In July, 1998 the Utah Supreme Court clarified a 1996 ruling that required protestants at State Engineer hearings to "articulate their concerns" to the State Engineer or be precluded from raising the unarticulated concerns to a district court on appeal. In the 1996 ruling in Badger v. Brooklyn Canal Co., 922 P.2d 745 (Utah 1996) ("Badger I"), a new rule was announced that protestants may not refuse or neglect to present issues to the State Engineer and thereby bypass the State Engineer by presenting the issues for the first time to the reviewing court.

An immediate and obvious implication of the 1996 rule was for greater care by protestants to raise all possible issues, arguments and facts before the State Engineer in the written Protest, or at the Protest hearing in order to present all issues, facts and arguments for the appeal to the district court.

In order to preserve all concerns, protestants needed to retain experts and attorneys to assure that the concerns were sufficiently presented and thereby preserved. No longer could protestants simply protest, and rely on the State Engineer to divine the grounds for the Protest, and then if the Application is granted, retain counsel to articulate such grounds to the district court on appeal.

However, what Badger I left uncertain was "How much is enough?" Did the issue simply need to be raised or did the protestant need to present all of the facts and arguments to fully flesh out the issue? In other words, for example, was raising a concern about interference with a well sufficient? Or must hydrology, aquifer tests and other similar evidence be presented to the State Engineer?

Fortunately, the Badger case was remanded back to the trial court in 1996 for further proceedings and was again appealed, thus giving the Supreme Court the opportunity to clarify this precise issue in Badger v. Brooklyn Canal Co., 347 Utah Adv. Rep. 3 (July 7, 1998) ("Badger II"). The Supreme Court adopted a "level of consciousness" test, requiring that an issue be at least brought to the attention of the State Engineer so that there is a possibility it can be considered. However, vague and general statements such as, "approval will impair vested water rights," and "the proposed change will deprive the protestants of well water" are not sufficient. Specific concerns regarding specific wells must be articulated to the State Engineer to meet the level of consciousness standard. If the specific concern is articulated, that should be sufficient. The protestant need not provide all possible facts or arguments on the issue.

Water users who are protesting an application before the State Engineer will be well advised to enunciate their concerns as specifically as possible, including the specific impact of the application on them and their water rights. Failure to do so will result in being precluded from raising any unvoiced concerns before the district court on appeal.

Any comments or questions can be directed to the author at (801) 413-1600.

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