Searle v. Milburn

2005 UT 58
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Lawrence W. Searle and 	No. 20040406
Ann C. Searle,
Plaintiffs and Appellants,
v.
Milburn Irrigation Company,
William M. Hamilton, and
The Utah State Engineer, Jerry 	F I L E D
D. Olds, P.E.,
Defendants and Appellees. 	September 2, 2005
---
Sixth District, Manti Dep’t
The Honorable David L. Mower
No. 202600165
Attorneys: 	Bryan J. Pattison, St. George, for plaintiffs
Mark L. Shurtleff, Att’y Gen., Heather B. Shilton,
Norman K. Johnson, Asst. Att’ys Gen., Salt Lake City,
for defendant Utah State Engineer Jerry D. Olds, P.E.
John H. Mabey, Jr., David C. Wright, Salt Lake City,
for defendant Milburn Irrigation Company
---
DURRANT, Justice:
¶1 	In this case, we are called upon to address several
questions concerning the procedure applicable to the approval or
rejection of applications proposing a change in water use. 	More
specifically, we must determine whether the district court
properly invoked the preponderance of the evidence standard of
proof and correctly allocated the burden of proof when rejecting
a change application. 	Additionally, we must decide whether a
change applicant’s prima facie showing that no impairment of
vested water rights will result from application approval can be
successfully undermined by circumstantial evidence demonstrating
the probability of impairment.

No. 20040406 	2
¶2 	When considering the change application at issue in
this case, the district court utilized a burden-shifting approach
whereby the change applicant was first required to show “reason
to believe” that approval of the application would not result in
impairment of vested water rights. 	After that initial showing,
the district court shifted the burden to the protesting party to
show, by a preponderance of the evidence, that approval of the
application would result in impairment of vested rights. 	We
conclude that the approach adopted by the district court is
inharmonious with our case law and that a remand is therefore
necessary. 	We hold that an applicant seeking a change in water
use need only show reason to believe that approval of the
application will not result in impairment of vested water rights
and that the applicant bears the burden of persuasion throughout
the application process. 	A protestant may, however, successfully
oppose application approval by producing either direct or
circumstantial evidence that sufficiently undermines the
applicant’s showing that the use proposed can be accomplished
without impairing vested rights. 	After explaining the factual
background of the present case, we will analyze each of the
issues identified above.
BACKGROUND
¶3 	Appellants Lawrence and Ann Searle own property on the
Wasatch Plateau, which plateau forms the east boundary of the
Sanpete Valley in Sanpete County, Utah. 	The Searles purchased
the property in 1999, intending to construct a cabin on the site.
However, in order for the Searles to obtain a building permit,
they were required to establish the presence of an on-site source
of water sufficient to meet the needs of the cabin.
¶4 	In an effort to satisfy this requirement, the Searles
purchased water right number 65-2977, which carries a priority
date of 1956. 	As owners of that water right, every year the
Searles are entitled to one half-acre foot of water, to be used
for irrigation purposes, from April 1 to October 31. 	The point
of diversion for the Searles’ water right is a well located near
the town of Chester, Utah, in the Sanpete Valley. 	The Chester
well is a significant distance from the Searles’ cabin property,
and thus the Searles’ water right does not currently satisfy the
requirement of on-site water. 	Therefore, after acquiring the
water right, the Searles sought to change the point of diversion,
place of use, and nature of use of the water right.
Specifically, the Searles desired to change the point of
diversion to an existing well, known as the Jacobsen well,
located near their cabin property, and to use the water for
stockwatering and domestic purposes year round, rather than for

1 	Change application proceedings are designated as informal
adjudicative proceedings, see Utah Admin. Code R655-6-2 (2005),
for which judicial review under the Administrative Procedures Act
is available. 	See Utah Code Ann. § 73-3-14 (1989); see also id.
§ 63-46b-15(1)(a) (2004) (“[D]istrict courts have jurisdiction to
review by trial de novo all final agency actions resulting from
informal adjudicative proceedings . . . .”); Utah Admin. Code
R655-6-18 (providing for judicial review in accordance with
(continued...)
3 	No. 20040406
seasonal irrigation. 	Taking the first step in the process to
perfect such a change in use, the Searles properly completed and
filed a change application with the State Engineer. 	The change
application was advertised as required by the Utah Code, Utah
Code Ann. § 73-3-6 (Supp. 2004), and Appellee Milburn Irrigation
Company (“Milburn”) timely protested the Searles’ application.
¶5 	Milburn is a Utah corporation consisting of
approximately twenty-six shareholders and is operated with the
purpose of distributing water to its shareholders via gravity-
pressurized sprinkler irrigation systems. 	Milburn owns water
right number 65-2256, which carries a priority date of 1876.
Milburn’s water right entitles the company to divert 8.875 cubic
feet of water per second from the South San Pitch River, also
known as the South Fork of the San Pitch River, annually during
the period of April 1 to October 15, to irrigate 639.9 acres.
Typically, Milburn is not able to satisfy the entire amount of
its water right during that period, as water flow slows as the
summer wears on. 	By August, Milburn is usually only able to
divert just one cubic foot per second.
¶6 	Milburn’s protest against the Searles’ change
application was motivated by Milburn’s concern that the Jacobsen
well, which is located in the drainage area that contributes to
Milburn’s sources of water, is connected in some degree with
Milburn’s water source and that the Searles’ use of that well
could further exacerbate water shortfalls that Milburn has been
experiencing for many years.
¶7 	The State Engineer convened a hearing to address the
concerns raised by Milburn’s protest. 	After hearing testimony
and argument concerning the possibility of a connection between
the Jacobsen well and Milburn’s water source, the State Engineer
rejected the Searles’ change application, concluding that “the
area proposed for diversion could serve as a contributing source
for [Milburn’s] water supply.” 	After the Searles’ request for
reconsideration was denied, the Searles filed the current action,
seeking judicial review of the State Engineer’s decision. 1

