Western Water v. Olds

2008 UT 18
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Western Water, LLC, a Utah 	No. 20060527
limited liability company,
Plaintiff and Appellant,
v.
Jerry D. Olds, Utah State
Engineer and Director of the 	F I L E D
Division of Water Rights, et al.,
Defendants and Appellees. 	February 22, 2008
---
Third District, Salt Lake
The Honorable Robert K. Hilder
No. 040910869
Attorneys: 	Terry L. Hutchinson, St. George, for plaintiff
Mark L. Shurtleff, Att’y Gen., Norman K. Johnson,
Julie I. Valdes, Asst. Att’ys Gen., Salt Lake City,
for defendants Olds and Utah State Eng’r;
Heather Shilton, Asst. Att’y Gen., Salt Lake City,
for defendant Utah Div. of Parks & Recreation;
Martin B.Bushman, Asst. Att’y Gen., Salt Lake City,
for defendant Div. of Wildlife Res.;
Randy Hunter, Asst. Att’y Gen., Salt Lake City, for
defendant Utah Dep’t of Transp.;
Mark L. Shurtleff, Att’y Gen., Stephen G.Schwendiman,
Keli J. Beard, James P. Allen, Asst. Att’ys Gen.,
Salt Lake City, for defendant Utah Div. of Forestry,
Fire & State Lands;
Steven E. Clyde, Edwin C. Barnes, Wendy B. Crowther,
Salt Lake City, for defendant Cent. Utah Water
Conservancy Dist.;
David C. Wright, John H. Mabey, Jr., Salt Lake City,
for defendants E. Jordan Irrigation Co., Kennecott
Utah Copper Corp., Alpine City, Lehi City, Cedar Fort
Irrigation Co., Lehi Spring Irrigation Co., and
Pacificorp;
Jody L. Williams, Steven J. Vuyovich, Salt Lake City,
for defendants Irvine Ranch & Petroleum, Burnham Duck

No. 20060527 	2
Club, E. Fred Walters, and Lower Jordan River Water
Users Ass’n;
David B. Hartvigsen, Matthew E. Jensen, Salt Lake
City, for defendants W. Glade Berry, Bart D. Berry,
and Magna Water Co.;
Kevin R. Bennett, American Fork, for defendant
American Fork City;
Shawn E. Draney, Scott H. Martin, Salt Lake
City, for defendants Cahoon & Maxfield Irrigation
Co., Utah Lake Distrib. Co., Metro. Water Dist.
of Salt Lake & Sandy, Salt Lake City Corp., Sandy
City, and Provo River Water Users Ass’n;
Robert P. Hill, Allan T. Brinkerhoff, Reid E. Lewis,
Salt Lake City, for defendant Jordan Valley Water
Conservancy Dist.;
Joro Walker, Sean Phelan, David H. Becker,
Salt Lake City, for defendants Sierra Club, Trout
Unlimited, Utah Waters, Utah Wetlands, and Nat’l
Audubon Soc’y;
Michael M. Quealy, David Bird, Salt Lake City, for
defendants Utah & Salt Lake Canal Co. and North
Jordan Irrigation Co.;
M. Dayle Jeffs, Provo, for defendant Clinger Family
P’ship; John P. Ashton, Salt Lake City, for defendant
New State Inc.;
David L. Church, Salt Lake City, for defendant
Riverton City; Richard G. Allen, Lehi, for defendant
Saratoga Springs;
Ryan B. Carter, Roger F. Cutler, Jr., West Jordan,
for defendant City of W. Jordan;
John H. Geilmann, South Jordan, for defendant S.
Jordan City;
Glenn R. Maughan, Ogden, pro se
---
PARRISH, Justice:
INTRODUCTION
¶1 	In 2001, Western Water LLC (“Western Water”) submitted
applications to appropriate water through a plan that would
“salvage and exchange” water that was “spilling” into the Great
Salt Lake from Utah Lake and the Jordan River. 	The appropriation
request was massive. 	It covered 288,107 acre-feet of water per
year in various alternative plans to satisfy the 86,000 acre-feet
requested. 	After the State Engineer denied Western Water’s

1 An acre-foot is a volumetric measurement defined as the
water that would cover one acre one foot deep. 	Utah Code Ann.
§ 73-1-2 (2004).
3 	No. 20060527
applications in a memorandum decision, Western Water filed a
request for reconsideration. 	The request for reconsideration
presented a modified plan. 	The State Engineer took no action on
the reconsideration request, resulting in a statutory denial
after twenty days. 	See Utah Code Ann. § 63-46b-13(3)(b) (2004).
Western Water then filed suit in the district court against the
State Engineer and those who had protested its applications
(collectively, “Defendants”), seeking de novo review of the State
Engineer’s denial of the modified plan. 	The district court
dismissed Western Water’s claim for lack of subject matter
jurisdiction, finding that Western Water had failed to exhaust
its administrative remedies. 	We affirm on appeal.
BACKGROUND
¶2 	This case begins with three related water appropriation
applications filed by Western Water (collectively, the “Original
Application”) in 1999 and 2001. 	The Original Application
contained a detailed plan for salvaging water “spilling” into the
Great Salt Lake. 	The Original Application cumulatively covered
288,107 acre-feet 1 of water per year from the Utah and Salt Lake
valleys, although Western Water emphasizes that several
appropriation requests were made in the alternative and that the
actual amount of water requested was ultimately limited to 86,000
acre-feet of water per year.
¶3 	To put the immensity of this request in perspective,
288,107 acre-feet would cover 450 square miles with one foot of
water. 	This much water would cover an area the size of Utah Lake
almost three times or fill Salt Lake City with almost four and a
half feet of water. 	If all of this water were put to domestic
use, it would provide enough water to meet the needs of 2,304,856
individuals for one year, just under the population of the entire
state of Utah.
¶4 	The parties disagree regarding the size of the
appropriation requested in the Original Application. 	The
description of the plan alone required a narrative 85 pages long,
a 335-page “Statement of Facts,” and 200 pages of exhibits. 	For
this reason, the State Engineer characterized it as “gargantuan
and complex” and “grandiose and highly speculative.” 	Western
Water disagreed with the State Engineer’s characterization,

