Summit Water v. Summit County

2005 UT 73
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Summit Water Distribution Company, 	No. 20040033
a Utah non-profit corporation;
et al.,
Plaintiffs and Appellants,
v.
Summit County; Summit County
Commission; Mountain Regional Water
Special Service District, a body
politic of the State of Utah; Patrick
D. Cone, Shauna L. Kerr, Eric D.
Schifferli, County Commissioners;
Douglas Evans, Employee and President
of Mountain Regional Water Special
Service District; Montgomery Watson
Harza, a California corporation and
its employee and agent, William Todd
Jarvis, an individual; and John Does 	F I L E D
1-10,
Defendants and Appellees. 	November 4, 2005
---
Third District, Silver Summit
The Honorable Robert K. Hilder
No. 010500359
Attorneys: 	Robert S. Campbell, Scott M. Lilja, Clark K. Taylor,
Jennifer Anderson, John F. Flynn, Salt Lake City,
for appellants
Jody K. Burnett, George A. Hunt, Robert C. Keller,
Michael D. Zimmerman, Kimberly Neville, Salt Lake
City, David L. Thomas, Coalville, for appellees
Mark L. Shurtleff, Att’y Gen., Annina M. Mitchell,
R. Wayne Klein, Asst. Att’ys Gen., for Attorney
General amicus
Mark K. Buchi, Greggory J. Savage, Richard D. Flint,
Salt Lake City, for Intermountain Power Agency amicus
---

No. 20040033 	2
DURHAM, Chief Justice:
¶1 	The appellants brought suit against Summit County, a
county-created water service district, and related parties,
alleging antitrust violations under section 76-10-914 of the Utah
Antitrust Act and Article XII, Section 20 of the Utah
Constitution. 	The district court dismissed these claims on the
basis that the appellees were exempt from the Antitrust Act under
Utah Code section 76-10-915(1)(f) and that the constitutional
antitrust provision is not self-executing. 	The appellants
challenge the district court’s analysis of both issues on appeal.
Because we hold that the appellees’ alleged anticompetitive
activities do not qualify as acts of a “municipality” that are
“authorized or directed by state law” under section 76-10-
915(1)(f), and that the appellees are therefore not entitled to
the statutory exemption, we do not reach the issue concerning the
interpretation of Article XII, Section 20.
BACKGROUND
¶2 	When reviewing a district court’s grant of a motion to
dismiss, “we accept the factual allegations in the complaint as
true and interpret those facts and all reasonable inferences
drawn therefrom” in the light most favorable to the plaintiff as
the nonmoving party. 	Russell Packard Dev., Inc. v. Carson, 2005
UT 14, ¶ 3, 108 P.3d 741. 	We recite the facts of this case
accordingly.
¶3 	Appellant Summit Water Distribution Company (Summit
Water) is a private nonprofit corporation that distributes
culinary water for commercial and residential use to its
shareholders within the unincorporated portion of the Snyderville
Basin in Summit County. 	In January 2000, Summit Water was the
leading competitor among eleven water companies that operated in
the Snyderville Basin. 	In February 2000, Summit County (the
County) adopted an ordinance renaming an existing special service
district as the Mountain Regional Water Special Service District
(Mountain Regional), and naming the County’s Board of County
Commissioners as Mountain Regional’s governing board. 	The goal
of the resolution was to establish Mountain Regional as a
Snyderville Basin-wide water service district. 	At that time,
Mountain Regional had 5.7% of the market in Snyderville Basin
while Summit Water had 34%. 	Shortly afterwards, Mountain
Regional hired William Todd Jarvis--an employee of Montgomery
Watson Harza, a California corporation--to provide water
engineering services on an independent contractor basis. 	At
around the same time, the County also hired Jarvis to perform
water concurrency ratings of culinary water companies. 	These

1 A temporary concurrency ordinance, ordinance 385, adopted
on May 15, 2000, was soon replaced with a permanent ordinance,
ordinance 400, which was then replaced with ordinance 415, which
imposed similar requirements. 	Theoretically, a concurrency law
is intended to require “a developer applying for a building
permit [to] show the local governing body that the demands of the
proposed development will not exceed the maximum capacity of
public facilities.” 	Adam Strachan, Note, Concurrency Laws:
Water as a Land-Use Regulation, 21 J. Land Resource & Envtl. L.
435, 435 (2001).
3 	No. 20040033
ratings purported to measure a water company’s capacity to supply
water to county residents. 	The County also passed new
concurrency ordinances that required developers seeking building
permits or planning and zoning approvals to prove they had
obtained a commitment from a water company with a sufficient
concurrency rating to provide water to their developments. 1
According to Summit Water, the County used the arrangement with
Jarvis, in conjunction with the new concurrency ordinances, to
ensure that Mountain Regional would have a competitive advantage
in seeking new water connections.
¶4 	Summit Water also faced a tax assessment increase, from
$5000 to nearly $60,000, and the County Commission denied its
appeal from that assessment. 	Summit Water was also forced to
engage in an extended dispute with Jarvis over its concurrency
rating while Mountain Regional faced no such difficulties.
Meanwhile, Mountain Regional also sought, ultimately
unsuccessfully, to acquire Summit Water’s water infrastructure
through eminent domain proceedings. 	As of September 2001,
Mountain Regional had acquired all but three of the water
companies operating in the Snyderville Basin.
¶5 	In September 2001, Summit Water and a number of its
shareholders (collectively, Summit Water appellants) brought suit
against the County, the County Commission, Mountain Regional,
Montgomery Watson Harza, and a number of their officers and
employees (collectively, County appellees), alleging that these
entities and individuals had conspired in restraint of trade and
in an attempt “to monopolize the culinary water product market in
the Snyderville Basin geographic market.” 	As subsequently
amended in March 2002, the complaint specifically alleged that
the County appellees had “conspired, agreed, and combined to
unlawfully tie the sale, distribution and delivery of [Mountain
Regional] water to [the grant of] building permits and planning
approvals, fix prices, [engage in] other restraints of trade and
impair competition,” and had engaged in “illegal conspiracies,
combinations and arrangements by anti-competitive conduct” in

2 The complaint also alleged violations of Article I,
Sections 7 and 24 of the Utah Constitution and the Due Process
and Equal Protection Clauses of the United States Constitution.
The district court granted the Summit Water appellants’ motion
for partial summary judgment on their due process claims in May
2002. 	In so doing, the court declared unconstitutional county
ordinances 400 and 415, which had imposed requirements on
developers to form agreements with water companies having
sufficient water concurrency ratings. 	The court reasoned that an
appearance of unfairness arose from the facts that the ordinances
designated the Board of County Commissioners--also Mountain
Regional’s governing board--as the body hearing appeals of water
concurrency ratings, and that Jarvis was the County’s concurrency
officer as well as a Mountain Regional employee. 	The district
court’s May 2002 order is not before us on appeal. 	According to
the County appellees, the County has since revised its ordinance
to designate a state district engineer as the concurrency officer
and to remove the county commission from the appeal process.
Summit Water’s challenge to its concurrency rating under the new
ordinance was appealed in a separate action, Summit Water v.
Mountain Regional, 2005 UT APP 66, 108 P.3d 119.
No. 20040033 	4
order to gain a monopoly over culinary water distribution in the
Snyderville Basin, all in violation of both the Utah Antitrust
Act, Utah Code Ann. §§ 76-10-911 to -926 (2003), and Article XII,
Section 20 of the Utah Constitution. 2 	For these alleged
antitrust violations, the Summit Water appellants sought
injunctive relief against all County appellees and compensatory
and treble damages against Montgomery Watson and Jarvis.
¶6 	The County appellees filed a rule 12 motion to dismiss.
The district court denied this motion in relevant part in an
order issued March 4, 2002, and this court denied the appellees’
petition for interlocutory appeal. 	The district court based its
denial on its conclusions that Article I, Section 26 of the Utah
Constitution was a self-executing provision, that the state
action immunity doctrine enunciated in Parker v. Brown, 317 U.S.
341 (1943), did not apply to actions under state antitrust laws,
and that Utah Code section 76-10-915(1)(f), which exempts
“municipalities” from the state antitrust act, did not apply here
because “[n]either a county nor its special service districts are
municipalities.”
¶7 	After discovery was underway, the County appellees, in
January 2003, filed a motion to reconsider and to dismiss, which
the district court construed as a motion to dismiss under rule
12(b)(6) of the Utah Rules of Civil Procedure. 	The district
court issued an order on May 27, 2002, in which it reevaluated

