Friends v. UNDR

2010 UT 20
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Friends of Great Salt Lake; Utah 	Nos. 20080147
Waterfowl Association; National 	20080155
Audubon Society; Audubon Society of
Utah, including Bridgerland Audubon
Society; Great Salt Lake Audubon
Society; Red Cliffs Audubon Society;
Wasatch Audubon Society; Utah Chapter
of the Sierra Club; League of Women
Voters of Salt Lake; League of Women
Voters of Utah; Utah Airboat
Association and Utah Rivers Counsel,
Petitioners,
v.
Utah Department of Natural Resources,
an agency of the State of Utah;
Executive Director of the Utah
Department of Natural Resources,
in his official capacity, Utah
Division of Forestry, Fire and State
Lands, an agency of the State of Utah,
and Director of the Division of
Forestry, Fire and State Lands,
in his official capacity,
Respondents,
F I L E D
Great Salt Lake Minerals,
Intervenor. 	March 30, 2010
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Original Proceedings in this Court
Attorneys: 	Joro Walker, Salt Lake City, for petitioners
Mark L. Shurtleff, Att’y Gen., Brent A. Burnett,
Asst. Att’y Gen., Salt Lake City, for respondents
Steven J. Christiansen, Daniel A. Jensen, David C.
Reymann, Cheylynn Hayman, Salt Lake City, for
intervenor

1 Between 1994 and 1996, in order to facilitate the multiple
competing uses of the Great Salt Lake, the Division created the
MLP. 	This plan withdrew all sovereign lands from mineral leasing
until those lands were nominated by parties interested in leasing
them. 	More importantly, it designated all of the sovereign lands
into four leasing categories with different levels of
restrictions. 	The most permissive category, Category 1, was
deemed to have “[n]o significant resource conflicts,” and allowed
“mineral salt leasing with standard lease stipulations for Great
Salt Lake environments.” 	The MLP specifies that lands will be
evaluated individually when nominated for lease. 	In particular,
the Division will consider “conformance with the mineral leasing
plan[,] . . . appropriate tract size, appropriate royalty,
leasing instrument, minimum bid, and consultation with
appropriate agencies to work out restrictions or stipulations as
necessary.” 	In 1997, the DNR and the Division solicited
extensive public comment in developing a comprehensive management
(continued...)
No. 20080147 	2
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PARRISH, Justice:
INTRODUCTION
¶1 	Petitioners, Friends of Great Salt Lake (“Friends”),
ask us to review the Final Agency Action, Decision and Orders
(the “Order”) issued jointly by the executive director
(“Executive Director”) of the Utah Department of Natural
Resources (“DNR”) and the director of the Division of Forestry,
Fire and State Lands (the “Division”), which rejected Friends’
Petition for Declaratory Order, Petition for Consistency Review,
and Request for Agency Action (collectively the “Petitions”).
Friends seek review of the Division’s decision to lease 23,088
acres of the area of the Great Salt Lake known as Clyman Bay to
the Great Salt Lake Minerals Corporation (“Mineral Company”) and
to allow the Mineral Company to expand its use of already-leased
areas in Clyman Bay and Bear River Bay. 	Because the Order did
not issue from a formal proceeding, we lack jurisdiction to
consider Friends’ claims. 	Therefore, we dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 	Mineral Company currently operates a large mineral
extraction enterprise around the Great Salt Lake. 	In February
2007, pursuant to the Great Salt Lake Mineral Leasing Plan (the
“MLP”), 1 Mineral Company nominated for lease an additional 23,088