No. 20060527 	4
arguing that the Original Application covered a “medium sized
project,” because some of the application requests were in the
alternative. 	Western Water argued that although the application
covered 288,107 acre-feet of water, it sought to appropriate only
86,000 acre-feet of water. 	Regardless of whether the proposed
project was medium sized or grandiose, it is clear that the
Original Application covered an immense amount of water.
¶5 	The plan proposed by Western Water was also complex.
It involved, among other things, extensive storage, diversion,
and distribution facilities, including 65 miles of transmission
pipelines, 10 pumping stations, 27 new or expanded diversion
structures, 2 reservoirs, 127 recharge wells, and another 38
miles of pipes to facilitate underground storage. 	It also listed
over 150 separate diversion points. 	Western Water’s plan was to
“develop a conservation and storage plan that will allow for
water that ‘spills’ into the Great Salt Lake to be salvaged and
stored for new and more efficient uses in Utah and Salt Lake
counties.” 	The details of this plan are not important to our
analysis.
¶6 	The State Engineer advertised the Original Application
pursuant to Utah Code section 73-3-6(1). 	Seventy-two protests
were filed in response. 	Some of the protesters objected because
Western Water anticipated using their property without
permission. 	Many of the protesters claimed that the water in
question was already fully appropriated and that the request
could not be filled without impairing the rights of existing
users. 	Others expressed concern that the application would harm
water quality and quantity as well as the Great Salt Lake
ecosystem, endangered species, migratory birds, wildlife, and
wetland mitigation investments. 	Several municipalities protested
that Western Water did not have permission to use the municipal
facilities it described as part of its plan.
¶7 	The State Engineer held a prehearing conference on
November 15, 2001, to gather additional information, to clarify
the project, and to substantiate the applications. 	An informal
hearing was held on the Original Application in November 2002.
Following the hearing, Western Water sent the State Engineer a
letter supporting its application and suggesting that even if the
entire application could not be approved under the statutory
criteria, Western Water was entitled to have any smaller part of
the application approved.
¶8 	The State Engineer denied the Original Application
after considering protests; basin management plans for Utah, Salt

5 	No. 20060527
Lake, and Cedar valleys; relevant statutes; technical
publications; and an additional statement of facts. 	The State
Engineer justified his decision in a thoughtful memorandum,
explaining that the Original Application failed to meet all of
the requirements of Utah Code section 73-3-8. 	First, the State
Engineer explained that “all of the waters within the Utah and
Salt Lake valleys are fully appropriated by prior rights” and
that the Original Application did not provide “adequate evidence
or reason to believe that there is unappropriated water available
for these applications.” 	Second, because the Original
Application requested water in an area that was fully
appropriated, the State Engineer also concluded that “approval of
these applications would impair existing rights or interfere with
the more beneficial use of water.” 	Third, without any evidence
of contracts, permission, or support for gaining access to
facilities, lands, or customers, the State Engineer found “no
reason to believe the project as proposed is physically or
economically feasible.” 	Fourth, because of the lack of
supporting evidence contained in the Original Application, the
State Engineer concluded that Western Water had not provided
“reason to believe that the applicants have the financial ability
to complete the proposed project.” 	Fifth, the State Engineer
concluded that the Original Application was filed for speculation
or monopoly because the only proposed beneficial use for the
water was a plan to sell it to others. 	Indeed, the applicants
had “no lands, facilities, customers, or contracts.” 	Finally,
the State Engineer concluded that the Original Application would
“interfere with the beneficial use of prior appropriations,”
“adversely affect public recreation and the natural stream
environment,” and ultimately prove “detrimental to the public
welfare.”
¶9 	Western Water timely filed a request for
reconsideration, arguing that the State Engineer made “very
important errors in law and facts.” 	Rather than asking the State
Engineer to reconsider the Original Application, however, Western
Water asked that the State Engineer consider a “revised and
reduced” version of the Original Application (the “Revised
Application”). 	Arguing that the State Engineer or an applicant
may “pare down” applications to avoid infirmities, Western Water
requested that the State Engineer reconsider and approve the
Revised Application “or any smaller project down to a single
well.” 	The State Engineer took no action on the Revised
Application, thus denying it by default under Utah Code section
63-46b-13(3)(b).

No. 20060527 	6
¶10 	Western Water filed suit against Defendants, seeking de
novo judicial review of its Revised Application pursuant to Utah
Code sections 63-46b-14 to -15. 	Arguing that the Revised
Application should have been approved, Western Water claimed that
the State Engineer made factual and legal errors, improperly
applied statutory standards, and used criteria contrary to public
policy. 	Western Water also argued that it was entitled to
approval of any subset of the Revised Application that met the
criteria of Utah Code section 73-3-8.
¶11 	The district court dismissed Western Water’s complaint
on summary judgment for lack of subject matter jurisdiction. 	The
district court concluded that the Revised Application was a
“significant reformulation” of the Original Application. 	Because
the State Engineer reviews requests for reconsideration only to
see if they provide a reason to reconsider the original
application, he reviewed Western Water’s Revised Application only
to see if it provided a reason to grant its Original Application.
Thus, the State Engineer never considered the Revised Application
independently and could review the Revised Application only in
light of the Original Application. 	Accordingly, the district
court held that there was no final agency action on the Revised
Application and that Western Water had therefore failed to
exhaust administrative remedies. 	The district court dismissed
the case for lack of subject matter jurisdiction and awarded
costs to Defendants.
¶12 	In the course of motion practice prior to the summary
judgment ruling, Western Water sought to prevent late-filing
protesters and environmental protesters from remaining as parties
to the de novo proceeding. 	It also attempted to limit the issues
on which other interested parties could offer evidence. 	The
district court held that all parties were entitled to introduce
evidence to the extent that it was relevant, admissible, and not
cumulative.
¶13 	Western Water appeals these decisions. 	We have
jurisdiction pursuant to Utah Code section 78-2-2(3)(f).
STANDARD OF REVIEW
¶14 	We review the district court’s summary judgment ruling
for correctness, Wayment v. Clear Channel Broad., Inc., 2005 UT
25, ¶ 15, 116 P.3d 271, and view all facts and reasonable
inferences in favor of the nonmoving party. 	Badger v. Brooklyn
Canal Co., 966 P.2d 844, 847 (Utah 1998). 	Because, by
definition, summary judgments do not resolve factual issues, the