3 As quoted by the district court, Senator Waddingham stated
that
[o]ne of the reasons is the legislation we
passed two years ago dealing with [the
Intermountain Power Project]. 	And a recent
federal case, that I have not read, but which
has been called to my attention, that in some
cases makes municipalities comply with
certain sections of the federal antitrust
legislation. 	This--one of the purposes,
which I hope that this particular amendment
would accomplish was to remove any question
as to whether or not its’ [sic] a[t] variance
with the Interlocal Cooperation Act that we
passed two years ago.
Floor Debate, 43rd Utah Leg., Gen. Sess., Feb. 5, 1979 (statement
of Sen. Waddingham).
5 	No. 20040033
its prior legal conclusions in light of the constitutional and
legislative historical evidence newly submitted by the County
appellees. 	Based on its review of those materials, the district
court concluded that Article XII, Section 20 was not, in fact,
self-executing but was meant rather as a “strong policy statement
to guide future legislative action” so as to “guard against . . .
dilut[ion] or eliminat[ion] [of] the Antitrust Act in a changed
political climate.” 	The court therefore dismissed the Summit
Water appellants’ claims based on Article XII, Section 20.
¶8 	The court then reconsidered its conclusion that
counties and special service districts were not included within
the “municipality” exemption contained in Utah Code section 76-
10-915. 	While confirming that by its plain meaning the term
“municipality” referred only to a city, the court determined that
the legislative intent behind the municipality exemption could
not be discerned based on plain meaning alone when the
legislative history submitted by the County appellees cast
“‘doubt or uncertainty’ . . . [on] the scope of the otherwise
unambiguous term ‘municipality.’” 	Reviewing the debate on the
floor of the Utah Senate regarding the insertion of the
municipality exemption into the Antitrust Act, the court
considered significant the statement of Senator Thorpe
Waddingham, who supported his floor amendment introducing the
exemption by referring explicitly to the then-recently-decided
United States Supreme Court case, City of Lafayette v. La. Power
& Light Co., 435 U.S. 389 (1978). 3
¶9 	Based on this history, the court concluded that the
term “municipality,” as used in the Act, “must include all units

No. 20040033 	6
of local government within its rubric.” 	The court then gave the
Summit Water appellants twenty days to further amend their
complaint by “in good faith identify[ing] anti-competitive
activities on the part of any one of the foregoing defendants
that were not ‘authorized or directed by state law,’” which under
Utah Code section 76-10-915(1)(f) would exclude the County
appellees from the scope of the municipality exemption. 	The
court directed that, failing such amendment, the Summit Water
appellants’ statutory claims under the Antitrust Act be dismissed
as well.
¶10 	The Summit Water appellants then filed a motion for
reconsideration, arguing that the district court erred in its
legal analysis of the foregoing issues and in placing on the
appellants the burden of pleading that the County appellees’
actions were not authorized or directed by state law. 	In a
January 5, 2004 order, the district court denied this motion,
clarifying its conclusion that “for an activity to satisfy the
‘authorized or directed’ requirement in section 76-10-915(1)(f)
of the Utah Code it is necessary only that a political
subdivision act pursuant to general state statutes.” 	The court
determined that because the Summit Water appellants had failed to
“allege conduct that is not described in section 76-10-
915(1)(f),” they had failed to state a claim under the Antitrust
Act. 	The court then dismissed all remaining claims of the Summit
Water appellants.
¶11 	The Summit Water appellants appealed the district
court’s final ruling, and the appeal was transferred to this
court pursuant to Utah Rule of Appellate Procedure 43. 	This
court has jurisdiction pursuant to Utah Code section 78-2-2(3)(b)
(2002).
STANDARD OF REVIEW
¶12 	The district court’s determination that a plaintiff’s
complaint “fail[ed] to state a claim upon which relief can be
granted,” leading the court to grant the defendant’s motion to
dismiss under rule 12(b)(6) of the Utah Rules of Civil Procedure,
is a legal conclusion that we review for correctness. 	Foutz v.
City of S. Jordan, 2004 UT 75, ¶ 8, 100 P.3d 1171. 	Here,
specifically, we review for correctness the district court’s
interpretation of Utah Code section 76-10-915, id.
ANALYSIS
¶13 	The Summit Water appellants argue that (1) the district
court erred in dismissing their claims under the Utah Antitrust

7 	No. 20040033
Act, Utah Code Ann. §§ 76-10-911 to -926 (2003), because the
“municipality” exemption in Utah Code section 76-10-915(1)(f)
exempts only cities from the provisions of the Act and therefore
would not exempt any of the County appellees, and because the
further requirement under that section that the appellees’
activities be “authorized or directed by state law” also does not
apply; (2) the district court erred in requiring the Summit Water
appellants to plead specific conduct by the County appellees that
was not “authorized or directed by state law” because the
municipality exemption is an affirmative defense to an Antitrust
Act claim; and (3) the district court erred in dismissing their
constitutional claims because Article XII, Section 20 is an
enforceable, self-executing provision. 	The Summit Water
appellants concede that if we decide in their favor on their
statutory claims, we need not address their constitutional
arguments. 	The County appellees disagree, suggesting that we
must in any case resolve the Summit Water appellants’
“conten[tion] that Article XII, Section 20 trumps all the
liability and damage limitations in the 1979 Act.” 	We first
examine the statutory issues.
I. 	THE “MUNICIPALITY” EXEMPTION TO THE UTAH ANTITRUST ACT
¶14 	Utah Code section 76-10-914 defines illegal
anticompetitive activities for purposes of the Utah Antitrust
Act:
(1) 	Every contract, combination in the
form of trust or otherwise, or conspiracy in
restraint of trade or commerce is declared to
be illegal.
(2) It shall be unlawful for any person
to monopolize, or attempt to monopolize, or
combine or conspire with any other person or
persons to monopolize, any part of trade or
commerce.
Utah Code Ann. § 76-10-914 (2003). 	Section 76-10-915 exempts
from this definition “the activities of a municipality to the
extent authorized or directed by state law.” 	Id. § 76-10-
915(1)(f). 	Thus, in order for a party’s activities to be exempt
under section 76-10-915(1)(f) from an antitrust claim, the party
must be a “municipality” and its activities must have been
“authorized or directed by state law.” 	Id. 	As described above,
the district court held that both of these requirements were met
in the case of the County appellees. 	The Summit Water appellants

