Haik v. Jones

This opinion is subject to revision before final
publication in the Pacific Reporter

2018 UT 39

IN THE

SUPREME COURT OF THE STATE OF UTAH

MARK CHARLES HAIK,
Appellant,
v.
KENT L. JONES, as Utah State Engineer,
and SALT LAKE CITY CORPORATION,
Appellees.

No. 20160878
Filed August 7, 2018

On Direct Appeal

Third District, Salt Lake
The Honorable Judge Royal I. Hansen
No. 160903224

Attorneys:
Paul R. Haik, Eden Prairie, MN, for appellant
Sean D. Reyes, Att’y Gen., Norman K. Johnson, Julie I. Valdes,
Asst. Att’ys Gen., Salt Lake City, for appellee Kent L. Jones
Shawn E. Draney, Scott H. Martin, Dani N. Cepernich, Salt Lake
City, for appellee Salt Lake City Corporation

JUSTICE PEARCE authored the opinion of the Court in which
JUSTICE HIMONAS and JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE authored an opinion concurring in part
and concurring in result in which CHIEF JUSTICE DURRANT joined.

JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶ 1 Mark Haik wants water for his undeveloped canyon lots. As
part of an effort to obtain that water, Haik challenged a change
application that sought to add acreage to accommodate a private
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Opinion of the Court

water system that would serve ten homes in Little Cottonwood
Canyon. The change application did not directly impact Haik’s
property or his water rights. Haik sought judicial review of the State
Engineer’s approval. The district court concluded Haik lacked
standing to mount that challenge. The district court also rebuffed
Haik’s efforts to amend his petition and dismissed. Haik appeals. We
affirm.
BACKGROUND
¶ 2 As we noted when we last addressed a Haik appeal, “[Haik]
has spent the better part of the last twenty years asking courts to
order Salt Lake City to supply his undeveloped property in the
Albion Basin Subdivision with enough water (at least 400 gallons per
day) to allow him to build houses on it.” Haik v. Salt Lake City Corp.,
2017 UT 14, ¶ 2, 393 P.3d 285. For a somewhat more complete history
of Haik’s saga, see id. ¶¶ 2–6.
¶ 3 This time around, Haik challenged Change Application
#57-10013. The application explained its raison d’être:
This Change Application adds 25.165 acres, located and
described in the attached Exhibit A, to the approved
place of use. No other changes are sought. Salt Lake
City adds this acreage to reflect the anticipated
construction of a private stand-alone water system
sourced from the Bay City Mine to serve only up to 10
single family homes to be located on said acreage. The
right to use of this surplus water is based on the . . .
Water Supply Agreement between Salt Lake City and
certain Alta area property owners, as amended by [a
court order]. Under this Order, each of the up to 10
homes may receive up to 800 [gallons per day] average
calculated on a monthly basis—for a maximum total of
8,000 [gallons per day] calculated on a monthly basis.
Haik is not one of these “certain Alta area property owners” the
change application references. Indeed, Haik requested that the
district court either enjoin the State Engineer’s decision or allow him
“to similarly construct a private stand-alone system” that could
serve his property.
¶ 4 Despite having no direct connection to the change
application, Haik challenged it. Haik asserted that Salt Lake City
Corporation (the City) failed to show that “its application was filed
in ‘good faith and not for purposes of speculation or monopoly.’”
(Quoting UTAH CODE § 73-3-8(1)(a)(v)). Haik also argued that the

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City had violated article XI, section 6 of the Utah Constitution, which
provides:
No municipal corporation, shall directly or indirectly,
lease, sell, alien or dispose of any waterworks, water
rights, or sources of water supply now, or hereafter to
be owned or controlled by it; but all such waterworks,
water rights and sources of water supply now owned
or hereafter to be acquired by any municipal
corporation, shall be preserved, maintained and
operated by it for supplying its inhabitants with water
at reasonable charges . . . .
Haik contended that by “add[ing] a private system for the purpose
of diverting [the] public water supply,” the City unconstitutionally
alienated water. Haik additionally asserted that the City abused its
alleged monopoly power by denying landowners water.
¶ 5 Despite Haik’s objections, the State Engineer approved the
change application. In response, Haik filed a petition in the district
court seeking a trial de novo of the State Engineer’s order. Haik’s
petition rehashed the arguments he made to the State Engineer. The
City moved to dismiss, arguing that Haik lacked standing, had failed
to exhaust his administrative remedies, and that the petition failed to
state a viable claim. The State Engineer argued that Haik lacked
standing and that Haik’s claims fell outside the scope of a trial de
novo.
¶ 6 Haik opposed the motions, but also moved for leave to
amend. Haik asked: “If the Court determines there is an insufficiency
in the petition based upon the motions for dismissal of either the
State Engineer or Salt Lake City Corporation, then Mark Haik
requests leave to amend or supplement so as to cure any deficiency.”
But Haik did not attach a proposed amended petition or describe in
any way, shape, or form how he might amend the petition to remedy
the deficiencies the City and State Engineer attacked.
¶ 7 The district court granted the motions to dismiss. The district
court concluded that it lacked jurisdiction because Haik lacked
standing. The court also held that Haik had asserted claims that were
not the proper subject of a trial de novo of a change application. 1
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1 The district court also found that Haik had failed to follow
appropriate procedures in pursuing a declaration that certain water
was “available for appropriation” because Haik had not pressed this
claim in front of the State Engineer.