7 	No. 20060527
conclusions of the district court are conclusions of law that we
review for correctness. 	See Bonham v. Morgan, 788 P.2d 497, 499
(Utah 1989).
¶15 	Jurisdictional questions are likewise legal issues that
we review for correctness, affording no deference to the district
court. 	Beaver County v. Qwest, Inc., 2001 UT 81, ¶ 8, 31 P.3d
1147; see also In re Uintah Basin, 2006 UT 19, ¶ 7, 133 P.3d 410.
ANALYSIS
¶16 	We address three issues in this opinion. 	First, we
review the district court’s summary judgment order, affirming its
conclusion that it lacked subject matter jurisdiction to consider
the Revised Application because Western Water failed to exhaust
its administrative remedies. 	Because we affirm the district
court’s conclusion regarding subject matter jurisdiction, we need
not determine whether the protesters were appropriate parties to
the proceeding and what kind of evidence they could present.
Second, we affirm the district court’s award of costs to
Defendants. 	Third, because we specifically asked the parties to
address the applicability and constitutionality of Utah Code
section 73-3-15, we explain why we do not reach these issues.
I. 	THE DISTRICT COURT CORRECTLY CONCLUDED THAT IT LACKED SUBJECT
MATTER JURISDICTION BECAUSE WESTERN WATER FAILED TO EXHAUST ITS
ADMINISTRATIVE REMEDIES
¶17 	“Subject matter jurisdiction is the authority and
competency of the court to decide the case.” 	Salt Lake City v.
Ohms, 881 P.2d 844, 852 (Utah 1994) (emphasis and internal
quotations omitted). 	District courts have authority to review de
novo any final agency action resulting from an informal
administrative proceeding, including an action by the State
Engineer. 	Utah Code Ann. § 73-3-14 (1989) (allowing any person
“aggrieved” by an order of the State Engineer to obtain judicial
review under sections 63-46b-1 through -23); id. § 63-46b-14(1)
(2004) (allowing judicial review of final agency action); id.
§ 63-46b-15(1)(a) (granting district courts authority to review
by trial de novo final agency actions resulting from informal
adjudicative proceedings).
¶18 	Authority for judicial review arises only after the
parties have exhausted their administrative remedies unless an
exception applies. 	Id. § 63-46b-14(2) (“A party may seek
judicial review only after exhausting all administrative remedies
available . . . .”). 	“The basic purpose underlying the doctrine

No. 20060527 	8
of exhaustion of administrative remedies is to allow an
administrative agency to perform functions within its special
competence--to make a factual record, to apply its expertise, and
to correct its own errors so as to moot judicial controversies.”
Maverick Country Stores v. Indus. Comm’n, 860 P.2d 944, 947 (Utah
Ct. App. 1993) (internal quotations omitted). 	The exhaustion
requirement also ensures that the district court considers only
“issues subject to determination by the [State] Engineer” because
the effect of the court’s judgment “is the same as it would have
been if the Engineer had reached the same conclusion in the first
instance.” 	United States v. District Court, 238 P.2d 1132, 1137
(Utah 1951).
¶19 	In the context of water rights applications,
administrative remedies cannot be exhausted if the applicant does
not strictly comply with the statutory application process. 	See
Utah Code Ann. § 73-3-1. 	The statute unequivocally states, “No
appropriation of water may be made and no rights to the use
thereof initiated and no notice of intent to appropriate shall be
recognized except application for such appropriation first be
made to the state engineer in the manner hereinafter provided,
and not otherwise.” 	Id. 	The statute also explains that rights
to unappropriated waters “may be acquired only as provided in
this title.” 	Id.
A. 	The Application Process Is Strictly Prescribed by Statute
¶20 	The application process for appropriating water can be
conceptually divided into two steps--initiation and
consideration. 	The appropriation process is initiated by filing
an application with the State Engineer. 	Utah Code Ann.
§ 73-3-2(1) (Supp. 2007). 	The application contains basic
information about the applicant and the requested appropriation.
Id. § 73-3-2(1) to -(2). 	On receiving a completed application,
the State Engineer records the date on which he received it. 	Id.
§ 73-3-5(1). 	At this point, the State Engineer must “examine the
application and determine whether any corrections, amendments or
changes are required for clarity and if so, see that such changes
are made before further processing.” 	Id. § 73-3-5(2). 	If the
application complies with the statutory requirements, it is filed
and recorded. 	Id. § 73-3-5(3). 	So ends the initiation step.
¶21 	Once an applicant has successfully initiated an
application, the appropriation process moves into the
consideration step as the State Engineer begins the process for
making a decision on the application. 	The State Engineer must
publish a notice of the application in a local newspaper. 	Id.

