Brown v. Division of Water Rights

2010 UT 14
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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Lawrence Brown, Marilyn Brown, No. 20080995
Joseph Sorenson, and Kathleen
Sorenson,
Plaintiffs and Petitioners,
v.
The Division of Water Rights of
the Department of Natural Resources
of the State of Utah; Jerry D. Olds,
in his capacity as the Utah State F I L E D
Engineer; and James A. McIntyre,
Defendants and Respondents. March 9, 2010
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Third District, Salt Lake
The Honorable Glenn K. Iwasaki
No. 060920127
Attorneys: Benson L. Hathaway, Alexander Dushku, Peter C.
Schofield, Justin W. Starr, Salt Lake City, for
plaintiffs
Mark L. Shurtleff, Att’y Gen., Norman K. Johnson,
Richard K. Rathbun, Julie I. Valdes, Asst. Att’ys
Gen., Salt Lake City, for defendants the Division of
Water Rights and Jerry D. Olds
James A. McIntyre, Richard R. Golden, Sarah E. Viola,
Salt Lake City, for defendant James A. McIntyre
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On Certiorari to the Utah Court of Appeals
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 This case comes to us on writ of certiorari and
presents important issues regarding the interaction between our
substantive standing requirements and the standard of review
applicable at various procedural stages of litigation. Lawrence
and Marilyn Brown, together with Joseph and Kathleen Sorensen

1 The Browns’ combined petition for administrative review
and complaint for injunctive relief are throughout the remainder
of this opinion referred to as their “complaint.”
No. 20080995 2
(collectively, the “Browns”), filed this action to challenge
James McIntyre’s construction of a bridge over a part of Little
Cottonwood Creek that bisects his property. McIntyre filed a
motion to dismiss for lack of standing, which the district court
granted. The court of appeals subsequently affirmed. Because we
conclude that the Browns’ complaint satisfies our traditional
test for standing, we reverse.
BACKGROUND
¶2 McIntyre owns real property in Murray, Utah, that is
bisected by Little Cottonwood Creek. The Browns are the owners
of adjoining property that, while not bordering the creek, sits
atop the escarpment created by the creek channel. McIntyre lives
on the east side of the creek and has historically accessed the
western portion of his property by fording the creek. In order
to enable access to the west side of his property during times of
high water flow, he decided to build a bridge connecting the
eastern and western portions of his property.
¶3 On August 21, 2006, McIntyre applied to the Division of
Water Rights (the “Division”) for a permit to alter a natural
stream channel, with the ultimate goal of building a bridge
across the creek. The Browns objected to McIntyre’s application,
contending that (1) the application was technically deficient,
(2) the bridge would unreasonably diminish the creek’s ability to
conduct high water flow, and (3) the bridge would adversely
impact the natural stream environment. Despite the Browns’
objections, the Division approved the permit on October 11, 2006.
¶4 After the Division denied the Browns’ request for
reconsideration, the Browns petitioned the district court for
judicial review of the Division’s decision. The Browns combined
with their petition a complaint seeking preliminary and permanent
injunctions to prevent McIntyre from constructing the bridge.1
In their complaint, the Browns alleged that the bridge would
“diminish the [stream’s] ability to conduct high water flows
. . . and thereby increase the risk and danger of flooding.” The
Browns further alleged that increased flooding would lead to
erosion of the stream bank that would result in subsidence of the
soil, damaging the structures located on their property. They
also attached a privately commissioned engineering report (the
“SECOR Report”) in support of their allegations. This report
described in detail the geological and hydrological conditions of