No. 20040033 	8
challenge its conclusion on both counts. 	We address each of the
exemption’s two requirements in turn.
A. 	Whether the County Appellees Are “Municipalities”
Under Utah Code Section 76-10-915(1)(f)
¶15 	The Summit Water appellants argue that the district
court’s interpretation of the word “municipality” in section 76-
10-915(1)(f) to include a county, a special service district, and
a private California corporation is contrary to settled
principles of statutory construction, which require reliance on a
word’s plain meaning unless there is ambiguity. 	They contend
that the term plainly refers to municipal corporations only--in
other words, cities and towns--and that such an interpretation is
in accord with a general mandate to interpret exemptions from
antitrust laws narrowly.
¶16 	The County appellees respond that the term
“municipality” is ambiguous on its face when considered in light
of conflicting definitions of the term in other statutory
enactments. 	Furthermore, in their view, the context in which the
municipality exemption was added to the Antitrust Act, together
with the Antitrust Act’s direction in section 76-10-926 to refer
to federal law when interpreting the Act, indicates an intent by
the legislature to include all units of local government within
the exemption. 	They further contend that a narrow interpretation
of the term would lead to conflict between the Antitrust Act and
the Interlocal Cooperation Act, Utah Code Ann. §§ 11-13-101 to -
314 (2003 & Supp. 2004), insofar as the latter authorizes the
creation and continuing existence of the Intermountain Power
Agency (IPA), an entity formed through the cooperation of twenty-
three Utah cities and towns for the purpose of constructing and
operating the Intermountain Power Project (IPP).
¶17 	It is well settled in this court that our goal when
interpreting a statute “is to give effect to the legislative
intent, as evidenced by the [statute’s] plain language, in light
of the purpose the statute was meant to achieve.” 	Foutz v. City
of S. Jordan, 2004 UT 75, ¶ 11, 100 P.3d 1171 (internal quotation
omitted). 	When evaluating the plain language of a particular
statutory provision, we interpret it “in harmony with other
statutes in the same chapter and related chapters.” 	Mountain
Ranch Estates v. Utah State Tax Comm’n, 2004 UT 86, ¶ 11, 100
P.3d 1206 (internal quotation omitted). 	However, “[i]f we find
ambiguity in the statute’s language, we look to legislative
history and other policy considerations for guidance.”
ExxonMobil Corp. v. Utah State Tax Comm’n, 2003 UT 53, ¶ 14, 86
P.3d 706.

9 	No. 20040033
¶18 	Here, the parties’ dispute over the interpretation of
the term “municipality” in section 76-10-915(1)(f) implicates the
broader question of how ambiguity in a statute’s language is to
be identified. 	As indicated above, the district court originally
determined that the word “municipality” unambiguously referred
only to cities and towns. 	In its May 27, 2002 order, the court
repeated that, in the absence of the legislative history
materials submitted by the County appellees, it would continue to
adhere to that conclusion. 	Its ultimate decision to the contrary
was entirely based on the additional materials submitted that, in
the district court’s view, indicated a legislative intent that
was not apparent on the face of the statute itself.
¶19 	We first consider whether we agree with the district
court that the term “municipality,” on its face, unambiguously
refers only to cities and towns. 	The district court concluded
that “[n]owhere has this court been able to find a definition or
use of the term ‘municipality’ in Utah statute or constitution
that, from its plain meaning, one could read as anything other
than a city. 	Or, conversely, that one could stretch to embrace a
county or its special service district.” 	Based on our
examination of the Utah Code and Constitution, there is no
question that the word “municipality” is used almost exclusively
to refer to municipal corporations--cities and towns. 	It is
true, as the County appellees point out, that the former Utah
Municipal Bond Act explicitly defined “municipality” to
“include[] cities, towns, counties, school districts, public
transit districts, and improvement districts . . ., special
service districts . . ., metropolitan water districts . . .,
irrigation districts . . ., water conservancy districts . . .,
and regional service areas.” 	Utah Code Ann. § 11-14-1(1) (2003)
(repealed 2005). 	The provision clarified that that definition
applied only “for the purpose of th[e] [Municipal Bond Act].”
Id. 	The County appellees urge us to consider this definition as
sufficient indication that the word “municipality” is ambiguous
on its face. 	However, the fact that the legislature in 2005 saw
fit, when amending the Act, to replace the term “municipality”
with the term “local political subdivision,” see ch. 105, 2005
Utah Laws § 9 (codified at Utah Code Ann. § 11-14-102(3)), may
suggest the legislature’s own acknowledgment that the former
broad definition of “municipality” was not in accord with the
term’s generally accepted meaning.
¶20 	The only other instance in which a Utah Code provision
defines the term “municipality” to include “any county . . . or
political subdivision of this state” is in section 72-10-301(4)
of the Aeronautics Act, Utah Code Ann. §§ 72-10-101 to -504 (2001

No. 20040033 	10
& Supp. 2004). 	A review of the Aeronautics Act in its entirety
suggests that this definition was inserted only to simplify the
later definition of “public agency” in the same provision, see
id. § 72-10-301(6) (including “municipalities” in the definition
of “public agency”), for, despite the inclusion of counties in
that definition of municipality, other provisions in the same
part of the chapter list both counties and municipalities in a
manner that suggests they are separate entities, see id. §§ 72-
10-303, -304.
¶21 	If our review were restricted to the occurrences of the
word “municipality” in the Utah Code and Constitution, we would
be inclined to agree with the district court that the term on its
face unambiguously refers only to municipal corporations. 	We do
not end our analysis here, however, because, as the County
appellees point out, the Antitrust Act expressly provides that
“[t]he Legislature intends that the courts, in construing this
act, will be guided by interpretations given by the federal
courts to comparable federal antitrust statutes and by other
state courts to comparable state antitrust statutes.” 	Id. § 76-
10-926. 	Based on this direction, we must examine antitrust law
as a whole in order to determine whether the term “municipality”
means something other than a municipal corporation when used in
the antitrust context.
¶22 	The federal antitrust law, the Sherman Act, exempts
“local governments” from damage and attorney’s fee penalties for
federal antitrust violations. 	15 U.S.C. § 35(a). 	The Act
defines “local government” as including “a city, county, parish,
town, township, village, or any other general function
governmental unit established by State law,” id. § 34(1)(A), as
well as “a school district, sanitary district, or any other
special function governmental unit established by State law in
one or more States,” id. § 34(1)(B). 	The Sherman Act thus uses
the term “local government” to mean what the County appellees
argue the term “municipality” means in the Utah statute. 	These
provisions therefore do not support the County appellees
argument. 	Congress, however, added these provisions to the
Sherman Act in 1984, Local Government Antitrust Act of 1984, Pub.
L. No. 98-544, 98 Stat. 2750 (1984) (codified at 15 U.S.C. §§ 34-
36), and the County appellees argue that Congress made this
amendment in response to the United States Supreme Court’s
interpretation of the Sherman Act in a line of cases that served
to limit the immunity of local governments from federal antitrust
liability. 	We therefore examine these cases in order to
determine whether they support the County appellees’ proposed
interpretation of the word “municipality.”

