- subcommittees to address and report lawyers for violations of the Code of vices Committee, the Law Day Commit- upon important issues facing the Board Professional Responsibility. The com- tee, the Law Related Education Com- and the Bar's membership. mittee members review the complaints mittee, the Legal Briefs Committee, the . The Utah Law and Justice Center cur- against the lawyers (often comprised of Needs of the Children Committee, the rently has four full-time tenants in addi- scores, if not hundreds, of pages sup- Needs of the Elderly Committee and the tion to the Bar Association. It has both porting and responding to the com- Pro Bono Committee. This group is large and small meeting rooms. The Bar plaint). They spend several hours made up of a bunch of real do-gooders. Examinations are given in the Center. In monthly listening to the complainants . The 21 different sections of the Bar As- 1991, we anticipate there will be more and the lawyers. Many complaints are sociation meet regularly at section lun- than 950 meetings, seminars, depositions unfounded, but the complainants have cheons, breakfasts and continuing legal and conferences held at the Center. had, at least, an opportunity to discuss education seminars.

December 1990 . The CLE programs sponsored by the . More than 40 citizens volunteer their A lot of good things are going on at the Bar in 1991 wil include 35 live semi- time to the Bar and sit as public mem- Bar. It is working (we are working) on a nars, 37 satellte programs and 20 bers on committees. They don't get paid daily basis with you and for you. The MCLE accredited section luncheons. for it. Board of Bar Commissioners meets fre- Approximately 1,785 volunteer hours . Over 400 lawyers attended the 1990 An- quently and works hard to improve the were donated by members toward CLE nual Meeting of the Utah State Bar. practice of law and our profession. If you programs last year. There are over 250 Over 300 lawyers wil attend the 1991 know of ways to improve our association, CLE videotapes available for use by Bar Mid-Year Meeting. our practice, admissions, discipline, con- members. . In Bar year1991, it wil cost us approxi- tinuing legal education, our professional- . 19 other standing committees of the mately $1,670,000 to runthe ship. ism and our public service, let someone Utah State Bar meet regularly and report know. Call a friend. Call a Bar Commis- to the Board and the membership. sioner.

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Mr. Hutchinson is the former Executive Director of the Utah State Bar. Previously, 310 southmain Street, Suite 1330 he served as vice president and general Salt Lake City, Utah 84101 counsel to Odyssey Institute in New York, Bar Counsel to the Utah (801) 521-6383 State Bar and partner in the law fax: (801) 355-2513 firm of Kipp and Christian. *Licensed in Utah and Washington state

MEMBERS OF THE FIRM Telephone Sports Mall Offce Plaza II BL Dart, P.C. (801) 263-1112 5525 South 900 East, Suite 200 Craig G. Adamson, P.e. Fax: (801) 263-1189 Salt Lake City, Utah 84117 Kent M. Kasting, P.C. John D. Sheaffer, Jr. Eric P. Lee Shannon W. Clark

6 Vol. 4 No.1 An Introduction to the Law of Utah Water Rights

By Ms. Jody L. Willams

INTRODUCTION water legislation each deemed in the pub- Rights to use water in Utah may be ac- lic interest. quired by appropriation of unused water or by purchase and conveyance of an existing EARLY UTAH LAW water right. Utah's water rights system is OF APPROPRIATION based on the appropriation doctrine, as The earliest water law in Utah, then the distinguished from the riparian system State of Deseret, was a series of grants to which evolved from the common law of individuals and communities. The County England. Although Utah claims ownership Court had authority to settle water dis- of both surface and underground water putes. In 1880, the Territorial Legislature within its boundaries, federal sovereign provided for recording of existing certifi- and proprietary rights to water are still ex- cates, but did not delineate a system to ap- ercised by the United States. This paper propriate new water rights.9 However, in addresses the history of the appropriation 1897, a statutory procedure for acquiring doctrine and the statutory elements of a water rights was finally provided.lo The water right in Utah as well as conflicts be- law also created the office of the Utah tween Utah and the United States inherent State Engineer. i I In 1901, the State Engi- in water rights and regulations. neer's duties were expanded to include MS. lODY L. WILLIAMS practices water law general water distribution supervision I~ THE APPROPRIATION for PacifiCorp, formerly Utah Power & Light and, in 1903, the office received from the DOCTRINE Company. She became a member of the Utah Legislature in the State's first enacted Utah's water law is based on the doc- State Bar in 1978, and is chairman-elect of the "Water Code," the authority to receive and trine of prior appropriation, which is com- Energy Natural Resources and Environmental approve appropriation applications and to monly explained as the first in time to put Law Section. investigate and administer potential stream water to a beneficial use has the first and ádjudications.13 best water right. The appropriation permit modified by the eight interior western Much of the 1903 system has survived system evolved in the arid western United states, Arizona, Colorado, Idaho, Mon- to the present. Filing the application with States generally in early mining camps, tana, Nevada, New Mexico, Utah and Wy- the Division of Water Rights, diversion where disputes over claims were resolved oming, rejected, in later case law, the the- from the stream and subsequent beneficial by simple priority rules. i The early Mor- ory that riparian rights had ever existed use are required to obtain and maintain a mon settlers in Utah cooperatively carried within their boundaries, and supported the water right. Since much of the arable land out irrigation as they settled close to can- view that the federal government had in Utah was not adjacent to a stream, or yon stream mouths, diverting water from never actively exercised its proprietary in- was owned by the federal government, its channel, conveying it in canals and terest in Western waters.3 In 1918, the who did not use water adjoining it, diver- ditches, and consuming it for domestic, Utah Supreme Court declared that, "In sion from the channel into an artificial stock-watering and irrigation uses, all con- Utah the doctrine of prior appropriation conveyance system for delivery to the sidered "beneficial" uses. for beneficial use is, and always has been, prime farm land, to the rich ore deposit or Two forms of the appropriation doctrine the basis of acquisition of water rights.". to the developing community being built evolved in the West, one in California and Both the California and Colorado views higher and higher on the foothils, and the other in Colorado. The California doc- were validated in 1935 when the United then farther and farther from the natural trine was a sort of hybrid system, recog- States Supreme Court, in interpreting the water source, became the norm, and the nizing appropriation and priority while acts of 1866,5 and 1870,6 and the Desert norm became the law. still maintaining that rights whose points Land Act of 1877,' ruled that the three acts of diversion were not on public lands severed all previously unappropriated non- THE RIPARIAN SYSTEM could be riparian rights.2 navigable water from the public domain.' The riparian water right system has sur- The Colorado doctrine, adopted and The Western states were thus free to enact ViV~inm~

December 1990 . Utah. Riparian water rights may be ac- FEDERAL PROPRIETARY States apply to water stil owned by the quired by purchase of the riparian land or RIGHTS IN WATER United States as well as water in which the separately transferred, usually by ease- The proprietary rights of the United United States has acquiesced its title. Any ment. A basic concept distinguishing ri- States arise out of the government's owner- rights created by state water law are subor- parian from appropriative rights is that all ship of property under Article IV, section dinate to this overrding federal interest, riparian land owners have co-equal rights 3, clause 2 of the Constitution of the and no compensation need be paid to hold- to the use, but not the possession, of a United States. When the United States ers of State-created rights when they are common water source such as a river, sur- opens land to homesteading, patentees so impaired by the United States.28 face or subterranean stream, or lake. may acquire title to the land from the In general, diffuse surface waters were United States and appropriate water to use FEDERAL RESERVED classified as a "common enemy" at com- on it pursuant to state law. But if the RIGHTS mon law, and riparan landowners were United States withdraws or reserves its Claims of the United States as propri- more concerned with protecting them- land from future settlement, the appurte- etor of land withdrawn or reserved from selves from flooding rather than claiming nant water may also be withdrawn or re- future alienation raise substantial concern a riparian interest in them. Many Ameri- served and then be unavailable for appro- in Utah and its surrounding states. This is can states have modified the common law priation under State law. especially so if the federal rights have not by providing for drainage procedures. been quantified in an adjudication, be- Springs are treated separately depending FEDERAL SOVEREIGN cause the federal rights' priorities may pre- on whether they are sources of running RIGHTS IN WATER date later state-granted rights and thus af- watercourses in which case they may be Historically, the sovereign interest of fect vested rights on which local users and subject to riparian rights,I4 or whether they the United States was constred to be lim- economies have relied for many years. sink back into the ground on the tract ited to navigable waters. The Army Corps The initial case. establishing federal re- where they originated, in which case they of Engineers was established to direct im- served rights was Winters v. United may not be subject to riparian rights. 15 provement of the navigable capacity of States.29 The Court held that when the Unlike appropriative water rights own- rivers and harbors. In 1851, the Supreme United States had withdrawn land for an ers who are governed by a priority system, Court extended jurisdiction to waters suit- Indian reservation, it also had reserved, as historically, riparian water users usually able for navigation.18 This test was further the property owner, sufficient water for could not interfere with upstream or liberalized in 1871 in The Daniel BallI9 the Indians to use. The date of priority was downstream users. This has given way to when jurisdiction over rivers "navigable in the date of the withdrawal for the reserva- the "reasonable use rule," which allows for fact" was defined as "when they are used tion. interference with another's use depending or are susceptible of being used in their Although later case law suggests that on the size and state of the watercourse, a ordinary condition as highways of com- the determination of practicable irrigab1e balancing of the purposes of the uses, and merce, over which trade and travel are or acreage is the upper limit for quantifica- a benefit to the proposed user at least com- may be conducted in the customary modes tion of an Indian reserved water right,'O mensurate with the injury to other riparan of trade and travel over water. "20 This defi- courts have also held that the extent of the owners.IO Often, courts must apportion wa- nition survives today as the allocator of ti- right is commensurate with the needs to ter between two users. tle to submerged lands between the United accomplish the purpose for which the fed- States and the states and "foundation of eral reservation was made.3' In Arizona v. FEDERAL WATER RIGHTS federal jurisdiction unless Congress adopts California, the Supreme Court clearly AND REGULATION the full commerce power. "21 stated for the first time that the United The tension between state and federal Federal jurisdiction was expanded over States had reserved water rights for non- interests in the West extends to conflcts non-navigable portions of otherwise navi- Indian purposes.32 Federal reserved water over water use and control. Even though gable rivers22 and then to rivers which rights are not subject to forfeiture; the the Desert Land Act of 187717 resulted in could be made navigable "by reasonable United States is not required to "use or patents to federal land being issued with- improvement, "23 even though the Corps of lose" its water rights. out water rights to unappropriated, non" Engineers had earlier determined the nec- Whether or not organic withdrawal and navigable water, leaving water rights up to essar improvements were not economi- reservation legislation implies reserved the states to appropriate and administer, cally feasible. By 1960, the Supreme Court water rights continues to be argued. In the federal government stil exercises both had ruled that conditions on development 1978, the Supreme Court set out three nar- sovereign claims and proprietary rights to unrelated to navigation could be imposed row standards for finding implication.33 water in Utah and the other Western on water projects on navigable in fact and The right must relate to the original pur- states. The sovereign claims arise from the non-navigable tributaries.24 pose of the reservation; it must be neces- commerce clause, property clause, treaty In the 1970s, with the passage of the sary to fulfil the purposes of the reserva- power, war power and general welfare Clean Water Act,is the potential effect to tion; and only primary, not secondary, clause of the United States Constitution, interstate commerce became the basis for purposes of the reservation may be served and always remain with the federal gov- asserting federal jurisdiction over water, by the water. ernent. Such interests as regulating com- and alleging a relationship to navigation to Western states are more frequently at- merce and controlling navigation are sov- uphold federal action was no longer neces- tempting to quantify federal reserved wa- ereign interests on which the United States sary. Some other statutes under which the ter rights. The United States has submitted may rely tà control water. United States regulates water are the Fed- to state court jurisdiction for this purpose eral Power Aceo and the Endangered Spe- in adjudication suits and must assert and cies Act.27 justify or lose its claims under the McCar- The sovereign powers of the United ren Amendment. 34

Vol. 4 No. J T

ation and use, required three elements: (1) sary for the preservation or propagation of ELEMENTS OF A WATER RIGHT intent to appropriate the water and apply it fish . . . " The statute39 does not allow the In Utah, as in most of the Western to beneficial use; (2) an actual diversion Division of Wildlife Resources to file a states, all water, whether surface or under- from the natural water channel into a new application to appropriate water for in- ground, is declared to be the property of ditch, canal, or other conveyance system; stream use, but only to change the use and the public," subject to rights to use it, and (3) application of the water to some point of diversion of an existing water which may be acquired by following des- economic or useful purpose, normally right, so it seems that actual diversion ignated statutory procedures. called "beneficial use." While water runs from the natural stream channel is no In Utah, diligence rights are those that freely in its natural channel, it is usually longer a necessary component of a water predate statutory appropriative procedures. considered unappropriated, publicly right. Diligence rights were established by diver- owned water. Diversion from the natural Beneficial use is stil the measure and sion and beneficial use, and although fil- stream channel, which is a form of assert- limit of the water right:o An applicant may ing a notice at the place of diversion and at ing possession of the resource, and there- apply for all the water he wishes, but in the post office, and recording the notice at after beneficial use of the diverted water the end, only that amount of water the ap- the county recorder's office, had the ad- are the classic hallmarks of a Utah water plicant can prove is actually beneficially vantage of giving a priority date of the day right, although stock-watering from a used wil be certificated as the water right. of the posting, it was not required.36 stream without an artificial diversion has While stated public policy and the Diligence rights to surface waters must been the subject of controversy in the Utah courts have always asserted the inherent have been acquired prior to 1903, and to courts,38 current interpretation allows a power to stop or prevent waste as a "non- groundwater prior to 1935. Aricle XVII, stock-watering right without diversion. beneficial use,"'1 the courts have also up- Section 1 of the Constitution of Utah spe- As social values change and conflct held some wasteful practices as within cifically recognized water rights in exist- with traditional uses, water rights for in- beneficial use.42 As competing demands ence at statehood. stream flows are being recognized. for available, good quality water become Since 1903, the exclusive method in Amendments to §73-3-3, "Temporar or more focused, it is likely that some prior Utah of obtaining a new water right to sur- permanent changes in point of diversion or condoned practices wil be required to face water, and since 1935 for groundwa- purpose of use," in 1986 and 1987 allowed change. ter a statutory system for acquiring a water an existing water right, owned or pur- Once several appropriative rights in a right, or appropriating water, has been in chased by the Division of Wildlife Re- water source have been awarded by the place. The Utah Supreme Court in 191037 sources, to be used to provide "water for State, the water is allocated on the basis of stated that a valid right, based on appropri- in-stream flows in natural channels neces- priority:3 Once a right is certificated, pri-