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Finally, the district court denied Haik’s motion to amend because he
had “failed to provide a proposed amended petition with his
motion” and because “any proposed amendment would be
futile . . . .”
¶ 8 Haik appeals.
ISSUES AND STANDARDS OF REVIEW
¶ 9 Haik argues that the district court erred in granting the
motions to dismiss his petition. The grant of a motion to dismiss
presents a question of law that we review for correctness. Salt Lake
City Corp. v. Big Ditch Irrigation Co., 2011 UT 33, ¶ 19, 258 P.3d 539.
¶ 10 Haik also argues that the district court erred in denying his
motion for leave to amend. The district court denied the motion
because Haik failed to attach a proposed amended petition and
because it found that any amendment would be futile.
¶ 11 We have reviewed denial of motions for leave to amend
under an abuse of discretion standard. Holmes Dev., LLC v. Cook, 2002
UT 38, ¶ 56, 48 P.3d 895. And we have drawn no distinction between
denials premised on a procedural defect—such as timeliness or
failure to attach a proposed amended pleading—and denials based
upon the amendment’s futility. See, e.g., McLaughlin v. Schenk, 2009
UT 64, ¶ 41, 220 P.3d 146 (“[W]e hold the district court did not abuse
its discretion because McLaughlin’s amendment failed to state new
facts or a new theory that had not already been addressed by the
court; an amendment would have been futile.”).
¶ 12 Our court of appeals, on the other hand, has drawn just
such a distinction. For example, in Powder Run at Deer Valley Owner
Ass’n v. Black Diamond Lodge at Deer Valley Ass’n of Unit Owners, the
appeals court noted that while it reviews for “abuse of discretion a
ruling on a motion for leave to amend a pleading, we review a
futility determination for correctness.” 2014 UT App 43, ¶ 6, 320 P.3d
1076.
¶ 13 The State Engineer noted this distinction in its brief and
expressed confusion over the appropriate standard. And we think
the court of appeals has it right. Futility of an amendment asks for a
legal determination of the merits of the proposed amendment. But
before overturning our precedent, we must conduct a stare decisis
analysis. See Eldridge v. Johndrow, 2015 UT 21, 345 P.3d 553. “Stare
decisis ‘is a cornerstone of Anglo–American jurisprudence’ because it
‘is crucial to the predictability of the law and the fairness of
adjudication.’ Because stare decisis is so important to the
predictability and fairness of a common law system, we do not
overrule our precedents ‘lightly.’” Id. ¶ 21 (citations omitted).