1(...continued)
plan for the Great Salt Lake. 	As part of the comprehensive
management plan, the DNR and Division chose to retain the MLP.
2 The Agency denies that it has any site-specific planning
obligation because it has completed both a Resource Plan and a
Comprehensive Management Plan, but acknowledges that it uses the
Resource Development Coordinating Committee as a source “to
provide site-specific analysis (i.e. project specific analysis)
and stipulations that could be implemented in the management of
those lands nominated for lease.”
3 The Resource Development Coordinating Committee “(1)
assist[s] . . . in . . . reviewing and coordinating technical and
policy actions that may affect the physical resources of the
state; and (2) facilitate[s] the exchange of information on those
actions among state agencies and other levels of government.”
Utah Code Ann. § 63J-4-501(1)-(2)(2008).
3 	No. 20080147
acres of land located in the bed of the Great Salt Lake near
Clyman Bay. 	Mineral Company also notified the Division of its
intent to build a series of dykes and evaporation ponds on
previously undeveloped areas of leases it holds in Clyman Bay and
Bear River Bay.
¶3 	Mineral Company’s nomination of the Great Salt Lake
sovereign land triggered the Division’s obligation to conduct
site-specific planning under Utah Administrative Code rule 652-
90-300. 2 	Accordingly, the Division notified the Utah Resources
Development Coordinating Committee (the “RDCC”), 3 which informed
various members of the public of the nomination of the additional
lands and solicited input about whether additional stipulations
or restrictions should be placed on the leasing of those lands.
See Utah Admin. Code r. 652-90-400(1)(d) (2008). 	During the RDCC
process, Friends submitted comments opposing the lease proposal
on the grounds that the Division did not adequately investigate
nor properly analyze the environmental impact of the leases on
the public trust values. 	The Division responded to Friends’
comments and ultimately chose to nominate the lands for lease.
Mineral Company then submitted an application for lease, which
was accepted in a Record of Decision (“ROD”) issued by the
Division on July 2, 2007. 	The ROD encompasses both the results
of the site-specific planning process and the decision to lease
the Clyman Bay lands to Mineral Company.
¶4 	Friends responded by filing the Petitions to challenge
the ROD. 	The Petitions all allege basically the same misconduct:
that the Division failed to comply with the public-trust doctrine

No. 20080147 	4
when it issued the new Clyman Bay lease and when it considered
the expansion of Mineral Company’s mineral-extraction enterprise
in Clyman Bay and Bear River Bay. 	As a remedy, each of the
Petitions requested that the Division be required to use a more
stringent formulation of the public-trust analysis, undertake a
more detailed site-specific analysis, and correct its
deficiencies in its public-trust and management-planning efforts.
¶5 	The Division and Executive Director gathered additional
information and then dismissed the Petitions on legal grounds
without holding a hearing. 	They found that Friends were not a
party to the adjudication that awarded the mineral leases to
Mineral Company and thus could not bring a Petition for
Consistency Review, that the Petition for Declaratory Order was
not allowed because it was based on disputed facts and would
substantially prejudice Mineral Company’s rights, and that
requests for agency action could not challenge the rights between
two other parties.
¶6 	Friends filed an appeal from the agency action with the
district court and with this court, and filed an additional
Petition for Extraordinary Relief with this court in the event
that we hold that the Utah Administrative Procedures Act (the
“UAPA”) provides no avenue for Friends to appeal the ROD. 	In
April 2008, we granted intervenor status to Mineral Company, and
all of the Respondents moved to dismiss Friends’ appeal to this
court on jurisdictional grounds, arguing that because Friends did
not appeal a final order from a formal agency adjudication this
court did not have jurisdiction to consider their petition. 	We
agree and therefore dismiss this case for lack of jurisdiction.
ANALYSIS
¶7 	We first decide whether we have jurisdiction to hear
Friends’ appeal from the denial of the Petitions or whether
jurisdiction properly lies in the district court. 	We then
determine whether Friends’ petition to this court for
extraordinary relief gives us jurisdiction to consider the merits
of their claims.
I. 	THE SUPREME COURT DOES NOT HAVE JURISDICTION TO HEAR FRIENDS’
APPEAL FROM AN INFORMAL AGENCY PROCEEDING
¶8 	We must decide whether we have jurisdiction to hear an
appeal from the Executive Director’s decision to affirm the
Division’s denial of Friends’ Petitions. 	We have jurisdiction
over “final orders and decrees in formal adjudicative proceedings
originating with . . . the executive director of the Department

5 	No. 20080147
of Natural Resources reviewing actions of the Division of
Forestry, Fire, and State Lands.” 	Utah Code Ann. § 78A-3-
102(3)(e)(vi) (2008) (emphasis added). 	Thus, to find that we
have jurisdiction to hear this appeal, we must find that the
Order issued jointly by the Executive Director and the Division
(1) was a final order or decree (2) resulting from a formal
adjudication that (3) originated with the Executive Director
reviewing a decision of the Division. 	There is no dispute that
the Order was a final order. 	As a result, the arguments of the
parties focus on (1) whether the proceeding originated with the
Executive Director, and (2) whether the proceeding from which the
Order issued was formal or informal.
A. 	The Order Issued Jointly by the Executive Director and the
Division Originated With the Executive Director for Purposes of
Jurisdiction
¶9 	Friends argue that the Petitions originated with the
Executive Director because the Order issued jointly from the
Division and the Executive Director. 	In the alternative, Friends
argue that at least their Petition for Consistency Review, which
was specifically directed to the Executive Director, qualifies as
originating with the Executive Director. 	Mineral Company
contends that the origination argument is moot because the
underlying proceeding was informal and therefore unreviewable by
this court in any event. 	Mineral Company also argues that the
Order originated with the Director of the Division who determined
that the petition was complete and forwarded it to the Executive
Director. 	Friends assert this argument to be invalid because
such an interpretation of the statute would mean that the supreme
court would never have jurisdiction over orders issued by the
Executive Director because no order could ever “originate” with
him. 	We agree with Friends.
¶10 	We hold that any order issued by the Executive Director
originates with him and is therefore subject to our jurisdiction
so long as the proceeding from which the order issued was formal.
See So. Utah Wilderness Alliance v. Bd. of State Lands &
Forestry, 830 P.2d 233, 236 (Utah 1992). 	The Order at issue in
this case clearly states that the Executive Director and the
Division issued a joint opinion with regard to the Petitions and
does not specify whether some of the Petitions were addressed by
the Division as opposed to the Executive Director. 	We therefore
conclude that the Order qualifies as one originating with the
Executive Director.