11 	No. 20040033
¶23 	We agree that the United States Supreme Court has
interpreted the Sherman Act, prior to its 1984 amendment, as
applying on its face to all local governmental entities. 	City of
Lafayette v. La. Power & Light Co., 435 U.S. 389, 396-98 (1978)
(recognizing that the term “person” in the Sherman Act included
all entities, whether public or private, that “engaged in
business whose activities might restrain or monopolize commercial
intercourse among the states” and thus included both states and
cities (internal quotation omitted)). 	In reaching this
interpretation, the Court emphasized the strong federal policy in
favor of a “regime of competition,” such that “the antitrust laws
will not be displaced unless [they] . . . are plainly repugnant”
to a “regulatory regime over an area of commercial activity.”
Id. at 398. 	The Court then indicated that implied exclusions
from the Act were disfavored. 	Id. at 399. 	Reasoning that local
governments serve parochial rather than national interests, the
Court then concluded that
[w]hen these bodies act as owners and
providers of services, they are fully capable
of aggrandizing other economic units with
which they interrelate, with the potential of
serious distortion of the rational and
efficient allocation of resources, and the
efficiency of free markets which the regime
of competition embodied in the antitrust laws
is thought to engender.
Id. at 408.
¶24 	Unlike local governments, however, states themselves
are coequal sovereigns with the federal government. 	Id. at 411-
13. 	On that basis, the Court has interpreted the Sherman Act as
implicitly excluding states from its application. 	Id. at 400
(citing Parker v. Brown, 317 U.S. 341, 351 (1943)). 	In City of
Lafayette, a plurality of the Court further recognized that a
local government falls within the Parker exemption when it acts
as an agent of the state, “pursuant to state policy to displace
competition with regulation or monopoly public service.” 	Id. at
413 (plurality). 	The standard set forth by the City of Lafayette
plurality was subsequently adopted by the Court. 	Cmty.
Communications Co. v. City of Boulder, 455 U.S. 40, 51 (1982).
Later cases have adhered to this general principle. 	See Fed.
Trade Comm’n v. Ticor Title Ins. Co., 504 U.S. 621, 636-37
(1992); City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S.
365, 372-73 (1991); Town of Hallie v. City of Eau Claire, 471
U.S. 34, 45 (1985).

No. 20040033 	12
¶25 	We agree with the County appellees that this line of
cases provides interpretative guidance in this context, but we
disagree concerning its import. 	We are unpersuaded that the
United States Supreme Court’s use of the specific term
“municipality” in some instances where the enunciated principles
applied equally to other units of local government indicates that
the term is ambiguous or has a different meaning in the antitrust
context, particularly where the entities at issue in the cases
reviewed by the Court were in fact cities, as indicated in the
case names above. 	Far from establishing that antitrust law in
general uses the word “municipality” broadly, the County
appellees have failed to point to a single instance where a court
referred to a specific unit of local government as a
“municipality” unless it was in fact a city or a town.
¶26 	Moreover, we believe that the mandate in our Antitrust
Act that we be guided by other courts’ interpretations requires
us to rely on the principles underlying those interpretations,
rather than on the courts’ particular word choice. 	When we
examine the issue before us in that light, it becomes clear that
the County appellees are asking us to engage in rather curious
logic. 	They propose that, because the Court in the City of
Lafayette line of cases held that the Sherman Act applies to all
local governmental entities, unless they are acting as agents of
the state, our Legislature must have intended to exempt all local
governmental entities when they added the municipality exemption
to Utah’s Antitrust Act. 	Further, the County appellees repeat
the argument, made before the district court, that the
municipality exemption’s purpose was to avoid incorporating the
Court’s decision in City of Lafayette into Utah antitrust law.
Thus, according to the County appellees, we must follow the
mandate that we rely on federal caselaw when interpreting the
term “municipality” even as we recognize that the Legislature
intended to circumvent the very federal caselaw that we are urged
to follow. 	We decline to engage in such a tortured analysis.
¶27 	The only remaining factor militating against the
conclusion that the term “municipality” unambiguously refers only
to municipal corporations is Senator Waddingham’s statement in
the floor debates, indicating his concern, when proposing the
municipality exemption, about the impact of the City of Lafayette
decision on the IPP. 	The extent to which an individual statement
by a legislator is a reliable indicator of legislative intent has
frequently been questioned. 	E.g., Wood v. Univ. of Utah Med.
Ctr., 2002 UT 134, ¶ 19, 67 P.3d 436 (“Legislators may decide
that a statute should be passed for myriad, often even different,
reasons . . . .”). 	Moreover, it is far from clear to us that
legislative history should be relevant when making the initial

4 In one treatise author’s opinion, “[b]ecause issues
concerning what a statute means or what a legislature intended
are essentially issues of fact, even though they are decided by
the judge and not by a jury, a court should never exclude
relevant and probative evidence from consideration.” 	2A Norman
J. Singer, Statutes and Statutory Construction § 45:02, at 14-15
(6th ed. 2000).
13 	No. 20040033
determination of whether a statutory provision is ambiguous on
its face. 	See Berube v. Fashion Ctr., 771 P.2d 1033, 1038 (Utah
1989) (agreeing that the statute at issue “is clear on its face
and should be applied accordingly, regardless of any specific
intent formed by a particular legislator”). 	At the same time,
because our primary goal is to interpret statutes in accord with
legislative intent, we might hesitate to disregard entirely such
an indication of intent where it was clear, even if a provision
appears to be unambiguous. 4 	We do not believe Senator
Waddingham’s statement qualifies as such a clear indication of
intent, however. 	The statement indicates that Senator Waddingham
had not read City of Lafayette, and though the Senator
specifically mentions the IPP, he does not indicate that he
considers the IPP itself, or its owner, the IPA, to be a
“municipality” that would be subject to antitrust legislation in
the absence of the proposed exemption. 	Rather, Senator
Waddingham, in stating that the exemption’s purpose is “to cause
actions taken by municipalities . . . to be on the same card as
activities conducted by utilities,” uses the term
“municipalities” himself, making it difficult to conclude that he
accorded the word a meaning other than the generally accepted
definition of “municipal corporation.”
¶28 	Thus, as the Summit Water appellants suggest, Senator
Waddingham’s language is simply too vague to draw specific
conclusions on these matters from his statements alone. 	It seems
that, in order to accord Senator Waddingham’s statement the
significance that the County appellees suggest it deserves, we
would have to engage in a full analysis of whether the IPA and
IPP are otherwise subject to Utah’s Antitrust Act and, if so,
whether the legislature intended these entities to be free to
engage in anticompetitive activities. 	Although the IPA, in its
role as amicus in the present case, argues that both of these
questions must be answered in the affirmative, and indeed that
the municipality exemption was constructed with it specifically
in mind, we are unwilling to undertake such a review when the
IPA’s status and activities are not actually at issue in the case
before us.