K. Jay Holdsworth and Hal N. Swenson of the law firm of THE LAW FIRM OF HOLDSWORTH & SWENSON THORPE, NORTH & WESTERN are pleased to announce that Wiliam Vogel IS PLEASEO.TO ANNOUNCE THAT l' has joined the firm and that the name of the firm is BRYAN A. GEURTS FORMERLY OF HOLDSWORTH, VOGEL & MALLINCKRODT & MALLINCKRODT SWENSON HAS BECOME AN ASSOCIATE OF THE FIRM a professional corporation The firm limits its practice to estate and trust, taxation and employee benefit plan matters. SUITE 200 January 1,1991 9035 S. 700 E. SANDY, UTAH 84070 Suite 1200 Key Bank Tower TELEPHONE (801) 566-6633 50 S. Main (801) 322-1100 TELECOPIER (801) 566-0750 Salt Lake City, UT 84144 FAX (80l) 322-1118

December 1990 9 ority emanates from the date of the filing cation of the land to be irrigated and total proved, the applicant may commence in the State Engineer's office, not the date proposed irrgated acreage must be includ- work and construction on his plan within of first beneficial use. The earliest-dated ed.1f for hydropower, the head, generation the time frame set out in his endorsed ap- appropriator has the right to receive 100 output, and generation equipment must be plication.62 Extensions of time to put the percent of his whole supply before the described. If for mining, the location and water to beneficial use of up to 14 years second-earliest appropriator receives any. name of the mine and/or mil must be giv- may be granted by an affdavit,63 and ex- If enough water in the source is available, en. Lands to be inundated by a reservoir tensions of up to 50 years may be granted 50 the second appropriator receives 100 per- must be described. on proper showing of diligence or reason- cent of his supply before the third is deliv- After the state engineer determines that able cause for delay after application and ered any, and so on.44 This "first in time, the application comports to statutory repub1ication.64 An application for which first in right" doctrine provided an eco- requirements,5' notice of the application is proof of beneficial use has not been sub- nomic incentive and protection to be published for three successive weeks52 and mitted within 50 years from the date of its among the first settlers of an area. protests from "any person interested" are approval wil lapse.65 Municipalities or There are many components to a water accepted for 30 days following the last other public agencies may accomplish a right. One of the most important values of date of publication.53 Notice is required be- showing of due diligence to prevent laps- a water right is its priority over subsequent cause senior rights may be impaired, and, ing an application by showing that the ap- appropriators in the same natural stream.45 since a water right is a real property inter- proved application is being held for future A 1980's priority consumptive use right est, senior appropriators have a due pro- use.66 Any person aggrieved by an order of wil generally be inherently less valuable cess right to contest issuance. the State Engineer may obtain judicial re- than an 1880's priority right from the same The state engineer must approve the ap- view by following the Utah Administra- source. Other components of the right are plication if it is determined that there is tive Procedures Act, found in Chapter 46b quantity of water appropriated, the time or unappropriated water in the proposed of Title 63 of the Utah Code.67 season of the year when the right to use source; the proposed use wil not impair Once proof of completion of the project the water exists, the place on the stream of existing rights or interfere with the more and application of all or a par of the water the diversion, the place of use of the wa- beneficial use of the water; the proposed to beneficial use is made, the State Engi- ter, the nature or type of use allowed by plan is physically and economically feasi- neer issues a certificate, which is prima the right, such as irrigation, domestic, ble (unless it is a Bureau of Reclamation facia evidence of the water right, subject manufacture or power generation. 46 Each fiing) and would not prove detrimental to to prior existing rights.68 of these components may, depending on the public welfare; the applicant has the the circumstances, be crucial to the value financial resources to complete the devel- ADJUDICATION OF and usability of the water right. A water opment; and the application was filed in WATER RIGHTS right for hydropower generation may have good faith and is not monopolistic or spec- As more and more water from the same the earliest priority for use in the winter, ulative. If the state engineer has or ac- source is put to beneficial use, conflicts yet may be 10th or 20th in priority during quires information to indicate that the ap- between users naturally wil arise. Chapter the summer due to earlier irrgation or mu- plied for right would interfere with its 4 of Title 73 of the Utah Code delineates nicipal consumptive use rights. An appro- more beneficial use for irrigation, domes- the procedures to be followed in determin- priator's right is limited by the quantity of tic or culinary, stock-watering, power or ing water rights in an adjudication. The water beneficially used during the season mining development or manufacturing, or Supreme Court characterized statutory ad- he can use it.47 wil unreasonably affect public recreation judication as a measure to prevent piece- of the natural stream environment, or meal litigation and provide a method to THE APPROPRIATION PROCESS prove detrmental to the public welfare, determine all the water rights in a given Water rights in Utah may be acquired approval must be withheld pending further stream or source in one action.69 by purchase and conveyance or by appro- investigation. It may then be approved or An adjudication may be commenced in priation. Since 1903 for surace water and rejected.54 district court by the State Engineer upon 1935 for groundwater, the current statu- Consistent with State policy that "new approval of a verified petition of five or tory procedure outlined in Chapter 3 of Ti- appropriations should be favored and not more, or a majority of water users on a tle 73 of the Utah Code is the exclusive hindered, "55 the State Engineer need only stream or water source,70 or by one or method of appropriating water. 48 determine there is a reasonable basis to be- more claimants of water in a source or Before beginning construction of any lieve there may be unappropriated water6 stream which involves a determination of diversion works or conveyance system to which can be appropriated to beneficial the major part of the water supply in the put water to beneficial use, a written appli- use without impairing existing rights57. or source or stream, or the rights of 10 or cation to appropriate water must be filed interfering with the more beneficial use58 more of the claimants.71 A private water with the State Engineer in the Division of and that the proposed plan is financially dispute pending in one district wil be sub- Water Rights. The application must state feasible for the applicant59 and not detri- ject to the final decree in a general adjudi- the name of the applicant, nature of the mental to the public welfare. He need only cation in another district.72 A private suit proposed use, quantity of water to be ap- determine that the project could be built, in district court involving less than 10 propriated in second-feet (cubic feet per in which case he can find it economically claimants may be converted into a general second) or acre-feet, the time of use each feasible.60 The Utah Supreme Court has adjudication, in which case the State must year, the name of the stream or source and upheld the State Engineer's determination be joined.73 a description of the diversion works, the to reject an earlier fied application in fa- Once the adjudication is filed, the State points of diversion and return to the water- vor of a later application because it was Engineer publishes notice and, after the course, and a description of the convey- for a more beneficial use.6l expiration of 90 days from the notice date, ance system.49 If for irrigation use, the lo- When the application has been ap- fies with the court a list of all known

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10 Vol. 4 No. 1 J5Utah Code Ann., § 73-1-1 (1989). claimants, who are served with summons- lOCi Corray v.Holbrook, 40 Utah 325,121 P. 572 (1912). es.74 The state engineer then begins a hy- l'Sowards v. Meagher, 37 Utah 212,108 P. 1112 (1910). CONCLUSION l:pafterson v. Ryan, 37 Utah 410, 108 P. 1118 (1910); Bountiful City v. DeLuca, 77 drographic survey of the water source or This paper addresses the doctrine of ap- Utah 107,292 P. 194 (1930); Adams v. PortaRe Irrig. Res. & Power Co., 95 Utah I, stream and an investigation and examina- 72 P.2d 648 (1937). propriation and the riparian doctrine, ele- 39Utah Code Ann., § 73-3-3(1l)(e) (1989). tion of the existing rights, uses and claims. ments of a Utah water right and how to "'Utah Code Ann., § 73- I - 3 (1989). "Fuller v. Sharp, 33 Utah 431, 94 P. 813 (1908). Within 90 days of completion of the sur- acquire one, federal-state conflcts and ad- ~iEast Bench lrrig. Co. v. Deseret lrrig. Co., 2 Utah 2d 170,271 P.2d 449 (1954). vey, each claimant must fie a Verified judication of water rights. The appropria- 4lLehi lrrig. Co. v. Moyle, 4 Utah 327, 9 P. 867 (1886). 44Utah Code Ann., § 73-3-21 (1989). See, however, the second part of this statute. Statement of Water User's Claims, giving tion doctrine has worked relatively well to 4JWhitemore v. Murray City, 107 Utah 445,154 P.2d 748 (1944). information on the diversion, nature and allow growth and development in Utah. -4RockyFord Canal Co. v. Cox, 92 Utah 148,59 P.2d 935 (1936). ~Wardy v. Beaver Co.ITrig. Co., 65 Utah 28, 234 P. 524 (1924). place of use, the date when water was first Whether it can evolve to meet changing ~8Utah Code Ann., § 73-3-1 (l989);Deseret Live Stock Co. v. Hooppiania, 66 Ula beneficially used, the flow or volume 25,239 P. 479 (1925). social and economic demands wil be a 49Utah Code Ann., 73-3-2 (1989). claimed, the time of use and other perti- major issue in the 21st century. YJ/d.. "Utah Code Ann., § 73-3-5 (1989). nent information." Failure to file a claim 'A. Dan Tarlock, Law a/Water Rights and Resources, ~ 5.02 iit 5- 5 (1989). JiUtah Code Ann., § 73-3-6 (1989). 2/d., results in forfeiture and subsequent estop- at 5-10. 5JUtah Code Ann., § 73-3-7 (1989). '5 R.E. Clark. Waters and Water Rights, 11 405 (972). "Utah Code Ann., § 73-3-8(1) (1989). pel from asserting the right unless the 'Gunnison ¡,.rig. Co. v.-GUlInison Highland Caiial Co., 52 Utah 347, 354,174 P. 852. 'lLitle Cottonwood Water Co. v. Kimball, 76 Utah 243, 248- 249, 289 P.L 16, 118 854(1918). Court allows late filing under certain con- (1930). 'Act of July 26,1866, cit. 262, § 9,14 Slat. 253, Rev. SI3t., § 2339, 43 U.S.C. § 661. J6Id. 6Act of July 9.1870, cit. 235,17,16 Stat. 218, Rev. Sl.t. § 2340, 43 U.S.c. § 661. ditions.76 The State Engineer evaluates all "Rocky Ford /rrig. Co. v. Kents Lake Res. Co., 104 Uiah 202,135 P.2d 108 (1943). 'Act of March 3,1877, cit. 107, 19 Stat. 377, as amended, 43 U.S.c. § 321. J6Tanner v.Bacon, 103 Uiah 494,136 P.2d 957 (1943). of the claims and prepares and serves on 3CailJornia Oregon Power Co. v. Portland Beaver Cement Co.. 295 U.S. 142 (1935). '9Bullock v. Tracy, 4 Utah 2d 370, 294 P.2d 707 (1956). the claimants a "Proposed Determination 'Utah Laws 1880, Cit. 20. wBullock I'. IOUtah Laws 1897, Cit. 52. Hanks, 22 Uta 2d 308, 452 P.2d 866 (1969). of All Rights to the Use of the Water."77 61Tanner v. Bacon; 103 Uta 494,136 P.2d 957 (1943). "Utah Laws 1897, Cit. 38. 6lUtah Code Ann., § 73-3-10 (1989). Objections to the proposed determination "Utah Laws 1901, Cit. 125. 61Utah Code Ann., 73-3-12(1)(d) (1989). llLaws 1903, cit. 100. 6lCarbon Canal Co. v. Sanpete Water Users Association, 19 Utah 2d 6, 425 P.2d 405 may be filed and hearings scheduled to re- "Gillet v. Johnson, 30 Conn. 180 (1861). (1967). "England v. Ally Ong Hing, 105 Ariz. 65, 459 P.2d 498 (1969). 63Uta Code Ann., 73-3-12(2)(a) (1989). solve conflcts,78 but prior to the issuance l6Jhree Lakes AssociarÎon v. Kess/er, 91 Mich. App. 371, 285 N.W.2d 300 (1979). MId.. § 73-3-12(1)(i) (1989). of the final decree, or a modification of the "Act of March 3,1877, ch. 107, 19 Stat. 377, as amended, 43 U.S.c. § 321. liThe Propeller Genesee Chiefv. Fitzhugh, 53 U.S. (12 How.) 443 (1851). "Id.. § 73-3.14(1) (1989). proposed determination, the State Engi- 1977 U.S. (10 Wall) 557 (1871) "Id., § 73-3-16 (1989), and § 73-3-17 (1989). neer distributes the water consistent with 1lld., at 563. ""n re Bear River Drainage Area, 2 Utah 2d 208, 271 P.2d 846 (1954). ilA. Dan Tarlock, Law of "'Ulah Code Ann., § 73-4-1 (1989). Warei' Rights and Resources, § 29.03(b), at 9.6 (1989). "Id.. § 73-4-3 (1989). the proposed determination/9 unless there iiSanitary District of Chicago v. United States, 266 U.S. 405 (1925). lJUnited Srates v. Appalachian Electric Power Co., 3 I i U.S. 377 (1940). "Mitchell v. Spanish Fork Field /rrig. Co., 1 Utah 2d 3D, 265 P.2d 1016 (1954); is a prior decree on the system, in which i'Oklahoma ex rei. Phiffps v. Guy F Atkilisoii Co., 313 U.S. 508 (1941); United Ulah Code Ann., § 73-4-24 (1989). 'JUtah Code Ann., § 73-3-18 (1989). case water is distributed pursuant to the States v. GrandRiver Dam Authority, 363 U.s. 229 (1960). 2533 U.S.C. § 1251 (1972). "Id.. § 734-,4 (1989). prior decree until the new final decree of ¡lId., § 73-4-5 (1989). "16 U.S.C. § 791(,) (1920). 16Utah Code Ann., § 73-4-9 (1989). judgment is entered. The final decree of "16 U.S.C. § 1531 (1973). TIId., § 73-4-11 (1989). judgment is filed with the recorder of each "UliitedStates v. Rands, 389 U.S. I21 (1967). 11/d., § 73-4- i 3 (1989). "207 U.S. 564 (1908). 1'/d.,§73-4-11 (1989). J4Arizona v. California, 376 U.S. 340 (1964). county in which the water is diverted,80 ll/d., § 73-4-17 (1989). J'United States v. Cappaert, 426 U.S. 128 (1976). SlId., § 73-4-16 (1989). and an appeal to the Supreme Court on Ji373 U.S. 546, reh'g denied, 375 U.S. 892 (1963). lJUnited States v. New Mexico, 438 U.S. 696 (1978); questions of fact and law may be made by J'Act of July 10, 1952, ch. 651, § 208(a)-(c), 66 Stat. 560, 43 U.S.c. § 666(a). any pary.81