4 Rule 652-8-200 states:
1. 	All requests for agency
adjudications are initially designated as
informal adjudications. 	Requests for action
include applications for leases, permits,
easements, sale of sovereign lands, exchange
of sovereign lands, sale of forest products
and any other disposition of resources under
the authority of the agency or other matter
where the law applicable to the agency
permits parties to initiate adjudicative
proceedings.
2. 	All adjudications commenced by the
agency shall be initially designated as
informal adjudications. Agency adjudications
include actions relating to leases, permits,
easements, sales contracts and other
agreements and contracts under the authority
of the agency.
No. 20080147 	6
B. The Formality of the Review Proceeding Is Determined by the
Formality of the Underlying Proceeding
¶11 	We now turn to the question of whether the underlying
proceeding was formal or informal. 	We conclude that formality
designations for agency proceedings apply only to original
proceedings and not to the agency review of those proceedings.
UAPA clearly designates all adjudications as formal unless
otherwise specifically designated by agency rule. 	Utah Code Ann.
§ 63G-4-202(2). 	By Division rule all adjudicative proceedings
are initially designated as informal. 	Utah Admin. Code R. 652-8-
200 (2008). 4 	But UAPA does not clearly state whether the appeal
from an adjudicative proceeding constitutes a separate
adjudicative proceeding to be designated as formal or informal,
whether the appeal retains the character of the underlying
proceeding, or whether it is neither formal nor informal, but
merely a review proceeding whose formal or informal nature has no
bearing on which court has jurisdiction. 	See Utah Code Ann.
§ 63G-4-301. 	Rule 652-8-200 designates all requests for agency
adjudication, including applications for lease, as informal.
Thus, the underlying adjudication awarding the Clyman Bay lease
to Mineral Company was an informal proceeding. 	There is no
serious dispute on this issue. 	Friends clearly understood that
the underlying proceeding was informal as demonstrated by their
communication with the Division. 	Instead, Friends’ argument
rests on the nature of the appeal proceeding.

5 Friends also argue that they were not able to participate
in the underlying proceeding so this is an entirely new
proceeding. 	Even assuming this were true, it does not bolster
their jurisdictional argument because a new proceeding initiated
with the Division would also be designated informal under rule
652-8-200 of the Utah Administrative Code.
7 	No. 20080147
¶12 	Friends argue that the review proceeding is separate
and does not retain the formality level of the underlying
proceeding. 	Mineral Company argues that UAPA doesn’t require the
agency to designate the formality level of a review proceeding,
but rather that the formality is determined by the substance of
the review. 	The Division argues that review of an adjudicative
proceeding does not alter the formality of the underlying
proceeding because the review procedure for both formal and
informal adjudications is the same. 	The Division’s position is
more consistent with UAPA and our precedent.
1. 	The Structure of UAPA Suggests That Agency Review Proceedings
Do Not Constitute New Proceedings
¶13 	Though UAPA requires that all adjudicative proceedings
be either designated informal or formal, it imposes no such
requirement on the administrative review of underlying
proceedings. 	See Utah Code Ann. §§ 63G-4-201 to -302. 	Part Two
of UAPA specifically outlines the procedures an agency must
follow when conducting either formal or informal adjudicative
proceedings. 	Id. §§ 63G-4-201 to -209. 	Part Three addresses the
procedures that agencies must follow when reviewing adjudicative
proceedings. 	Id. §§ 63G-4-301 to -302. 	Part Three makes no
mention of the formality or informality of the underlying
proceeding, but it does establish rules similar to those
established for formal and informal adjudicative proceedings such
as rules governing the production of documents. 	Id. § 63G-4-301.
Friends assert that a new proceeding commences when a party seeks
agency review of an adjudication outcome. 	But this notion is
inconsistent with UAPA and conceptually at odds with the
generally accepted idea that an appeal is a continuation of the
underlying proceeding. 5
2. 	Our Caselaw Suggests We Look to the Formality of the
Underlying Proceeding to Determine Jurisdiction
¶14 	UAPA requires that final formal administrative
adjudicative proceedings be reviewed by this court or the court
of appeals and final informal administrative adjudicative
proceedings be reviewed by the district court. 	Id. §§ 636-4-
402(1), 403(1). 	This court will not hear appeals from informal