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¶ 14 “Our decisions have identified two broad factors that
distinguish between weighty precedents and less weighty ones:
(1) the persuasiveness of the authority and reasoning on which the
precedent was originally based, and (2) how firmly the precedent
has become established in the law since it was handed down.” Id.
¶ 22. It appears that we have simply not analyzed whether we
should employ a separate standard of review for denying a motion
for leave to amend because of futility. In McLaughlin, we reviewed a
denial of a motion to amend on grounds of futility and summarily
stated that “[w]e review a district court’s decision to deny a
plaintiff’s motion to amend its complaint for abuse of discretion.”
2009 UT 64, ¶ 14. And we applied that standard of review without
analysis. See id. ¶ 41. We have noted that precedent is less weighty
when we have “simply presumed . . . without analy[sis].” State v.
Legg, 2018 UT 12, ¶ 11, 417 P.3d 592.
¶ 15 As for “how firmly the precedent has become established,”
Eldridge, 2015 UT 21, ¶ 22, the court of appeals apparently saw a gap
to fill and applied a separate standard. See Powder Run, 2014 UT App
43, ¶ 6; Shah v. Intermountain Healthcare, 2013 UT App 261, ¶ 6, 314
P.3d 1079 (reviewing a district court’s denial of a motion to amend
on grounds of futility for correctness). Meanwhile, it appears that
McLaughlin’s standard of review has yet to be cited in a published
case.
¶ 16 Taken together, we can safely conclude that this is a case in
which the Eldridge factors have been satisfied and that more harm
than good will come from adherence to stare decisis principles. As
such, we disavow the portion of McLaughlin where we reviewed the
denial of a motion to amend on futility grounds for an abuse of
discretion. When the purported futility of the amendment justifies
the denial of a motion to amend, we review for correctness.
ANALYSIS
I. Haik Lacks Standing Because He Is Not “Aggrieved
by an Order of the State Engineer”
¶ 17 Before the district court, Haik argued he had standing to
challenge the State Engineer’s order under Utah Code section
73-3-14. That provision provides that “[a] person aggrieved by an
order of the state engineer may obtain judicial review in accordance
with Title 63G, Chapter 4, Administrative Procedures Act, and this
section.” UTAH CODE § 73-3-14(1)(a). In this context, “‘aggrieved’ is
consistent with our traditional standing requirement that a plaintiff
show particularized injury.” Wash. Cty. Water Conservancy Dist. v.
Morgan, 2003 UT 58, ¶ 14, 82 P.3d 1125.

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¶ 18 “We have recognized that ‘the first and most widely
employed standard’ for establishing standing ‘requires a plaintiff to
show some distinct and palpable injury that gives rise to a personal
stake in the outcome of the dispute.’ This requirement that a plaintiff
demonstrate such ‘particularized’ injury is part of the ‘traditional’
test for standing.” Id. ¶ 20 (citations omitted). “The traditional
standing requirement is generally justified on grounds that in the
absence of a requirement that a plaintiff have a ‘personal stake in the
outcome’ or a ‘particularized injury,’ the courts might permit
themselves to be drawn into disputes that are not fit for judicial
resolution or amount to ‘generalized grievances that are more
appropriately directed to the legislative and executive branches of
the state government.’” Soc’y of Prof’l Journalists, Utah Chapter v.
Bullock, 743 P.2d 1166, 1170 (Utah 1987) (citation omitted).
¶ 19 Haik contends that “[he] is a landowner in the valley” and
that this “suffices for recognizing him as an aggrieved person.” Haik
cites Utah Alunite Corp. v. Jones, 2016 UT App 11, 366 P.3d 901, for
this proposition. In that case, the court concluded that appellants
were aggrieved because they were granted a water right “subject to
the [Water] District’s senior right.” Id. ¶¶ 4, 9 (alteration in original).
Appellants there challenged that senior right. Id. ¶ 4. The State
Engineer’s decision that appellants’ rights were junior caused
appellants to suffer an “‘actual or potential injury’ resulting from the
State Engineer’s decision.” Id. ¶ 7 (citation omitted). Thus, they were
aggrieved.
¶ 20 There is no similar contention here. Unlike the appellants in
Utah Alunite Corp., the change application here does not impact Haik
in any direct or particularized way. Haik merely claims that he, like
many others, “is a landowner in the valley from which the water is
to be appropriated . . . .” In other words, Haik argues that because he
receives (or wants to receive) water from the City, he has an interest
in how the City manages that water and standing to challenge the
City’s decision. Haik’s injury could hardly be “particularized” if any
person who receives water from the City could assert it. 2

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2 Haik argues that Salt Lake City “concedes [that] landowners
with inevitable water needs have an interest,” citing footnote 4 of
Salt Lake City’s brief. What Salt Lake City wrote, however, is that the
court of appeals in Utah Alunite Corp. “reference[d] the State
Engineer’s position that ‘“as a landowner . . . with inevitable water
needs, [the appellant] had an interest in [the] water . . . .”’” (Third
(continued . . .)