The law firm of Hatch, Morton & Skeen has merged with C. Jeffrey Thompson, whose practice is concentrated in the area offranchise law, to form the firm of THOMPSON, HATCH, MORTON & SKEEN. t The firm now includes the following:

C. Jeffrey Thompson Ronald C. W olthuis Paul D. Hatch Scott S. Kunkel James E. Morton Robert W. Thompson Randall L. Skeen Marin B. Bushman David O. Black Diane K. Gollnick Thomas V. Rasmussen Merril G. Hansen Jerrold S. Jensen (Of Counsel)

THOMPSON, HATCH, MORTON & SKEEN 1245 Brickyard Road Suite 600 Salt Lake City, UT 84106 (801) 484-3000

December 1990 11 Update on Utah Caselaw Relating to Water Rights

by Michael M. Quealy Utah Assistant Attorney General

sue was basically one of standing, but that Followingtively quietwhat period has been for water a rela- law was dependent on the criteria to be used in controversies, the Utah Supreme Court considering change applications. As the and the Court of Appeals have, in the past Utah Supreme Court concisely stated: 18 months, issued several important deci- ". . . the parties conceded that the ques- sions affecting Utah water law. The fol- tion of whether plaintiffs are aggrieved lowing is a brief summary of those deci- persons within the meaning of section 73- sions. 3-14 turns on whether the scope of the 1. Perhaps the most important change in considerations appropriate for the State Utah water law occurred in the case of Engineer under a section 73-3-3 proceed- Bonham v. Morgan, et al., 788 P.2d 497 ing for a permanent change application is (Utah 1989). This case dramatically ex- the same as that listed in Section 73-3-8. panded the criteria to be considered by the If it is, . . . plaintiffs are aggrieved per- State Engineer (and courts on review) in sons; if it is not, plaintiffs . . . are not approving or rejecting applications for aggrieved persons and. . . summary judg- changes in point of diversion, place or na- ment was proper. The District Court ture of use. held that the only criterion applicable to In 1984, Draper Irrigation Company change applications was impairment; that and the Salt Lake County Water Conser- the broader criteria of Section 73-3-8 ap- vancy District filed a joint change applica- MIKE QUEALY received his B.A from the plied only to appropriations; and granted tion to move part of Draper's water rights University of Denver in 1971; graduated from summary judgment in favor of the State to the new SLCWCD treatment plant. The the University of Wyoming College of Law in Engineer." 1974 and was admitted to the Utah Bar the plan also required some modifications in On appeal, the Utah Supreme Court (in same year. the water collection system near Bell Can- He was in private practice from 1974 to a 4- 1 per curium decision) reversed. The yon. Such diversions had already taken 1979 specializing in water law and related nat- Court found there was no ambiguity in place prior to 1984 under annual tempo- ural resource areas. He joined the Utah Attor- Section 73-3-3 and that the legislature had rary change applications. In 1983, during ney General's Office in 1979 and over the intended the broader criteria of Section 73- unusually heavy runoff, and while the new years has represented most of the agencies in 3-8 to apply to change applications as well collection system was still under construc- the Department of Natural Resources; but pri- as applications to appropiate. The Court tion, flood waters damaged properties marily the State Engineer's Office and the Divi- focused on a provision of Section 73-3-3 owned by Plaintiff Bonham which lay be- sion of Water Resources. He has also repre- which states: low the new system. Plaintiff claimed the sented the State in the area of Indian law, He "The procedure in the State Engineer's of- construction of the new collection facili- has been Chief of the Natural Resources Sec- fice and the rights and duties of the appli- tion of the Attorney General's Office since ties was the direct cause of the flooding. cant with respect to application for per- 1983. He serves on the Legal Committee of the When the permanent change application Upper Colorado River Commission and the manent changes in point of diversion, was filed, Bonham fied a protest with the Litigation Action Committee of the Conference place or purpose of use shall be the same State Engineer, claiming the construction of Western Attorneys General, as provided in this title for applications to of the new collection facilities created an appropriate water." (Emphasis the increased threat of flooding to his property rion for rejecting a change application was Court's.) The State Engineer and amici and was contrary to the public welfare, cit- whether the change would impair other water users argued that this provision only vested water rights. The State Engineer ing the various criteria set forth in Section applied to the procedural process before 73-3-8, Utah Code Annotated 1953, as therefore reasoned that issues such as the State Engineer and did not intend to amended. The State Engineer rejected flooding and "public welfare" were be- incorporate broader substantive criteria. Bonham's protest on the grounds that un- yond his jurisdiction in considering a This argument was buttressed by legisla- der the change statute (Section 73-3-3) change application. tive history, and long-standing interpreta- and the historical caselaw, the only crite- qn appeal to the District Court, the is- tion by the State Engineer and the water

12 Vol. 4 No. I bar. Further, although this specific issue The District Court granted summary grieved person" merely because the State was one of first impression, numerous judgment in favor of the State Engineer on Engineer's decision may impact them fi- prior Supreme Court cases had clearly im- the grounds that S & G lacked standing as nancially under a contractual arrange- plied that impairment was the only criteri- an "aggrieved person" because its interests ment? In S & G, the State Engineer urged on. were purely economic and did not involve the Court to adopt the so-called "zone of With very little reasoning or discussion, impairment of water rights. On appeal, the interest" test. See: Clarke v. Securities In- the Court brushed these arguments aside Utah Supreme Court affirmed, but on dustries Ass'n, 479 U.S. 388 (1987) and and held that the above quoted provision more narrow grounds. The Court held that Waste Management of Wisconsin, Inc., v. was an unambiguous statement of the leg- S & G's failure to participate at the admin- Wisconsin Department of Natural Re- islature that the broader substantive crite- istrative level prevented them from ap- sources, 424 N.W.2d 685 (Wis. 1988). A ria of Section 73-3-8 were to apply to pealing the decision. The Court reasoned more difficult question may be who has changes as well as new appropriations. that the requirement of participation at the standing to assert-and what exactly is- The Court further noted that any other in- administrative level was a corollary to the the public interest criteria in administra- terpretation could lead to abuses where an doctrine of exhaustion of administrative tive proceedings before the State Engi- applicant could file an application to ap- remedies. As the Court noted: neer? For example, assume the road con- propriate in one location where the 73-3-8 It is well settled under this doctrine that tractor working on the Burr Trail files an criteria could be met and then apply to persons aggrieved by decisions of admin- application to divert water for construction move the water to another location which istrative agencies "may not, by refusing or purposes. Should the State Engineer be might not have stood muster under 73-3-8 neglecting to submit issues of fact to such drawn into the policy debate over whether originally; yet absent impairment such a agencies, bypass them, and call upon the it is in the public interest to pave the road change could not be rejected. courts to determine . . . matters properly (which has nothing to do with water)? Or, The decision in Bonham may have determinable originally by such agencies." should his inquiry be limited to whether it some basis from a policy standpoint in to- (Citing authority.)The Court further noted is in the public interest to simply divert day's world, where water use is driven by that amount of water from that particular market pressures and most major water ac- source? It seems logical that the "public quisitions involve change applications (the interest" affected must at least have some IPP Project is a prime example). Yet the direct relation with the diversion and use Bonham opinion itself is open to criticism. "If a person or entity does of the water, and not be merely some indi- In light of the importance of this case, not participate at the admin- rect result of a project or activity which given the prior long-standing practice, the requires water to be constructed or operat- per curium opinion resolved the dispute istrative level before the State ed. For further discussion of these issues, without providing a compelling rationale see: Grant, Public Interest Review of Wa- for its resolution. Further, if the criteria for Engineer, it wil not be ter Right Allocation and Transfer in the evaluating change applications are to be West: Recognition of Public Values, 19 changed for policy reasons, it would seem deemed an 'aggrieved person' Ariz. St. L. J. 681 (1987); and DuMars & the appropriate body to do so should be Minnis, New Mexico Water Law: Deter- the Legislature. for purposes of judicial re- mining Public Welfare Values in Water 2. Another case dealing with who is an Rights Allocation, 31 Ariz. L. Rev. 817 "aggrieved person" for the purpose of view. " (1989). seeking review of a State Engineer's deci- 3. In addressing a seldom litigated is- sion is S & G, Inc., v. Morgan, 133 Utah sue, the Utah Supreme Court was called Adv. Rpt. 11 (Utah 1990). S & G con- that requiring a party to participate at the upon to determine whether an upstream tracted to sell a water right to the Inter- administrative level ensures that those junior appropriator had acquired a portion mountain Power Agency (IP A). Part of the having an interest in the matter wil submit of a downstream senior right by adverse use. Acquisition of water rights by adverse L purchase price was dependent on the to the agency all relevant facts and legal amount of water the State Engineer al- arguments, so the agency can make an in- use in Utah was prohibited in 1939 (Sec- lowed to be transferred to the project. Ap- formed decision. Moreover, the Court not- tion 73-3-1, Utah Code Annotated); how- i , proximately 45 water users protested the ed, such participation gives the agency and ever, claims based on adverse use some- change application and participated at the the other participants notice of the inter- times arise in cases where the claimed use hearing. IP A was the applicant, and S & G ested parties and their concerns. occurred prior to 1939. did not participate in any of the proceed- The moral of the S & G case is clear. If In College Irrigation Co. v. Logan ings before the State Engineer. The State a person or entity does not participate at River & Blacksmith Fork Irrigation Co., Engineer approved the change, using a 4 the administrative level before the State 780 P.2d l24l (Utah 1989), the Appellant acre-foot duty and reduced that amount by Engineer, it wil not be deemed an "ag- was a junior water user on the Blacksmith 15 percent to compensate for increased de- grieved person" for purposes of judicial Fork, a tributary to the Logan River. The pletion. Neither IP A or any of the protes- review. Respondent was a senior user and diverted tants appealed the decision. But S & G As an aside, it should be pointed out water from the Logan River downstream filed an appeal, claiming that its economic that at some point the courts wil be called from the confluence with the Blacksmith interests under the contract had been im- upon to define who is an "aggrieved per- Fork. Appellant claimed that prior to 1939 paired and that the State Engineer had son" for the purpose of contesting matters it had historically dry dammed the Black- erred in using a 4 acre-foot duty and in before the State Engineer. Certainly an- smith Fork, preventing any water from further reducing the amount transferred by other water user can be directly affected. flowing to the Logan River, and had there- l5 percent. But, is an entity like S & G really an "ag- fore acquired a right by adverse use as . December 1990 ~ 1

