Penta Creeks v. Olds

2008 UT 25
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
In the Matter of the General 	No. 20060234
Determination of Rights to the
Use of Water, Both Surface and
Underground, Within the Drainage
Area of the Price River and of the
Drainage Area of the Green River
From the Confluence of the Price
and Green Rivers to the Confluence
of the Green and Colorado Rivers
Excluding the Drainage Area of the
San Rafael River in Utah.
____________________________________
Penta Creeks, LLC, and Magnificent
Seven, LLC,
Appellants,
v.
F I L E D
Jerry D. Olds, Utah State Engineer,
Appellee. 	March 21, 2008
---
Seventh District, Price Dep’t
The Honorable Bruce K. Halliday
No. 690708598
Attorneys: 	Denise A. Dragoo, Scott C. Rosevear, Salt Lake City,
for appellants
Mark L. Shurtleff, Att’y Gen., Norman K. Johnson, L.
Ward Wagstaff, Mark H. Stratford, Asst. Att’ys Gen.,
Salt Lake City, for appellee
---
NEHRING, Justice:
¶1 	One measure of the importance of water to the people of
Utah is the sizeable array of moving parts found within the legal
machinery of our statutes for processing claims to water and for
fairly allocating the water sought by claimants. 	In this appeal,
we examine the operation of two of those statutory parts on the

1 Because both limited liability companies stand on equal
footing with respect to all issues in this appeal, for
convenience we will refer to them as Penta Creeks.
2 The parties have referred to the papers filed by Kaiser
Steel challenging the State Engineer’s First Proposed
Determination of Water Rights as protests. 	Over time, the term
protest has come to be used to describe any opposition to a
proposed course of action in the realm of water law. 	Utah law,
however, contemplates that the term protest be applied to
challenges to applications to appropriate water. 	See Utah Code
Ann. § 73-3-7 (Supp. 2007). 	Challenges to a proposed
determination by the State Engineer, like those filed by Kaiser
Steel, are styled as objections. 	See id. § 73-4-11.
No. 20060234 	2
claims of two limited liability companies, Penta Creeks, LLC, and
Magnificent Seven, LLC. 1
¶2 	The inner workings of water law contain a requirement
that in the context of a general adjudication of water rights,
those who protest a proposed allocation of water by the State
Engineer “verify” their written objections. 2 	Utah Code Ann.
§ 73-4-11(2) (Supp. 2007). 	The State Engineer sought rejection
of Penta Creeks’ first objection to his Proposed Determination of
Water Rights for the Price River and Lower Green River. 	The
State Engineer argued that because the objection was merely
signed by an attorney, it was inadequately verified. 	The
district court agreed. 	We conclude that the district court
correctly interpreted the law when it determined that
verification requires something more than the signature of an
attorney. 	We hold, however, that the district court erred when
it declined to consider whether “due cause” existed to permit
Penta Creeks to cure the defects in the objection filed by their
predecessor in interest, Kaiser Steel. 	We therefore remand for
consideration of Penta Creeks’ eligibility for due cause relief.
¶3 	We then turn our attention to discerning the meaning of
that portion of Utah’s water law that describes how and to whom
notice must be given of determinations made by the State Engineer
as part of the general adjudication process. 	Notice is important
to the operation of Utah’s water law because proper notice
triggers the running of statutory time periods for filing
objections or other responses to proposed determinations of the
State Engineer. 	Penta Creeks claims that it was not provided
statutorily mandated notice of the State Engineer’s First
Addendum to the Proposed Determination of Water Rights, which
affected its allocation of water. 	Penta Creeks urges us to
reverse the district court’s determination that it was properly