9 	No. 20060527
§ 73-3-6(1)(a). 	Following publication, only “clerical errors,
ambiguities, and mistakes that do not prejudice the rights of
others may be corrected” by the State Engineer. 	Id. § 73-3-
6(1)(c). 	The purpose of publication is to allow “any person
interested [to] file a protest with the state engineer.” 	Id.
§ 73-3-7. 	The State Engineer considers these protests, among
other statutory requirements, in deciding whether to approve or
reject the application. 	Id. § 73-3-7(2); id. § 73-3-8 (outlining
standards governing State Engineer’s consideration of an
application).
¶22 	A party who fails to comply with the statutory
requirements for initiating an application for appropriation, as
set out by section 73-3-2, has failed to exhaust administrative
remedies because the application has not been considered on the
merits by the State Engineer and it has not been published in
order to notify potentially affected parties. 	Cf. id.
§ 73-3-8(1) (outlining factors necessary for the State Engineer
to approve an application); see also id. § 73-3-6 (requiring
publication of an application after it has been properly filed).
This distinction between the initiation step and the
consideration step is important in the context of a claim that an
applicant has failed to exhaust administrative remedies because
an application that has not been properly initiated, per
statutory requirements, has not been considered by the State
Engineer, and it would be inappropriate for a court to review de
novo an application that the State Engineer has not even
considered.
¶23 	In this case, Western Water failed to exhaust its
administrative remedies because the Revised Application did not
comply with the statutory requirements for initiating an
application. 	First, the Revised Application was sufficiently
different from the Original Application that it constituted a new
application. 	The State Engineer does not have authority to
“reconsider” a new application. 	Second, the new application was
submitted in an improper form.
B. 	The Revised Application Was a New Application Because It
Differed Dramatically from the Original Application
¶24 	Western Water asserts that the Revised Application was
not a new application because the modifications in the Revised
Application were “only differences of deletion and subtraction.”
It is true that some changes are permitted without republication.
For example, in Whitmore v. Welch, this court upheld the State
Engineer’s decision to allow a change in the point of return

No. 20060527 	10
without requiring republication. 	201 P.2d 954, 959-60 (Utah
1949). 	The practical effect of the change in point of return
reduced the applicant’s request for water. 	We reasoned that
because the change was a smaller subset of the original
application, the initial publication gave notice as to any amount
or distance included in the total. 	Id. at 960.
¶25 	Comparing the alteration allowed in Whitmore to the
alteration requested by Western Water demonstrates the factual
gulf between the two cases and illustrates why Whitmore is not
controlling here. 	In Whitmore, the change discussed by the court
moved the point of return 2000 feet up river so as not to impair
other rights. 	In contrast, the Revised Application reduced
Western Water’s appropriation request by almost 30,000 acre-feet
(from 86,000 acre-feet to 56,880 acre-feet of beneficial use) and
deleted pumping stations, wells, pipelines, diversions, and
storage facilities, including the Cedar Valley Storage and
Recovery System, which the Original Application defined as the
“heart” of its plan. 	Under the Revised Application, the
estimated cost changed from $100 million to $39.8 million.
Finally, Western Water did not explain how these drastic
reductions would change or affect the proposed uses to which the
water would be put, perhaps because that would call attention to
the fact that a change in purpose would require republication.
Cf. Utah Code Ann. § 73-3-6(2) (“After publication . . . the
state engineer may authorize amendments or corrections that
involve a change of point of diversion, place, or purpose of use
of water, only after republication of notice to water users.”
(emphasis added)).
¶26 	Accepting Western Water’s argument that the Revised
Application constituted a subset of the Original Application and
was therefore appropriate for reconsideration without filing a
new application would subvert the entire appropriation process.
The Original Application was vast. 	Covering 288,107 acre-feet in
various alternative plans, it requested water from virtually
every source in the Salt Lake and Utah Valley watersheds. 	Almost
any rational request would be a smaller subset of the Original
Application. 	The Revised Application was not a specific request
for water. 	It was a vague, amorphous suggestion that Western
Water would take a lesser amount of water than was requested in
the Original Application, “all the way down to a single well.”
In essence, the Revised Application asked the State Engineer to
root around for unappropriated water and then award that water to
Western Water. 	Such an approach does not fall within our
jurisprudence favoring a liberal policy toward application
approval. 	See, e.g., Searle v. Milburn Irrigation Co., 2006 UT

11 	No. 20060527
16, ¶ 38, 133 P.3d 382 (explaining that a liberal policy toward
application approval was mandated by the legislature because “the
value of allowing experimentation cannot be understated”); E.
Bench Irrigation Co. v. State, 300 P.2d 603, 605-06 (Utah 1956)
(concluding that applications to appropriate water “must be
approved if the [state] engineer finds reason to believe that
some rights under such application may be acquired without
impairing vested rights of others”). 	Holding otherwise would
shift the burden of finding unappropriated water from the parties
requesting appropriation to the State Engineer. 	Cf. Searle, 2006
UT 16, ¶ 49 (holding that in the context of a change application,
the burden of persuasion remains on the applicant throughout the
application process). 	While the law encourages experimentation
and beneficial use, it does not encourage private parties to use
the limited resources of the State Engineer to find
unappropriated water for them under the guise of the State
Engineer’s duty to approve applications if they meet the
requirements of section 73-3-8.
C. 	The State Engineer Cannot “Reconsider” a New Application
¶27 	As discussed above, there is only one way to
appropriate water in Utah. 	Title 73, chapter 3 of the Utah Code
“prescribes the exclusive manner” for initiating a right to use
water and includes “the conditions upon which such right can be
acquired[] and the procedural requirements which must be complied
with.” 	Mosby Irrigation Co. v. Criddle, 354 P.2d 848, 852 (Utah
1960) (citation omitted); Utah Code Ann. § 73-3-1 (1989) (“No
appropriation of water may be made and no rights to the use
thereof initiated and no notice of intent to appropriate shall be
recognized except application for such appropriation first be
made to the state engineer in the manner hereinafter provided,
and not otherwise.”).
¶28 	The legislature established this strict procedural
approach in order to “maintain order and efficiency in the
appropriation, distribution and conservation of water and to
allow as much water to be beneficially used as possible.” 	United
States v. District Court, 238 P.2d 1132, 1137 (Utah 1951).
Similarly, the opportunity for public involvement by filing a
protest ensures that “those who have an interest will bring to
the agency’s attention all relevant facts and considerations at
the time the agency makes its decision.” 	S&G, Inc. v. Morgan,
797 P.2d 1085, 1087 (Utah 1990) (internal quotations omitted).
For these reasons, “development of water must require strict
adherence to statutory sanctions, without delay or non-
conformance thereto.” 	Baugh v. Criddle, 431 P.2d 790, 791-92

