DIVERSION CHANGE FROM SANDY UPHILL TO ALBION BASIN .
We won the case against the State Engineer’s decision to change a point of diversion from Sandy uphill to Albion Basin! Judge Stone overturned the State Engineers approval and the point of diversion will not be transferred to Albion Basin – a huge win for us, the Central Wasatch, and West. Judge Stone issued a noteworthy, well-reasoned opinion granting our motion to dismiss all of the defendants’ counter-claims and more importantly, he granted the most important motion for summary judgment. That is, the defendants, Haik and the Raty Trust forfeited any claim on their water rights for failure to apply said water to beneficial use. We joined suit with the other plaintiffs in the case: Salt Lake City, Metropolitan Water District of salt Lake and Sandy, and Sandy City. We began fighting this case in February 2014. Please take a moment to celebrate this win with us!
To view the Haik decision from the Supreme Court of Utah:
TRANSFERRING WATER RIGHTS SANDY UPSTREAM TO ALBION BASIN.
Last February, FOA filed a complaint against the State Engineer after he granted a permit application to transfer water rights from Sandy, upstream to privately owned undeveloped dry lots in Albion Basin. If left unchallenged, this decision provides incentive and a means for owners of undeveloped parcels to comply with building permit requirements previously unmet in Albion Basin. We see this decision as the tipping point for development of Albion Basin. So this fiscal year, the FOA Board is investing significant funds, up to $40,000 to pursue this effort. Seen as absolutely critical to our mission, we need to cover this increase to our annual budget. We ask that you consider a donation TODAY to support Friends of Alta and our actions against the State Engineer. Below, is a bit more detail about our complaint.
This past spring, FOA’s complaint was consolidated with the complaint filed by SLC Department of Public Utilities – the consolidation has been favorable for FOA. In October during a hearing before Judge Stone the State Engineer’s motion to bifurcate the litigation into two matters was successful. This means that Judge Stone will first decide who actually owns the water right allegedly being transferred upstream. Then, if warranted the following three issues would be decided. This saves FOA time and money since, if there is no ownership of the water right, then the issues described below would be moot.
FOA’s complaint has three distinguishing causes of action which are independent from the other plaintiffs. First, we claim the proposed transfer of the water diversion point will adversely impact the “in stream flow” (this is the area of a stream where important microbes in essence seal the creek so water is not lost into the ground). Several states have recognized in stream flow as a legal right associated with fee title ownership to real property. There are Utah Supreme Court cases which include “dicta” favorably commenting on in stream flow, however there are no holdings and therefore no legal precedent recognizing this right in Utah. Second, we claim a “view shed right.” That is, a right of a fee owner not to have their view interrupted or lessened by a development on their boundary. Again, other states have recognized this right – Utah has not. And third, our complaint alleges undue political pressure on the State Engineer from people associated with the governor’s office – this is the most vulnerable to dismissal, but we believe we have a reasonable chance to do some preliminary discovery before the defendants would be entitled to make a summary judgment motion. A summary judgment motion is one in which there are no factual disputes and the judge can decide the matter as a matter of law.
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