3 	No. 20060234
notified of the First Addendum of the Proposed Determination by
the State Engineer. 	We hold that the procedure used by the State
Engineer to notify water claimants of the First Addendum to the
Proposed Determination did not conform to the statutory
requirements. 	We therefore reverse the district court’s holding
that the notice was proper.
¶4 	Finally, we examine Penta Creeks’ request for a
retroactive extension of the deadline for filing its objection to
the First Addendum. 	Penta Creeks urges that even if the State
Engineer sent the First Addendum to the address mandated by law,
sufficient due cause is present to allow Penta Creeks to have its
objection deemed timely. 	The district court rejected Penta
Creeks’ application for due cause relief. 	We hold that the
district court erred in applying an incorrect legal standard for
addressing Penta Creeks’ eligibility for due cause relief. 	We
therefore remand for further proceedings consistent with this
opinion.
FACTS
¶5 	While this appeal comes before us as a contest between
two parties, the State Engineer and Penta Creeks, this skirmish
is but a small constituent part of the omnibus general
adjudication of rights to the water in the Price River and Lower
Green River drainages. 	“The purpose of the general adjudication
process is to prevent piecemeal litigation regarding water rights
and to provide a permanent record of all such rights by decree.”
Jensen v. Morgan, 844 P.2d 287, 289 (Utah 1992). 	The general
adjudication of water rights in the Price River and Lower Green
River drainages has been ongoing for more than fifty years. 	The
State Engineer first petitioned the district court for initiation
of proceedings under Utah Code section 74-4-1 (1953) to obtain
judicial determination of the relative rights to water in these
drainages, including the water claimed by Penta Creeks’
predecessors in interest, in 1956.
¶6 	The State Engineer’s original petition sought a legal
determination of the water rights in the entire Uinta Basin and
Lower Green River. 	When it became apparent that this scope was
too great for one proceeding, the general adjudication was
amended to limit its inquiry to the Price River and Lower Green
River drainages.
¶7 	In 1960, after the district court defined the scope of
the present general adjudication, the State Engineer commenced
the statutory process created to confer legitimacy on those
claiming lawful ownership based on beneficial use of the public

No. 20060234 	4
waters of Utah under our state’s doctrine of prior appropriation.
See Utah Code Ann. § 73-4-3 (Supp. 2007). 	The State Engineer
began notifying prospective water claimants of the pending
lawsuit to adjudicate relative rights to the water and invited
them to file claims. 	See id. 	The method used by the State
Engineer to identify and notify water claimants in the general
adjudication proved to become, as the discussion to follow will
reveal, a matter of some consequence in this appeal.
¶8 	After the time for filing claims expired, the State
Engineer reviewed the claims submitted by the claimants,
conducted an investigation of the water resources in the relevant
drainages, and in 1971, submitted a proposed determination
allocating the water to the claimants. 	Mailing of the Proposed
Determination to claimants continued through 1979. 	Water
claimants were then given an opportunity to protest the State
Engineer’s Proposed Determination by filing a written objection
“duly verified upon oath” within ninety days of the mailing of
the Proposed Determination. 	Id. § 73-4-11. 	Kaiser Steel
Corporation, Penta Creeks’ predecessor in interest, was one of
the claimants that was dissatisfied with the State Engineer’s
proposed allocation of water. 	Kaiser Steel, through its
attorney, Edward Clyde, filed a timely objection in 1973.
¶9 	Several decades passed before the State Engineer began
to respond to objections filed by the water claimants. 	It was
during this dormant period, in 1996, that Penta Creeks acquired
the water rights that are the subject of the current dispute by
purchasing them from an intervening owner in a bankruptcy
proceeding.
¶10 	Reinforcing our observation that the Lower Green River
and Price River general adjudication proceeding “has frequently
eddied within the stream of the adjudication process,” Green
River Canal Co. v. Olds, 2004 UT 106, ¶ 8, 110 P.3d 666, in 2000,
some twenty-seven years after Kaiser Steel filed its objection,
the Attorney General, acting on behalf of the State Engineer,
filed an answer to the Kaiser Steel objection. 	The State
Engineer’s answer was served on Penta Creeks’ counsel, Ralph C.
Petty, at his office address.
¶11 	In April 2003, the State Engineer’s Office mailed a
copy of its First Addendum to the Proposed Determination to Penta
Creeks at “136 S. Main, Suite 1000, Salt Lake City, UT 84101.”
At that time, Ralph C. Petty remained the registered agent for
service of process for Penta Creeks. 	Mr. Petty’s address was not
136 S. Main. 	That address was, however, the address affixed to
the quitclaim deed under the instruction, “When recorded return