2 Brown v. Div. of Water Rights, 2008 UT App 353, ¶¶ 12, 15,
195 P.3d 933 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158
(1990)).
3 Id. ¶ 14 (quoting Thomas v. Union Carbide Agric. Prods.
Co., 473 U.S. 568, 580-81 (1985)).
4 Id. ¶ 20 (Thorne, J., dissenting).
3 No. 20080995
the stream and concluded that it was “very likely” that
McIntyre’s bridge would result in increased erosion, which the
Browns alleged would result in harm to the structures on their
property.
¶5 McIntyre filed a motion to dismiss the Browns’
complaint, arguing that (1) the Browns lacked standing as to both
their administrative and injunctive claims because they had
failed to allege a distinct and palpable injury, and (2) their
claim for injunctive relief failed on its merits as a matter of
law. While McIntyre’s motion was pending before the district
court, he began construction on the bridge. Upon receiving
notice that McIntyre had begun construction, the Browns sought a
temporary restraining order prohibiting him from proceeding. The
district court denied the Browns’ motion after an informal in
camera hearing. Subsequently, on April 20, 2007, the court
issued a memorandum decision granting McIntyre’s motion to
dismiss for lack of standing.
¶6 A divided panel of the court of appeals affirmed the
district court’s dismissal, determining that the Browns had
failed to allege an injury sufficient to confer standing because
they had not adequately demonstrated that future harm was
“imminent” or “‘certainly impending.’”2 While the court
acknowledged that the Browns’ complaint had asserted “some actual
facts suggesting that a flood or high water flows would cause
harm to [their] property,” the court found these allegations
insufficient since they were “contingent on key, unknown events
. . . dictated by unknown weather patterns . . . ‘that may not
occur as anticipated or indeed may not occur at all.’”3
¶7 Judge Thorne dissented, arguing that while the majority
panel had correctly articulated the substantive standard for
standing, it had erred by failing to accept the truth of the
Browns’ allegations. On a motion to dismiss, Judge Thorne
contended, “the only question [the court] should be considering
. . . is whether [the] complaint alleges sufficient harm to
confer standing, not whether that harm actually exists.”4

5 Collins v. Sandy City Bd. of Adjustment, 2002 UT 77, ¶ 11,
52 P.3d 1267.
6 Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.
7 See Oakwood Vill. LLC v. Albertsons, Inc., 2004 UT 101,
¶¶ 8-9, 104 P.3d 1226.
No. 20080995 4
¶8 We granted certiorari and have jurisdiction pursuant to
Utah Code section 78A-3-102(3)(a).
STANDARD OF REVIEW
¶9 When a case is before us on certiorari review, we
review the decision of the court of appeals rather than the
decision of the district court.5 We accord no deference to the
court of appeals’ decision, reviewing it de novo to determine
whether the court of appeals correctly applied the appropriate
standard of review to the district court’s determinations.6
¶10 A district court should grant a motion to dismiss only
when, assuming the truth of the allegations in the complaint and
drawing all reasonable inferences therefrom in the light most
favorable to the plaintiff, it is clear that the plaintiff is not
entitled to relief.7
ANALYSIS
¶11 This case presents us with an opportunity to clarify
both (1) the interaction between challenges to standing and the
differing burdens of proof applicable at different stages of
litigation, and (2) the substantive requirements for standing in
cases based on allegations of future injury. We begin by
discussing the appropriate standard of review for challenges to a
plaintiff’s standing and then set forth the requirements of our
standing law in “future injury” cases. We conclude by
determining whether the court of appeals correctly applied these
standards in its review of the district court’s decision.
I. ALTHOUGH STANDING IS A JURISDICTIONAL REQUIREMENT UNDER WHICH
THE PLAINTIFF BEARS THE BURDEN OF PROOF, THE PLAINTIFF’S BURDEN
CORRESPONDS TO THE BURDEN ASSOCIATED WITH DISPOSITIVE MOTIONS AT
VARIOUS STAGES OF LITIGATION
¶12 As to federal courts, standing is a constitutional
requirement, derived from Article III of the United States
Constitution, which limits the judicial authority of the federal

8 Raines v. Byrd, 521 U.S. 811, 818 (1997) (quoting Simon v.
E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976)).
9 See Jenkins v. Swan, 675 P.2d 1145, 1149 (Utah 1983)
(“Unlike the federal system, the judicial power of the state of
Utah is not constitutionally restricted by the language of
Article III of the United States Constitution requiring ‘cases’
and ‘controversies,’ since no similar requirement exists in the
Utah Constitution. . . . However, the requirement that the
plaintiff have a personal stake in the outcome of a legal dispute
is rooted in the historical and constitutional role of the
judiciary in Utah. . . .
Inherent in the tripartite allocation of governmental powers
is the historical and pragmatic conviction that particular
disputes are most amenable to resolution in particular forums.
The requirement that a plaintiff have a personal stake in the
outcome of a dispute is intended to confine the courts to a role
consistent with the separation of powers, and to limit the
jurisdiction of the courts to those disputes which are most
efficiently and effectively resolved through the judicial
process.”).
10 Heath Tecna Corp. v. Sound Sys. Int’l, Inc., 588 P.2d
169, 170 (Utah 1978).
5 No. 20080995
courts to “‘actual cases or controversies.’”8 Although the Utah
Constitution includes no similar express limitation, we have held
it nevertheless mandates certain standing requirements, which
emanate from the principle of separation of powers.9
Accordingly, in Utah, as in the federal system, standing is a
jurisdictional requirement.10
¶13 Jurisdictional challenges, in contrast to challenges to
the merits of a plaintiff’s claims, raise fundamental questions
regarding a court’s basic authority over the dispute. And a
challenge to the subject matter jurisdiction of the court is
unique among jurisdictional challenges in that it is not only