5 By referring to such a “policy,” we express no opinion on
the question of whether Article XII, Section 20 is self-
executing.
No. 20040033 	14
¶29 	Moreover, we believe the district court erred in
according Senator Waddingham’s statement such weight without
considering the proper import of other interpretative principles
in the antitrust context. 	We adhere to the fundamental principle
underlying the Court’s decision in City of Lafayette--that
antitrust laws must be interpreted in light of the strong public
policy disfavoring anticompetitive practices. 	City of Lafayette,
435 U.S. at 398. 	Indeed, our deference to this policy must be
particularly strong in light of Article XII, Section 20 of our
state constitution as well as the Legislature’s explicit finding,
set forth in the Antitrust Act itself, that
competition is fundamental to the free market
system and that the unrestrained interaction
of competitive forces will yield the best
allocation of our economic resources, the
lowest prices, the highest quality and the
greatest material progress, while at the same
time providing an environment conducive to
the preservation of our democratic, political
and social institutions.
Utah Code Ann. § 76-10-912. 	Based on this policy, 5 we have
previously indicated that provisions of our Antitrust Act must be
strictly construed in favor of competition and that, therefore,
“exemptions [from the Act] should be construed narrowly.” 	Evans
v. State, 963 P.2d 177, 185 (Utah 1998); see also Group Life &
Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 231 (1979) (“It
is well settled that exemptions from the antitrust laws are to be
narrowly construed. 	This doctrine . . . applies with equal force
to express statutory exemptions.”). 	Thus, even if we were to
conclude that the term “municipality” in section 76-10-915(1)(f)
is ambiguous, this interpretive principle suggests that we adopt
the narrowest possible meaning of the term, limiting it to
municipal corporations. 	See Evans, 963 P.2d at 185.
¶30 	For the reasons set forth above, we cannot conclude
that the term “municipality” in section 76-10-915(1)(f) is
ambiguous, nor, if it were ambiguous, would we be likely to
interpret the term broadly. 	However, we acknowledge that we are
unable to perceive any logical reason for including cities and
towns in the municipality exemption but excluding other units of
local government. 	In the interest of judicial caution,
therefore, we reserve an ultimate decision on the meaning of

15 	No. 20040033
“municipality” for another day and proceed to analyze whether,
assuming the County appellees would qualify as municipalities,
their activities at issue here are exempt because they were
“authorized or directed by state law” for purposes of Utah Code
section 76-10-915(1)(f).
B. 	Whether the County Appellees’ Activities
Are Authorized or Directed by State Law
¶31 	Section 76-10-915(1)(f) exempts municipalities from
operation of the Antitrust Act only insofar as their activities
are “authorized or directed by state law.” 	Utah Code Ann. § 76-
10-915(1)(f). 	As described above, the district court concluded
that a municipality satisfies this condition as long as it acts
“pursuant to general state statutes.” 	The Summit Water
appellants argue that this broad interpretation of the
“authorized or directed” language is contrary to the City of
Lafayette line of cases and that the requirement is not satisfied
here by general laws that give no indication that the state
authorizes counties to “monopolize a private water market.” 	The
County appellees, in turn, maintaining their position regarding
the purpose of the municipality exemption, argue that to
interpret section 76-10-915(1)(f) in accord with City of
Lafayette is to “incorporate[] into the Utah Antitrust Act
precisely what the legislative history indicates that section was
intended to keep out of the Act--the narrow City of Lafayette
reading of local government immunity from antitrust [claims].”
They further argue that their activities would be exempt under
current federal law, as it has developed in the twenty-seven
years since City of Lafayette.
¶32 	In accord with Utah Code section 76-10-926, we first
examine federal law on this issue. 	Again, the principle first
set forth by the City of Lafayette plurality and subsequently
adopted by a majority of the United States Supreme Court is that
a unit of local government is exempt from federal antitrust laws
only if its “anticompetitive conduct [is] engaged in as an act of
government by the State as sovereign, . . . pursuant to state
policy to displace competition with regulation or monopoly public
service.” 	City of Lafayette, 435 U.S. at 413 (plurality). 	The
basis for this holding was the doctrine of dual sovereignty,
under which, according to the plurality, “state action” is exempt
from federal antitrust laws. 	Id. at 412. 	The plurality stated
that, in order for a state’s subdivision to enjoy the “state
action” exemption, there must be an indication that its action is
“authorized or directed” by the state, so that the subdivision is
in fact acting on behalf of the state rather than its own
parochial interests. 	Id. at 414-15. 	The plurality then

No. 20040033 	16
concluded that “an adequate state mandate for anticompetitive
activities of . . . subordinate governmental units exists when it
is found from the authority given a governmental entity to
operate in a particular area, that the legislature contemplated
the kind of action complained of.” 	Id. at 415 (internal
quotation omitted).
¶33 	As an initial matter, we point out that, were we facing
the same question considered by the Court in City of Lafayette
and its successor--namely, whether to read an implicit exemption
into antitrust law--we might well conclude that the Court’s
analysis in those cases was inapplicable because the dual
sovereignty considerations that motivated the Court’s reasoning
in those cases are entirely absent when a state court is
considering state antitrust laws. 	See Fine Airport Parking, Inc.
v. City of Tulsa, 2003 OK 27, ¶ 19, 71 P.3d 5; Town of Hallie v.
City of Chippewa Falls, 314 N.W.2d 321, 324 (Wis. 1982). 	The
latter situation involves a potential conflict “‘between the
state laws dealing with municipalities and the state antitrust
law,’” Fine Airport Parking, Inc., 2003 OK 27 at ¶ 19 (quoting
Town of Hallie, 314 N.W. 2d at 324); in other words, the laws at
issue in our case are those of a single sovereign--the state.
¶34 	Unlike the state antitrust statutes involved in these
Oklahoma and Wisconsin cases, section 76-10-915 of the Utah
Antitrust Act includes an explicit statutory exemption for
municipalities. 	Utah Code Ann. § 76-10-915(1)(f). 	A number of
other state antitrust laws also contain statutory exemptions,
leading courts in those states simply to apply the plain language
of these exemptions. 	See, e.g., Miller’s Pond Co. v. City of New
London, 873 A.2d 965, 979-80 (Conn. 2005) (reaffirming that its
statutory antitrust exemption for actions “specifically directed
or required” by a state statute was intended to be more stringent
than the federal “authorized or directed” standard and therefore
holding that the federal standard was inapplicable); Alarm
Detection Sys., Inc. v. Village of Hinsdale, 761 N.E.2d 782, 793
(Ill. App. Ct. 2001) (relying on the “plain language of [the
statutory exemption in] the [Illinois] Antitrust Act in
determining whether the Village was immune from liability”).
¶35 	Here, Utah’s statutory exemption is, as far as we are
aware, unique in that it is defined using language--“authorized
or directed”--identical to that used by the City of Lafayette
plurality. 	Utah Code Ann. § 76-10-915(1)(f) (exempting a
municipality “to the extent authorized or directed by state
law”); City of Lafayette, 435 U.S. at 414 (concluding that a
municipality engages in state action when “the State authorized
or directed [it] to act as it did”). 	This identical language,