5 	No. 20060234
to: 	. . . ,” which Penta Creeks obtained from the bankruptcy
trustee.
¶12 	Sometime after the First Addendum to the State
Engineer’s Proposed Determination was mailed, Penta Creeks
changed counsel. 	In May 2005, new counsel for Penta Creeks
received a letter from the Attorney General’s Office regarding
the original Kaiser Steel objection to the State Engineer’s
Proposed Determination. 	The letter contained proposed
stipulations to some of the issues raised in the original Kaiser
Steel objection, which the assistant attorney general assigned to
the case had previously discussed with Penta Creeks’ counsel.
The letter was accompanied by a copy of the First Addendum, which
Penta Creeks saw for the first time. 	Soon thereafter, Penta
Creeks filed an objection to the First Addendum to the Proposed
Determination that supplemented the Kaiser Steel objection.
¶13 	The State Engineer moved to dismiss both the Kaiser
Steel objection to the State Engineer’s Proposed Determination
and Penta Creeks’ supplemental objection to the First Addendum to
the Proposed Determination. 	The district court granted the State
Engineer’s motion, and Penta Creeks appealed.
STANDARD OF REVIEW
¶14 	Though it did not discuss the issue in its Order, the
district court impliedly ruled that the Kaiser Steel objection
was ineffective because it was not properly verified. 	We review
this legal determination for correctness.
¶15 	The district court also grounded its dismissal of Penta
Creeks’ objection to the First Addendum on an interpretation of
law. 	It concluded that the State Engineer’s service of the
addendum by mail to the address noted on the water rights deed
was lawful and that Penta Creeks’ objection was untimely. 	We
also review this element of the district court’s ruling
nondeferentially.
¶16 	Finally, without explaining its ruling, the district
court decided that Penta Creeks had not shown sufficient “due
cause” to justify extending the time, as permitted by Utah Code
section 73-4-10, for Penta Creeks to cure defects in the Kaiser
Steel objection or to file its objection to the First Addendum.
A court’s application of the due cause standard turns on its
evaluation of facts that explain, justify, or mitigate the
defaulting party’s tardiness. 	As a result, we would typically
extend deferential review to a court’s judgment about due cause.
In this case, however, we are left with scant evidence of how the

No. 20060234 	6
district court reached its conclusion that Penta Creeks failed to
establish due cause. 	While we are comfortable with granting
deference to factual findings of a district court, we are less
eager to simply defer to a ruling that contains no declaration of
the legal test used to reach the result. 	In this setting, we do
not hesitate to state the legal test the district court should
have applied and require it to do so on remand.
ANALYSIS
I. 	THE KAISER STEEL OBJECTION DID NOT COMPLY WITH THE
REQUIREMENT THAT OBJECTIONS BE “DULY VERIFIED ON OATH”
¶17 	We conclude that the signature of the Kaiser Steel
attorney did not, standing unaided as it was by any attestation
to the truth of the statements made in the objections or any
acknowledgment confirming the identity of the attorney, satisfy
the requirement that objections to a proposed determination be
“duly verified on oath.” 	Utah Code Ann. § 73-4-5 (1989).
¶18 	Were the signature at issue that of any person other
than an attorney, there would be little upon which to erect a
claim that the statutory verification requirement had been met.
“Duly verified on oath” must mean something to distinguish the
signature affixed to the objection from a mere autograph. 	In
fact, we held that in order for there to be a valid verification
“(1) there must be a correct written oath or affirmation, and (2)
it must be signed by the affiant in the presence of a notary or
other person authorized to take oaths, and (3) the latter must
affix a proper jurat.” 	Mickelsen v. Craigco, Inc., 767 P.2d 561,
564 (Utah 1989) (interpreting the Utah Code section 38-1-7 (1974)
requirement that a mechanic’s lien “must be verified by the oath
of [the claimant]”). 	Verification on oath is distinguished from
a mere notarization in that verification requires that “the
applicant swears to the truthfulness of the representations made
in the application.” 	Longley v. Leucadia Fin. Corp., 2000 UT 69,
¶ 31, 9 P.3d 762 (Howe, C.J., concurring).
¶19 	The requirement of verification contemplates the
presence of visible evidence that the person submitting the
objection appreciated that its contents were to be prepared with
the utmost rectitude. 	According to Penta Creeks, the mere
autograph of Kaiser Steel’s attorney, Edward Clyde, was itself
the equivalent of “duly verified on oath.”
¶20 	In support of this assertion, Penta Creeks points to
rule 11 of the Utah Rules of Civil Procedure. 	Pursuant to rule
11, an attorney’s signature on a paper filed with a court is a