11 Utah R. Civ. P. 12(b) (“Every defense, in law or fact, to
claim for relief in any pleading, whether a claim, counterclaim,
cross-claim, or third-party claim, shall be asserted in the
responsive pleading thereto if one is required, except that the
following defenses may at the option of the pleader be made by
motion: (1) lack of jurisdiction over the subject matter
. . . .”).
12 See Harris v. Springville City, 712 P.2d 188, 190 (Utah
1986); see also Utah R. Civ. P. 12(h)(2) (“[W]henever it appears
by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the
action.”).
13 See, e.g., Utah Chapter of the Sierra Club v. Utah Air
Quality Bd., 2006 UT 74, ¶ 32, 148 P.3d 960 (standing); Anderson
v. Am. Soc’y of Plastic & Reconstructive Surgeons, 807 P.2d 825,
826-27 (Utah 1990) (personal jurisdiction).
No. 20080995 6
given its own procedural vehicle--rule 12(b)(1)11--but can be
raised at any time, including for the first time on appeal.12
¶14 But despite the fundamental nature of standing as a
jurisdictional prerequisite to adjudication, requiring a
plaintiff to provide full proof of standing at the moment of
challenge, regardless of the stage of litigation, risks creating
premature and unduly burdensome “mini-trials” on standing at
times when the precise contours of the dispute are just
developing. And because issues relevant to the standing inquiry,
such as the extent or likelihood of an injury and the causal link
between the alleged injury and the defendant’s conduct, are often
bound up with the merits of the plaintiff’s case, requiring that
a plaintiff prove standing immediately upon challenge would
impose a burden on the plaintiff inconsistent with the burden
imposed regarding the merits of his claims. Faced with such a
burden, plaintiffs who are not yet required to prove the merits
of their claims could nevertheless have their claims dismissed
for failure to prove standing prior to discovery. We have
rejected this approach in the past, with regard to both standing
and other jurisdictional challenges.13 We find the United States
Supreme Court’s analysis helpful in explaining the appropriate
approach:
The party invoking . . . jurisdiction
bears the burden of establishing these
elements [i.e., the elements of standing].
Since they are not mere pleading requirements
but rather an indispensable part of the

14 Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)
(citations and internal quotation marks omitted).
15 See Oakwood Vill. LLC v. Albertsons, Inc., 2004 UT 101,
¶¶ 8-9, 104 P.3d 1226.
7 No. 20080995
plaintiff’s case, each element must be
supported in the same way as any other matter
on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of
evidence required at the successive stages of
the litigation. At the pleading stage,
general factual allegations of injury
resulting from the defendant’s conduct may
suffice, for on a motion to dismiss we
presume that general allegations embrace
those specific facts that are necessary to
support the claim. In response to a summary
judgment motion, however, the plaintiff can
no longer rest on such mere allegations, but
must set forth by affidavit or other evidence
specific facts, which for purposes of the
summary judgment motion will be taken to be
true. And at the final stage, those facts
(if controverted) must be supported
adequately by the evidence adduced at
trial.14
¶15 Accordingly, we now make clear that, although a
challenge to standing is jurisdictional and may be brought at any
stage of the litigation, such a challenge is to be evaluated
under the standard used for a dispositive motion at the relevant
stage of litigation.
II. THE BROWNS HAVE ADEQUATELY MET THEIR BURDEN TO SHOW STANDING
AT THIS STAGE OF THE LITIGATION BECAUSE THEIR ALLEGATIONS
ESTABLISH A REASONABLE PROBABILITY OF FUTURE INJURY
¶16 Because McIntyre’s challenge to the Browns’ standing
was brought prior to discovery, the Browns’ burden with respect
to standing is identical to the burden they would bear on their
substantive claim when facing a motion to dismiss for failure to
state a claim upon which relief may be granted. Accordingly, the
Browns’ claims will survive McIntyre’s motion so long as their
allegations, taken as true, together with all reasonable
inferences therefrom, satisfy the requirements of our standing
test.15 We begin by clarifying the nature of the injury
requirement of our standing jurisprudence in this case. We then