1 (...continued)
sections 63-46b-14 and -15 of the Utah Code).
No. 20040406 	4
¶8 	The district court, hearing evidence de novo, was
supplied with testimony from three expert witnesses on the issue
of impairment. 	The Searles’ expert, Gerald B. Robinson, Jr.,
testified that the deep water aquifer supplying the Jacobsen well
is not connected to Milburn’s water source. 	According to
Robinson, if Milburn’s water source was connected to the Jacobsen
well, Milburn would not experience water shortfall in the summer
months because the deep aquifer would keep the river saturated at
all times. 	Robinson also testified that Milburn’s water source
does not exhibit the artesian pressure found in the Jacobsen well
and that is generally observed in the Sanpete Valley, an
indication that the water sources are independent of one another.
¶9 	Two expert witnesses countered Robinson’s conclusion.
Both experts were of the opinion that the two water sources are
connected in some fashion. 	Kirk Forbush testified that, while
Robinson may be correct that water from the Jacobsen well
generally travels in such a fashion as to bypass Milburn’s water
source, some of that water is contributing to the base flow of
the South San Pitch River. 	Forbush reasoned that since the South
San Pitch River has a base flow regardless of whether there is
snow melt, the river must have an additional source of water. 	He
further testified that the Jacobsen well is located in a
formation that supplies water from consolidated rock into springs
and streams, which, in turn, augment the flow of the San Pitch
River. 	Accordingly, Forbush concluded that if the Searles use
water from the Jacobsen well, Milburn’s water supply will suffer.
Charles Williamson, a stream alteration specialist, essentially
concurred in the reasoning of Forbush, but also suggested that
the lack of artesian pressure at Milburn’s water source and the
presence of such pressure at the Jacobsen well could possibly be
explained by elevation differences.
¶10 	After hearing the evidence relevant to the impairment
issue, the district court reached the same conclusion as the
State Engineer, stating in a ruling from the bench that
“I’m . . . convinced that there’s--by a preponderance of the
evidence, that the rights of [Milburn] will be impaired if the
application is approved.” 	The Searles now appeal from the
district court’s order denying their change application. 	On
appeal, the Searles contend that the district court imposed an
impermissibly light burden on Milburn.

5 	No. 20040406
¶11 	Specifically, the Searles maintain that once they
established a prima facie case that approval of their change
application would not result in the impairment of vested rights,
the burden shifted to Milburn to show that the approval of the
application would actually result in such impairment, not merely
that impairment would likely occur. 	Therefore, the Searles claim
that the district court incorrectly required Milburn to meet its
burden by a preponderance of the evidence. 	According to the
Searles, Milburn’s burden should have been much higher. 	Although
the Searles shy away from labeling the standard they feel should
be properly imposed in circumstances such as this, they are, in
essence, requesting a rule that requires parties protesting
change applications to provide clear and convincing evidence
demonstrating impairment before a change application can be
rejected.
¶12 	Taking a different approach, the State Engineer urges
us to affirm the result reached by the district court, but to
repudiate the burden-shifting scheme it utilized. 	According to
the State Engineer, the burden of persuasion remains on change
applicants throughout the application process to establish by a
preponderance of the evidence that application approval will not
result in impairment. 	Milburn argues, however, that we should
affirm the district court and expressly adopt the burden-shifting
approach it used. 	After articulating the appropriate standard of
review, we will address the parties’ arguments. 	We have
jurisdiction pursuant to Utah Code section 78-2-2(f) (2002).
STANDARD OF REVIEW
¶13 	To resolve the issues before us, we must determine
whether the district court (1) properly invoked the preponderance
of the evidence standard of proof, (2) appropriately allocated
the burden of proof, and (3) correctly concluded that a change
applicant’s prima facie showing that no impairment will result
from application approval can be undermined by circumstantial
evidence demonstrating the probability of impairment.
¶14 	As to the first issue, we review a district court’s
determination of the proper standard of proof for correctness, as
discerning the appropriate standard to apply in any given case
involves statutory interpretation or interpretation of case law.
See generally State v. Pena, 869 P.2d 932, 935 (Utah 1994)
(“Legal determinations . . . are defined as those which are not
of fact but are essentially of rules or principles uniformly
applied to persons of similar qualities and status in similar
circumstances.”); see also Hansen v. Hansen, 958 P.2d 931, 933
(Utah Ct. App. 1998) (reviewing a trial court’s invocation of a

No. 20040406 	6
clear and convincing standard of proof for correctness); In re
R.N.J., 908 P.2d 345, 349 (Utah Ct. App. 1995) (stating that
whether a trial court applied the appropriate standard of proof
is a question reviewed for correctness) superceded by statute on
other grounds as stated in In re E.H.H., 2000 UT App 368, ¶ 16,
16 P.3d 1257. 	The identical standard of review applies to the
second issue on appeal, as it is well established that we review
a court’s allocation of the burden of proof for correctness.
Beaver County v. Utah State Tax Comm’n, 916 P.2d 344, 357 (Utah
1996).
¶15 	Finally, turning to the third issue on appeal, we note
that we have never had occasion to articulate the standard of
review applicable to a district court’s rejection of a change
application when the ground for that rejection is the probability
that vested water rights will be impaired by the use proposed in
the application. 	This issue is best viewed as a mixed question
of fact and law, as the district court must first find facts
relevant to the issue of impairment and then determine whether
those facts are within the ambit of “impairment,” such that the
change application should be rejected. 	See Jensen v. IHC Hosps.,
Inc., 2003 UT 51, ¶ 57 n.11, 82 P.3d 1076 (“A mixed question
involves . . . the determination of whether a given set of facts
comes within the reach of a given rule of law.” (internal
quotation omitted)); cf. Butler, Crockett & Walsh Dev. Corp. v.
Pinecrest Pipeline Operating Co., 2004 UT 67, ¶ 43, 98 P.3d 1
(reviewing a district court’s determination that water was put to
beneficial use as a mixed question of fact and law).
¶16 	When reviewing a district court’s conclusion regarding
a mixed question of fact and law, we typically grant some level
of deference to the district court’s application of the law to
the facts. 	See Pena, 869 P.2d at 937-39 (discussing role of
appellate courts in setting limits on the amount of discretion
district courts enjoy when applying law to facts). 	“The measure
of discretion afforded varies, however, according to the issue
being reviewed.” 	State v. Hansen, 2002 UT 125, ¶ 26, 63 P.3d
650. 	We consider multiple factors when determining how much
deference to grant a district court’s application of law to
facts. 	Jeffs v. Stubbs, 970 P.2d 1234, 1244 (Utah 1998).
Specifically, we analyze whether (1) the facts at issue are so
complex, and arise in such variation, that it would be
impractical to supply a rule that adequately accounts for the
implications of all the facts; (2) the context in which the
application of law to facts occurs is somehow novel or new, such
that appellate courts are unable to discern and clearly state
what factors are outcome determinative; and (3) the district
court has observed facts that are not adequately preserved by a