No. 20060527 	12
(Utah 1967). 	In light of these precise procedural steps, it
makes sense that a party cannot bypass the application process by
presenting a new application disguised as a request for
reconsideration.
¶29 	A request for reconsideration is a narrow opportunity
that allows a party to seek reconsideration of an order that
would otherwise constitute final agency action by filing a
written request for reconsideration “stating the specific grounds
upon which relief is requested.” 	Utah Code Ann.
§ 63-46b-13(1)(a). 	The agency may deny or grant the request in
writing. 	Id. § 63-46b-13(3)(a). 	Alternatively, if the agency
takes no action within twenty days, “the request for
reconsideration shall be denied.” 	Id. § 63-46b-13(3)(b).
¶30 	In contrast to the complex steps for submitting an
appropriation application, the reconsideration process is an
optional, discrete step in the administrative process. 	The
reconsideration request is optional according to the plain
language of the statute. 	Section 63-46b-13(1)(b) states, “Unless
otherwise provided by statute, the filing of the request [for
reconsideration] is not a prerequisite for seeking judicial
review of the order.” 	Thus, the approval or denial of an
appropriation application may constitute a final agency action if
neither party requests reconsideration. 	Maverik Country Stores
v. Indus. Comm’n, 860 P.2d 944, 951 n.11 (Utah Ct. App. 1993)
(explaining that section 63-46b-13(1)(a) “provides a petitioner
with the option of applying to the agency for reconsideration or
appealing to the courts” (emphasis added)); see also Union Pac.
R.R. v. State Tax Comm’n, 2000 UT 40, ¶¶ 12-16, 999 P.2d 17
(finding that there may be various points of finality within an
administrative process). 	The reconsideration request is also
discrete as illustrated by the provision allowing statutory
denial after only twenty days. 	This truncated time period
illustrates that a reconsideration request is not a substitute
for the appropriation process detailed in Utah Code sections 73-
3-1 to -8. 	Consideration of a new application on a request for
reconsideration would be tantamount to allowing a party to
circumvent the clearly delineated statutory process required to
obtain water appropriation rights.
¶31 	There are limits to what the State Engineer can address
on reconsideration. 	First, the term itself dictates limitations.
Black’s Law Dictionary defines “reconsider” as a verb that means
“to discuss or take up (a matter) again.” 	Black’s Law Dictionary
1300 (8th ed. 2004) (emphasis added). 	Similarly, Webster’s
Dictionary defines reconsider to mean “to consider again, esp.

13 	No. 20060527
with intent to modify an earlier decision.” 	Webster’s II New
Riverside University Dictionary 983 (1984) (emphasis added).
Obviously, it is impossible to discuss a matter again, if it has
never been discussed in the first place. 	Accordingly, it makes
sense that a request for reconsideration is not the proper time
to raise new arguments or new issues or to present new
applications for appropriation. 	See, e.g., Toledo, Peoria & W.
Ry. v. Surface Transp. Bd., 462 F.3d 734, 753 (7th Cir. 2006)
(refusing to consider new evidence presented on a request for
reconsideration because “if a party were free to reshape its
case, so long as it did so within 20 days after a decision, the
administrative process might never end” (citation and internal
quotations omitted)); see also Save Our Springs Alliance, Inc. v.
Lazy Nine Mun. Util. Dist., 198 S.W.3d 300, 326 (Tex. App. 2006)
(“A motion for rehearing is an inappropriate time to raise new
arguments.”). 	The State Engineer cannot reexamine a claim he
never considered in the first instance. 	Thus, a new application
cannot be considered on a request for reconsideration.
¶32 	Second, the statute itself dictates limits as to what
can be considered on a request for reconsideration. 	Section
73-3-6 explains that “[c]lerical errors, ambiguities, and
mistakes that do not prejudice the rights of others may be
corrected . . . before or after publication of notice,” but any
alterations involving the “point of diversion, place or purpose
of use of water” may be changed “only after republication of
notice to water users.” 	Id. § 73-3-6 (emphasis added).
Requiring republication ensures that any party who may be
affected by the altered application has an opportunity to file a
protest. 	See, e.g., S&G, Inc., 797 P.2d at 1087. 	This concept
applies regardless of whether the application is altered before
the State Engineer originally considers it or whether the
application is altered as part of the request for
reconsideration. 	Were we to allow substantial changes to an
application on a request for reconsideration, parties whose
rights may be affected by those changes would not be on notice of
the need to file a protest, thereby subverting the appropriation
process created by the legislature. 	We therefore hold that a
party cannot substantively change an application during the
reconsideration process.
¶33 	Western Water’s Revised Application involved several
substantive changes requiring republication under section 73-3-6.
Specifically, in the Salt Lake Valley, Western Water deleted
several diversion points as well as all pumping stations and
pipelines supporting its plan to exchange pump water to west-side
Salt Lake Valley canals. 	In Utah and Cedar valleys, the Revised