6 Our conclusion here is not inconsistent with our refusal
above to interpret the term “municipality” to include all units
of local government in accord with the federal state action
exemption. 	As we explained above, federal antitrust law does not
ascribe a unique meaning to the word “municipality.” 	In
contrast, City of Lafayette used the phrase, “authorized or
directed,” in the course of setting forth a distinct legal
standard. 	The latter phrase, therefore, does have a unique
meaning in federal antitrust law. 	Moreover, the implication of
our holding is that the Utah Legislature simply imported the
exemption recognized in City of Lafayette into the Utah Antitrust
Act rather than trying to avoid the federal law, as the County
appellees have argued.
7 The County appellees bolster their argument that the Utah
Legislature was “actively hostile” to the Court’s rulings in City
of Lafayette and City of Boulder by reference to its enactment of
section 76-10-919(4) and (5), which prohibits damage awards
against political subdivisions that violate the Antitrust Act.
Utah Code Ann. § 76-10-919(4), (5). 	As the County appellees
note, this provision mirrors the federal statute enacted by
Congress in 1984, which similarly bars damage awards against
(continued...)
17 	No. 20040033
together with the mandate set forth in section 76-10-926 that our
interpretations be guided by federal caselaw, indicate to us that
the Legislature intended the “authorized or directed” standard in
section 76-10-915(1)(f) to coincide with federal courts’
interpretation of “authorized or directed” when delineating the
municipality exemption to federal antitrust laws. 6 	The
conclusion indicated by the plain language of these provisions is
further supported by the fact that the Court’s observations in
City of Lafayette, in regard to the tendency of local governments
to act in their own parochial interests rather than in the
interest of the state as a whole, see 435 U.S. at 408, would
appear of equal concern to the state itself. 	See Evans, 963 P.2d
at 185 (recognizing the legislative intent that “those
anticompetitive activities that have been approved by the state
or federal government should not be punished by the [Utah
Antitrust] Act”); see also Reppond v. City of Denham Springs, 572
So. 2d 224, 228 (La. Ct. App. 1990) (“Because municipalities
perform many functions in both a private and a public sense, it
would be imprudent to categorically reject the applicability of
the anti-trust statutes to every act of such governmental
entities.”). 	It is thus not unreasonable for the legislature to
have intended us to follow federal antitrust law on this issue
even though the federal analysis originates in inapplicable
notions of dual sovereignty. 7 	Consequently, while we would

7 (...continued)
local governments. 	Local Government Antitrust Act of 1984, 15
U.S.C. §§ 35-36. 	In our view, the Legislature’s passage of
section 76-10-919 is simply another example of its close
adherence to federal antitrust law. 	This strengthens our
conclusion that the “authorized or directed” language in section
76-10-915(1)(f) was similarly intended to parallel federal law.
Moreover, while the County appellees maintain that the Supreme
Court’s decisions caused “considerable consternation” in Congress
and that it was this “aversion” to the Supreme Court’s decisions
that led to the passage of the Local Government Antitrust Act and
to section 76-10-919, it seems significant that neither Congress
nor the Utah Legislature simply declared all local governmental
entities exempt from antitrust laws in these provisions. 	Their
actions in limiting monetary damages while failing to grant a
complete exemption appears to signal acquiescence in, and
possibly even approval of, the idea that local governments may
have to comply with orders of injunctive relief if their
anticompetitive actions violate antitrust provisions.
No. 20040033 	18
hesitate to infer a “state action” exemption from our state
antitrust law where no such exemption is expressly provided, here
we conclude that the legislature has in fact expressly included
such an exemption in the state antitrust laws, and we therefore
analyze the exemption’s applicability relying on federal caselaw
for guidance.
¶36 	Following City of Lafayette, the United States Supreme
Court in Town of Hallie reaffirmed that, in order to be eligible
for the state action exemption, a municipality must “show that it
acted pursuant to a ‘clearly articulated and affirmatively
expressed . . . state policy’” to displace competition. 	471 U.S.
at 39 (quoting City of Lafayette, 435 U.S. at 410). 	The standard
is satisfied when the anticompetitive conduct alleged by the
plaintiff “is a foreseeable result” of a state’s grant of
authority in a particular area. 	Id. at 42. 	Thus, in Town of
Hallie, the Court held that state statutes authorizing a city to
provide sewage services outside the city limits and to determine
which areas it would serve sufficiently articulated a state
policy that would allow the city to refuse sewage service in a
particular area unless the landowners in that area voted in favor
of annexation to the city. 	Id. at 37, 42-43. 	The Court in City
of Columbia later held that state zoning laws that “authorize[d]
municipalities to regulate the use of land and the construction
of buildings and other structures within their boundaries,”
including their size, location, and spacing, were sufficient to
immunize a city’s ordinances limiting billboard placement. 	499
U.S. at 370-73 & n.3. 	Adhering to the “foreseeable result”

19 	No. 20040033
standard, the Court reasoned that “[a] municipal ordinance
restricting the size, location, and spacing of billboards . . .
necessarily protects existing billboards against some competition
from newcomers,” and that the anticompetitive conduct complained
of by a newcomer billboard company was thus foreseeable. 	Id. at
373.
¶37 	The County appellees make much of the idea that City of
Columbia substantially broadened the scope of federal antitrust
immunity for municipalities, reversing the “aggressive narrowing”
of such immunity that, in their view, was imposed by City of
Lafayette. 	They thus argue that we should follow the same broad
interpretation that, they maintain, the Court has now adopted.
The Summit Water appellants disagree with the County appellees in
regard to whether municipalities were altogether exempt from
federal antitrust laws before the Court’s ruling in City of
Lafayette. 	They further contend that City of Columbia adhered to
the same standard for construing the municipality exemption that
was originated in City of Lafayette and followed in Town of
Hallie.
¶38 	Having reviewed the line of federal Supreme Court cases
from City of Lafayette to City of Columbia and the opinions of
lower courts construing them, we see no clear indication that the
Court in City of Columbia intended to broaden its previously-
adopted standard. 	The Court’s primary concern in its discussion
of the municipality exemption standard in that case was to
clarify that a federal court applying the exemption need not
determine whether a municipal act is “substantively and
procedurally correct” under state law in order to conclude that
the act was taken pursuant to a state policy to displace
competition. 	City of Columbia, 499 U.S. at 371-72 (internal
quotation omitted). 	To require federal courts to engage in such
scrutiny of state law would, the Court explained, “undermin[e]
the very interests of federalism [the state action immunity
doctrine] is designed to protect.” 	Id. at 372.
¶39 	This clarification thus did nothing to alter the range
of state authorization that suffices to immunize anticompetitive
municipal actions from antitrust laws. 	The outer boundaries of
that range are found in two basic principles that the Court has
consistently acknowledged. 	First, “the requirement of ‘clear
articulation and affirmative expression’ is not satisfied when
the State’s position is one of mere neutrality respecting the
municipal actions challenged as anticompetitive. 	A state that
allows its municipalities to do as they please can hardly be said
to have ‘contemplated’ the specific anticompetitive actions for
which municipal liability is sought.” 	City of Boulder, 455 U.S.

