Living Rivers v. Department of Natural Resources , 281 P.3d 267 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Living Rivers, ) MEMORANDUM DECISION
)
Petitioner, ) Case No. 20110242‐CA
)
v. )
) FILED
Department of Natural Resources, ) (May 3, 2012)
Division of Oil, Gas, and Mining, )
) 2012 UT App 133Respondent. )
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Original Proceeding in this Court
Attorneys: Patrick A. Shea and Jacque M. Ramos, Salt Lake City, for Petitioner
Mark L. Shurtleff, Steven F. Alder, Michael S. Johnson, and Emily E.
Lewis, Salt Lake City, for Respondent
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Before Judges McHugh, Orme, and Thorne.
ORME, Judge:
¶1 Petitioner’s contentions in this proceeding for judicial review essentially boil
down to two distinct issues. The first is whether, given the evidence it received and its
findings of fact derived therefrom,1 the Board of Oil, Gas, and Mining properly
1. Petitioner does not marshal the evidence in an effort to attack specific findings of
fact. And it is readily apparent that the findings are consistent with the evidence
(continued...)
approved a Class II water injection well. See generally Utah Code Ann. § 40‐6‐5(5) (2010)
(granting the Board “exclusive jurisdiction over . . . class II injection wells”). Not
surprisingly, given that Petitioner did not put on any evidence of its own and limited its
participation at the hearing to cross‐examination of witnesses and argument about the
evidence submitted by others, essentially all of the evidence before the Board supported
the petition.2 The evidence included testimony of various experts as well as numerous
exhibits. In this posture, we simply are not persuaded that the Board made an error of
law or exceeded its discretion in approving the petition. See generally Road Runner Oil,
Inc. v. Utah Bd. of Oil, Gas, & Mining, 2003 UT App 275, ¶ 10, 76 P.3d 692 (“A party
alleging substantial prejudice from agency action is entitled to relief only if the agency
action is not supported by substantial evidence.”) (citations and internal quotation
marks omitted).
¶2 We turn now to Petitioner’s second issue. Petitioner contends that the Board
erred in not considering a university professor’s report Petitioner submitted as a
supplement to its motion for reconsideration. See generally Utah Code Ann. § 63G‐4‐302
(2011) (allowing for a “written request for reconsideration”). However, even if the
report was a timely amendment to Petitioner’s motion, see Utah Admin. Code R641‐110‐
400 (“The Board may set a time for a hearing on said petition or may summarily grant
or deny the petition.”) (emphasis added), and even if the report, construed in
conjunction with counsel’s letter, could properly have been deemed the equivalent of an
affidavit, see id. R641‐110‐200, we would still decline to disturb the Board’s
determination because the “affidavit” wholly failed to address why Petitioner “could
not, with reasonable diligence, have discovered the evidence prior to the hearing,” see
id.
1. (...continued)
received. Petitioner’s argument, then, is necessarily a challenge to the Board’s ultimate
conclusions and approval based on those unchallenged findings of fact.
2. In so observing, we recognize that Petitioner’s counsel joined the fray late in the
game and that counsel twice moved for a continuance of the hearing but was denied.
Denial of the requested continuances is not at issue.
20110242‐CA 2
¶3 For the foregoing reasons, we decline to disturb the Board’s decision.
____________________________________
Gregory K. Orme, Judge
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¶4 WE CONCUR:
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Carolyn B. McHugh,
Presiding Judge
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William A. Thorne Jr., Judge
20110242‐CA 3