7 	No. 20040406
record of the proceedings before it, e.g., witness demeanor.
Pena, 869 P.2d at 938-39.
¶17 	In the present case, consideration of the three
Pena factors leads us to conclude that at least some deference
should be granted to the district court’s application of the law
to the facts. 	First, there are myriad factual scenarios,
interplaying with complex scientific principles, that can arise
when determining whether approval of a change application will
result in impairment of vested rights, making it exceedingly
difficult to craft a uniform rule neatly applicable in all
situations. 	See generally Crafts v. Hansen, 667 P.2d 1068, 1071-
80 (Utah 1983) (discussing in detail the affidavits of experts
who addressed various factual scenarios when opining as to the
possibility of impairment in five separate cases involving change
applications). 	Second, although reported cases discussing the
possibility of impairment stretch far back in this state’s
history, our case law has not yet meaningfully constrained a
district court’s discretion to conclude that evidence of
impairment is sufficient to prevent approval of a change
application. 	Third, and finally, the district court enjoys an
appreciable advantage over appellate courts in this context due
to its ability to assess witness demeanor and credibility,
factors that are not readily discernable from a cold record. 	See
Pinecrest Pipeline Operating Co., 2004 UT 67 at ¶ 48.
¶18 	However, given the importance of water in this state,
there is a strong public policy interest in promoting consistent
and predictable results in disputes over the permissible use of
that water. 	Therefore, it is appropriate that district court
discretion be somewhat constrained in this area. 	See Jeffs, 970
P.2d at 1244 (stating that appellate courts, when setting
discretionary limits, should consider the policy interest in
creating “standard uniformity among trial courts addressing the
question”). 	Consequently, we conclude that district courts enjoy
significant, but not broad, discretion when determining whether
evidence of impairment is sufficiently compelling to foreclose
application approval. 	Cf. Pinecrest Pipeline Operating Co., 2004
UT 67 at ¶ 50 (granting “significant, though not broad,
discretion” to a district court determination that water had been
put to beneficial use). 	Having outlined the appropriate
standards of review, we now turn to the issues raised in this
appeal.
ANALYSIS
¶19 	To resolve the issues before us, we must determine
whether the district court (1) properly invoked the preponderance

No. 20040406 	8
of the evidence standard of proof, (2) appropriately allocated
the burden of proof, and (3) correctly concluded that a change
applicant’s prima facie showing that no impairment will result
from application approval can be undermined by circumstantial
evidence demonstrating the probability of impairment.
¶20 	On appeal, Milburn contends that the district court’s
approach was correct, while both the State Engineer and the
Searles contend that the district court’s approach was flawed.
Although the State Engineer and the Searles agree that the
district court’s approach was flawed, they disagree as to the
appropriate outcome of this appeal. 	Specifically, the State
Engineer requests that we not disturb the result reached by the
district court, but that we merely correct the mechanism by which
that result was reached. 	In contrast, the Searles request a
reversal.
¶21 	To untangle the threads of the parties’ arguments, we
first provide a brief overview of the change application process
as well as the approach taken by the district court in the
present case. 	We then identify and discuss the appropriate
standard of proof and the proper allocation of the burden of
proof in the change application context. 	Finally, we address the
Searles’ contention that circumstantial evidence demonstrating a
probability of impairment can never be sufficient to defeat a
change applicant’s prima facie showing that no impairment will
result from application approval.
I. 	THE CHANGE APPLICATION PROCESS AND THE PROCEEDINGS BELOW
¶22 	Before turning to the parties’ arguments relative to
the appropriate standard of proof and the proper allocation of
burdens, we first provide, for purposes of context, a brief
overview of the change application process itself, as well as the
procedural course followed by the district court in the present
case.
A. 	The Change Application Process
¶23 	Utah law provides that a water right holder is entitled
to change the point of diversion or the place or nature of use of
water so long as vested rights are not impaired by the change.
See Utah Code Ann. § 73-3-3(2) (Supp. 2004). 	The legislature has
designated the state engineer as the appropriate officer to
initially determine whether an application seeking permission to
initiate such a change should be approved. 	See id. §§ 73-3-3(4),
73-3-8 (1989 & Supp. 2004). 	In making that determination, the
state engineer is statutorily obligated to “follow the same