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¶ 21 Haik also appears to argue that approval of this change
application appropriated water that could have been his. Haik
claims that “[i]f wrongful municipal appropriation is followed by
unconstitutional alienation back to selected or favored private
parties, then the public trust is injured and wrongful displacement of
waters that would otherwise be available to serve private residences
occurs, directly harming Haik.” But Haik makes no showing that if
the change application were denied, any additional water would
flow his way. Since Haik has made no showing that if this water
were not used for these residences it would be available for his land,
he cannot meet our traditional standing test and cannot be
considered an aggrieved party under the statute. 3
¶ 22 Next, Haik contends that “wrongful displacement [of
water] enhances injury to Haik because his apparent recourse to
water is only through purchase of private water. To the extent[] that
private water is unconstitutionally, illegally displaced; that injury
reduces recourse for Haik.” (Emphases omitted). Again, the
availability of water on the open market, which impacts all persons
receiving water from the City, is more of a “generalized grievance[]”
than the distinct injury our standing caselaw requires. Bullock, 743
P.2d at 1170 (citation omitted). 4

_____________________________________________________________
alteration a correction) (quoting Utah Alunite Corp., 2016 UT App 11,
¶ 10 n.7). The “inevitable water needs” in Utah Alunite Corp. were
coupled with a distinct interest in the State Engineer’s decision. 2016
UT App 11, ¶¶ 4, 7, 10 n.7. In other words, although the Utah Alunite
Corp. appellants did not ultimately have standing because they failed
to participate in the administrative proceeding, they could show a
particularized injury; Haik cannot. Id. ¶¶ 7–10. And Salt Lake City
never conceded otherwise.
3 Haik similarly argues that any owner of a private water right
should have standing to raise constitutional claims. This argument
fails for the same reason; we do not abandon our standing
requirements simply because the plaintiff wishes to assert a
constitutional claim. We have recognized public interest standing in
certain circumstances, but for the reasons discussed herein, Haik
does not clear that bar either.
4 Haik also litters his brief with a number of conclusory and
inadequately briefed arguments that fail to persuade. For example,
Haik cites an antitrust case from the United States Court of Appeals
for the Tenth Circuit to assert that his allegations of Salt Lake City’s
(continued . . .)

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II. Haik Lacks Public Interest Standing
¶ 23 Haik argues that even if he lacks traditional standing, he
has public interest standing. 5 “Utah law . . . allows parties to gain
standing if they can show that they are an appropriate party raising
issues of significant public importance.” Gregory v. Shurtleff, 2013 UT
18, ¶ 18, 299 P.3d 1098 (omission in original) (citation omitted).
“[T]his test breaks down to two elements.” Id. ¶ 28 (citation omitted).
First, the issue must be of “significant public importance.” Id. ¶¶ 27–
28 (citation omitted). Second, the party invoking public interest
standing “must also be ‘an appropriate party.’” Id. ¶ 28 (citation
omitted).
¶ 24 Haik claims he has public interest standing to assert both
constitutional and nonconstitutional claims. Haik’s nonconstitutional
claim posits that the change application was filed in bad faith and for
the purpose “of speculation or monopoly . . . .” UTAH CODE

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monopolistic activities grant standing “to situations inextricably
intertwined and integral to appropriations within Little Cottonwood
Canyon.” (Citing Reazin v. Blue Cross & Blue Shield of Kan., 899 F.2d
951 (10th Cir. 1990)). Haik does not develop this analysis in a way
that would permit us to address it in a meaningful way.
5 Any invocation of the public standing doctrine should come
with a warning label that two members of this court have expressed
serious doubt about the intellectual underpinnings of the doctrine
and have invited further discussion of its continued viability. See
Gregory v. Shurtleff, 2013 UT 18, ¶ 64, 299 P.3d 1098 (Lee, J.,
concurring in part and dissenting in part) (“In overriding these
constraints, the majority robs the constitutional limits on our power
of meaningful content. It does so to uphold standing for the Article
VI claimants in this case on public interest grounds, thereby
subjecting the standing inquiry to the arbitrary discretion of the
court, under a standardless ‘test’ that is little more than a post-hoc
justification for a preferred result.”). No party asks us to revisit our
jurisprudence and none has attempted to lift the burden necessary to
convince us to depart from stare decisis principles. See Eldridge v.
Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 553 (“Stare decisis ‘is a
cornerstone of Anglo-American jurisprudence’ because it ‘is crucial
to the predictability of the law and the fairness of adjudication.’
Because stare decisis is so important to the predictability and fairness
of a common law system, we do not overrule our precedents
‘lightly.’” (citations omitted)).