7 	No. 20060234
substitute for a verification or an affidavit. 	This is not
always so, however. 	The version of rule 11 in place when Mr.
Clyde signed the Kaiser Steel objection endorsed the sufficiency
of an attorney’s signature “[e]xcept when otherwise specifically
provided by rule.” 	Utah R. Civ. P. 11 (1953). 	Although the
current text of the rule has added the term “statute” to the list
of exceptions to the rule that an attorney’s signature alone
carries with it a sufficient representation of rectitude, see
Utah R. Civ. P. 11 (2007), we do not interpret this addition to
mean that in 1973 the signature of an attorney was sufficient to
comply with an express statutory mandate for verification upon
oath. 	To do otherwise would require us to conclude that the
enactment of the version of rule 11 in force when the Kaiser
Steel objection was filed repealed all statutes requiring
verification, including the “duly verified upon oath” provision
of section 73-4-11. 	This we decline to do. 	We hold, therefore,
that the Kaiser Steel objection was not duly verified upon oath.
¶21 	The district court did not discuss the legal
sufficiency of the Kaiser Steel objection in its Order. 	A
finding that the signature of the Kaiser Steel objection by Mr.
Clyde was insufficient to constitute verification was, however,
something that Penta Creeks had considered. 	In its memorandum in
opposition to the State Engineer’s motion to dismiss, Penta
Creeks requested an extension of time to refile the Kaiser Steel
objection in properly verified form under Utah Code section 73-4-
10 in the event that the court found the objection lacked
verification. 	Despite this request, the district court did not
indicate why inadequate due cause was present to permit Penta
Creeks to cure defects in the objection. 	On appeal to this
court, Penta Creeks maintains its position that under Utah Code
section 73-4-10, it should be granted an extension of time to
file a verified version of the Kaiser Steel objection.
¶22 	The State Engineer goes to some lengths to make the
case that the importance of accuracy in the contents of papers
filed by claimants is so great that it justifies both the
requirement that the formalities of document verification be
observed and that the sanction for inadequate verification be
severe. 	The stridency with which the State Engineer presses the
merits of this cause is betrayed, however, by the remarkably
haphazard and apparently selective manner in which the State
Engineer has chosen to enforce the verification requirement.
Within the general adjudication of the Price and Lower Green
rivers drainages, the State Engineer has not challenged
objections on section 73-4-11 grounds in which an extensive
variety of “verifications” appear. 	These range from unnotarized
signatures of persons who are not lawyers, to notarized