against the Respondent. droelectric facility several miles down- review a State Engineer decision must be The trial court found there had been no stream and filed an application with the prosecuted to judgment within two years adverse use and the Utah Supreme Court State Engineer to change its point of diver- of the commencement of the lawsuit. The affirmed, holding that Appellant had not sion. The application was rejected on the Court had previously upheld two other carried its burden of proof. According to grounds that the water had admittedly not dismissals under that section. See, Dansie the Court: been used for over 30 years and the right v. Lambert, 542 P.2d 742 (Utah 1975) and "The elements of proof necessary to ac- had been forfeited by non-use under Sec- Provo City v. Hansen, 601 P.2d 141 (Utah quire a prescriptive right to water are tion 73- 1 -4. 1979). seven years of continuous, uninterrupted, On appeal, the City argued that the non- In this case, Appellant argued that he hostile, notorious and adverse enjoyment use provisions of Section 73- 1 -4 could not had requested a trial date in advance of the under a claim of title with knowledge and be applied to water rights owned by mu- two-year deadline, but the trial court ad- acquiescence of the ') owner of the prior nicipalities because Art. XI Sec. 6 pre- ministrator failed to set the case prior to right and at a time when the owner of the vented a city from "directly or indirectly" the two-year date. Appellant did nothing right needed the water adversely claimed." parting with its water rights. The City ar- to bring this oversight to the Court's atten- (Emphasis added.) The Court's opinion gued the Constitution not only prevented a tion and let the two-year deadline pass. hinged primarily on the latter part of the voluntary disposition of such rights, but Appellant claimed he had done all he test. The Court reasoned that so long as also applied to a non-voluntary forfeiture could to bring the case to trial and should the flow in the Logan River at Respon- through non-use. not be penalized for an oversight by the dent's point of diversion was sufficient to The Utah Supreme Court. disagreed, court administrator. The Supreme Court fill its rights, there could be no complaint finding no conflict between the constitu- rejected that argument, pointing out that regarding diversions by upstream juniors tional provision and the statute. The Court Blake knew the case had been set beyond on the Blacksmith Fork tributary. Thus, held that Art. XI Sec. 6 only applies to the two-year deadline but did nothing to the Court held that in order for there to be prohibit the voluntary transfer of water bring it to the Court's attention and could an adverse use, the upstream diversion not place the blame on others. must actually deprive the downstream user Given the facts of the Blake case, it of water. The evidence failed to show this ". . . the forfeiture of water would now seem difficult for a plaintiff to had happened. According to the Court, the avoid the two-year deadline under Section mere use of water by an upstream user rights for non-use had been 73-3-14 unless it can be clearly demon- proves nothing; there can be no adverse strated that the delay was totally attribut- use if there is suffcient water (from what- the law in Utah prior to state- able to causes beyond a plaintiffs control. ever source) to satisfy the downstream se- 6. In Little v. Greene & Weed Invest- nior right. For the use to be adverse, the hood and the framers of the ments, et al., 141 Utah Adv. Rpt. 20 (Utah party against whom the claim is asserted 1990), the Utah Court of Appeals ruled must actually be deprived of water. The Utah Constitution must be that a water right does not become appur- evidence showed that during the period of tenant to land until a certificate of appro- the claimed adverse use, the flow of the presumed to have been aware priation has been issued by the State Engi- Logan River was never less than the 248 neer. The significance of when a water c.f.s. required to fil Respondent's rights of that at the time they right becomes appurtenant to land usually and therefore no adverse use could have arises in the transfer of real property taken place. adopted the Constitution." where the deed is silent as to water rights. 4. In Nephi City v. State Engineer, 779 Section 73- 1 -11, Utah Code Annotated, P.2d 673 (Utah 1989), the Utah Supreme rights, and does not apply to involuntary provides that any water rights appurtenant Court settled an issue which has been de- forfeitures covered by the statute. The to real property pass with the property un- bated among Utah water lawyers for Court noted that the forfeiture of water less expressly reserved by the grantor. years; namely, whether a municipality rights for non-use had been the law in This case involved a quiet title action to could lose its water rights by non-use. The Utah prior to statehood and the framers of certain water rights by parties claiming r Court decided the question in the affirma- the Utah Constitution must be presumed to under two chains of title. The time at i tive. have been aware of that at the time they which the water became appurtenant to the " The Utah Constitution contains a unique adopted the Constitution. land was key to the outcome of the case. provision which prohibits a municipality The Court's decision has caused consid- In 1955, one Lester Little filed an appli- from directly or indirectly selling, leasing erable concern among those cities holding cation to appropriate water for the irriga- or disposing of any water rights or water water rights which have not been placed to tion of 83 acres, which was approved by works. Art. XI Sec. 6, Utah Constitution. beneficial use for many years. However, a the State Engineer in 1958. Early in 1967, On the other hand, Section 73-1-4, Utah city may keep a water right in good stand- Lester constructed his diversion facilities Code Annotated, provides that a water ing for future use by filing a "non-use" and began irrigating the 83 acres. In De- right is forfeited and shall revert to the application with the State Engineer under cember 1967, Lester fied his proof of ap- public if not used for a period of five Section 73-l-4(3)(b). propriation with the State Engineer. In years. 5. In Blake v. State Engineer, 782 P.2d January 1968-but prior to the State Engi- Nephi City held a hydropower right on 472 (Utah 1989), the Supreme Court fur- neer's issuance of the certificate of Salt Creek dating to the early 1990s. In ther reinforced the so-called "two-year" appropriation-Lester conveyed the land 1952, a flood destroyed the diversion rule for prosecuting appeals from State in undivided shares to his five children. works, which were never rebuilt. In 1982, Engineer decisions. Section 73-3-14 Utah There was no specific mention of the wa- the City proposed to construct a new hy- Code Annotated provides that an action to ter rights.

14 Vol. 4 No.1 A certificate of appropriation was sub- acres to his five children, the water right sequently issued by the State' Engineer, was not yet appurtenant and therefore did and in 1969 Lester conveyed the entire not pass with the land. water right to two of his five children. The Attorneys dealing with water rights as issue was which deed had passed the water part of real estate transactions or otherwise rights? The two children claimed the water should therefore be careful in drafting or did not become appurtenant until the cer- reviewing deeds. One should make sure tificate was issued, and could not have that any water right which is to pass with passed under the former deed. The succes- the land is either decreed, certificated or sor to the other children argued that the represented by a diligence claim. If the water became appurtenant when it was water right has not been certificated, it placed to beneficial use and proof was should be transferred separately by an as- filed. signment form as provided in Section 73" The Court of Appeals, in affirming the 3-18, Utah Code Annotated. Further, any District Court, ruled that a water right water rights should be fully and specifi- does not become appurtenant until the cally described by the State Engineer's file State Engineer issues a certificate of ap- number and the amount of water. propriation. The Court found that the stat~ CONCLUSION utory procedure sets forth the exclusive Although not all may agree with the re- manner in which water may be appropriat- sults of these recent cases, certain issues ed, and the procedural requirements which have been clarified. The next year or two must be complied with. The Court held may see further issues arise. Cases are cur- there are two steps in perfecting a water. rently pending which wil test the validity right so that'it becomes appurtenant to of diligence claims in the context of gen- land. First, the water must be diverted and eral adjudication proceedings, and chal- put to use on the specific tract of land. lenge the ability of stockholders in irriga- Second, all the statutory procedural steps tion companies to file change applications for appropriation must be completed, in- based solely on their stock. Also, the is- cluding the issuance of the certificate of sues of federal reserved rights and the ex- appropriation. port of water outside of Utah may have to Thus, when Lester transferred the 83 be addressed.

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16 Vol. 4 No. 1 Commission Highlights nue receipts and projections for cur- commissioners and be officers, with rently unpaid dues collection and li- the exception that only judges who i cense fee payments by category. After were in a position to exercise supervi- During its regularly scheduled meeting of discussing the projections explanation, sory authority over the Bar or Board of November 16, 1990, the Board of Bar the Commission voted to payoff the Bar Commissioners would be ineligi- JI Commissioners received the following re- line of credit and equipment loan for ble to be nominated to the office of ports and took the actions indicated. the purpose of saving interest. commissioner and accordingly re- 1. The minutes of the October 26, 1990, 2. Associate Bar Counsel Sutliff dis- quired to resign as a commissioner if meeting were approved, as amended. cussed proposed changes to the Rules elected or appointed to such judicial 2. The Commission reviewed the pro- of Professional Conduct with the Com- position while serving as a commis- posed budget and discussed comments mission. The Commission adopted the sioner. made in the four letters which were re- Office of Bar Counsel's proposed 13. The Commission discussed the elec- ceived in response to President Green- rules. tion procedures, terms of office of the wood's letter requesting suggestions. 3. The Commission considered admis- President, and a President-Elect, After the discussion, the proposed bud- sions petitions fied by Bar Exam ap- whether the President-Elect should be get was approved. plicants. After examining the Griev- termed a "Vice President" and whether 3. President Greenwood reported on the ance Petition Hearing Panel's recom- the President-Elect or "Vice President" Executive Committee presentation to mendation to pass applicants who had should automatically become the Presi- be made at the November 16, 1990, filed grievance petitions, the Commis- dent. The Commission deferred action Task Force meeting. She indicated that sion approved the panel's recommen- pending further study by Commis- there had been an excellent response dation. sioner Howard. from the sections and committees. She 4. President Greenwood reported on the 14. The Commission approved a referen- indicated that a report had been pre- Supreme Court Task Force's meeting dum procedure by petition of 10 per- pared on the functions and operations held on November 16, 1990. cent of the active members. of the Utah State Bar and how the Bar 5. President Greenwood notified the 15. Executive Director Baldwin was di- is complying with the recommenda- Commission that the Task Force wil rected to request Bar Counsel Trost to tions from Grant Thornton. be conducting a survey of the Bar re-examine the legality of prepaid legal 4. The Commission voted to approve dis- membership sometime within the next service plans. Discussion was then de- ciplinary recommendations. few months. ferred until the December 1990 Com- 5. Commissioner Haslam discussed 6. The Commission reinstated an attor- mission meeting. grievance petitions with the Commis- ney who had been suspended. sion. 7. The Commission discussed reports A full copy of the minutes of these and 6. Bar Counsel Trost reported on litiga- from the Organizational Review Com- other meetings of the Board of Bar Com- tion. mittee regarding proposed amend- missioners is available for inspection by 7. Lois Muir, Financial Administrator, ments to the Rules of Integration. members of the Bar and the public at the distributed an income and expense 8. The Commission approved a recom- Office of the Executive Director. statement and fact sheet. The Commis- mendation on "Territorial Division" sion requested Ms. Muir to prepare which would maintain the current cash flow projections for review at the number and boundaries, and add the November 21, 1990, meeting and possibility that out-of-state active Salt Lake City voted that if the Bar is determined to members would be able to choose their Chapter of )) have sufficient cash, the line of credit division and vote for commissioners. and the equipment loan should be paid 9. The Commission approved a recom- Tax Executives off. The matter was deferred until the mendation which would fil vacancies ~ next meeting. on the Board by special election in all Institute Formed 8. Executive Director Baldwin reported divisions, but not allow the Board to that a consultant has been hired to re- fill a vacancy by the appointment of a A Salt Lake City chapter of the Tax Exec- view the financial department's poli- successor in the Third Division. utives Institute (TEl) has recently been cies and procedures and do a work 10. The Commission approved a recom- formed. The chapter holds monthly local flow analysis. mendation that those wishing to serve meetings and participates in regular re- on the Bar Commission have only five gional and national meetings to discuss the During its meeting of November 21, signatures on their nominating forms. important tax issues affecting business tax- 1990, the Board of Bar Commissioners re- ll. The Commission rejected a recom- payers. Membership is open to persons not ceived the following reports and took the mendation which would have created a engaged in public tax practice whose work actions indicated. special judicial classification outside consists principally of administering taxes 1. Executive Director Baldwin and Lois of active membership for members of for their employer on an executive or man- Muir, Financial Administrator, ex- the judiciary. agement leveL. Please contact Milan Crane plained the Bar's cash on hand, current 12. The Commission approved a recom- of Longyear Company at 972-6430 for in- fiscal year's revenue and expense pro- mendation that the members of the ju- formation regarding upcoming meetings jections, including membership reve- diciary should be eligible to serve as and membership in TEL

December 1990 17 Discipline Corner

ADMONITIONS several requests to cease. The Judge felt 3. For violating Rules 3.2 and 3.4(c) of 1. An attorney was admonished for vio- that the attorney was attempting an ex the Rules of Professional Conduct of the lating Rule 1.4(a), 1.3(b) and 8.1(b) by parte communication and requested that Utah State Bar, an attorney was privately failng to respond to his client's repeated the attorney leave the chambers, which the reprimanded for failing to draft the final requests for information and requests for attorney refused to do. documents regarding a settlement of di- an accounting of the retaining fees and for 6. An attorney was admonished for vio- vorce after being ordered to do so by the failing to issue a refund of those retaining lating Rule l.4(a) by failing to clearly ex- court. The attorney failed to prepare and fees. In addition, the attorney failed to plain the terms of the fee agreement and file the documents for 11 months. timely respond to the Office of Bar Coun- adequately inform the client of services to sel regarding the complaint. be performed for the fee. Based on the SUSPENSION 2. An attorney was admonished for vio- failure of communication, the client be- On October 30,1990, Benjamin P. lating Rule 1.3 by failing to timely prepare lieved that the fee would cover all the ex- Knowlton was suspended for six months Findings of Fact and Conclusions of Law penses of an expert witness, when in fact with five months stayed pending payment and Decree of Divorce. The attorney failed the fee was consumed in an attempt to lo- of restitution for violating Canon 1, DR 1- to prepare the documents for a period of cate an expert witness. 102(A) (4). The actual suspension was to three months. begin on November 13, 1990. Mr. Knowl- 3. An attorney was admonished for vio- PRIVATE REPRIMANDS ton was retained to negotiate the sale of a lating Rules 1.4(a) and 1.3(c) by failing 1. For violating Rule 1.3 of the Rules of house, which sale was completed in 1982. to maintain appropriate communication Professional Conduct of the Utah State He was paid $2,000 for his services and an with his clients and failing to reach an Bar, an attorney was privately repri- additional $5,599.95 from the proceeds of agreement with his clients regardingiifees, manded for failing to perfect an appeal for the sale was deposited into his trust ac- so that monies which the client had given his client and failng to ensure that the count. The sum held in trust later became to the attorney to hold in trust were used judgment of the lower court was stayed a disputed marital asset in his client's sub- for fees. pending the appeaL. The neglect of the at- sequent divorce proceeding. Mr. Knowl- 4. An attorney was admonished for vio- torney resulted in an Order to Show Cause ton was not the attorney in the divorce lating Canon 6, DR 6-101(A) (3) by fail- hearing to which his client was obliged to proceeding. The Judge in the divorce pro- ing to adequately communicate with his respond. ceeding ordered that Mr. Knowlton hold client. The client believed that the attorney 2. For violating Rule 1.3(b) of the the proceeds in trust pending a resolution was not moving forward on the divorce Rules of Professional Conduct of the Utah of the dispute. Upon Order of the Court action and initiated a complaint in the Of- State Bar, an attorney was privately repri- that the proceeds be disbursed to one of fice of Bar CounseL. The Screening Panel manded for executing an agreement the parties, Mr. Knowlton claimed a lien found that the attorney had performed ade- wherein he acknowledged a lien against for fees owed him by the other party and quately but failed to communicate that fact the proceeds of a settlement in behalf of intentionally converted those funds. The to the client. his client and subsequently failing to en- Hearing Panel found that Mr. Knowlton's 5. An attorney was admonished for vio- sure that the lien holder received payment intentional conduct was an aggravating lating Rule 3.5(d) by failing to obey a re- from the funds. The attorney disbursed the factor. quest from a Judge to leave the Judge's funds to the client who failed to pay the chambers and arguing with the Judge after medical provider. Annual Law Firm Party Becomes Project for the Homeless