No. 20080147 	8
adjudicative proceedings and has not, in the past, looked at the
nature of the administrative appeal to determine formality. 	In
Southern Utah Wilderness Alliance, the Southern Utah Wilderness
Alliance (“SUWA”) petitioned the Board of State Lands to review
the Division’s sale of eighty acres of state trust lands. 	830
P.2d at 234. 	When the Board denied its petition on timeliness
grounds, SUWA appealed to this court rather than the district
court. 	Id. 	Similar to this case, the Board dismissed SUWA’s
petition on procedural grounds rather than considering the merits
of the petition. 	On appeal, we held that our jurisdictional
statute gave us authority over only final orders and decrees from
formal adjudications. 	Id. at 236. 	In concluding that we lacked
jurisdiction, we assumed that the Board’s decision on appeal
retained the same formality level as the underlying proceeding.
Id.
3. 	The Executive Director Did Not Implicitly or Explicitly
Convert the Petitions to a Formal Proceeding on Appeal
¶15 	The Executive Director has the authority under certain
circumstances to convert an informal proceeding to a formal one
and vice versa any time before a final order is issued. 	Utah
Code Ann. § 63G-4-202(3). 	To determine whether the Executive
Director intended to convert a proceeding, we look at any
statements the Executive Director made and actions he took to
alter the proceeding. 	Two court of appeals cases suggest that
regardless of the official designation of formality attached to
the adjudication via rule or statute, this court’s jurisdiction
rests on the actual substance of the proceeding. 	See Bourgeous
v. Dep’t of Commerce, 1999 UT App 146, 981 P.2d 414; Alumbaugh v.
White, 800 P.2d 825 (Utah Ct. App. 1990) (per curiam). 	But this
approach directly contradicts the wording of the statute, which
requires that the agency designate the formality of the
adjudicative proceeding. 	Utah Code Ann. § 63G-4-202.
¶16 	In Alumbaugh, the court of appeals specifically refused
to apply an agency rule that designated all adjudicative
proceedings as formal because a summary dismissal could not
possibly constitute a formal proceeding. 	800 P.2d at 825. 	In
Bourgeous, the court of appeals must have concluded that the
underlying proceeding was informal because it remanded to the
district court for a trial de novo, but there is no discussion
about whether the formality designation came via rule or by
analysis of the substance of the proceeding. 	1999 UT App 146,
¶ 14. 	Insofar as there is a suggestion in these cases that the
statutory or rule-based formality designation of an adjudicative
proceeding can be altered based on its substance rather than the
intent of the executive director of the agency, we disagree. 	But
when determining whether the executive director of an agency

9 	No. 20080147
intended to transform the formality designation of a proceeding,
we may look to the substance of the proceeding to interpret the
executive director’s intent.
¶17 	With regard to the Order in this case, it is clear that
the Executive Director did not intend to transform the proceeding
from informal to formal. 	The explicit wording of the Order
contradicts any intent to transform the proceeding from informal
to formal, and the substance of the proceeding does not suggest
in any way that the Executive Director implicitly converted the
proceeding to a formal adjudication.
¶18 	First, the Order does not suggest that the Executive
Director or the Division meant to transform the adjudication from
informal to formal. 	To the contrary, the Order notifies the
parties that they should petition for judicial review with the
district court. 	While the agency’s determination of jurisdiction
on review would not be binding if it were based on an incorrect
interpretation of the law, the Order indicates that the Executive
Director understood the appeal to be from an informal
adjudication and that the review process was informal as well.
¶19 	Second, the substance of the review does not indicate
that the proceeding was conducted according to either the formal
or informal procedures outlined in Part Two of UAPA. 	Friends
point to the fact that the Division and Executive Director
allowed Mineral Company to intervene in the Petitions as evidence
that the review proceeding was conducted formally, since UAPA
forbids intervenors in informal proceedings. 	Utah Code Ann.
§ 63G-4-203(g). 	Mineral Company also points to the summary
dismissal and likens it to the two paragraph memorandum opinion
issued in Alumbaugh, in which the court of appeals refused to
apply an agency rule designating proceedings as formal when the
Career Services Review Board summarily dismissed the petitioner’s
grievance. 	We find neither of these arguments persuasive. 	If
allowing Mineral Company to intervene in Friends’ Petitions
during an informal adjudicative proceeding was in error,
converting the proceeding from informal to formal is not the
appropriate remedy for that error. 	On the other hand, a summary
dismissal is not necessarily indicative of an intent to conduct
an informal proceeding. 	Certainly an agency could adhere to the
requirements of a formal adjudication and still determine that
the claims of one party are baseless.
¶20 	We conclude that the Executive Director did not
explicitly or implicitly convert the proceeding from an informal
proceeding to a formal proceeding on appeal. 	The text of the
Order makes clear that no explicit transformation took place, and
the substance of the review proceeding does not indicate that the