2 	This factor is inapplicable in this case, as the Searles
do not seek to appropriate water, but to change the point of
diversion and nature of use of previously appropriated water.
9 	No. 20040406
procedures, and the rights and duties of the applicants with
respect to applications for permanent changes of point of
diversion, place of use, or purpose of use shall be the same, as
provided in this title for applications to appropriate water.”
Id. § 73-3-3(5)(a) (Supp. 2004). 	Those elements are codified in
section 73-3-8 of the Utah Code, which requires, in relevant
part, that the State Engineer approve an application if the
following conditions are met:
(a) there is unappropriated water in the
proposed source; [2] (b) the proposed use will
not impair existing rights or interfere with
the more beneficial use of the water; (c) the
proposed plan is physically and economically
feasible . . . and would not prove
detrimental to the public welfare; (d) the
applicant has the financial ability to
complete the proposed works; and (e) the
application was filed in good faith and not
for purposes of speculation or monopoly.
Id. § 73-3-8(1) (1989). 	After an application is approved, the
applicant is then empowered to take steps to perfect the right to
use the water in the manner contemplated by the change
application. 	See id. §§ 73-3-10, and -16 (Supp. 2004); Crafts v.
Hansen, 667 P.2d 1068, 1082 (Utah 1983) (Oaks, J., dissenting).
¶24 	In the present case, both the State Engineer and the
district court concluded that the Searles satisfied all of the
obligations outlined in section 73-3-8(1) except the requirement
that the proposed use not impair existing rights. 	On appeal, the
Searles and the State Engineer take exception to the approach
adopted by the district court in reaching its conclusion. 	The
State Engineer maintains that the district court improperly
shifted the burden of persuasion to Milburn after the Searles
made a prima facie case demonstrating that no rights would be
impaired by the approval of their application. 	Meanwhile, the
Searles maintain that the district court correctly shifted the
burden of persuasion, but improperly imposed only the
preponderance of the evidence standard of proof on the issue of
impairment. 	After outlining the approach taken by the district
court, we will address in turn the parties’ allegations of errors
in that approach.

No. 20040406 	10
B. 	The Approach Adopted by the District Court
¶25 	As mentioned above, the crux of the parties’
disagreement over the appropriateness of the district court
proceeding centers on the propriety of the standard of proof
invoked by the district court, as well as the manner in which the
court allocated the burden of proof. 	Our pronouncements on the
proper standard of proof and the appropriate allocation of the
burden of proof in the change application context have not
resulted in a clear approach and, in fact, seem to have
engendered considerable confusion--evidenced by the fact that all
three parties to this appeal read our case law on this issue in a
different manner.
¶26 	The district court relied upon our decision in Crafts
in concluding that change applicants bear an initial burden to
show reason to believe that no impairment will result from the
proposed change in use and that a party protesting an application
must rebut that prima facie showing by a preponderance of the
evidence. 	In Crafts, when discussing the standard of proof and
the appropriate allocation of burden in the change application
context, we quoted with approval our previous statement on those
issues found in Salt Lake City v. Boundary Springs Water Users
Ass’n, in which we stated as follows:
If the evidence shows that there is reason to
believe that the proposed change can be made
without impairing vested rights the
application should be approved. . . . 	A
change application cannot be rejected without
a showing that vested rights will thereby be
substantially impaired. 	While the applicant
has the general burden of showing that no
impairment of vested rights will result from
the change, the person opposing such
application must fail if the evidence does
not disclose that his rights will be
impaired.
270 P.2d 453, 455 (Utah 1954) (footnotes omitted). 	Our statement
in Boundary Springs remains our most definitive pronouncement on
the standard of proof and allocation of burden in the change
application context.
¶27 	Although Crafts does contain language touching on those
issues, that case directly considered only whether a district
court’s entry of summary judgment approving five change
applications was appropriate. 	667 P.2d at 1069. 	We held that

11 	No. 20040406
summary judgment was inappropriate under the circumstances and
remanded the case to the district court. 	See id. 	At the
conclusion of the Crafts opinion, we provided guidance to the
district court as to the appropriate course to follow after
remand, stating that
[t]he determinative question before the trial
court will be whether there is reason to
believe, on the basis of current information,
that existing water rights will not be
impaired by the changes proposed in the
applications. 	Once the respondents make a
prima facie showing at trial that there is
reason to believe, on the basis of available
data, that the changes can be lawfully
approved, the appellants will have the burden
of proving by a preponderance of the evidence
either that the available data is
insufficient to give rise to ‘reason to
believe’ or that available data in fact
creates a reason to believe that the changes
cannot be lawfully approved.
Id. at 1081. 	While we did provide an articulation of the
procedure to follow on remand in Crafts, we specifically
acknowledged the limit of our holding in that case: “The
respondents’ arguments respecting the standards for approval of
change applications, the burden of proof on the ‘reason to
believe’ issue, and the authority of the State Engineer to make
his approval conditional and interlocutory are all accurate.
They are, however, irrelevant to the basis upon which we reverse
. . . .” 	Id. at 1080.
¶28 	Regardless of their precedential status, our
pronouncements in Boundary Springs and Crafts serve as the most
detailed guidance we have supplied litigants regarding the
appropriate standard of proof and proper allocation of burden in
the change application context, and the district court was
correct in turning to those cases in its attempt to discern the
appropriate process. 	Unfortunately, our previous statements
concerning the proper procedure to follow when considering the
merits of a change application have been undeniably opaque, and
reading our pronouncements on the issue in isolation can result
in the imposition of an inappropriate standard of proof and an
improper allocation of the burden of proof. 	However, when Crafts
and Boundary Springs are read in concert with the Utah Code and
our prior case law, the muddied water begins to clear and the
appropriate approach becomes apparent.