Thursday, November 8, at 6:30 p.m., one that should be taken by others as welL. interest with these disadvantaged children. j i members of Campbell, Maack & Sessions, Mr. Campbell said that the costly role of The Shelter School, whose children a Salt Lake City law firm, hosted and government in providing social services learn under Stacey's leadership and experi- served dinner for families at the Homeless should be significantly reduced if in- ence caring and concern for the first-and ~'I Shelter. The children were gifted with creased numbers of private citizens would sometimes the only time in their lives (and , vouchers for shoes and a clown/magician be wiling to give a little of their time and that time is restricted to 90 days)- i entertained everyone. resources. provides an especially significant opportu- What made the evening unique was that Stacey Bess, Shelter School Director, nity for making a difference, short and the law firm of Campbell, Maack & Ses- and Pat Hoagland, Office Manager at the long-term. sions decided (1) to turn their annual "firm Family Shelter, join Campbell, Maack & The dichotomy between the clean, well- party" into a community service project Sessions in issuing this "challenge." As kept facility and the dark human drama at and (2) to challenge other law firms in Salt you know, the needs are many but-if this the Shelter can be mitigated if we all help. Lake City to help the Shelter as welL. challenge succeeds-quite achievable. Any support others can give in responding In discussions with the president of the Needs range from a full-time teacher's sal- to this "challenge" would extend the sig- firm, Robert S. Campbell Jr., Mr. Camp- ary, camera and slide projector, new nificance of this evening and multiply the bell indicated that the firm considered this desks, units of study, to volunteers who resources of the Shelter itself. effort as a very small step but an important can share their areas of specialization and Thank you.

18 Vol. 4 NO.1 Salt Lake City Law Firms Waste Recycling Encouraged Honored by In light of environmental concerns for cled. Over the past months we have initi- the United Way Utah, the Nation and the World, the Staff ated a successful recycling program at the of the Utah State Bar is encouraging the Bar offices. Therefore, the Bar staff en- Two Salt Lake City law firms were re- members of the Bar to recycle waste prod- courages attorneys to become environ- cently honored by the United Way of the ucts from their businesses and homes. mentally concerned and to join in this ef- Great Salt Lake area. The law firm of Van- When one considers the amount of paper fort to improve our world. Also, the Bar Cott, Bagley, Cornwall & McCarthy, alone that lawyers and law firms produce staff is more than wiling to help lawyers which has been a very generous supporter and discard, the benefits for our communi- initiate recycling programs. For more in- of United Way for many years, made the ties would be great. Also aluminum cans, formation, contact Tobin Brown or Toni largest firm contribution to the 1990 plastic and glass containers from lunch Marie Sutliff at the Bar offices, (801) 531- United Way campaign and was honored rooms and other areas can be easily recy- 9077. with a trophy for its generous support. The Salt Lake City firm of Ballard, Spahr, Andrews & Ingersoll was also hon- ored by the United Way for having made Interest Bearing Trust Accounts the largest contribution per attorney of any law firm. This firm, with headquarters in The 1990 Legislature passed H.B. 387 Statute provides that funds held in trust Philadelphia, has supported the United (Court Funds and Interest) which amended by the court shall be deposited with the Way both locally and nationally for many UCA 78-27-4. Statute now provides that Clerk of the Court. In cases where interest years. the Judicial Council shall adopt rules gov- is to accrue to the litigant on funds held by Other law firms and lawyers made gen- erning the maintenance of court trust the court, an agreement which stipulates i erous contributions to the United Way. funds and the disposition of interest earn- that the fee is to be paid from the principal During the last two years, contributions to ings on those trust funds. amount and that the litigant is responsible the United Way campaign from lawyers Rule 3-407 (3) (F) of the Code of Judi- for the taxes on the interest must be and law firms have increased from approx- cial Administration provides that the Judi- signed. The Clerk wil then deposit the imately $45,000 in 1988 to $65,000 in cial Council shall set the fee for interest funds in a Demand Account under the 1989, and to approximately $80,000 dur- bearing accounts established at the request name of the court with the ban which ing the 1990 campaign. of the litigant, or by court order, where the holds the court trust funds in general. The United Way thanks each of you for interest accrues to the litigant. The mini- your contributions. Questions concerning this policy should mum amount that a litigant can request be addressed to: to be placed in an interest bearing trust Fred E. Jayne, Financial Manager account is $5,000. No minimum is re- Administrative Office of the Courts United States Attorneys, quired under a court order. The fee is $50 230 S. 500 E., Suite 300 or 0.647 percent (less than 1 percent) of Salt Lake City, UT 84102 Federal Public Defenders the principal amount, which ever is great- and State Bar er. Associations, i Oth United States Judicial Circuit Head Injury Seminar a Success A two-day seminar for attorneys handling The following is the amended calendar sions throughout the second day of the for the 1991 sessions of court for the head injury cases attracted over 90 Utah conference. lawyers, as well as attorneys from Idaho, Based on attendees' positive evaluations United States Court of Appeals for the Wyoming, Nevada and Colorado. It was 10th Circuit and the Judicial Conference. and specific expressions of interest, plans the second seminar of its kind in Utah. are being made for a third annual head in- The amendment indicates the September The conference, co-sponsored by the Session of Court is to be held in Utah, jury seminar to be held in the fall of 1991. Utah State Bar and the Utah Head Injury rather than Kansas. (The first conference was held in Novem- Association, was held on November 1 and January Session (Denver) ber 1989.) Next year's conference wil fo- 2 at the Little America Hotel in Salt Lake cus on the mild to moderate brain injury January 14-18 City. Speakers included nationally recog- March Session (Denver) case. For more information, contact Bob nized brain trauma expert Richard M. Sykes, Robert Henderson or Doug March 4-8 Restak, M.D., from Washington, D.e., and May Session (Denver) Mortensen. néurologist D. Frank Benson of the UCLA Submitted by May 6-10 School of Medicine. Local presenters and Judicial Conference of 10th Circuit (Sedo- Douglas G. Mortensen & MATHESON, na, AZ) panelists inCluded biomechanícal engineer MORTENSEN & OLSEN, P.e. Paul France, physiatrist Milton D. Thomas 68 E. 100 S. July 17-19 and economic analyst Paul A. Randle. Lo- September Session (Utah) Salt Lake City, UT 84102 cal attoineys who have had success in 363-2244 September 3D-October 4 prosecuting and defending head injury November Session (Denver) cases provided insights in breakout ses- November 18-22

December 1990 19 United States District Court Special Institute on Legal Secretaries to for the District of Utah International Resources Sponsor Seminar Office of the Clerk of Court Law: NOTICE TO THE BAR AND THE An all-day seminar for legal secretaries, PUBLIC A Blueprint for Mineral legal assistants and support staff wil be December 1, 1990 held Saturday, February 23, 1991, at the Development Utah Law and Justice Center, 645 S. 200 Revisions to the Fee E., Salt Lake City. The legal education Schedule for the United Denver, Colorado seminar is sponsored by the Salt Lake Le- February 18 and 19,1991 gal Secretaries Association and is de- States District and signed to benefit both beginning and ex- The Rocky Mountain Mineral Law Foun- perienced law office personneL. Partici- Bankptcy Courts dation and the International Bar pants will have an opportunity to hear ex- Association-Section on Energy and Nat- perts, ask questions and discuss issues re- The Director of the Administrative Office ural Resources Law are sponsoring a Spe- lating to their own job responsibilities. of the United States Courts has revised the cial Institute on International Resources The seminar wil include the following basis for calculating the fees assessed by Law on February 18 and 19, 1991, in Den- sessions: "Using Martindale-Hubbell as a the Judicial Branch for the handling of ver, Colorado. This conference will fea~ Resource Tool with Emphasis on Volume funds that are deposited into a court's reg- ture speakers from nine countries with in- VII" by Russell Kearl of Callister, Dun- istry and, subsequently, placed into ternational expertise, and wil present an can & Nebeker; "Examination, Compari- interest-bearing accounts. organized and comprehensive approach to son and Analysis of Handwriting to Assist Effective December 1, 1990, all funds- the major factors to be considered when Attorneys and Support Staff in Cases including criminal-bond monies-that are initiating and developing foreign mineral Where Fraud Might Be a Question" by deposited with the United States district or opportunities. J.D. Bergen, Forensic Document Exam- bankruptcy courts and that are placed by The first day wil cover issues pertinent iner and Certified Handwriting Expert; those courts into interest-bearing accounts to the country under consideration includ- and "Computer File Organization and or instruments wil be assessed a charge of ing analysis of the underlying legal sys- Word Perfect Macros" by Judy Herd of 10 percent of the income earned, regard- tem, treaties and bilateral agreements, and Training Technologies. less of the nature of the action underlying assessment of political risk, all subjects Welcoming remarks wil be made by the investment. that must be fundamentally understood be- Marsha Gibler, PLS, President of the Salt The registry fees wil be deducted at the fore entering into business in any foreign Lake Legal Secretaries Association, and time that (1) the interest is computed and country. The involvement of the host Brian Florence of Florence & Hutchinson, added to the account, or (2) the interest- country in oil, gas and mining agreements past Utah State Bar President and past act- bearing instruments mature. also wil be discussed. ing Bar Director. As with other miscellaneous fees autho- The second day wil focus on tax and The registration fee of $45 for members rized under 28 U.S.c. §§1913, 1914, and non-tax considerations involved in setting and $65 for non-members includes hand- 1930, these fees may be taxed as costs by up an operating entity and doing business out materials, lunch and parking. Registra- the court pursuant to 28 U.S.c. §§1920. In in the host country, including branch ver- tions received after February 15 wil re- cases where the United States Government sus subsidiary determinations and interna- quire an additional $10. Registration at the is a pary to the actions underlying the reg- tional tax planning. Emphasis also wil be door is on a space available basis. istry investment, the funds withheld in placed on selection of the legal and finan- Contact Dawn Hales, PLS, at 322-2516; payment of the fee may be restored to the cial strctures to be utilized for obtaining or Penny Dixon at 359-0999 for further United States upon application filed with and operating mineral properties. Cover- information. the Court by the United States Attorney or age of the extraterritorial effect of U.S. other government counseL. laws wil address the conduct of U.S. com- If you have questions, please call either panies doing business abroad, a subject the district court clerk or the bankruptcy that is vital not only to advisors of compa- court clerk. nies but also to their overseas partners. The Institute wil be invaluable to any- one involved in international mineral de- Energy, Natural Resources and Environmental Law velopment projects, including attorneys and accountants in corporations, private Section CLE Breakfast Seminar practice, financial institutions, academia The Energy, Natural Resources and Envi- 645 S. 200 E. The cost is $5.50 per person and government agencies. ronmental Law Section of the Utah State Registration fees for this program in- for breakfast and printed materials wil be Bar is pleased to present a CLE Breakfast provided. The seminar wil qualify attend- clude an extensive course manual contain- Seminar entitled "Attorney Conflicts of ing scholarly and practical Institute pa- ees for ONE HOUR ETHICS CLE credit. Interest in Natural Resources 7 and Other pers, plus two luncheons and one dinner. All members of the Bar are invited and Business Transactions." The speaker wil encouraged to attend. Seating is limited; to A special post -conference ski package has be Clayton J. Par of Kimball, Parr, Wad- been put together in Steamboat Springs for register for this CLE Breakfast Seminar, those who wish to enjoy skiing in Colo- doups Brown & Gee. Mr. Par's presenta- call Kelli Suitter at the Utah State Bar, tion will begin at 7:30 a.m. on January 16, 531-9095 on or before January 10, 1991. rado. 1991, at the Utah Law and Justice Center,

