Searle v. Milburn Irrigation Co., 2006 UT 16

Summary

The Utah Supreme Court addresses the standards and burdens applicable to an application to change the point of diversion, place of use, and nature of use of a water right. It holds that the applicant bears the burden of persuasion throughout the process but need only show reason to believe that the proposed change will not impair vested water rights. The court also concludes that direct or circumstantial evidence may undermine that showing and remands for further proceedings.

Holdings

1. A change applicant need only show that there is sufficient evidence to support a reasonable belief that the proposed change can be perfected without impairing vested water rights; the preponderance-of-the-evidence standard applies to final adjudications of water rights, not to the application phase.
2. The burden of persuasion remains on the change applicant throughout the application process; it does not shift to the protesting party after the applicant makes a prima facie showing.
3. A protestant may rely on circumstantial evidence to undermine an applicant's showing that the proposed change will not impair vested rights. Circumstantial evidence may justify denial when it is sufficiently compelling to make the applicant's asserted reasonable belief unreasonable.
4. A district court's determination concerning whether evidence sufficiently demonstrates probable impairment is a mixed question of law and fact subject to significant, though not broad, deference.

Questions Presented

1. What standard of proof governs a water-right change application when determining whether the proposed change will impair vested rights?
2. Whether the burden of persuasion shifts to a protestant after the applicant makes a prima facie showing of no impairment.
3. Whether circumstantial evidence showing a probability of impairment may undermine an applicant's showing and justify rejection of a change application.
4. What standard of appellate review applies to the district court's determination that a proposed water-use change may impair vested rights?

Disposition

remanded