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§ 73-3-8(1)(a)(v). Haik fails, however, to convince that the issue he
raises constitutes an issue of “significant public importance.”
Gregory, 2013 UT 18, ¶ 27 (citation omitted).
To show that an issue is of significant importance, [a
party] must not only show that the “issues are of a
sufficient weight but also that they are not more
appropriately addressed by another branch of
government pursuant to the political process.” And,
“[t]he more generalized the issues, the more likely they
ought to be resolved in the legislative or executive
branches.”
Cedar Mountain Envtl., Inc. v. Tooele Cty. ex rel. Tooele Cty. Comm’n,
2009 UT 48, ¶ 18, 214 P.3d 95 (second alteration in original) (citations
omitted), declined to follow on other grounds, Salt Lake Cty. v. Holliday
Water Co., 2010 UT 45, 234 P.3d 1105.
¶ 25 Haik notes that “[t]here is a profound recognition of the
importance of water in Utah . . . .” And he implicitly argues that
because water is important, legal issues surrounding water should
be considered issues of significant public interest. Although we have
never said that all water issues are significant, in Washington County
Water Conservancy District v. Morgan, we left open “the possibility
that some issues concerning water rights might present questions of
great public importance.” 2003 UT 58, ¶ 27, 82 P.3d 1125. We opined
that such a case would arise “where a large number of people would
be affected by the outcome.” Id. But this is not the type of case that
we contemplated in Washington County. The approval of this change
application, which added acreage “to serve only up to 10 single
family homes,” does not present a matter of great public importance,
as we described that term in Washington County.
¶ 26 That leaves the possibility that Haik’s constitutional claim
might be of significant public importance. Haik argues that the City
has violated Utah Constitution article XI, section 6, alleging that the
City unconstitutionally alienated water by diverting it to private
residences and that the City unconstitutionally refused water to
others. We have recognized that “[n]ot every constitutional
provision, to be sure, is of such importance that a claim of its
violation will necessarily rise to the level of ‘significant public
importance’ required for public-interest standing . . . .” Gregory, 2013
UT 18, ¶ 27 (citation omitted). But we have sometimes found that
public interest standing was appropriate where a plaintiff asserted
constitutional claims.

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¶ 27 For example, in Gregory, the appellants challenged the
constitutionality of a bill partly under “Article VI, Section 22 of the
Utah Constitution, which provides that [subject to exceptions] ‘no
bill shall be passed containing more than one subject, which shall be
clearly expressed in its title.’” Id. ¶ 4 (emphasis omitted) (quoting
UTAH CONST. art. VI, § 22). We reasoned that, because “[t]he
restrictions placed on legislative activity by Article VI, Section 22 of
the Utah Constitution are part of the fundamental structure of
legislative power articulated in our constitution[,] [t]hey are . . . of
sufficient importance and general interest that claims of their
violation may be brought even by plaintiffs who lack standing under
the traditional criteria.” Id. ¶ 27; see also City of Grantsville v.
Redevelopment Agency of Tooele City, 2010 UT 38, ¶¶ 3–6, 19, 233 P.3d
461 (holding that plaintiffs had public interest standing to challenge
an alleged breach of a redevelopment agreement where Tooele City
sold property and allegedly failed to share the proceeds of that sale
with the county or redevelop the property for the benefit of the
community); Utah Chapter of Sierra Club v. Utah Air Quality Bd., 2006
UT 74, ¶¶ 3, 44, 148 P.3d 960 (holding that plaintiffs had public
interest standing to challenge the permitting of a plant because it
would “emit hazardous chemicals” and was close to plaintiffs’
homes and to Capitol Reef National Park).
¶ 28 We can assume without deciding that Haik’s constitutional
claims are of significant public importance because they fail for
another reason: they are not properly before us. Utah Code section
63G-4-402(1)(a) provides that “[t]he district courts have jurisdiction
to review by trial de novo all final agency actions resulting from
informal adjudicative proceedings . . . .” “‘[T]he district court’s
judgment in reviewing the [State Engineer’s] decision is limited to
the issues determinable by the [State Engineer]’ and ‘the court may
not determine issues not within the power of the [State Engineer] to
determine.’” Jensen v. Jones, 2011 UT 67, ¶ 16, 270 P.3d 425 (citation
omitted).
¶ 29 We have noted “that ‘the State Engineer does not have the
authority to adjudicate all the issues that may arise in the context of a
change application.’” Id. ¶ 11 (citation omitted). “With respect to
change applications, the jurisdiction of the State Engineer’s office is
thus circumscribed by the criteria upon which the statute permits it
to base its decisions. Those criteria are largely set forth in Utah Code
section 73-3-8(1).” Id. (citation omitted). That statute provides that:
(1)(a) It shall be the duty of the state engineer to
approve an application if there is reason to believe that:

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(i) for an application to appropriate, there is
unappropriated water in the proposed source;
(ii) the proposed use will not impair existing rights
or interfere with the more beneficial use of the
water;
(iii) the proposed plan:
(A) is physically and economically feasible,
unless the application is filed by the United
States Bureau of Reclamation; and
(B) would not prove detrimental to the public
welfare;
(iv) the applicant has the financial ability to
complete the proposed works;
(v) the application was filed in good faith and not
for purposes of speculation or monopoly; and
(vi) if applicable, the application complies with a
groundwater management plan adopted under
Section 73-5-15.
UTAH CODE § 73-3-8(1)(a).
¶ 30 “The context of the entire statute makes it clear that the
State Engineer does not have the authority to adjudicate all the
issues that may arise in the context of a change application. . . . [T]he
statutory authority of the State Engineer does not include
jurisdiction over cases more properly presented in other
forums . . . .” Badger v. Brooklyn Canal Co., 922 P.2d 745, 750–51 (Utah
1996). In interpreting these restrictions on the State Engineer’s
authority, we have stated that “[t]he state engineer lacks authority to
adjudicate water rights . . . .” Jensen, 2011 UT 67, ¶ 18. We have
similarly held that the State Engineer cannot “consider
non-adjudicated forfeiture,” id., or “shareholder rights” to water,
Badger, 922 P.2d at 749, 751.
¶ 31 The constitutional claims Haik has brought, though
possibly relevant to a change application, should be adjudicated in
district court and not before the State Engineer. See id. at 750 (“The
context of the entire statute makes it clear that the State Engineer
does not have the authority to adjudicate all the issues that may arise
in the context of a change application.”). It is not for the State
Engineer to “determine whether the approval [of this change
application] is a lawful or unlawful alienation . . . .” Even Haik seems

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to recognize this, explaining during the hearing in front of the State
Engineer:
To clarify, the issue and the only issue that lies at the
heart of all of this is what is the meaning of Article 11,
Section 6 of the Utah Constitution? Because that’s the
constitutional provision that drives all of Salt Lake
City’s water business, everything. Everything it does
under the statute, everything it does under your
appropriations, including this application. And that is
the issue the Tenth Circuit has sent back and said the
Utah Constitution, what that means and how that
means, that’s for the Utah Supreme Court to decide.
We’re not asking you to decide that in any way. We’re
asking you to apply your best skill and judgment to the
factual circumstance, apply the statutes that are in front
of you and make a decision. 6
¶ 32 Haik did not ask the State Engineer to interpret the
constitution. But he did try and bootstrap that constitutional
argument to his challenge in front of the State Engineer. Because the
State Engineer could not properly decide the issue, it was not an
issue properly before the district court in a trial de novo. See UTAH
CODE § 63G-4-402(1)(a) (“The district courts have jurisdiction to
review by trial de novo all final agency actions resulting from
informal adjudicative proceedings . . . .”). And because it was not
properly before the district court, it is not properly before us.
¶ 33 Although we assume without deciding that Haik’s
constitutional claim could be considered an issue of significant
public importance, he cannot press that constitutional claim as part
of a challenge to a change application. 7

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6 It is unclear to us what Haik was referring to in stating that this
is an “issue the Tenth Circuit has sent back” for us to decide. To the
extent that the Tenth Circuit opined that this is a matter of state law,
bringing these constitutional concerns in front of the State Engineer
is not the way to resolve them.
7 Salt Lake City also argues, based partly upon our decision in
Washington County, that public interest standing is not available to a
party seeking review of the State Engineer’s decision. The
concluding paragraph of that decision could be read to suggest that
we had decided that public interest standing had no truck in a
challenge of the State Engineer’s decision. Wash. Cty. Water
(continued . . .)

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III. The District Court Properly Denied
Haik’s Motion for Leave to Amend
¶ 34 The district court denied Haik’s motion for leave to amend
for two reasons: Haik did not attach a proposed amended petition,
and any amendment would be futile.
¶ 35 In Holmes Development, LLC v. Cook, we stated that “[a
motion] for leave to amend must be accompanied by a
memorandum of points and authorities in support and by a
proposed amended complaint.” 2002 UT 38, ¶ 57, 48 P.3d 895
(citations omitted). A proposed amendment allows “the court [to]
ascertain what changes are sought and . . . determine whether the
motion should be granted and whether justice so requires the
amendment of a pleading.” Id. ¶ 58. Haik failed to attach an
amended petition. Moreover, Haik gave the district court no reason
to believe that he could craft an amended pleading that would
resolve the deficiencies the motions to dismiss exposed. The district
court did not abuse its discretion in denying a procedurally deficient
motion. The district court also properly concluded that such an
amendment would be futile because Haik provided no basis under
which he would have alleged standing.
CONCLUSION
¶ 36 Haik is not a person aggrieved by the State Engineer’s
decision. His constitutional claims were not properly before the State
Engineer and Haik does not qualify for public interest standing.
After the motions to dismiss raised these problems, Haik sought
leave to amend but did not attach a proposed amended pleading.
The district court did not err in finding that Haik lacked standing.
Nor did it abuse its discretion in denying the motion to amend. We
affirm.