No. 20040406 	12
¶29 	The parties to the present appeal disagree on three
fundamental points relating to the appropriateness of the course
followed by the district court: 	(1) whether the proper standard
of proof governing a determination that impairment will result
from application approval is “preponderance of the evidence” or
some other standard more favorable to a change applicant, (2)
whether the burden of persuasion shifts to a protestant after an
applicant makes a prima facie showing that application approval
will not result in impairment of vested rights, and (3) whether
an applicant’s prima facie showing of no impairment can be
sufficiently undermined by circumstantial evidence so as to make
application approval inappropriate. 	We address each disagreement
in turn and conclude that change applicants are required to show
only reason to believe that impairment will not result from
application approval, that the burden of persuasion remains on
change applicants throughout the application process, and that
circumstantial evidence may be sufficiently compelling to make
application approval inappropriate.
II. 	THE STANDARD OF PROOF
¶30 	Both the State Engineer and Milburn argue that if a
preponderance of the evidence establishes that vested rights will
be impaired by the approval of a change application, the
application must be rejected. 	On the other hand, the Searles
contend that a change application can only be denied if direct,
non-circumstantial evidence clearly demonstrates that impairment
will actually result from the application’s approval. 	Our case
law establishes, however, that the proper standard, “reason to
believe,” lies somewhere between the two measures advanced by the
parties. 	After first explaining our conclusion that a
preponderance of the evidence standard is not appropriate in the
change application context, we then discuss and give content to
the appropriate, “reason to believe,” standard.
A. 	A Change Applicant Need Only Show Reason to Believe that No
Impairment Will Result from Application Approval
¶31 	The Utah Code states that a change in water use “may
not be made if it impairs any vested right without just
compensation.” 	Utah Code Ann. § 73-3-3(2)(b) (Supp. 2004).
However, at the application phase, our case law makes it clear
that a change applicant is only required to show “reason to
believe” that no impairment will result from application
approval. 	See, e.g., Crafts v. Hansen, 667 P.2d 1068, 1082 (Utah
1983) (Oaks, J., dissenting) (stating that “reason to believe”
“is the practical equivalent of a probable cause determination in

13 	No. 20040406
a criminal case”); Piute Reservoir & Irr. Co. v. W. Panguitch
Irr. & Reservoir Co., 367 P.2d 855, 858 (Utah 1962) (“[T]he
correct rule . . . is that the applicant must shown [sic] reason
to believe that the proposed application for change can be made
without impairing vested rights.”); Am. Fork Irr. Co. v. Linke,
239 P.2d 188, 191 (Utah 1951) (“We recognize plaintiffs’ duty to
prove that vested rights will not be impaired by approval of
their application, but we also recognize that such duty must not
be made unreasonably onerous . . . .”); United States v. Dist.
Court, 238 P.2d 1132, 1135 (Utah 1951) (“[The court] must
determine from the evidence whether there is probable cause to
believe . . . that such water can be diverted from the source of
supply and used without injury to or conflict with prior
rights.”); Eardley v. Terry, 77 P.2d 362, 366 (Utah 1938)
(“[W]hen the application is filed, the state engineer is called
upon to determine preliminarily whether there is probable cause
to believe that an application can be perfected, having due
regard to whether . . . it can be diverted and so used without
injuring or conflicting with the prior rights of others.”). 	Even
our decision in Crafts, which the district court relied upon when
determining the appropriate standard of proof, stated quite
clearly that “[t]he determinative question before the trial court
will be whether there is reason to believe, on the basis of
current information, that existing water rights will not be
impaired by the changes proposed in the applications.” 	667 P.2d
at 1081 (emphasis added).
¶32 	In the present case, the State Engineer and Milburn
argue that the reason to believe standard only applies at the
preliminary stage of the application process and that application
approval or denial ultimately rests on the preponderance of the
evidence. 	However, that approach improperly combines the
standard of proof applicable to the application process with the
standard of proof applicable to a final adjudication of rights.
¶33 	In other words, the parties’ confusion as to the
appropriate burden to apply in the change application context
stems from an imperfect understanding of the two roles played by
the court system when water rights are at issue. 	In some
situations courts are called upon to adjudicate rights, in other
situations courts are called upon merely to review an
administrative decision relating to those rights. 	The present
case falls into the latter category.
¶34 	As a preliminary matter, it is well established that
the state engineer has no authority to finally adjudicate water
rights. 	As we stated in District Court, 238 P.2d at 1137, “[t]he
Engineer in granting an application does not determine that the

No. 20040406 	14
applicant’s rights are prior to the rights of the protestant but
only finds that there is reason to believe that the application
may be granted and some water beneficially used thereunder
without interfering with the rights of others.” 	See also Linke,
239 P.2d at 190 (“[T]he Engineer’s findings and decision have a
sanctity extending no further than the authority delegated by law
to his office.”); Whitmore v. Murray City, 154 P.2d 748, 750
(Utah 1944) (“The office of state engineer was not created to
adjudicate vested rights between parties, but to administer and
supervise the appropriation of the waters of the state.”). 	In
District Court, we stated that the state engineer’s decision to
approve or reject an application “is administrative in nature and
purpose and the decision of the court on review, except for the
formalities of the trial and judgment is of the same nature and
for the same purpose.” 	238 P.2d at 1137. 	See also Crafts, 667
P.2d at 1070 (stating that when a district court reviews the
state engineer’s approval or denial of an application, “[t]he
issues . . . [are] strictly limited to those which were, or could
have been, raised before the State Engineer”); Dist. Court, 238
P.2d at 1135 (“[The district court] should simply determine
whether the application was rightly rejected. 	In determining
that question, the court stands in the same position as the state
engineer did. 	It must determine from the evidence whether there
is probable cause to believe that . . . [water can be] used
without injury to or conflict with prior rights.”).
¶35 	Accordingly, the conclusion is inescapable that a
district court, when reviewing the state engineer’s decision to
approve or reject an application, is not sitting in its capacity
as an adjudicator of rights, but is merely charged with ensuring
that the state engineer correctly performed an administrative
task. 	We stated as much in Eardley, when we acknowledged that,
when conducting a de novo review of the state engineer’s approval
or rejection of an application, the court simply “determines
whether the application should be approved or rejected and does
not fix the rights of the parties beyond the determination of
that matter.” 	77 P.2d at 365. 	As will be discussed in more
detail below, it follows that a change applicant should be
subjected to a less onerous standard of proof at the application
phase than that used during a final adjudication of rights.
¶36 	Although at first blush it appears that this procedure
unjustly favors new appropriations and new uses to the detriment
of vested rights, the procedure actually provides a balance
between the two policy goals of putting water to the most
beneficial use possible while simultaneously guarding vested
rights. 	The procedure accomplishes this by placing a fairly low
burden on a party seeking approval of a change application,