20 Vol. 4 No. 1 By Clark R. Nielsen

SEARCH AND SEIZURE, Utah's public Writings Act, §78-26-1 to 8, and not just agency fiat. The Tax Commis- SOBRIETY ROADBLOCK and not upon an argument of constitu- sion does not have constitutional or legis- A DUI arrest at a sobriety checkpoint tional right of access. The majority opin- lative authority to exercise unbridled dis- which had been established under program ion demonstrates the risk to a litigant that cretion "to make findings unsupported by guidelines was consistent with fourth fails to take all avenues to protect his or evidence in the record." Consequently, the amendment limitations on searches and her privacy disclosed in a public court tax agency's decision that the taxpayer in- seizures. A seizure occurs when a vehicle record. The opinion also dismisses the fact curred an expense ratio of 25 percent, and is stopped at the checkpoint. The objective that a protective order often is a burden- not 31 percent, must be supported by sub- measure of the intrusion is balanced some and difficult matter to litigate. Chief stantial evidence. The party attacking the against the effectiveness of the control and Justice Hall dissented, arguing that unpub- findings below must marshall all the evi- the grave interests of the state in curbing lished depositions are not available to the dence, including both evidence that sup- drunk driving. The stopping of every vehi- trial judge until published and, therefore, ports the finding and evidence that de- cle minimizes any subjective intrusion and should not be available as a public record. tracts from the finding, in order to show potential for generating fear or surprise. Justice Stewart's dissenting opinion argues . that the finding is not supported by sub- Michigan Dept. of State Police v. Silz, that disclosure encroaches upon the signif- stantial evidence. 1990 W.L. 78597, S. Ct. (U.S. June icant privacy interests of litigants in a Because the record was unclear how the 14, 1990) (C.J. Rehnquist with J's Stevens, wide variety of litigated matters. The ma- Tax Commission arrived at the income- Brennan and Marshall dissenting). jority opinion places the burden to avoid to-expense ratio, the proceedings were re- disclosure upon the litigants whose private manded to the Commission for further DEPOSITIONS, DISCLOSURES life, intentionally or unintentionally, is findings. This opinion contains a simple, AS PUBLIC RECORD subjected to media scrutiny. An individual clear explanation of application of the in- The sealing of a deposition prior to its litigant must show "good cause" to pre- come approach in property tax evaluation. use in trial or other proceedings is in- serve his or her right of privacy. The bur- First National Bank of Boston v. County tended to preserve the deposition's integ- den for such a showing should be entirely Board of Equalization, 145 Utah Adv. rity and not a "mandate for secrecy." Un- different than a corporation's burden to Rep. 8 (October 16, 1990) (C.J. Hall). der Utah Rules of Civil Procedure 26(c) show "good cause" in order to preserve and 30(f), sealed depositions are still mat- corporate records or competition secrets. RULE 60(B) MOTION- ters of public record and are publicly ac- Carter v. Utah Power & Light Co., 146 RES JUDICATA cessible, absent other good cause to re- Utah Adv. Rep. 6 (October 22, 1990) (J. Fraud or misrepresentation that affects strict their use. Justice Zimmerman's ma- Zimmerman; c.J. Hall and 1. Stewart the basic fairness of a prior adjudication jority opinion (with J's Durham and Howe dissenting). may provide a basis for collateral attack concurring) holds that pretrial depositions, against and relief from that adjudication. even though stil unopened, were available ADMINISTRATIVE LAW, A judgment debtor who is denied relief to the public. Parties to the litigation could STANDARDS OF PROOF AND under Rule 60(b), Utah R. Civ. P., is not not prevent their disclosure without a REVIEW, PROPERTY V ALUA TION barred from attacking the judgment collat- strong showing of good cause for a protec- An administrative agency's decision erally on grounds different than those ad- tive order. Public access is based upon must rest upon a sound evidentiary basis judicated in the Rule 60(b) motion. The

December 1990 21 two methods of attacking a judgment, col- SALES TAX, TANGIBLE trial court may not weigh conflicting evi- lateral attack and Rule 60(b) motion, are PROPERTY AND dence until an evidentiary hearing or trial not mutually exclusive and a debtor need ELECTRONIC DATA is held. Absent a hearing, plaintiff need not choose one path to the automatic ex- The sale or lease of computer lists on only make a prima facia showing of juris- clusion of the other. The estate beneficia- mailing labels or computer tape is subject diction before trial, then prove jurisdiction ries were allowed to pursue their collateral to sales or use tax even though the pur- by a preponderance of evidence at triaL. fraud claim against the ban executor chaser's dominant purpose is to obtain the Anderson v. Amer. Soc. of Plastic & Re- even though the beneficiaries had previ- knowledge and information contained constructive Surgeons, 148 Utah Adv. ously been denied Rule 60(b) (7) relief thereon and not the physical medium. A Rep., Utah Supreme Court #870421 (No- ("any other reason justifying relief. . . "). purchase of any information conveying vember 15, 1990) (J. Durham). The denial of a Rule 60(b) motion for re- media may be taxable as a sale of tangible lief is res judicata in a collateral action personal property. Because the form of the CONFIDENTIALITY, DISCLOSURE only as to the ground or claim actually delivery of information controls, the possi- OF PUBLIC INFORMATION adjudicated in the motion. "To hold other- bilty of alternative means to transfer the The "Official Privileges Act," U.c.A. wise could result in a denial of the pro- information by direct electronic transmis- §78-24-8 (Supp. 1989) confers a confiden- cess." The denial Rule 60(b) motion to set sion from one computer to another does tial privilege on internal communications aside an estate closing order because of not destroy the taxable nature of a transfer within a police department only when the insufficient time to respond to the closing on tangible media. The medium actually "public interest" would suffer by disclo- petition does not preclude a later collateral used to transfer is dispositive whether the sure. There also exists a common law action for fraud and misrepresentation transaction is tangible and taxable, or in- privilege against disclosure which must be against the estate's personal representa- tangible and non-taxable. balanced against the interests of those tive. Mark O. Haroldsen, Inc. v. State Tax seeking disclosure and the purposes of dis- Note: The court does not discuss the Comm'n, 148 Utah Adv. Rep. Utah Su- closure. The balancing of the privilege and correlation or distinction between this preme Court, #870468 (November 27, interests seeking discovery suggests an in case and the res judicata principles dis- 1990) (1. Stewart). camera review by the trial judge in exer- cussed in Wheadon v. Pearson, 14 Utah cising broad discretion. Parties seeking to 2d 45, 376 P.2d 946 (1962), and Bellston JURISDICTION, MOTION TO preserve confidentiality are "free to articu- v. Texaco, 521 P.2d 379, 380 (Utah 1974): DISMISS, REVIEW STANDARD late any precise and certain reasons for so that res judicata applies not only to points Granting defendant's motion to dismiss doing." In this case, disclosure of internal and issues actually raised and decided on for lack of personal jurisdiction was error affairs investigation reports has a very the prior action, but also to those that when the trial court relied merely upon slight potential of public harm, paricu- could have been adjudicated providing documentary submissions in resolving fac- larly when judicial limits and protections that the claim, demand or cause is the tual disputes relative to the jurisdiction is- can be imposed, as compared to the bene- same in both cases. Also, what is the res sue. A plaintiffs factual allegations are ac- fit of allowing public access. judicata effect of the denial of a 60(b) cepted as true unless specifically contro- Madsen v. United Television, Inc., 147 motion for reasons of untimeliness when verted by affidavit or disposition, but any Utah Adv. Rep. 12 (November 9, 1990) (J. the same claim is asserted in a collateral factual dispute in documentary evidence Howe). action? must be resolved in plaintiffs favor. The Pepper v. Zions First Nat'l Bank, N.A., 147 Utah Adv. Rep. 5 (November 9, 1990) (1. Stewart).

SHERIFF SALE, REDEMPTION PRICE The redemptioner of property that has _PACIFIC been sold at sheriffs sale need not pay expenses incured by the property's pur- -=-HARBOR chaser that were not reasonable and neces- sary in the maintenance of the property. The addition to the redemption price of -=. CAPITAL unnecessary and unconsented expendi- tures erodes redemption rights and is con- Debt and Equity trary to Utah R. Civ. P. 69(f). The evi- dence at trial did support the purchaser's For expenditures for building demolition but Medium-Sizd Companes not additional costs for tree removal and site elevation. The matter was reversed in the Pacic Northwest and remanded for proper allocation of the purchaser's expenses. and Rocky Mounta States Galloway v. Merril, 147 Utah Adv. Rep. 49 (Ct. of App., November 16, 1990) Portland, Oregon 503/222-7920 New York, New York 212/230-2555 (J. Greenwood). A PacifCorp Financial Services Company.

22 Vol. 4 NO.1 Preview of the i 99 i General Session Utah State Legislature

By John T. Nielsen

recently lost Representative Stanley Legislature do not serve his or her client Like everyture, each session seems of to the have Legisla- its own Smedley, who passed away suddenly in as fully as possible. The following is a personality. The approaching 1991 session December. Those of us who worked with subject matter list of bills that have been is certainly no different, but may be char- Stan knew him as a fine person, an excel- pre-filed or wil very likely appear some- acterized more by the personality of its lent and respected legislator and an exem- time during the session: leadership rather than substantive law plary member of the Bar. Other members which has traditionally marked the legacy of the Bar were elected to serve in both the H.B. 4 Homicide by Assault- of a particular session. House and Senate, but the leadership and providing an offense of homicide by There was significant turnover in both example of those lawyer-legislators who assault and defining the penalty. houses at large, but more interestingly in no longer serve wil be sorely missed. S.B. 2 Statutory Homicide the leadership, particularly in the House of As in the past, the Bar will be repre- References-amending terms refer- Representatives. Those who follow legis- sented at the Legislature within the guide- ring to certain homicide offenses. lative matters await anxiously the inter- lines set forth by the Supreme Court. The S.B. 1 Safe Drinking Water Act play between Speaker of the House Craig regularly constituted Legislative Affairs Amendments-authorizing the certifi- Moody and his counterpart, newly elected Committee of the Bar will meet regularly cation of operations for any water sys- House Minority Leader Frank Pignanell. to analyze legislation as to its applicability tems. Both men are viewed as strong personali- to those guidelines and wil make recom- H.B. 1 Payment of Attorneys' ties and effective legislators, and the stage mendations to the Bar Commission as to Fees-providing for the award of at- is set for an interesting and lively legisla- what, if any, specific legislative matters to torneys' fees to the prevailing party in tive session within the House of Represen- support or oppose. Only those matters on civil actions and providing criteria and tatives. In the Senate, the Democrats re- which the Bar Commission takes action exceptions. jected longtime Minority Leader Rex can be represented to the Legislature as H.B. 2 Foreign Judgments Act Black in favor of Utah County Legislator the official position of the Utah State Bar. Amendment--larifying filing proce- Eldon Money. Although the Democrats While individuals and sections are cer- dures for foreign judgments. picked up seats in both the Senate and the tainly free to voice individual opinion, H.B. 7 Right of Legal Action- House, the Republicans stil retain a clear care must be taken to avoid a perception amending the definition of heir and a majority. that such views represent an official posi- reference to injury as applicable to re- Of significance to members of the Bar tion of the Bar. covery in wrongful death actions. is the loss of a number of lawyer legisla- As to substantive matters of relevance S.B. 10 Utah Shoplifting Law tors. Gone are longtime lawyer Senators to attorneys, there wil likely be a host of Amendments-amending provisions Lorin Pace, Kay Cornaby and Richard bils that wil bear watching as they relate for awarding exemplary damages in Carling. The House of Representatives to various practice specialties. Practicing civil shoplifting cases. also lost some lawyer-legislators and most attorneys who neglect client interest at the H.B. 15 Public School Trust Lands

December 1990 23 Task Force-providing for a task force on . public school trust lands. S.B. 11 Division of Water Rights WHT is ATTORNEYS' TITLE Amendments-amending the powers mr and duties of the State Engineer. GUAR FUN, INC_ at-toroney' ti-tle In addition to the aforementioned bils n. 1. a. A t1e copa crted by the membe of the Uta Ba which were pre-filed at this writing, there Asiation (Bar-RelatedlB) to asist real estate attorney b. A title company that alows attorney to eai money from title are a number of other important matters of Inurance (up to 70% of the Utle preum) 2. A title company which the practicing attorney should be owned by attorneys. and opeated for attorneys 3. A Utle aware. company which provdes attorney: a. Rearh and Litigation Significant legislation wil be intro- inormation b. Foreclosure inormation c. Banptcy duced to comply with the Supreme Court inormtion d. Mechancs Lien inormtion e. Judgement Inormation and f. ntle Inormtion 4. A title company IIII directive in Amax Magnesium Corp. v. dedIcated to preservg and promoti the attorney's role in Utah State Tax Commission. Business and re este with a Reto b. Leer c. Co industry wil be watching such legislation d. Attorney. very carefully respecting its implications IIIII and impacts. FOR MORE INFORMTION In the environmental arena, legislation CA ImDl 328-8229 wil likely be introduced to create a new State Department of Environmental Quali- ty. Environmental legislation has been Ats'Tr More thJust a ti oo 1 common in the last few years, and this initiative promises to be a significant . . point of discussion in January and Febru- ary. Lawyers practicing in the area of work- men's compensation can expect a number of bils to surface during the session, some of which have already been pre-fied. In addition to the attorneys' fees bil in- dicated above, the Interim Judiciary Com- There's an mittee has been considering a number of epidemic with issues dealing with alternative dispute res- 27 million victims. olution, paralegals, document facsimiles, statute of repose, pre-emptory challenges And no visible of judges, and cour structure and jurisdic- symptoms. tion. Additionally, significant legislation êê wil be introduced dealing with corpora- tions. While the above list is by no means ex- A Lawyers haustive, it is ilustrative of the kinds of It's an epidemic of people who can't read. Professional issues that wil likely be presented and Believe it or not, 27 million dealt with in the general session which be- Americans are functionally Liability program gins in January 1991. illiterate, about one adult in five. The Legislative Affairs Committee and The solution to this problem . . . sponsored by the Bar Legislative Representative desire is you...when you join the an open dialogue with members of the Bar fight against illiteracy. So call the the Utah State Bar concerned about any piece of legislation. Coalition for Literacy at toll-free All should feel free to contact a member 1-800-228-8813 and volu nteer. of the Committee or the Bar Legislative Representative, John T. Nielsen, for infor- Volunteer mation, legislative updates or assistance. Against Illteracy. The only degree you need is a degree of caring. ~WNS ßUßDICI HUN,TER