No. 20040033 	20
at 55 (holding that a neutral grant of home rule authority to
municipalities could not constitute a state “policy” to displace
competition in the provision of cable television services); see
also Town of Hallie, 471 U.S. at 43 (concluding that specific
statutory authorization to municipalities to provide sewage
services outside city boundaries was not “neutral on state
policy”). 	Second, however, the municipality need not show “a
specific, detailed legislative authorization” to engage in the
particular anticompetitive conduct at issue. 	City of Lafayette,
435 U.S. at 415 (plurality); see also City of Columbia, 499 U.S.
at 372 (“We have rejected the contention that th[e] [clear
articulation] requirement can be met only if the delegating
statute explicitly permits the displacement of competition.”);
Town of Hallie, 471 U.S. at 43-44 (rejecting the idea that “a
legislature must expressly state in a statute or its legislative
history that the legislature intends for the delegated action to
have anticompetitive effects”); id. at 45 (rejecting the idea
that the municipality must “show that the State ‘compelled’ it to
act”).
¶40 	The “foreseeability” inquiry that the Court settled on
in Town of Hallie, 471 U.S. at 42, and in City of Columbia, 499
U.S. at 373, ensures that the required state authorization falls
somewhere between these two poles. 	Subsequent decisions of lower
federal courts have thus focused on whether the anticompetitive
action alleged is a “foreseeable result” of state statutes. 	See
Elec. Inspectors, Inc. v. Vill. of E. Hills, 320 F.3d 110, 121
(2d Cir. 2002) (concluding that “the plaintiff’s complete
exclusion from the market for required electrical inspection
services . . . . is a foreseeable result of a statute that
requires municipalities to enforce a uniform fire code and
administrative regulations that condition the issuance of
certificates of occupancy upon inspections by town-designated
agents”); Mich. Paytel Joint Venture v. City of Detroit, 287 F.3d
527, 536 (6th Cir. 2002) (concluding that a city’s facilitation
of a private telephone company’s monopoly by accepting its bid to
install and service pay telephones in city prisons was “the
logical and foreseeable result of the City’s broad authority
under state law and the Michigan Constitution to bid out public
contracts for the maintenance of City prisons”); Surgical Care
Ctr. v. Hosp. Serv. Dist. No. 1, 171 F.3d 231, 235 (5th Cir.
1999) (en banc) (concluding that a hospital service district’s
alleged exclusivity and tying agreements that aimed to exclude a
private hospital from the market for outpatient surgical care
were “not the foreseeable result of allowing a hospital service
district to form joint ventures”).

8 The parties cite to the version of CLUDMA in effect at the
time they submitted their briefs. 	See Utah Code Ann. §§ 17-27-
101 to -1003 (2001 & Supp. 2004) (repealed 2005). 	In the 2005
legislative session, the Act was renumbered and revised. 	See
Utah Code Ann. §§ 17-27a-101 to -803 (Supp. 2005). 	While
generally we consider the law in effect at the time a claim
arises or is brought in court, see State v. One Lot of Pers.
Prop., 2004 UT 36, ¶¶ 13-17, 90 P.3d 639, current law is relevant
when injunctive relief is requested, see Nat’l Coalition to Save
Our Mall v. Norton, 269 F.3d 1092, 1096-97 (D.C. Cir. 2001)
(citing Miller v. French, 530 U.S. 327 (2000)). Because
injunctive relief is requested here, we consider the current
version of the CLUDMA in our analysis.
21 	No. 20040033
¶41 	We therefore hold that the district court erred in
concluding that “for an activity to satisfy the ‘authorized or
directed’ requirement in section 76-10-915(1)(f) of the Utah Code
it is necessary only that a political subdivision act pursuant to
general state statutes.” 	Rather, a court must examine the
particular statutes at issue and then engage in the
foreseeability analysis set forth above. 	Here, the question is
thus whether the alleged price-fixing, agreements tying Mountain
Regional water distribution to the grant of building permits and
planning approvals, and other anticompetitive activities are the
“foreseeable result” of the authority granted the County
appellees under state law.
¶42 	We first set forth the provisions that, according to
the County appellees, grant the necessary authority. 	The County
appellees cite provisions in the County Land Use, Development,
and Management Act (CLUDMA) 8 and the Utah Special Service
District Act, Utah Code Ann. §§ 17A-2-1301 to -1332 (2004), as
providing the County appellees with authority to act and
articulating a state policy to displace competition in the area
of culinary water distribution. 	The CLUDMA provisions that,
according to the County appellees, are comparable to those found
sufficient in City of Columbia are as follows. 	Section 17-27a-
102 provides that
counties may enact all ordinances,
resolutions, and rules and may enter into
other forms of land use controls and
development agreements that they consider
necessary or appropriate for the use and
development of land within the unincorporated
area of the county, including ordinances,
resolutions, rules, restrictive covenants,
easements, and development agreements

No. 20040033 	22
governing uses, density, open spaces,
structures, buildings, energy-efficiency,
light and air, air quality, transportation
and public or alternative transportation,
infrastructure, street and building
orientation and width requirements, public
facilities, and height and location of
vegetation, trees, and landscaping, unless
expressly prohibited by law.
Utah Code Ann. § 17-27a-102(1)(b) (Supp. 2005). 	Section 17-27a-
301 requires that every county “enact an ordinance establishing a
countywide planning commission.” 	Id. § 17-27a-301(1)(a).
Section 17-27a-401 requires that every county “prepare and adopt
a comprehensive, long-range general plan” that “may provide for
. . . the efficient and economical use, conservation, and
production of the supply of . . . water.” 	Id. § 17-27a-401(1),
(2)(c)(i).
¶43 	The provisions of the Special Service District Act that
the County appellees assert are relevant authorize a county to
“establish a special service district for the purpose of
providing [water] within the area of the special service
district.” 	Id. § 17A-2-1304(1)(a)(i) (2004). 	“The area within
any special service district may include all or any part of the
county . . . that established it except that . . . a special
service district may not include any area not directly benefitted
by the services provided under this section without the consent
of the nonbenefitted landowner.” 	Id. § 17A-2-1304(2)(a)(iii).
The scope of the service district’s authority then includes,
among other things, “[t]he power to exercise all powers of
eminent domain possessed by the county . . . which established”
it, “[t]he power to enter into contracts . . . to carry out [its]
functions,” and “[t]he power to acquire or construct facilities.”
Id. § 17A-2-1314(1)(b), (c), (d).
¶44 	Although these provisions clearly contemplate a
county’s establishment of a water service district, such as
Mountain Regional, and grant both counties and special service
districts certain powers, lacking from the statutes is any
suggestion that a county might use its planning or zoning
authority to facilitate the operation or growth of special
service districts once they are created. 	In particular, the
general grant of authority to counties contained in section 17-
27a-102 allows counties to enter into “development agreements” in
a number of areas but does not mention the provision of water or
other utility services. 	Id. § 17-27a-102(1)(b) (Supp. 2005).
Unlike in Town of Hallie, where a town’s requirement that

9 We note, however, that anticompetitive effects resulting
from activities that any of the County appellees undertake in the
ordinary course of performing their authorized duties, where
there are no uncontemplated ties between county and special
(continued...)
23 	No. 20040033
unincorporated areas annex themselves to the town was a
prerequisite to supplying sewage services, 471 U.S. at 43, the
allegation here is that developers are precluded from proceeding
with their development unless they accept Mountain Regional water
services; in Town of Hallie, desired services were tied to
acceptance of incorporation within the governmental entity that
provided those services while in our case, developers are
allegedly forced to accept services they may or may not desire.
The Special Service District Act itself appears to prohibit a
service district from incorporating a nonbenefitted landowner’s
property without the landowner’s consent. 	Utah Code Ann. § 17A-
2-1304(2)(a)(iii) (2004).
¶45 	We can find no other statute within either of these
Acts that contemplates any connection between a county’s
development activities and its favoring of special service
districts that it has established. 	The statutory scheme does not
reveal a state policy of allowing counties to displace
competition with a special service district unless the special
service district is successful through its own competitive
efforts in acquiring an exclusive market share within its area.
Other courts have similarly noted that a state’s grant of
authority to a government entity or utility to provide a natural
resource does not necessarily indicate an intent to immunize the
entity or utility from antitrust laws. 	See Cantor v. Detroit
Edison Co., 428 U.S. 579, 595-96 (1976) (“There is no logical
inconsistency between requiring [a private utility] to meet
regulatory criteria insofar as it is exercising its natural
monopoly powers and also to comply with antitrust standards to
the extent that it engages in business activity in competitive
areas of the economy.”); Parks v. Watson, 716 F.2d 646, 663 (9th
Cir. 1983) (“[M]erely because the state may authorize a city to
be the sole supplier of a natural resource and to set prices for
that resource, it does not necessarily follow that the city is
immunized from antitrust liability when it attempts to tie the
purchase of a non-monopolized product or service to the sale of
that natural resource.”). 	We therefore conclude that the
anticompetitive activities alleged by the Summit Water
appellants, including the act of tying building permit and
planning approvals for developers and others to acceptance of
Mountain Regional as the development’s water provider, are not a
foreseeable result of the statutory scheme. 9