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Conservancy Dist., 2003 UT 58, ¶ 28. But there is no analysis of this
question in the opinion and we believe that question is still open.

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LEE, A.C.J., concurring in part and concurring in the result

ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring
in the judgment:
¶37 I agree with and concur in the court’s judgment affirming
the dismissal of Mark Haik’s statutory and constitutional claims. I
also concur in much of the majority opinion. I write separately,
however, because I find unnecessary the court’s discussion of
“public interest” standing. See supra ¶¶ 23–27. This doctrine rests on
shaky constitutional footing. See Gregory v. Shurtleff, 2013 UT 18,
¶¶ 87–91, 299 P.3d 1098 (Lee, J., concurring in part and dissenting in
part, joined by Durrant, C.J.) (concluding that the public interest
standing doctrine is incompatible with the judicial power clause of
article VIII of the Utah Constitution). And I would not reinforce it
here as the application of this doctrine is not properly presented for
our decision.
¶38 I would hold that Haik lacks standing to assert his statutory
and constitutional claims on the ground that he is not “[a] person
aggrieved by an order of the state engineer.” UTAH CODE
§ 73-3-14(1)(a). And I would affirm the dismissal of Haik’s
constitutional claim on the alternative ground (endorsed by the
majority) that he “cannot press [a] constitutional claim as part of a
challenge to a change application” under the governing statute.
Supra ¶¶ 28–33. These grounds for decision obviate the need for us
to consider or apply the doctrine of public interest standing. And I
would stop short of so doing because the doctrine is problematic and
not necessary to our decision.
I
¶39 To have standing to assert a claim a plaintiff must clear two
hurdles. The first hurdle emanates from the law that establishes the
plaintiff’s right of action—the common law, a statute, or the
constitution. If the plaintiff is asserting a statutory claim, for
example, he has standing only if he is within the class of parties that
the legislature authorized to file suit. 8 This is sometimes called
“statutory standing.” 9

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8 See Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.
1377, 1386–87 (2014) (explaining that the threshold standing question
on a statutory claim, antecedent to the constitutional standing
question, is “a matter of statutory interpretation”—as to “whether a
legislatively conferred cause of action encompasses a particular
plaintiff’s claim” (citations omitted)); see also In re Questar Gas Co.,
2007 UT 79, ¶ 61, 175 P.3d 545 (“A person who is ‘aggrieved’ by
(continued . . .)

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LEE, A.C.J., concurring in part and concurring in the result

¶40 The second hurdle is constitutional. Even if the plaintiff has
a statutory right to sue he may lack standing if he does not meet the
constitutional requirements for standing. 10 Under our cases the
“traditional” standing test requires proof that the plaintiff suffered a
“distinct and palpable injury that gives rise to a personal stake in the
outcome of the dispute.” Wash. Cty. Water Conservancy Dist. v.
Morgan, 2003 UT 58, ¶¶ 14, 20, 82 P.3d 1125. A majority of the court
has also endorsed an alternative test under the constitution—for
“public interest standing.” Gregory v. Shurtleff, 2013 UT 18, ¶¶ 16, 18,
299 P.3d 1098 (citations omitted).
¶41 If a plaintiff is asserting a statutory claim the constitutional
standing question arises if and only if the plaintiff has statutory
standing. If the plaintiff is not within the class of parties that the
legislature has authorized to file suit, it does not matter whether that
plaintiff could identify some sort of “distinct and palpable injury” or
a basis for “public interest” standing. See, e.g., In re Questar Gas Co.,