2180 South 1300 East, Suite 500 ~: 0 Salt Lake City, Utah 84106/(801) 488-25 ~~ Cllition for Literacy

24 Vol. 4 No. 1 THE BARRISTER Diversity in the Legal Profession NEW COMMITTEE FOR LA WYERS

By Charlotte L. Miler President Elect

how to interact with and effectively man- versity. The Committee is chaired by Ken In thepected year to 2000,own 37 women percent are of ex- all age a more diverse workforce. Managers Wallentine, a 1990 graduate of the J. Re- United States companies.' Today women are encouraged to expand their focus from uben Clark Law School, who currently is a are starting new businesses at a rate of assimilating women and minorities into a law clerk for the Hon. Gregory K. Orme at five times that of men.2 Attorneys (who dominant white male culture, to creating a the Utah Court of Appeals. Ken has writ- are quickly learning that marketing is part heterogeneous culture that fosters full par- ten a variety of articles on the current state of their job description) wil be competing ticipation by all individuals.' Employers of the law as it affects employees and was for the work of these women-owned busi- view this training as an economic and helpful in instituting a new class at the J. nesses. business necessity rather than a legal re- Reuben Clark Law School: Gender and Recently, the following conversations sponsibility because a substantial majôrity the Law. Ken and I first began discussing were related to me as occurring in work- of the people joining the labor force by the the problems of men and women working places in Salt Lake City: year 2000 will be people of color and together in the legal profession when, at . A male attorney advised a female at- women. Managers who have learned only his request, I served on a panel at the J. torney that women attorneys should how to manage a homogeneous, white Reuben Clark Law SchooL The panel ad- not be litigators because it makes them male work force may not know how to dressed issues of how men and women unappealing to men, and women don't encourage productivity and enthusiasm in work together in the legal profession and have the mental strength for the job. a diverse work force; therefore, unless the allowed law students and teachers to talk . One attorney advised another that he managers are retrained, the employer may openly about the problems they had deal- should slap his wife around once in a suffer economic consequences. ing with the other gender in the work while to make sure she knows who is In the legal profession, the challenge of force. Many questions were left unan- in charge. working productively and harmoniously in swered and the problems were not solved, . A male attorney joking about rape said a diverse work force is not a challenge to but people began to understand that prob- that he didn't see the problem and be faced solely by women but by every- lems exist. Ken and I hope the Diversity in would invite such an assault. one. Often, we have neglected to include the Legal Profession Committee wil be a . An attorney said that women entering men in the process of trying to create a forum for aggressively solving some of the legal profession are dangerous to more harmonious environment in the the problems. families because the women present a workplace. We create groups made up of The Committee has three principle ob- temptation to male attorneys. women (groups which are needed) to talk jectives. First, the Committee seeks to ed- Attorneys with the above attitudes about the problems of the workplace, but a ucate and stimulate discussion of gender probably wil have difficulty attracting significant portion of the work force is and minority issues in order to increase and keeping as clients businesses owned never a part of these conversations. This awareness and sensitivity both for attor- and operated by women. Cutting off such separation may result in some "us" versus neys and the public. Second, the Commit- a substantial portion of the business com- "them" attitudes. On the refrigerator in my tee reaches out to assist law schools in fur- munity would be devastating to one's own house I used to have a cover from an ther diversifying the profession. Third, the practice. Beware if you think only "older" ABA Journal titled "I Don't Think That Committee acts to respond to certain rec- attorneys are at risk. Even the most Ladies Should Be Lawyers," and next to it ommendations of the Gender and Justice reform- minded "young" lawyer has re- was a poster that stated, "If They Can Task Force, directly involving young law- ceived litte education about understand- Send One Man to the Moon, Why Not All yers in confronting the system, through ar- ing the diverse world in which we live. of Them." Fortunately, both have been re- eas such as legal facets of domestic vio- Also, beware if you think you are unaf- placed by my children's artwork. lence and gender bias in the practice of fected because your practice does not The Young Lawyers Section has created law. have clients in the traditional sense. Gov- the Diversity in the Legal Profession We invite all lawyers to participate in ernment attorneys and corporate counsel Committee in an effort to improve all at- these endeavors by giving their ideas and wil be seeing more financial officers, torneys' understanding of the diverse support to the Committee. Please call Ken judges, witnesses, politicians, police offc- world in which we live, and the diversity Wallentine at 533-6800 for more informa- ers, etc., who happen to be women. that we wil be seeing more of in our client tion. Businesses have started teaching their 'The Wall Slreet Journal, October 17, 1990, by Jeanne Sadler. base. The Committee will address racial 'Executive Female, March-April. 1987. p. 8 "Progress Report on Women in the managers, who tend to be white males, Workplace." and ethnic diversity as well as gender di- lPair Employment Practices, December 8, 1988, "The Dynamics of Diversity: Man- aging the Work Force of the Future." December 1990 25 Thanks to Volunteer Litigation Teamwork Pro Bono Day Seminar Sponsored and Instructors at People's The Young Lawyers Section of the Utah Law Seminars Taught by Young Lawyers State Bar is providing the services of LEXIS/NEXIS, at no charge, in connec- The Law Related Education Committee tion with pro bono cases and projects. The Young Lawyers Section Law Related and the Legal Assistants Association of This service is available to all members of Education Committee has recently com- Utah co-sponsored a CLE seminar on No- the Bar and wil continue to be available pleted it~ presentations of "People's Law vember 9, 1990, at the Law and Justice the last Friday of each month (January 25, Seminars" at Bryant Intermediate School Center. The seminar was called, "Team- 1991, and February 22, 1991). in Salt Lake City and Tyler Librar in work: Litigation, Lawyers & Legal Assis- All attorneys doing pro bono projects Midvale. Volunteers from the Young tants." The Hon. David Sam briefly intro- are invited to the Mead Data Central train- Lawyers Section presented seminars to the duced the seminar on the newest tech- ing center at 47 W. 200 S., Suite 300, public on the following topics: niques for managing an effective litiga- American Plaza II, Salt Lake City. Finding Your Way Through the Legal tion. Kevin Anderson, Gordon Jensen and For additional information, please con- System Toni Sutliff, all members of the Young tact John Bowler at 355-8651. What About the Fine Print of Consumer Lawyers Section, made presentations. Rights? You Can't Take It With You, or Can You? If( A You Do Not Have to Hold Your Nose and Jump (Legal Aspects of Staring a Business) The Cold War is Alive and Well in the '90s: Landlord-Tenant Law Holy Wedlock or Holy Deadlock?- Divorce and Child Custody

The following volunteer instructors are recognized and appreciated for their pro bono educational efforts: Mark M. Bettily- on, Mark R. Gaylord, H. Michael Drake, Shawn McGarry, James C. Hyde, R. Bret Jenkins, Noland Taylor, Gary R. Henrie, Mark S. Webber, Lawrence R. Dingivan, Elizabeth Dalton and Helen Christian. A CLJE at SJEA Brown Bagger with Judge Sam Stuart Parks Forensic' Consultants offer a seminar on VEHICULAR ACCIDENT

The Honorable Judge David Sam wil ad- RECONSTRUCTION dress the Young Lawyers Section of the Aboard the Holland America ship ms Noordam, cruising the inside Utah State Bar as the kick-off speaker for the 1991 Brown Bag Lecture Series on passage of Alaska from June 13 to June 20, 1991. 13 CLE credits January 24, 1991, at 12:00 noon in his granted from Idaho, Washington, Oregon, Montana and Utah. courtroom, Federal Courthouse-350 S. Also offered is a special "Learn to Draw" Main. The topic of Judge Sam's presenta- tion wil be "The Moral Ethic and Effec- class for spouses and children. tive Litigation." Hurry, space is limited! Judge Sam has been a distinguished Discounts for early boolúng from Stuart Parl~s Forensics and member of the federal judiciary since No- vemberi1985, and in that capacity, he has Holland America Cruise Lines. been appointed by United States Supreme Court Chief Justice Rehnquist to serve as For more information: a member of the Codes of Conduct Com- mittee of the Judicial Conference. His ex- Time to Travel periences in private practice and on the (cruise information) Stuart Parks Forensics bench offer an enlightening perspective on P.O. Box 1210 P.O. Box 10 professionalism. ' Wallace, idaho 83873 Cataldo, Idaho 83810.1010 Attendees wil receive one CLE credit. (208) 556.1176 (208) 682.2831 (208)682.4564 All are invited to attend. Alt:. Evelyn Fax (208) 682.4773

26 Vol. 4 No.1 -

UT AH BAR FOUNDATION

1990 Utah Bar Foundation Grant Recipients

The Utah Bar Foundation received an- Legal Aid Society of Salt Lake (LAS) help provide funds to provide Immigration other outstanding collection of grant ap- received a grant for $40,000. LAS is a services and to publish the Landlord/ Ten- plications in the 1990 grant cycle. All non-profit corporation which provides le- ant handbook. grant applicants seeking review for the gal counsel to indigent members of the Utah Judicial Council received a grant 1991 cycle must submit their applications community who, by reason of their pover- for $7,483 to be used in the production of to the Foundation on or before May 31, ty, are unable to employ an attorney to "Doing Utah Justice" or "The Utah Courts 1991. Grant applications are available at assist them. LAS does not accept cases System; What You Don't Know Could the Bar Foundation's office in the Law and that are criminal in nature or any cases Hurt You" video. The goals of the video Justice Center. In 1990, $202,328 were that are potentially revenue producing, would be to dispel the most serious mis- distributed in grants to the following pro- and emphasizes representation in domes- conceptions about the State courts system grams: tic relations law. The vast majority of revealed by the surveys, and to give a American Inns of Court received LAS clients are women with dependent clear and simple outline of how the system $300 per Inn. There are currently three children. works, and how citizens can most easily Inns in the State of Utah. The Inns are Young Lawyer's Section of the Utah gain entry when they nèed to. Finally, the roughly modeled on the English Inn sys- State Bar received a grant for $10,000 to video would highlight the most important tem and allow law students, lawyers and be used in funding the In-School Bil of issues facing the court system in the fu- judges to discuss and learn about various Rights Forum Program. This program wil ture, such as the degree to which the ad- legal topics. Utah is also the home to the focus on junior high and high school stu- versary system is outmoded, and ways in first American Inn which was set up in dents and wil explain how the Bil of which the system might be transformed by Provo by then Chief Justice Warren Rights affects students in their daily lives. new technology. Burger, Rex Lee and Hon. A. Sherman Legal Center for People with Disabil- National Pro-Bono Conference held Christensen. ities received a grant for $12,000. The Le- its annual meeting in Snowbird, Utah, this Law Related Education (LRE) was gal Center's mission is to protect the legal, year and the Foundation provided $500 to the recipient of $28,600. IOL T A funds civil and human rights of Utahns with dis- help host a reception on behalf of the at- were awarded to help LRE provide such abilities. IOLTA funds have been used to .torneys of Utah for the conference partici- programs as the Conflict Management help partially finance the Legal Center's pants. Program and "Teaching Legal Concepts in office in Price, Utah, which provides es- Emergency Grants were also provided the Public Schools" program. The Con- sential services to Southeastern Utah. to Law Related Education in the amount flct Management Program goes into the Utah Law and Justice Center re- of $15,000 and to Legal Services for the public schools and teaches children how ceived a grant for $20,845 to be used to Poor in the amount of $15,000 to help to talk through conflicts instead of turn- offset costs in making the Center available these two programs remain in operation ing immediately to violence. "Teaching for arbitration and mediation. until the 1990 grants were disbursed. Legal Concepts in the Public Schools" Utah Legal Services received a grant The Foundation would encourage all in- programs provides a team of law students for $30,000 to provide for a Paralegal in terested parties or organizations to please to teach high school students about differ- Southeastern Utah who serves low- submit applications for the 1991 grant cy- ent aspects of the law. LRE also has de- income persons living in Carbon, Emery cle before May 31, 1991. veloped or expanded the Court Tour Pro- and Grand counties. The paralegal has as- gram, Juvenile Justice and Delinquency sisted clients with public entitlement, con- Prevention Program, Law Day, Statewide sumer, housing and family law matters. Mock Trial Competition, Summer The IOL T A funds were also provided for Teacher Training Institute, and Teaching a one-time computerization which is an- About the Bil of Rights Through Lan- ticipated to cut down on travel and long- guage and Arts to name a few of their distance phone calls and to connect the programs. Southeastern Utah office with the ULS main computer system. IOL T A funds also

~ 27 ." , CLE,, CALENDA'R -., ' .