9 (...continued)
service district functions, might be considered foreseeable.
Moreover, we recognize that the Court in City of Columbia
rejected a “conspiracy” exception to the municipality exemption.
499 U.S. at 379 (refusing to “allow plaintiffs to look behind the
actions of state sovereigns to base their claims on ‘perceived
conspiracies to restrain trade’” and reaffirming that, “with the
possible market participant exception, any action that qualifies
as state action” under the foreseeability test is “exempt from
the operation of the antitrust laws”).
10 Because we conclude that the actions alleged by the
Summit Water appellants are not “authorized or directed by state
law” under section 76-10-915(1)(f), we need not address the
Summit Water appellants’ additional argument that the
municipality exemption does not apply to the County appellees
because they are acting as market participants. 	As noted above,
City of Columbia left open the question of whether the
municipality exemption would apply when the municipality is
acting as a market participant. 	499 U.S. at 379. 	Further, the
Summit Water appellants’ claim that Senator Waddingham’s
affidavit was inappropriately excluded is moot under our
conclusion here.
No. 20040033 	24
¶46 	Accordingly, even assuming without deciding that the
County appellees qualify as “municipalities” under Utah Code
section 76-10-915(1)(f), they would not be entitled to the
municipality exemption contained in that subsection because their
alleged anticompetitive conduct is not “authorized or directed by
state law.” 	We therefore reverse the district court’s dismissal
of the Summit Water appellants’ complaint on that basis. 10
II. 	WHETHER THE EXEMPTIONS IN SECTION 76-10-915
ARE AFFIRMATIVE DEFENSES
¶47 	We further reverse the district court in regard to its
requirement that the Summit Water appellants amend their
pleadings to assert specifically that the anticompetitive
activities alleged were not authorized or directed by state law.
The structure of the Utah Antitrust Act, together with federal
antitrust caselaw, make clear that the exemptions in Utah Code
section 76-10-915(1)(f) are to be pleaded by a defendant as an
affirmative defense. 	See Utah R. Civ. P. 8(c) (“In pleading to a
preceding pleading, a party shall set forth affirmatively . . .
any . . . matter constituting an avoidance or affirmative
defense.”). 	Section 76-10-915 states that other provisions of
the Antitrust Act must not “be construed to prohibit” the

25 	No. 20040033
activities that it lists, including “the activities of a
municipality to the extent authorized or directed by state law.”
Utah Code Ann. § 76-10-915(1)(f). 	The County appellees argue
that this language distinguishes the antitrust exemptions from a
proper affirmative defense because in the case of the exemptions,
“[t]he cause of action never arises in the first instance.” 	We
do not agree that there is a meaningful distinction in that
regard between the exemptions listed in section 76-10-915 and
other affirmative defenses. 	There is no legitimate cause of
action against an individual who kills another in self-defense,
for example, but a murder defendant is nevertheless required to
assert self-defense as an affirmative defense. 	See Utah Code
Ann. § 76-2-402 (2003); State v. Starks, 627 P.2d 88, 92 (Utah
1981).
¶48 	The line of federal Supreme Court cases since City of
Lafayette indicates that the municipality exemption is regarded
as an affirmative defense. 	See, e.g., City of Columbia, 499 U.S.
at 369 (indicating that the municipality exemption was asserted
by the defendants in a motion for judgment notwithstanding the
verdict); id. at 372 (referring to the doctrine at issue as “the
Parker[v. Brown, 317 U.S. 341 (1943)] defense”). 	Moreover, as
the County appellees concede, the burden is on the municipality
to “demonstrate that it is engaging in the challenged activity
pursuant to a clearly expressed state policy” to displace
competition. 	Town of Hallie, 471 U.S. at 40. 	It would make
little logical sense to require plaintiffs to specifically plead
a matter in the negative that the defendants would then be
required to prove to the contrary in order to prevail against the
plaintiffs on that ground.
III. 	CAUSE OF ACTION UNDER UTAH CONSTITUTION
ARTICLE XII, SECTION 20
¶49 	As indicated above, the parties disagree as to whether
we need determine whether Article XII, Section 20 is self-
executing when we have already determined that the Summit Water
appellants may proceed with their statutory claim under the Utah
Antitrust Act. 	While the Summit Water appellants suggest that we
need not reach the constitutional issue, the County appellees
allege that we must resolve the issue of whether the
constitutional provision “trumps all the liability and damage
limitations in the 1979 Act.” 	We accept the concession of the
Summit Water appellants for the following reasons. 	First, the
County appellees have not provided any specific citation to the
record where we might find the assertion that they ascribe to the
Summit Water appellants. 	The amended complaint submitted by the
Summit Water appellants does list Article XII, Section 20 as a

No. 20040033 	26
parallel basis, together with the Utah Antitrust Act, for
awarding injunctive relief against the County appellees and
damages against Montgomery Watson and Jarvis. 	The complaint does
not suggest, however, that the constitutional provision “trumps”
the statute in this regard.
¶50 	Second, the Summit Water appellants lost on the issue
of the proper interpretation of Article XII, Section 20 below.
Their concession on that point, if we decide in their favor on
the statutory issue, suggests that they do not consider a
constitutional right of action essential to their complaint as
long as their statutory claim is intact. 	Our settled policy is
to avoid giving advisory opinions in regard to issues unnecessary
to the resolution of the claims before us. 	Savage v. Utah Youth
Vill., 2004 UT 102, ¶ 25, 104 P.3d 1242. 	We therefore decline to
analyze whether Article XII, Section 20 is self-executing.
CONCLUSION
¶51 	We reverse the district court’s dismissal of the Summit
Water appellants’ claims under section 76-10-914 of the Utah
Antitrust Act. 	We hold that, even assuming the defendants
qualify as “municipalities” for purposes of section 76-10-
915(1)(f), the activities at issue here were not “authorized or
directed by state law,” and defendants are therefore not exempt
from the requirements of the Utah Antitrust Act. 	We further
reverse the district court’s order requiring the Summit Water
appellants to specifically plead that the activities they allege
are not authorized or directed by state law because we hold that
the exemptions in section 76-10-915 constitute affirmative
defenses, which must be pleaded by a defendant. 	Finally, because
we decide in favor of the Summit Water appellants on their
statutory claim, we do not consider whether Article XII, Section
20 of the Utah Constitution is self-executing.
---
¶52 	Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Judge Willmore concur in Chief Justice
Durham’s opinion.
¶53 	Having recused himself, Justice Nehring does not
participate herein; District Judge Thomas Willmore sat.