15 	No. 20040406
thereby allowing the party to attempt to perfect the right to use
the water in the manner contemplated by the application. 	If such
use can be accomplished without interfering with vested rights,
the policy of putting water to the best use possible is furthered
without causing injury to anyone. 	See Linke, 239 P.2d at 191
(“[W]e cannot turn a deaf ear to every request which reasonably
appears designed for a more beneficial use of water not impairing
vested rights by saying, as the Engineer in his decision did,
that the proposed change ‘could interfere substantially with the
vested rights of others.’”); Dist. Court, 238 P.2d at 1137
(“[T]he law provides a period of experimentation during which
ways and means may be sought to make beneficial use of more water
under the application before the rights of the parties are
finally adjudicated.”).
¶37 	In other words, during the application process, the
court system serves to ensure that applicants who successfully
establish reason to believe that a proposed water use can be
accomplished without impairment of vested rights are given the
opportunity to prove it. 	Determining whether an applicant has,
in fact, proven that the new manner of use does not impair vested
rights is a matter ultimately left to a final judicial
determination of rights. 	We note, however, that the courts are
fully empowered to protect vested rights from impairment
throughout the perfection process. 	It is for this reason that we
have previously stated that, after a change application has been
approved, an applicant can only proceed absent “injury to [prior]
rights if he hopes to perfect a right and be immune from
liability. 	Legally, no one can be hurt by the procedure
established by the Legislature. 	At the same time, however, it
permits the development of our water resources to the utmost.”
Eardley, 77 P.2d at 376-77.
¶38 	By establishing this system, the legislature gave
practical effect to its determination that the possible benefits
to be derived from a liberal policy toward application approval
outweigh the potential of possible temporary harm if a use
proposed in an application results in an impairment of vested
rights. 	The value of allowing experimentation cannot be
understated. 	As we stated in District Court, 238 P.2d at 1137,
[i]f we were to finally adjudicate
applicant’s right to change or to appropriate
water at the time that such application was
rejected or approved, he would get only such
rights as he could establish by a
preponderance of the evidence that he could
use beneficially without interfering with the

No. 20040406 	16
rights of others and in such hearing he would
not have the benefit of any opportunity to
experiment and demonstrate what he could do.
Such a system would cut off the possibility
of establishing many valuable rights without
a chance to demonstrate what could be done.
Our pronouncement in District Court nicely illustrates the danger
of moving the preponderance burden, applicable when making a
final determination of rights, to the preliminary application
phase.
¶39 	Pursuing a policy that allows experimentation with
water use is not antithetical to a strong and legitimate desire
to protect the vested rights of other water users. 	The
procedures in place do not allow experimentation simply for the
sake of experimentation, and they certainly do not allow the
vested rights of other water users to be impaired by new use.
See Piute Reservoir, 367 P.2d at 856 (“[W]hile we approved the
application, we definitely held that the change should not be
allowed to operate without affirmative proof that the rights of
lower water users . . . were not thereby impaired.”); Eardley, 77
P.2d at 366 (“Filing the application does not give the applicant
the right or license to proceed to the injury of prior rights.
He can proceed only upon an absence of injury to such rights if
he hopes to perfect a right and be immune from liability.”).
Given that application approval is only a preliminary step in the
perfection process and that the courts will remain open to water
users whose rights face impairment, the possibility of a water
user with vested rights suffering an irreparable injury due to
the approval of a change application is limited.
¶40 	Further, we note that before a change applicant’s
proposed use can be finally perfected and a certificate
recognizing the validity of the change issued, the applicant is
obligated to supply affirmative proof that no harm is being
caused to the possessors of prior rights by the applicant’s use.
See, e.g., Eardley, 77 P.2d at 365-66 (“In his final proof [for a
certificate of appropriation], the applicant is required to show
the nature and extent of the works he has constructed, the
quantity of water appropriated, and the application thereof to a
beneficial use. 	Whether the water so appropriated is subject to
being appropriated and can be taken for the use contemplated
without injury to the owners of prior rights is necessarily
involved in making final proof and must of necessity be
determined by the state engineer from the proof submitted.”).

17 	No. 20040406
¶41 	Thus, after a change applicant has completed any
necessary improvements and has commenced diverting water and
putting that water to beneficial use, the applicant must
eventually prove to the state engineer that the use in question
in no way impairs prior rights. 	In making such proof, the change
applicant carries the burden and must convince the state engineer
by a preponderance of the evidence that other water users are not
harmed by the change. 	See Piute Reservoir & Irr. Co. v. W.
Panguitch Irr. & Reservoir Co., 364 P.2d 113, 116 (Utah 1961)
(“[I]n proving its claim under this application to the State
Engineer to obtain a certificate of such change or to a court
where the rights established under such application may be
litigated, applicant must show more than that there is reason to
believe that the change does not impair established vested rights
of the protestants. 	It must support a decision in its favor on
this question by substantial evidence, and it has the burden of
convincing the trier of the facts by a preponderance of all of
the evidence that such change does not impair the vested rights
of the protesting lower water users.” (footnote omitted)), reh’g
granted, Piute Reservoir, 367 P.2d 855.
¶42 	We recognize that a change applicant assumes a
substantial risk by investing time and money in an effort to
perfect a proposed change in use that may later be disallowed by
the state engineer or a court. 	This risk allocation is, however,
in accord with the balance struck between the competing policies
of encouraging experimentation with water use on one hand and of
guarding the vested rights of this state’s water users on the
other. 	It is the change applicant who seeks to reap the benefit
of the change in water use, and it is the applicant who must bear
the risk that the proposed use, once initiated, may run afoul of
prior rights. 	In this way, the law properly forces the change
applicant to assess risks and rewards, and to demonstrate
confidence in the propriety of a proposed use by financing its
commencement.
¶43 	We also recognize that the experimentation period is
most effective when the effects of any change in use can be
easily observed and calculated. 	When a change applicant is
confronted with a situation in which the experimentation period
is unlikely to provide evidence beyond that known at the time a
change application is initially filed, it may be wise for that
applicant to seek a declaratory judgment under the more demanding
preponderance of the evidence standard before expending resources
to effectuate the proposed use. 	Cf. Whitmore, 154 P.2d at 751
(allowing a change applicant to pursue a declaratory action as to
the priority of certain rights even though the applicant’s
proposed change had yet to be perfected).