16 See Brown v. Div. of Water Rights, 2008 UT App 353, ¶¶ 9-
10, 14-15, 195 P.3d 933.
17 Compare Jenkins v. Swan, 675 P.2d 1145, 1150 (Utah 1983)
(requiring proof of a causal relationship between defendant’s
action and plaintiff’s alleged injury, and requiring that the
“relief requested is substantially likely to redress” the alleged
injury) with Hein v. Freedom From Religion Found., Inc., 551 U.S.
587, 598 (2007) (articulating the federal standing requirements:
“A plaintiff must allege personal injury fairly traceable to the
defendant’s allegedly unlawful conduct and likely to be redressed
by the requested relief.” (internal quotation marks omitted)).
18 2009 UT 48, ¶ 9, 214 P.3d 95 (emphasis added) (citing
Utah Chapter of the Sierra Club v. Utah Air Quality Bd., 2006 UT
74, ¶ 23, 148 P.3d 960).
No. 20080995 8
determine whether the court of appeals was correct in affirming
the district court’s determination that the Browns lack standing
to bring their claims.
A. A Plaintiff Satisfies Our Standing Requirements by
Demonstrating That There Is a Reasonable Probability of a Future
Injury
¶17 The court of appeals referred almost exclusively to
federal case law in formulating the standing requirements by
which it judged the sufficiency of the Browns’ complaint.16 In
doing so, it did not give adequate consideration to key
differences between Utah and federal standing law that bear
directly on this case. Although our standing requirements and
the federal standing requirements are similar in that they
contain the same three basic elements--injury, causation, and
redressability--they are not identical.17 Indeed, the practical,
historical, and state constitutional constraints that set the
outer bounds of our standing jurisprudence are, as noted above,
significantly different from the constraints imposed by the
federal constitution.
¶18 Specifically, the court of appeals’ citation to federal
standing law for the proposition that an alleged future injury
must be “actual or imminent” in order to confer standing is in
conflict with our recent pronouncements on the issue. In Cedar
Mountain Environmental, Inc. v. Tooele County, we reiterated our
rule that a plaintiff may allege an “actual or potential” injury
to satisfy the personal injury element of our standing
requirements.18 In other words, we have made clear that an
imminent injury is not required.

19 Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)
(quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889
(1990)).
9 No. 20080995
¶19 Yet we have never attempted to describe what qualifies
as a “potential” injury that will satisfy our standing
requirements in future injury cases. We take the opportunity to
do so now. To establish standing based on allegations of a
future injury, a plaintiff need not necessarily show that the
alleged future injury is imminent, certainly impending, or even
that its occurrence is more likely than not. Instead, a
plaintiff seeking standing on the basis of a claim of future
injury must, at a minimum, set forth allegations establishing
that a reasonable probability, as opposed to a mere possibility,
of future injury exists.
¶20 Although the phrase “reasonable probability” defies
precise definition, it provides meaningful guidance. As noted
above, a reasonable probability of future injury fits somewhere
in between a mere possibility of future injury, on the one hand,
and an imminent injury, on the other. When an alleged future
injury falls within these two extremes, the determination of
whether there is a “reasonable probability” of injury is an
equitable one, which encompasses several different
considerations, including the chance that the alleged injury will
actually occur, the potential magnitude of the alleged injury,
and the relative burdens that such an injury (or the mitigation
thereof) would impose on the parties.
¶21 At the pleading stage of litigation, plaintiffs may
satisfy our standing requirements merely by alleging that there
is a reasonable probability that they will be injured by the
defendant’s conduct, so long as the complaint contains adequate
factual context to satisfy our notice pleading requirements. For
purposes of a motion to dismiss, an allegation that there is a
reasonable probability of future injury will be assumed to
“‘embrace those specific facts that are necessary to support the
claim.’”19 But at subsequent stages of litigation, or at the
pleading stage in the event that a plaintiff does not expressly
allege a reasonable probability of future injury, the court must
determine whether the plaintiff’s allegations establish that a
reasonable probability of future injury exists. Having set out
the requirements of our standing law, we now evaluate the court
of appeals’ dismissal of the Browns’ complaint in this case.