No. 20060527 	14
Application deleted diversions, recharge and recovery wells, and
connecting pipelines.
¶34 	The Revised Application also contains statements
indicating that Western Water anticipates some additional changes
following approval. 	For example, Western Water suggests that in
Utah and Cedar valleys, the Revised Application would not store
water in Utah Lake, but it may divert storage water “above or
directly from the [L]ake or from the Jordan River.” 	Similarly,
the purpose of water requested in the Revised Application is
uncertain. 	For example, in Utah and Cedar valleys, irrigation
season flow in the conveyance pipeline “may be delivered directly
for outdoor irrigation use or may be recharged into the aquifer
for conversion to drinking water supplies.” 	Such equivocal
statements regarding points of diversion and purposes of use do
not comply with the republication requirements set out in section
73-3-6, indicating that such changes should not be accepted or
considered during the reconsideration process.
¶35 	Western Water argues that a request for reconsideration
allows for changes to the Original Application because it
continues the administrative process. 	While it may be true that
the State Engineer has the authority to allow parties to alter
their appropriation requests throughout the approval process,
this authority is discretionary as illustrated by the use of
“may” in both the statutory language and the administrative code.
See Utah Code Ann. § 73-3-6 (providing that mistakes that do not
prejudice the rights of others “may be corrected by order of the
State Engineer (emphasis added)); Utah Admin. Code r. 655-6-6(C)
(2007) (stating that “[t]he Presiding Officer may allow pleadings
to be amended or corrected,” and other defects not affecting
rights of others “may be disregarded” (emphasis added)). 	The
discretionary nature of a request for reconsideration is further
illustrated by the fact that the request will be statutorily
denied if the State Engineer does not take any action for twenty
days, Utah Code Ann. § 63-46b-13(3)(b), and by the fact that the
request for reconsideration “is not a prerequisite for seeking
judicial review,” id. § 63-46b-13(1)(b). 	Because the authority
to allow changes to an application during the administrative
process is discretionary and the State Engineer is not obligated
to accept those changes, Western Water’s argument that the State
Engineer had a duty to accept its amendments and hold a new
hearing, if necessary, is simply at odds with the plain statutory
language.
¶36 	In conclusion, a party cannot bypass the application
process by presenting a new application disguised as a request

15 	No. 20060527
for reconsideration. 	First, the State Engineer can reconsider
only an application that he has previously considered. 	Second,
substantive changes that would require republication under
section 73-3-6 are inappropriate for the limited review provided
during reconsideration. 	Third, the State Engineer has limited
discretion to allow minor changes to an application during
reconsideration, but this does not mean that the State Engineer
has a duty to accept changes proposed during the reconsideration
process.
D. 	Alternatively, Western Water Did Not Exhaust Administrative
Remedies Because the Revised Application Was a New Application
That Was Submitted in an Improper Form
¶37 	Alternatively, we hold that the State Engineer could
not properly consider the Revised Application independent of the
reconsideration process because it was a new application that was
not properly submitted. 	The process for appropriating water is
strictly prescribed by statute because of the premium the
legislature has placed on efficient water allocation in this arid
state. 	See Baugh v. Criddle, 431 P.2d 790, 791-92 (Utah 1967).
First, an application for appropriation must be submitted to the
State Engineer in the manner that he designates. 	Utah Code Ann.
§§ 73-3-1 to -2 (Supp. 2007). 	Among other things, the
application must include
the nature of the proposed use . . . ; the
quantity of water in acre-feet . . . ; the
time during which it is to be used each year;
. . . [the] source from which the water is to
be diverted; the place . . . where the water
is to be diverted and the nature of the
proposed diverting works; . . . [the] nature
of the proposed diverting channel; and other
facts that clearly define the full purpose of
the proposed appropriation.
Id. § 73-3-2(1)(b)(ii)-(viii).
¶38 	Western Water’s Revised Application did not satisfy
these statutory requirements because it was presented in an
improper form and did not contain the information required by
statute. 	As discussed above, the Revised Application was
sufficiently different that it constituted a new application.
However, it was not submitted “in a form prescribed by the state
engineer” for new applications. 	Id. § 73-3-2(1)(a). 	In
contrast, it was submitted as a request for reconsideration in a

2 We typically review a district court’s decision to award
costs under an abuse of discretion standard. 	Jensen v. Sawyers,
2005 UT 81, ¶ 140, 130 P.3d 325. 	Here, however, we are
confronted with the legal question of whether a district court
(continued...)
No. 20060527 	16
three-page narrative identifying the portions of the Original
Application that had been deleted.
¶39 	Moreover, the Revised Application did not clearly
define the proposed purpose of the requested appropriation, as
required by Utah Code section 73-3-2(1)(b)(ii). 	The paucity of
definable purpose in the Revised Application is illustrated by
the substantive changes it contained and the degree of
flexibility it demonstrated. 	The Revised Application contained a
plan for 56,888 acre-feet of water but requested approval of “any
smaller part” of the plan, including “any smaller project down to
a single well.” 	Surely a single well could not serve the same
purpose as a vast collection of water pipelines, storage areas,
and recovery facilities. 	This example also illustrates Western
Water’s failure to state “the quantity of water in acre-feet
. . . to be appropriated,” id. § 73-3-2(1)(b)(iii), as well as
its failure to state “other facts that clearly define the full
purpose of the proposed appropriation,” id. § 73-3-2(1)(b)(viii).
¶40 	Finally, as discussed above, the Revised Application
did not specifically define points of diversion, id.
§ 73-3-2(1)(b)(v)-(vi), or the dimensions, grade, shape, and
nature of the proposed diverting channel, id.
§ 73-3-2(1)(b)(vii). 	Thus, even if the Revised Application were
submitted as a new application, the State Engineer could not
properly consider it because it does not satisfy the statutory
requirements for initiating an application to appropriate water.
II. 	THE DISTRICT COURT PROPERLY AWARDED COSTS PURSUANT TO ITS
INHERENT JURISDICTION OVER ITS OWN PROCESS
¶41 	We next consider the district court’s order awarding
costs to Defendants pursuant to rule 54(d)(1) of the Utah Rules
of Civil Procedure. 	Western Water argues that if the district
court lacked subject matter jurisdiction to hear the case, it
likewise lacked authority to award costs. 	In support of this
contention, Western Water cites this court’s decisions in Wall v.
Dodge, 2 P. 206 (Utah 1881), and State ex rel. B.B., 2004 UT 39,
94 P.3d 252. 	We acknowledge the complexity of this issue but
ultimately affirm the district court’s award. 2