No. 20040406 	18
¶44 	Having concluded that the reason to believe standard
governs the change application process and that a preponderance
standard is reserved for a final adjudication of rights, it is
apparent that we must remand to enable the district court to
consider the evidence with the proper standard in mind. 	To aid
the district court in this process, we now provide content to the
reason to believe standard and will then address the parties’
arguments relative to the appropriate allocation of the burden of
proof before turning to our final inquiry: 	whether a protestant
can block application approval through the use of circumstantial
evidence that establishes a probability that impairment will
result if the change application is approved.
B. 	The Reason to Believe Standard
¶45 	Although our case law has clearly established that a
change applicant is required to show reason to believe that
application approval will not result in impairment of vested
rights, the content of that standard remains less than clear.
The Searles argue on appeal that a protestant seeking to defeat
application approval can only succeed by producing direct
evidence of actual impairment. 	In the Searles’ view, evidence of
“likely” impairment--regardless of how likely that impairment is-
-will always be insufficient to defeat application approval.
¶46 	In his dissent in Crafts, Justice Oaks endorsed a view
similar to that advanced by the Searles, opining that “[a] change
application should only be denied when, after resolving all
contradictions in favor of the proponent of change, the evidence
offered is so deficient that it provides no reason to believe
that the proposed change could be made without impairing rights.”
667 P.2d at 1083 (Oaks, J., dissenting). 	Although we concur, as
did the Crafts majority, with Justice Oaks’s understanding that
the preliminary nature of the application process counsels in
favor of placing a burden on applicants that is not unduly
onerous, we disagree with Justice Oaks’s conception of that
standard.
¶47 	Adopting such a low quantum of proof would turn the
state engineer into nothing more than a rubber stamp, approving
every change application submitted. 	As mentioned above, the
procedures put in place by the legislature do not allow
experimentation simply for the sake of experimentation. 	To
adequately serve its purpose, the application process must
provide some meaningful barrier so that the floodgates remain
closed to all applications except those with a sufficient
probability of successful perfection.

19 	No. 20040406
¶48 	With that concern in mind, we conclude that the reason
to believe standard is best understood as falling between the
preponderance standard applicable in final adjudications and
Justice Oaks’s conception of the reason to believe standard as
the lowest of hurdles. 	Specifically, we reassert the validity of
our prior, admittedly opaque pronouncements, and now clarify that
a change applicant’s burden is satisfied if there is sufficient
evidence to support a reasonable belief that the changes outlined
in the application can be perfected without impairing vested
rights. 	In other words, to gain application approval, a change
applicant must convince the decisionmaker that there is reason to
believe that the use proposed in the application can be
undertaken without impairing vested rights. 	However, before
application approval is warranted, it must be clear that the
decisionmaker’s determination that there is reason to believe is
grounded in evidence sufficient to make that belief reasonable.
Cf. State v. Clark, 2001 UT 9, ¶ 16, 20 P.3d 300 (establishing a
“reasonable belief” standard for use in criminal probable cause
determinations and providing that at “the preliminary hearing
stages, the prosecution must present sufficient evidence to
support a reasonable belief that an offense has been committed
and that the defendant committed it”). 	Just as the probable
cause standard applicable to preliminary hearings in criminal
cases serves the primary purpose of “ferreting out . . .
groundless and improvident prosecutions,” State v. Anderson, 612
P.2d 778, 783 (Utah 1980), so does the reason to believe standard
serve to stem the flow of proposed changes in water use by
arresting any proposal not supported by a reasonable belief that
the change can be accomplished without impairing vested rights.
¶49 	This standard is both workable and consistent with our
prior cases that have analogized the reason to believe standard
to the probable cause standard applicable during the preliminary
phase of a criminal trial. 	See, e.g., Crafts, 667 P.2d at 1082
(Oaks, J., dissenting) (stating that the reason to believe
standard “is the practical equivalent of a probable cause
determination in a criminal case”); Dist. Court, 238 P.2d at 1135
(“[The court] must determine from the evidence whether there is
probable cause to believe . . . that such water can be diverted .
. . without injury to or conflict with prior rights.”).
¶50 	Having articulated the proper conception of the reason
to believe standard, we now address the appropriate allocation of
the burden of proof before addressing the Searles’ contention
that a reason to believe showing can only be undermined by direct
evidence of actual impairment.

3 	The terminology covering evidentiary burdens is highly
confusing, as various courts and commentators have used prevalent
terms in different ways. 	Generally speaking, there are two
evidentiary burdens: 	a burden of persuasion and a burden of
production. 	See Koesling v. Basamakis, 539 P.2d 1043, 1046 (Utah
1975). 	“Burden of persuasion” refers to “[a] party’s duty to
convince the fact-finder to view the facts in a way that favors
that party.” 	Black’s Law Dictionary 190 (7th ed. 1999). 	“Burden
of production” refers to “[a] party’s duty to introduce enough
evidence on an issue to have the issue decided by the fact-
finder, rather than decided against the party in a peremptory
ruling.” 	Id. 	Finally, “burden of proof” is a catch-all term
that encompasses both the burden of persuasion and the burden of
production and generally refers to “[a] party’s duty to prove a
disputed assertion or charge.” 	Id. 	In the present case, the
parties assign error only to the district court’s allocation of
the burden of persuasion.
No. 20040406 	20
III. 	THE BURDEN OF PROOF
¶51 	Both the Searles and Milburn argue that after a change
applicant makes a prima facie showing that no impairment will
result from application approval, the burden of persuasion to
show impairment shifts to the party protesting the application.
The State Engineer argues that the burden of persuasion should
remain on the change applicant at all times during the
application process. 	We agree with the State Engineer that there
is no shift in the burden of persuasion. 3
¶52 	As an initial matter, we note that there are sound
policy reasons for placing the burden of persuasion squarely on
the change applicant. 	As we acknowledged in Tanner v. Humphreys,
“[i]f the change is made, it disturbs the
existing order . . . and causes a
modification to be made in the general
adjudication decree. 	It is fitting that a
party who asks such relief should bear the
burden of proving that the vested rights of
others will not thereby be infringed if it is
granted. 	It is only the burden which is
usually imposed upon the moving party in a
lawsuit.”
48 P.2d 484, 488 (Utah 1935) (quoting New Cache La Poudre Irr.
Co. v. Water Supply & Storage Co., 111 P. 610, 611 (Colo. 1910)
and citing Monte Vista Canal Co. v. Centennial Irr. Ditch Co.,
135 P. 981 (Colo. Ct. App. 1913)).