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agency action must establish ‘that the injury he complains of . . . falls
within the “zone of interests” sought to be protected by the statutory
provision whose violation forms the legal basis for his complaint.’”
(omission in original) (citations omitted)).
9 See Lexmark, 134 S. Ct. at 1387 n.4 (noting that this inquiry is
sometimes referred to as “statutory standing”); Wash. Cty. Water
Conservancy Dist. v. Morgan, 2003 UT 58, ¶¶ 8–10, 82 P.3d 1125
(concluding that a water conservancy district lacked “statutory
standing” to file suit under Utah Code section 73-1-4; treating this
inquiry as a matter of statutory interpretation and concluding that
“we have never interpreted the forfeiture statute to confer on all
members of the general public statutory standing to file forfeiture
actions”); id. at ¶¶ 11–14 (explaining that a party’s standing to sue
under Utah Code section 73-3-7(1) “is a question of statutory
interpretation”; concluding that there is “nothing in the statutory
framework to suggest a legislative attempt to grant a right of judicial
review to those who can show no . . . grievance or injury”).
10 See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016) (“Congress’
role in identifying and elevating intangible harms does not mean
that a plaintiff automatically satisfies the injury-in-fact requirement
whenever a statute grants a person a statutory right and purports to
authorize that person to sue to vindicate that right. [Constitutional]
standing requires a concrete injury even in the context of a statutory
violation.”).

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LEE, A.C.J., concurring in part and concurring in the result

2007 UT 79, ¶ 57, 175 P.3d 545 (concluding that an “aggrieved” party
did not have standing because it “d[id] not fall within the classes of
persons to whom standing is granted”). 11 Constitutional standing is
a backstop, in other words—a set of secondary requirements that are
relevant only if the plaintiff can first show that the legislature has
authorized him to file suit (otherwise constitutional standing would
be a backdoor basis for overriding legislative intent; and that is not
the point of constitutional standing. 12).
II
¶42 This means that the threshold question for our decision is
whether Haik has a statutory right to challenge the state engineer’s
order. He does not. By statute only “[a] person aggrieved” by an
order of the state engineer is authorized by the legislature to sue.
UTAH CODE § 73-3-14(1)(a). And Haik is not a “person aggrieved.”
See supra ¶¶ 20, 36.
¶43 This conclusion follows from the standard set forth in our
opinion in Washington County Water Conservancy District v. Morgan,

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11 One of our decisions arguably suggests that a plaintiff could
overcome a lack of statutory standing by satisfying the elements of
“alternative” constitutional standing. See Cedar Mountain Envtl., Inc.
v. Tooele Cty. ex rel. Tooele Cty. Comm’n, 2009 UT 48, ¶¶ 8, 14, 214 P.3d
95 (evaluating whether a party has “alternative standing” after
concluding that it had standing under a statute). But the “alternative
standing” analysis in that case was unnecessary because the plaintiff
had already established standing under a statute incorporating the
“traditional test” (requiring proof of a particularized injury). Id. ¶ 14.
So the alternative standing discussion in Cedar Mountain
Environmental is unnecessary dicta. And that case should not be
construed to override the central logic set forth in the other cases
cited herein.
12 Its point, instead, is simply to assure that our courts are limited
to exercising the sort of power conferred on us under article VIII of
the Utah Constitution. Brown v. Div. of Water Rights of Nat. Res., 2010
UT 14, ¶¶ 12–13, 228 P.3d 747 (recognizing that our constitution
“mandates certain standing requirements, which emanate from the
principle of separation of powers” and limit “a court’s basic
authority over [a] dispute” (citation omitted)); Gregory, 2013 UT 18,
¶ 66 (Standing “is an essential element of the constitutional
provisions defining and limiting the judicial power.”) (Lee, J.,
concurring in part and dissenting in part).

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2003 UT 58, 82 P.3d 1125. In that case we held that the legislature has
confined the right to challenge an order of the state engineer to those
who have suffered a particularized injury. Id. ¶ 14 (finding “nothing
in the statutory framework to suggest a legislative attempt to grant a
right of judicial review to those who can show no [particularized]
grievance or injury”); id. ¶ 16 (“[e]quating the statutory term
‘aggrieved’ with the traditional standing requirement of
particularized injury”). We held that a mere “interested” party
lacking a particularized injury does not qualify as a “person
aggrieved by an order of the state engineer” under Utah Code
section 73-3-14(1)(a). Id. ¶ 14. And we tied that conclusion to the
operative language of the statute. Id. ¶¶ 11, 14.
¶44 Salt Lake City has asked us to reject Haik’s public interest
standing argument on this basis. It cites the above analysis in the
Washington County case. And it asserts that “Haik offers no authority
for his apparent position that the common-law doctrine of public
interest standing can displace the statutory requirement in UAPA
that a person be an ‘aggrieved party’ in order to seek judicial
review.”
¶45 That seems exactly right. I would endorse that view. I
would conclude only that Haik lacks statutory standing because he
does not fall within the class of plaintiffs entitled to file suit in a case
like this one. And I would not proceed to analyze the question
whether Haik could qualify for public interest standing.

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