2 (...continued)
has jurisdiction pursuant to which it may exercise its
discretion. 	We afford no deference to the district court’s legal
conclusions on appellate review and accordingly review this issue
under a correctness standard. 	Beaver County v. Qwest, Inc., 2001
UT 81, ¶ 8, 31 P.3d 1147.
17 	No. 20060527
¶42 	District courts are courts of general jurisdiction.
See Utah Const. art. VIII, §§ 1, 5; Baker v. Dep’t of
Registration, 3 P.2d 1082, 1089 (Utah 1931). 	As such, they
maintain jurisdiction to consider “all matters except as limited
by” statute or constitution, according to article VIII, section 5
of the Utah Constitution. 	Under this broad jurisdictional grant,
district courts maintain a certain degree of inherent power to
properly discharge their duties. 	See Barnard v. Wassermann, 855
P.2d 243, 249 (Utah 1993) (citing In re Evans, 130 P. 217, 224-25
(Utah 1913)). 	The inherent power of the district courts allows
them to consider and make rulings on matters respecting their own
jurisdiction, such as whether the substance of a claim may be
reached, whether an issue is ripe for adjudication, or whether a
party has standing. 	See, e.g., Citizens for a Better Env’t v.
Steel Co., 230 F.3d 923, 926 (7th Cir. 2000). 	Furthermore, a
district court has inherent power “to make, modify, and enforce
rules for the regulation of the business before [it], . . . to
recall and control its process, [and] to direct and control its
officers, including attorneys and such.” 	In re Evans, 130 P. at
224; see Citizens, 230 F.3d at 926 (“Courts that lack
jurisdiction with respect to one kind of decision may have
jurisdiction with respect to another. . . . 	A court . . . always
has jurisdiction to consider its own jurisdiction.” (internal
quotations omitted)). 	We accordingly hold that even though the
district court lacked subject matter jurisdiction over the merits
of Western Water’s Revised Plan, it appropriately awarded costs
pursuant to its inherent jurisdiction over its own processes.
¶43 	This court’s constitutional authority to “promulgate
procedural and evidentiary rules” reinforces our view that
district courts possess inherent jurisdiction over their internal
processes. 	Burns v. Boyden, 2006 UT 14, ¶ 11, 133 P.3d 370; see
also Utah Const. art. VIII, § 4 (“The Supreme Court shall adopt
rules of procedure and evidence to be used in the courts of the
state . . . .”). 	And these procedural rules provide additional
support for the award of costs in this case. 	The award of costs
at issue was made under rule 54(d)(1) of the Utah Rules of Civil
Procedure, which allows for costs “as of course to the prevailing

No. 20060527 	18
party unless the court otherwise directs,” except when express
provisions in a statute or rule dictate differently. 	Admittedly,
the concept of a “prevailing party” generally connotes a party
that prevails on the merits of the underlying action.
Practically speaking, however, a party’s jurisdictional victory
may be as significant as a win on the merits because it
“materially change[s] the legal relationship” between the parties
and typically comes with all of the attendant costs. 	See, e.g.,
United States ex rel. Grynberg v. Praxair, 389 F.3d 1038, 1057
(10th Cir. 2004) (citing Citizens, 230 F.3d at 929-30).
Furthermore, rule 54(d) does not exclusively limit cost awards to
the “prevailing party.” 	Rather, the district court maintains
discretion to “otherwise direct[]” the allocation of costs. 	Utah
R. Civ. P. 54(d)(1).
¶44 	Western Water cites both Wall, 2 P. 206, and B.B., 2004
UT 39, for the assertion that cost awards are inappropriate when
a court lacks subject matter jurisdiction over the underlying
substantive matter. 	Both cases, however, are distinguishable.
¶45 	In Wall, Utah’s territorial Supreme Court stated that
“a want of jurisdiction in the lower court,” prevented that court
from “properly render[ing] judgment for costs, there being no
statute authorizing it.” 	2 P. at 207. 	The court’s concern in
Wall--that no statute authorized the award of costs--was
alleviated by the subsequent adoption of both the Utah
Constitution and the Utah Rules of Civil Procedure. 	Thus, Wall’s
holding does not apply here.
¶46 	The circumstances of B.B. also distinguish it from the
present case because the holding in that case relied on the
limited jurisdiction of juvenile courts and the lack of any
statutory basis on which the parties could invoke jurisdiction.
2004 UT 39, ¶ 19. 	In that case, the Hardingers had visitation
rights under a preadoption order, but those rights were not
memorialized in the final adoption decree issued to a second
couple, the Scotts. 	Id. ¶ 3. 	The Hardingers sought an order to
show cause, requiring that the Scotts appear in juvenile court to
explain why their violation of the preadoption visitation order
did not constitute contempt. 	Id. 	The juvenile court asserted
jurisdiction and ordered visitation pursuant to the preadoption
visitation order. 	Id. 	The court of appeals reversed, finding
that the juvenile court had no jurisdiction to hear the claim,
and we agreed. 	Id. ¶¶ 4, 12. 	Focusing on the fact that juvenile
courts have limited jurisdiction because they are creatures of
statute, id. ¶ 19, we held that an adoption decree is a final
order that alters the legal relationship between the parents, the