20 Brown, 2008 UT App 353, ¶¶ 10, 15.
21 Id. ¶ 14 (quoting Thomas v. Union Carbide Agric. Prods.
Co., 473 U.S. 568, 580-81 (1985)).
No. 20080995 10
B. The Allegations in the Browns’ Complaint, Taken as True,
Establish a Reasonable Probability of Future Injury Due to
McIntyre’s Bridge
¶22 While the court of appeals acknowledged that the Browns
had alleged that, when flooding occurs, they would suffer harm
from McIntyre’s bridge, the court nonetheless affirmed the
district court’s dismissal of the Browns’ case on the ground that
the alleged injury was too speculative to satisfy our standing
requirements. The court of appeals found that, in order to
obtain standing based on allegations of a future harm, the
plaintiff must show that their alleged injury is “imminent” or
“certainly impending.”20 Because it found that the Browns’
alleged injury depended on “‘contingent future events that may
not occur as anticipated or indeed may not occur at all,’” it
determined that the Browns lacked standing.21 In so doing, it
erred.
¶23 As discussed above, our standing law requires only that
a plaintiff show a reasonable probability of future injury; a
plaintiff is not required to prove that his alleged injury is
imminent or certain. And in this case, the Browns’ complaint
satisfies our injury requirement for purposes of a challenge to
standing at the pleading stage of litigation.
¶24 The Browns’ complaint, read in light of the attached
SECOR Report, alleges that, when flooding occurs, it is very
likely that McIntyre’s bridge would cause a damming effect on the
creek, resulting in increased erosion of the stream bank and
corresponding reduction in lateral support to the escarpment atop
which their property lies. Although the Browns do not allege
that they are certain to be injured when flooding occurs,
certainty of future injury is not required to obtain standing.
The fact that an injury ultimately may not occur as anticipated,
or at all, does not preclude standing if there is a reasonable
probability that it will occur.
¶25 Here, the Browns have alleged that it is very likely
they will be injured if a flood occurs. According to their
allegations, a reasonable probability of injury, as we have
defined it above, clearly exists. Taking the Browns’ allegations
as true, which we must for purposes of McIntyre’s motion to
dismiss, the Browns have established that there is more than a

22 McIntyre makes the additional argument that the Browns
lack standing to bring their administrative claim because the
permit has expired and relief from this court could not redress
the Browns’ alleged injuries. We initially note that, since
standing is evaluated at the time an action is brought, Cedar
Mountain Envtl., Inc., 2009 UT 48, ¶ 10, McIntyre’s argument
fails. At the time the Browns filed their complaint, McIntyre
had not yet begun construction on the bridge and the permit was
still in force. To the extent that the substance of McIntyre’s
contention is an assertion that the Browns’ administrative claim
is now moot given the permit’s expiration, we decline to reach
this issue because the impact of the permit’s possible expiration
has not been adequately briefed to this court. See State v. Lee,
2006 UT 5, ¶ 22, 128 P.3d 1179.
11 No. 20080995
“mere possibility” of injury. They have set forth facts and
express allegations demonstrating that their alleged injury is
likely. This satisfies our reasonable probability standard at
this stage of the litigation. Accordingly, we hold that the
court of appeals erred by affirming, on the ground that the
Browns’ alleged injury was not “immediate” or “certainly
impending,” the district court’s dismissal of the Browns’
complaint for lack of standing.22
CONCLUSION
¶26 The court of appeals erred in affirming the district
court’s dismissal of the Browns’ complaint for lack of standing.
Taken as true, the allegations in the Browns’ complaint establish
that there is a reasonable probability that the Browns will be
injured as a result of McIntyre’s bridge. Accordingly, the
Browns’ complaint satisfies our standing requirements, and we
reverse the district court’s dismissal and remand for proceedings
consistent with this opinion.
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¶27 Justice Wilkins, Justice Parrish, Justice Nehring and
Judge Mortensen concur in Associate Chief Justice Durrant’s
opinion.
¶28 Having disqualified herself, Chief Justice Durham does
not participate herein; District Judge David Mortensen sat.