No. 20080147 	10
Executive Director intended to conduct a formal proceeding on
review.
4. 	Friends Wrongly Suggest We Have Jurisdiction Because the Only
Issues Presented on Appeal Are Legal Issues
¶21 	Alternatively, Friends suggest that because the policy
reasons underlying UAPA’s jurisdictional choices are met in this
situation, we can assume jurisdiction over Friends’ appeal. 	The
thrust of this argument is that the issues being appealed in this
case are all legal and would not benefit from further development
of the record below. 	In support of this argument, Friends cite
to a footnote in Hales v. Industrial Commission of Utah, where
the court of appeals stated that “[n]o purpose would be served by
a trial de novo in the district court where the relevant facts
are not in dispute and the issue is solely one of law.” 	854 P.2d
537, 539 n.2 (Utah Ct. App. 1993). 	But Hales explicitly involved
our review of a formal adjudicative proceeding. 	Id. 	The supreme
court only has jurisdiction over “final orders and decrees in
formal adjudicative proceedings.” 	Utah Code Ann. § 78A-3-
102(3)(e). 	Thus, regardless of whether it would be more
efficient for us to review legal issues arising from informal
adjudicative proceedings, we lack the authority to do so.
II. 	WE CANNOT GRANT A PETITION FOR EXTRAORDINARY RELIEF BECAUSE
FRIENDS HAVE NOT EXHAUSTED THEIR DIRECT APPEALS
¶22 	Friends argue that because we have jurisdiction to
consider their request for extraordinary relief under Utah Code
section 78A-3-102(2), we have the jurisdiction to determine their
underlying claim. 	“Where no other plain, speedy and adequate
remedy is available, a person may petition the court for
extraordinary relief . . . .” 	Utah R. Civ. P. 65B(a). 	To obtain
extraordinary relief under rule 65B(d), a petitioner must show
two things: (1) “a clear legal right to the performance of the
act demanded,” and (2) “a plain duty of the officer, board, or
other tribunal to perform as demanded.” 	Garcia v. Jones, 510
P.2d 1099, 1100 (Utah 1973) (internal quotation marks omitted).
Even if a petitioner can meet both prongs of the test, this court
has the discretion to deny extraordinary relief. 	Renn v. Utah
State Bd. of Pardons, 904 P.2d 677, 683 (Utah 1995).
¶23 	Before we can address a petition for extraordinary
relief, the petitioning party must have “exhaust[ed] all
available avenues of appeal.” 	Utah County v. Alexanderson, 2005
UT 67, ¶ 9, 123 P.3d 414. 	In Alexanderson, Utah County lost at
the administrative level and, rather than directly appealing to
the district court, chose to file a petition for extraordinary
relief. 	Id. ¶ 2. 	In reversing the district court’s decision to

11 	No. 20080147
grant extraordinary relief, we made clear that “[t]he opportunity
to appeal an administrative decision to the district court
constitutes a plain, speedy and adequate remedy,” and that “an
extraordinary writ is not a proceeding for general review.” 	Id.
¶ 6 (internal quotation marks omitted).
¶24 	At this time, Friends have a remedy at the district
court. 	Unless and until the district court and this court rule
that the Order was properly dismissed, Friends have not exhausted
their appeals and do not have grounds to bring a petition for
extraordinary relief.
CONCLUSION
¶25 	Because the Order issued by the Executive Director
reviewed an informal agency proceeding, we lack jurisdiction to
hear Friends’ appeal from that order. 	Further, we cannot address
Friends’ petition for extraordinary relief because Friends have
not exhausted the direct appeal process. 	Accordingly, we dismiss
the appeal and deny the petition for extraordinary relief.
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¶26 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins and Justice Nehring concur in Justice Parrish’s
opinion.