NOTICE - January is DISCOUNT industry and address this unprecedented BASIC EST A TE AND GIFT VIDEO MONTH. All during January, situation. These issues wil be approached TAXATION AND PLANNING Utah State Bar CLE Videotapes will rent from a multitude of perspectives, so any This program is the annual presentation for $10 per week. This is a $20 SAVINGS lawyers involved in this type of work prepared by ALI-ABA. Park City was off of the regular rental price. Don't miss would find this program interesting and chosen as this year's site and the Utah this opportunity to obtain CLE credit at helpfuL. State Bar will be co-sponsoring this semi- such reduced prices. Contact Toby or CLE Credit: 6.5 hours nar. This basic three-day program wil set Monica at the Bar office for a list of vid- DATE: January 22, 1991 forth the law and planning as conceived in eotapes. Regular deposits and late fees ap- PLACE: Utah Law and Justice Center the Tax Reform Act of 1976 and modified ply. FEE: $165 (plus $9.75 MCLE fee) by subsequent legislation. It wil appeal to Also, for those Family Law and Tax TIME: 8:00 a.m. to 3:00 p.m. lawyers with no background in this subject practitioners who missed the October 26, as well as to those who feel the need to 1990, seminar, "Retirement Equity Act: relearn the law from the ground up. A Divorce Taxation and Pensions," there are WORDPERFECT UPDATE small faculty of active practitioners will extra materials sets for sale. These 250- A live via satellite program. This year's concentrate on setting forth the basic law page sets are designed to explain the use program explores the new opportunities and presenting the working concepts and of Qualified Domestic Relations Orders the most recent release of WordPerfect 5 planning suggestions that permit the regis- (QDRO) and the income tax results of offers lawyers and their staffs. The course trant to move forward at his or her own payment under a QDRO. This set usually includes a demonstration of the Generic pace to more sophisticated estate planning. sells for $135 to $140. While they last, Law Practice System and how you can use CLE Credit: 20 hours (with 1 in ethics) they are available for the low price of $75. it to automate routine legal tasks such as DATE: February 13-15, 1991 This highly useful set includes an update collections, estate administrations and cor- PLACE: Park City, Olympia Hotel to cover recent changes. To purchase this porate functions. Document assembly FEE: $485 plus mandatory CLE set, contact Toby or Monica at (801) 531- demonstrations will challenge you with all fee: $15 9095. new ways to create a lawyer-driven, two- TIME: 9:00 a.m. to 5:00 p.m., fingered interrogatory builder plus a so- February 13-14 POLLUTION LIABILITY phisticated deed creation system. You wil 8:00 a.m. to 4:00 p.m., A live via satellite seminar. For this pick up important, late-breaking facts February 15 seminar the federal environmental laws about subjects designed to help chart your (CERCLA, RCRA, SARA and UST) that firm's future automation course. create the obligation to pay will be re- CLE Credit: NONE FUNDAMENTALS OF viewed, including the duties, remedies, re- DATE: January 29,1991 REAL ESTATE TAXATION sponses, causes of action and what is new. PLACE: Utah Law and Justice Center A live via satellite program. This semi- A considerable amount of time wil be de- FEE: $165 nar examines four topics of great interest voted to the CGL policy-what triggers it, TIME: 8:00 a.m. to 3:00 p.m. to practitioners in the real estate industry: cleanup costs, the duty to defend, dec ac- Choice of Entity, Limitations on Losses, tions, reservations and exclusions, de- Like-Kind Exchanges and Troubled Real fenses and drafting history. The Property DEVELOPMENTS AND CURRENT Estate. The goal of the program is to alert Policy, the Environmental Impairment Li- STRATEGIES TO LIMIT practitioners to the opportunities and pit- abilty Policy, the Excess Umbrella and LENDER LIABILITY falls confronting the real estate investor or Reinsurance Policies will also be exam- A live via satellite seminar. This pro- developer. The program wil also review ined in detaiL. gram will review recent legislative and ju- current and important developments in CLE Credit: 4 hours dicial developments of lender liabilty real estate taxation. t' DATE: January 17, 1991 with a special emphasis on loan workouts, CLE Credit: 4 hours PLACE: Utah Law and Justice Center bankruptcies and environmental issues af- DATE: February 14, 1991 FEE: $l40 (plus $6 MCLE fee) fecting real estate transactions. The faculty PLACE: Utah Law and Justice Center TIME: 10:00 a.m. to 2:00 p.m. wil offer practical suggestions on loan FEE: $140 (plus $6 MCLE fee) documentation and loan administration TIME: lO:OO a.m. to 2:00 p.m. practices that minimize lender liability risk THE S & L CRISIS- and avoid litigation. Attention wil also be HOW LA WYERS CAN HELP given to lenders' potential liability to third ENVIRONMENTAL SCIENCES A live via satellte program. This semi- parties and lender liability problems issues FOR LAWYERS nar will focus on the legal issues involved which may be encountered during the ad- SEMINAR SERIES in the failure of S&Ls, pro active advice, ministration of a loan workout. Lawyers practicing in the field of envi- investigation and preparation for litigation CLE Credit: 4 hours ronmental law face an increasingly com- related to, and arising from, the failure, DATE: January 3l, 1991 plex array of technical and scientific is- analysis of claims against and transactions PLACE: Utah Law and Justice Center sues. In order to advise clients and inter- involving a failed S&L and an overview of FEE: $140 (plus $6 MCLE fee) face with technical consultants, lawyers legislative initiatives which wil affect the TIME: 10:00 a.m. to 2:00 p.m. need to be educated about these issues.

28 Vol. 4 No.1 The seven sessions wil focus on the ba- sics of seven different environmental sci- SECTIONS' CLE LUNCHEONS ences. With emphasis on scientific princi- ples, rather than environmental law, scien- Listed below are luncheons put on by Bar Sections which wil qualify for CLE credit. tific and technical information wil be pre- Not all sections plan their meetings far enough in advance to make this calendar, so sented in the context of legal issues related watch for section mailngs on those and other programs. Typically these meetings qual- to contaminated sites and regulatory com- ify for ONE HOUR of CLE credit and attendance is for cost of lunch only (lunch need pliance. This seminar series is intended for not be purchased). To register for these luncheon CLEs, call the Utah State Bar Reserva- all enviromental, real estate, corporate, tions desk at 531-9095 at least one week prior to the date of the program. Dates and trial and other lawyers and environmental topics listed are subject to change. professionals. DATE TITLE CREDIT CLE Credit: 14 hours DATES: February 12, 19,28; Banking & Finance Section March 5, 12, 19; April Jan. 17 FDIC, RTC and OTS after FIREA 2 hours 2,1991 Feb. 21 Sex, Fraud and Data Processing Tapes 1 hour PLACE: Utah Law & Justice Center FEE: $140 ($130 for Education Law Section Energy...Section members) Feb. 8 The Americans with Disabilities Act 1 hour TIME: 4:00 to 6:00 p.m. each evening Family Law Section-Upcoming Topics: Rule 4-501-"The Domestic Stepchild" 1 hour Ethical Considerations 1 hour

INSURANCE LITIGATION Tax Section DEFENSE STRATEGIES Jan. 30 Divorce Taxation 1 hour AND INNOVATIONS Feb. 27 Creative Chartable Gifting Strategies 1 hour A live via satellite program. More infor- March 27 How to Succeed in Dealing with the IRS 1 hour mation wil be forthcoming at a later date. April 24 Utah Legislative Update 1 hour CLE Credit: 6.5 hours May 29 Utah State Tax Issues 1 hour DATE: February 26, 1991 PLACE: Utah Law and Justice Cen- ter FEE: $165 (plus $9.75 MCLE fee) 1------I TIME: 8:00 a.m. to 3:00 p.m. CLE REGISTRATION FORM TITLE OF PROGRAM FEE THE USE, OVERUSE AND 1. ABUSE OF EXPERT WITNESSES 2. A live via satellte program. More infor- mation will be forthcoming at a later date. CLE Credit: 6.5 hours Make all checks payable to the Utah State Bar/CLE Total Due DATE: February 27, 1991 PLACE: Utah Law and Justice Cen- ter Name Phone FEE: $175 (plus $9.75 MCLE fee) Address City, State, ZIP TIME: 8:00 a.m. to 3:00 p.m.

Bar Number American Express/MasterCardNISA Exp. Date CORPORATE MERGERS AND ACQUISITIONS Signature This is another ALI-ABA annual pro- Please send in your registration with payment to: Utah State Bar, CLE Department, gram. It was held in Park City last year 645 S. 200 E., Salt Lake City, Utah 84111. and was such a success that it is being held The Bar and the Continuing Legal Education Department are working with Sections here again in 1991. Further details on this to provide a full complement of live seminars in 1990 and 1991. Watch for future program wil be published as they are mailings, available. Registration and Cancellation Policies: Please register in advance. Those who register DATE: March 14 and 15, 1991 at the door are welcome but cannot always be guaranteed entrance or materials on the seminar day. If you cannot attend a seminar for which you have registered, please PLACE: Park City, Olympia Hotel contact the Bar as far in advance as possible. No refunds wil be made for live programs unless notification of cancellation is received at least 48 hours in advance. NOTE: It is the responsibilty of each attorney to maintain records of his or her attendance at seminars for purposes of the 2-year CLE reporting period required by the L Utah Mandatory CL~oaro~ ______~

December 1990 29 CLASSIFIED ADS - ,

For information regarding classified ad- civil and domestic relations law as would POSITION SOUGHT vertising, please contact Kelli Suitter at be expected in a rural practice. Non- 1988 MBA/JD UNIVERSITY OF 531-9095. compensated fringe, the greatest outdoors UTAH GRADUATE with two years Com- you should ever hope to live in. Base sal- modities and Securities experience as a ary and fringe commensurate with experi- Federal Trial Attorney. Member of Utah BOOKS FOR SALE ence. Send resume as soon as possible to and California State Bars. For additional United States Code Annotated; ALR Utah State Bar, Box M, 645 S. 200 E., Salt information, send request to Utah State Federal Vol. l-71; ALR 1 st and ALR 2nd; Lake City, UT 8411 1. Bar, Box J, 645 S. 200 E., Salt Lake City, CCH U.S. Tax Cases Vol. 1-71, Bound UT 84111. Volumes through 1987; CCH Tax Court ASSISTANT OR SENIOR CITY AT- Memorandum Decisions, Bound Volumes TORNEY for Salt Lake City Corporation. AMBITIOUS MEMBER of Utah, New through January 1988; CCH Employment Represent city in civil matters including Hampshire and Maine Bars with primary Practice Decisions, Bound Volumes construction, tort, and civil rights litiga- experience in litigation seeking full-time through 1980. Please contact Tamie or Jim tion; prepare ordinances, resolutions, con- position or affiliation. Wide variety of ex- at (801) 328-8987. tracts, leases and memoranda; represent perience. Excellent verbal and writing the mayor, city council, department heads skills. Contact Mark W. Baer at 1682 Yale OFFICE FURNITURE FOR SALE and other employees. Consideration wil Avenue, Salt Lake City, UT 84105 or call Oak Conference Table with eight chairs be given to applicants with experience in (801) 583-4655. (light gray tweed), excellent condition. specialized areas of municipal law includ- $1,800. Call Paul at (801) 263-5555. ing water rights, governmental immunity, planning and zoning and related fields. OFFICE SPACE AVAILABLE Must be a member in good standing SMALL A V rated law firm engaged in with the Utah State Bar. Minimum of six business practice seeks one or two attor- years of full-time paid employment in the neys to share downtown office space. practice of law. Substantial court experi- YOU CAN GIVE YOURSELF Preference is attorney specializing in ence preferred. Beginning salary range de- bankruptcy or litigation. Reply to Utah pendent upon qualifications-$26,592 to A HEART ATTACK. State Bar, Box H, 645 S. 200 E., Salt Lake $45,732 with excellent benefits program. BUT TRY GIVING YOURSELF CPR. City, UT 84111. Submit applications to Salt Lake City Department of Human Resources, 451 S. LAW OFFICE sharing in downtown State Street, Fourth Floor, Salt Lake City, Salt Lake City law firm. Facilities include: UT 841 1 1. For additional information, shared secretarial and word processing, of- contact Steven W. Allred, Deputy City At- fice equipment, furniture, common area. torney. (801) 535-7788. Excellent location. Call (801) 521- 8288. THE UNITED STATES COURT OF PRIME OFFICE SPACE FOR SUB- APPEALS for the Tenth Circuit in Den- LEASE. 4,000 to 6,226-square-foot Pent- ver, Colorado, seeks an attorney to estab- house suite formerly occupied by Sessions lish and direct an appellate settlement con- and Moore. Upgraded wall coverings, ference program. Applicants must have millwork and built-in furnishings. Covered knowledge of federal civil practice and parking. Call Geoffrey Smart at (801) 355- procedures, litigation experience, and 5100. must present evidence of exceptional apti- Your heart suddenly gives out. You have no tude and skils for problem solving and pulse. You can no longer breathe. POSITIONS A V AILABLE Even if you know CPR, there's one person consensus building. Mediation or negotia- you can't give it to. Yourself. NINE LAWYER FIRM with estab- tion training and administrative experience This man got help from someonc at work lished commercial practice seeks diversifi- are preferred. United States citizenship, who learned CPR at the Red Cross. They got cation through additional 1 to 3 person liti- graduation from an accredited law school, help from thc United Way. Thank God the gation, bankruptcy, family law or other and Bar admission are required. The salary United Way got help from you. Your single contribution helps provide ther- compatible practice group. Will consider range is currently $59,216 to $76,982 per apy for a handicapped child, a warm coat for a full integration into the firm, of counsel, or year. Application may be made by send- homeless man, counseling for a rape victim, other arrangement. Excellent downtown ing: 1. current resume and, 2. information job training for a former drug abuser. facilities. Reply to Utah State Bar, Box K, relating to applicant's interest and success- Or, in this case, CPR training for this man's 645 S. 200 E., Salt Lake City, UT 84111. co-workers. Otherwise, he might ~ ful experience in mediation to: John K. have ended up somewhere other . ~ Kleinheksel, Chief Staff Counsel, 1929 than a hospitaL. UnltedWBy GENERAL PRACTICE ATTORNEY. Stout Street, Drawer 3588, Denver, CO Rural law practice needs associate with 80294. (303) 844-5306. The Court is an some litigation experience. Base practice active equal opportunity employer. Open with personal injury and criminal law as until filed. specialties. Need basic understanding of

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