19 	No. 20060527
child, and the court, id. ¶¶ 14-16. 	“[O]nce the legal
relationship of parent and child is established, the juvenile
court lacks subject matter jurisdiction over the adopted child
until new requirements for jurisdiction are satisfied.” 	Id.
¶ 17. 	By operation of statute, the adoption order terminated the
jurisdiction of the juvenile court over the adopted child, id.
¶ 16; accordingly, the juvenile court lacked subject matter
jurisdiction to hear the Hardingers’ order to show cause; id.
¶ 13. 	Consistent with this analysis, we also held that the
juvenile court lacked jurisdiction to award costs. 	Id. ¶ 19.
¶47 	Our holding in B.B. is distinguishable from this case
because B.B. relied on the limited jurisdiction of juvenile
courts. 	District courts, in contrast, are courts of general
jurisdiction, with inherent authority to oversee their own
processes, even when the merits of a claim are dismissed for lack
of subject matter jurisdiction.
¶48 	In conclusion, as courts of general jurisdiction,
district courts have inherent authority to oversee their own
processes and to make procedural rules. 	This authority extends
to an award of costs.
III. 	WE NEED NOT ADDRESS THE CONSTITUTIONALITY OF THE DEADLINES
IMPOSED BY UTAH CODE SECTION 73-3-15
¶49 	In a letter dated January 22, 2007, counsel for Western
Water alerted this court to Utah Code section 73-3-15, which
states that final judgment on an informal adjudicative proceeding
before the State Engineer must be entered within three years of
the filing of the original complaint if the matter is appealed.
Otherwise, the case will be subject to dismissal. 	Utah Code Ann.
§ 73-3-15 (1989). 	Therefore, on our own motion, we asked the
parties to brief the constitutionality of section 73-3-15 out of
our concern that its strict deadline for mandatory dismissal
raised due process and separation of powers issues.
¶50 	Although we laud the legislature’s goal of encouraging
the diligent prosecution of water rights, id. § 73-3-15(1),
statutes mandating dismissal for failure to comply with strict
deadlines potentially interfere with the judiciary’s core power
to “hear and determine justiciable controversies,” Salt Lake City
v. Ohms, 881 P.2d 844, 849 (Utah 1994). 	Attendant to this core
function of adjudication is the ability of a court to set its own
calendar and control its own docket. 	See supra ¶¶ 42-43; cf. In
re Steed, 2006 UT 10, ¶ 6 n.1, 131 P.3d 231 (disregarding a
statutory provision that required the resolution of matters of

No. 20060527 	20
judicial discipline within ninety days because the provision
interfered with this court’s internal processes). 	Statutes
mandating strict deadlines for dismissal potentially interfere
with this core function.
¶51 	At the other end of the spectrum, these types of
statutes may result in due process violations if parties’ claims
are dismissed because of court processes completely beyond their
control. 	See In re Marriage of Gonzalez, 2000 UT 28, ¶ 24, 1
P.3d 1074; Provo City v. Hansen, 601 P.2d 141, 144 (Utah 1979)
(Crockett, J., concurring). 	Our concerns regarding section
73-3-15 arose because we could foresee this court being faced
with the untenable choice between ensuring the due process rights
of the parties and exercising our judicial functions without
legislative interference.
¶52 	Despite these concerns, we refrain from ruling on the
constitutionality of the mandatory deadlines imposed in section
73-3-15 for two reasons. 	First, our concerns with respect to the
statutorily mandated dismissal of this case are rendered moot
because of our decision that the district court properly
dismissed the case for lack of subject matter jurisdiction.
Second, the dismissal mandated by section 73-3-15 is predicated
on the filing of an application for dismissal by a party. 	In
this case, no party has triggered the statute by moving for
dismissal. 	We hope, however, that the articulation of these
concerns may cause the legislature to reconsider the necessity of
statutes that attempt to impose inflexible and sometimes
unrealistic deadlines on the courts. 	In our view, the
legislature’s commendable goal of expediting litigation could be
achieved on surer constitutional ground through the enactment of
statutes that subject a party to dismissal of his claims due to
his own lack of diligence, rather than on the timing of decisions
by the courts over which the party may have no control.
Alternatively, the legislature could recognize in such statutes
the discretion of the courts to consider extenuating
circumstances.
CONCLUSION
¶53 	We affirm the district court’s dismissal of Western
Water’s complaint for lack of subject matter jurisdiction.
Western Water’s Revised Application differed so substantially
from its Original Application that it must be considered a
separate and new application. 	The State Engineer does not have
authority to “reconsider” a new application, and the Revised
Application could not be considered independent of the

21 	No. 20060527
reconsideration process because it was not submitted according to
the statutory requirements of Utah Code section 73-3-2. 	There
was therefore no final agency action on the Revised Application.
Given the lack of subject matter jurisdiction, we decline to
consider whether the late-filing and environmental protesters are
appropriate parties to the proceeding or the type of evidence
that the protesters would be entitled to present. 	We affirm the
district court’s award of costs to Defendants, holding that the
district court may award costs pursuant to its inherent
jurisdiction over its internal processes. 	Finally, we decline to
address the constitutionality of Utah Code section 73-3-15 but
suggest that it would be prudent for the legislature to
reconsider the wording of this and similar statutes so as not to
jeopardize the due process rights of party litigants in the event
of delays beyond their control.
---
¶54 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.