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Fw: Decision in Utah Lake Case

----- Forwarded Message -----
From: "joro walker" <jwalker@westernresources.org>
To: "Wayne Martinson" <wmart.dsawyer@aros.net>, "Jeff Salt"
<jeffsalt@greatsaltlakeaudubon.org>, "Sean Phelan"
<seandphelan@yahoo.com>, "'Cullen Battle'" <cbattle@fabianlaw.com>, "Joro
Walker" <utah@lawfund.org>, "Alan Matheson" <amatheson@tu.org>, "Jeff
McCreary" <jmccreary@ducks.org>, "Chris Montague" <cmontague@tnc.org>,
"Genevieve Atwood" <genevieveatwood@attbi.com>, "Amanda Eyre"
<aeyre@tnc.org>, "Sam Rushforth" <sam.rushforth@uvsc.edu>, "Reed Stone"
<sage2222@juno.com>, "Paul Dremann" <pdremann@xmission.com>, "Allan Daly"
<allan.daly@attbi.com>, "Daren Tuttle" <DAREN_TUTTLE@BD.COM>,
<maunsel3616@msn.com>, "Joel Peterson" <jpeterson@tnc.org>, "Darrell
Mensel" <dmensel@xmission.com>, <wbodie@pheasantsforever.org>, "Bart
Miller \(E-mail\)" <bmiller@lawfund.org>, <fishonsfw@aol.com>,
"TWITCHELL, Marlyn" <MTWITCHELL@audubon.org>, "Lynn de Freitas"
<ldefreitas@earthlink.net>, "Scot Chipman" <scotchipman@yahoo.com>,
"Glenn Foreman" <glenn@mudbuddy.com>, "Robin Tuck"
<robin@utahnature.com>, "Dennis Shirley" <dshirley@freeport.com>,
<milton@utahbirds.org>, "Charles Hanson" <charleshanson1@msn.com>, "Lynn
Tennefoss" <ltennefoss@audubon.org>, <dniven@audubon.org>
Date: Thu, 4 Dec 2003 17:16:14 -0700
Subject: Decision in Utah Lake Case
Message-ID: <ADEFJCAKCGJNMFNEJEGDAEGFCOAA.jwalker@westernresources.org>

Dear Friends,

We just received Judge Kimball's most recent decision in the Utah Lake
case dealing with the 4481 Stipulation and other matters.  

As you may recall, we argued that the Court should set aside the 4481
Stipulation because in entering it, the State violated its obligations
under public trust law.  Judge Kimball did not address our arguments, but
focused instead on the State's claims.  The State asserted that the
stipulation was unjust for a variety of reasons.  In response, Judge
Kimball found that the stipulation is fairly innocuous and therefore not
unjust. He decided that the stipulation establishes a "prima facie" case
for the landowners that they (or their predecessors) historically used
their lands down to the 4481 mark.  However, under the stipulation, the
State is free to rebut this prima facie case.  A prima facie case will be
taken as true unless proven otherwise.

In sum, the Judge determined that because the stipulation is not
particularly harmful to the State -- the State is free to offer evidence
that contradicts the landowners' claims of use -- there were not
sufficient grounds to set aside the stipulation.  

The Judge applied this reasoning to all the landowners except the
Clingers.  In the case of the Clingers, the State had agreed to a
judgment that actually transferred title of all the land in dispute down
to 4481 to the Clingers.  This, the Court determined, was improper
because the State agreed to the judgment without conferring with its
client (the Division of Forestry, Fire and State Lands).  So, the Court
vacated the Clinger judgment.  The Clingers are now in the same position
as the other remaining land owners.

Of note is that the Court, in reading the stipulation as only
establishing a preliminary factual issue, stated quite clearly that the
stipulation does NOT set a boundary between sovereign lands and private
lands.  Therefore, the Court ruled that "no actions should be taken by
landowners on land that is not included in the landowners' federal patent
or tax parcel because such lands may potentially be sovereign lands." 
This means no more dikes, farming, dredging and the like on most lands
under dispute  that are below the meander line. 