21 	No. 20040406
¶53 	We recognize that language from our previous cases can
be read as contemplating some sort of formal shift in the burden
of persuasion. 	However, that language is better understood as an
acknowledgment of the reality that once an applicant has produced
sufficient evidence to persuade the decisionmaker that there is
reason to believe that no vested rights will be impaired by
application approval, a protestant will fail if evidence is not
introduced that undermines the applicant’s proof. 	Perhaps the
present confusion has been caused by our use of the phrase “prima
facie showing” to describe the amount of evidence that a change
applicant must put forward when seeking application approval.
See Edward L. Kimball & Ronald N. Boyce, Utah Evidence Law 3-8
(1996) (“‘Prima facie evidence’ is an ambiguous phrase.”).
Generally speaking, a prima facie showing is made by successfully
producing enough evidence to survive a motion to dismiss and to
send the matter to the jury. 	See Johnson v. Bell, 666 P.2d 308,
311 (Utah 1983). 	However, we have noted that the general concept
of a “prima facie showing” operates differently when there is no
jury. 	See id. 	In Johnson, we explained that “[t]o apply the
jury trial practice [applicable to prima facie showings] in non-
jury proceedings would be to erect a requirement compelling a
defendant to put on his case . . . if the plaintiff had,
according to jury trial concepts, made ‘a case for the jury,’”
even if the judge had already concluded that the plaintiff ought
not to prevail. 	Id. (internal quotation omitted).
¶54 	In keeping with this distinction, we have, in the
context of the change application process, used the phrase “prima
facie showing” to denote the amount of evidence that would be
sufficient to warrant application approval absent the
presentation of additional evidence undermining confidence in an
applicant’s proof that no impairment of vested rights will result
from the use proposed in the application. 	Cf. Godesky v. Provo
City Corp., 690 P.2d 541, 547 (Utah 1984) (“Prima facie evidence
means only that quantum of evidence that suffices for proof of a
particular fact until the fact is contradicted by other
evidence.” (internal quotation omitted)).
¶55 	In the final calculation, a change applicant will be
entitled to application approval only if the decisionmaker is
persuaded that there is no reason to believe that vested rights
will be impaired if the application is approved. 	To successfully
persuade the decisionmaker, an applicant must produce evidence
sufficient to support a reasonable belief that no impairment will
result from application approval. 	As a result, there may be
situations in which even an unopposed change application is not
approved because the applicant has failed to adequately persuade
the decisionmaker that there is reason to believe that no harm

No. 20040406 	22
will result from approval. 	However, any party protesting a
change application is certainly entitled to present evidence in
an effort to convince the decisionmaker that application approval
is not warranted under the circumstances.
¶56 	Having clarified that the burden of persuasion remains
on the change applicant throughout the application process, we
next address the Searles’ contention that a reason to believe
showing can only be undermined by direct evidence of actual
impairment.
IV. 	A CHANGE APPLICATION CAN BE DEFEATED THROUGH THE USE OF
CIRCUMSTANTIAL EVIDENCE
¶57 	While producing evidence sufficient to block approval
of a change application is no doubt a difficult task for a
protestant, illustrating impairment by means not reliant on
conjecture or probability would, in many cases, be an impossible
task. 	Determinations of whether impairment would result from
application approval often hinge on probabilities. 	As we pointed
out in Crafts v. Hansen,
[t]he future impact of changes in allocation
and use of water resources in a large
geographical area is not generally
susceptible of direct observation,
measurement and calculation. 	Great reliance
must be placed upon expert judgment based on
professional knowledge and training,
familiarity with the geography, and as much
accurate data as can be acquired in the
process of making future projections. . . .
[W]e are not dealing so much with
“facts” . . . as with the opinion of experts
about the accuracy and legitimacy of the
projections based upon the available facts.
667 P.2d 1068, 1081 (Utah 1983). 	Consequently, we cannot say
that circumstantial evidence showing a possibility of impairment
is, in all cases, insufficient to justify denying an application.
¶58 	If the evidence produced by a protestant is compelling
enough to undermine the reasonableness of the assertion that the
proposed change will not impair vested rights, the state engineer
should reject the application seeking to effect that change. 	We
can envision situations in which circumstantial evidence could
undermine an applicant’s evidence to such an extent that it would
be unreasonable to believe that the proposed change can be

23 	No. 20040406
accomplished without impairing vested rights. 	Consequently, we
decline to exclude circumstantial evidence from being weighed
when a decision as to application approval must be made.
CONCLUSION
¶59 	We conclude that the district court invoked the wrong
standard of proof and improperly allocated the burden of proof in
undertaking its review of the State Engineer’s denial of the
Searles’ change application. 	A change applicant is required only
to show reason to believe that the proposed use can be undertaken
without impairing vested rights in order for the application to
warrant approval. 	The burden of persuasion remains on the
applicant throughout the application process, although the
protestant has the opportunity to provide evidence undermining
the applicant’s reason to believe showing. 	In producing such
evidence, a protestant may rely exclusively on circumstantial
evidence. 	Whether such evidence is sufficient to compel the
denial of an application will depend on the unique facts of each
case. 	Accordingly, we remand this case to the district court for
reconsideration under the standard outlined in this opinion.
---
¶60 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.