The Court also ruled that it has made no decisions with regard to Powell
Slough and that the stipulation does not apply to this area either. 
Essentially, the Court will not deal with Powell Slough until the dispute
between the land owners and the State is decided.

The Court did NOT let the State amend its compliant.  In that complaint,
the State asserted that it is impossible to determine the ordinary
highwater mark.  The State wanted to amend the complaint so that it no
longer stated it was impossible to determine the ordinary highwater mark
and so that the State could present evidence as to where that mark is.  

Finally, the Court appointed a special master to oversee a trial on the
issue of historic use and to determine the boundary between State
sovereign and private lands.

Thus, the result of the decision is that the 4481 mark is no longer a
given -- it is subject to rebuttal.  The State can prove that the
landowners did not or could not historically use lands that the State
claims are sovereign lands.  The Court is focused on  historical use
because of three Utah Supreme Court cases that suggest that land used for
agricultural purposes must be above the ordinary high water mark.  This
is because the Utah Supreme Court determined that the ordinary highwater
mark is at the level where lands are no longer valuable for agricultural
purposes because flooding by water precludes this use.  

We believe the proper focus of the inquiry should not be historic use,
but a determination of where the ordinary high water mark is.  We are
currently deciding if and how to respond to the ruling.

 *** This communication may be privileged, confidential, or otherwise
exempt from disclosure. ***

Joro Walker, Esq.
Director, Utah Office
Western Resource Advocates
  formerly Land & Water Fund of the Rockies
1473 South 1100 East, Suite "F"
Salt Lake City, Utah  84105
801.487.9911 (telephone)
801.486.4233 (fax)
jwalker@westernresources.org (email)

PLEASE NOTE NEW NAME AND EMAIL ADDRESS

*** XMISSION has generously donated this internet service ***



-----Original Message-----
From: Wayne Martinson [mailto:wmart.dsawyer@aros.net]
Sent: Monday, September 22, 2003 1:34 PM
To: Jeff Salt; Sean Phelan; 'Cullen Battle'; Joro Walker; Alan Matheson;
Jeff McCreary; Chris Montague; Genevieve Atwood; Amanda Eyre; Sam
Rushforth; Reed Stone; Paul Dremann; Allan Daly; Daren Tuttle;
maunsel3616@msn.com; Joel Peterson; Darrell Mensel;
wbodie@pheasantsforever.org; Bart Miller (E-mail); fishonsfw@aol.com;
TWITCHELL, Marlyn; Lynn de Freitas; Scot Chipman; Glenn Foreman; Robin
Tuck; Dennis Shirley; milton@utahbirds.org; Charles Hanson; Lynn
Tennefoss; dniven@audubon.org
Subject: Utah Lake pleading


Dear folks interested in the Utah Lake Boundary Issue Settlement,

FYI, attached is the pleading that Cullen Battle and Joro Walker
submitted on Sept. 2, 2003.

            Wayne Martinson


----- Original Message ----- 
From: Sean Phelan 
To: Marlyn TWITCHELL ; Alan Matheson ; Glenn Foreman ; Jeff Salt ; Joro
Walker ; Sam Rushforth ; Wayne Martinson 
Sent: Thursday, September 04, 2003 11:41 AM
Subject: Utah Lake Public Trust Memo


Hi All,

Attached is a pleading we filed (on tuesday) in Utah Lake supporting the
State of Utah's motion to vacate the 4481 Stipulation.  Basically, we've
used this response to argue that by entering the stipulation, the state
violated its duties to the citizens of Utah to manage the sovereign lands
for the benefit of the public interest.

We have also received the response by the State and Defendant Landowners
to our motion to intervene.  The State did not oppose our motion.  For
the landowners - nothing unexpected, basically they argue that we should
have intervene seven years ago.  In response, we'll point to the cases
that say the appropriate time to intervene is at the moment that it
becomes apparent that your interests are at stake.

Hope all is well,
Sean

Sean Phelan
Western Resource Advocates - Utah
-formerly Land and Water Fund of the Rockies
1473 South 1100 East, Suite F
Salt Lake City, UT 84105
ph - (801) 487-9911
fax - (801)486-4233 
This communication may be privileged, confidential or otherwise exempt
from disclosure. 
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