No. 20060234 	8
signatures unaccompanied by any attestation to the truth of the
contents of the document, to averments that the contents were
true to “the best of the [signer’s] knowledge.”
¶23 	Although the State Engineer’s selective enforcement of
the verification requirement was not argued below by Penta
Creeks, our review of the method employed by the State Engineer
to select which of those among the voluminous claimant filings
those he elects to challenge for alleged technical defects leaves
us incapable of conjuring a rational explanation for them. 	We
are, however, left with considerable skepticism for the sincerity
of the State Engineer’s assertions that properly verified
documents are essential to the integrity of the adjudication
process.
¶24 	The gap between the extreme solemnity afforded to
document formality in the State Engineer’s arguments before this
court and the more modest degree of concern for formality
displayed by the actual practice of the State Engineer suggests
to us that the opportunity to cure technical defects under
section 73-4-10 should be more easily accessed than the State
Engineer would prefer.
II. 	THE STATE ENGINEER’S USE OF AN ADDRESS LIST NOT AUTHORIZED
BY STATUTE FOR MAILING THE FIRST ADDENDUM TO THE PROPOSED
DETERMINATION DID NOT CONSTITUTE PROPER NOTICE
¶25 	The district court found that the State Engineer had
discharged his duty to serve a copy of the First Addendum to the
Proposed Determination on Penta Creeks by mailing it to the
address noted on the quitclaim deed. 	It reasoned that the
address that would have assured actual notice to Penta Creeks,
the address to which the Attorney General’s Office mailed the
State Engineer’s answer to the Kaiser Steel objection, was not
reasonably accessible to the State Engineer and that the burden
fell to Penta Creeks to notify the State Engineer’s Office of any
change of address. 	Since the State Engineer properly mailed the
addendum three years before Penta Creeks filed its supplemental
objection, the objection was too late and, in the view of the
district court, no due cause existed that would justify extending
the time to file it.
¶26 	While the contest raged over whether the State Engineer
should have sent the addendum to the address on the quitclaim
deed or the address used by the Attorney General’s Office, little
attention was given to what appears to us to be a fundamental
question: 	Did there exist an authoritative roster of addresses
which, if used, would conclusively establish legally sufficient

3 The version of this statute in effect when the First
Addendum was mailed, Utah Code Ann. § 73-4-3 (1989), is nearly
identical to the current version. 	In the applicable subsections,
the revision added only subsection numbers and some modernization
of language.
9 	No. 20060234
notice? 	As it happens, there is such a list. 	Section 73-4-3(2)
describes it this way:
(d) After the expiration of 90 days [from the
date the State Engineer completes publishing
notices to claimants to file their claims],
the state engineer shall prepare a list that
shall include the names and addresses of all
claimants then of record in the state
engineer’s office and all claimants who have
notified the state engineer of their
addresses, and this list shall be certified
by the state engineer as complete and filed
with the clerk of the court.
(e) The court upon petition may by order
permit the addition of names and addresses to
this list at any time during the pendency of
the action, and the clerk of the court may,
without court order, upon notice from the
claimant note any change of address.
(f) If any claimant appears in this action by
an attorney, the clerk shall note on the list
the address of the attorney.
Utah Code Ann. § 73-4-3(2)(d)-(f) (Supp. 2007). 3 	There is, then,
one list of names and addresses that the legislature has, by
statute, declared to be definitive.
¶27 	As described in section 73-4-3, the contents of the
initial list are assembled by the State Engineer, certified by
him to be complete, and filed with the clerk of the district
court. 	The contents of the list may be supplemented in several
ways. 	Section 73-4-3 requires the clerk of the court to add
names and addresses pursuant to court order and when an attorney
enters an appearance, and it also authorizes the clerk to
supplement the list to include a change of address presented by a
claimant. 	The contents of the list may also be supplemented by
the State Engineer at any time during the pendency of a general
adjudication “whenever the names and addresses of [claimants]
come to the attention of the state engineer.” 	Id. § 73-4-22
(1989). 	While this statutory language suggests a passive role
for the State Engineer in discovering the identity of previously

No. 20060234 	10
unknown claimants, later provisions of section 73-4-22 impose the
duty upon him to “diligently search for the names and addresses
of any claimants . . . who have not been previously served with
summons other than by publication” immediately after the
completion of his proposed determination. 	Id. 	The State
Engineer must then attest to the district court by affidavit that
he has exhausted his search. 	Id.
¶28 	Despite the clear statutory assignment of authoritative
status on the name and address list maintained by the clerk of
the court, at no time in the proceedings leading to this appeal
did any party indicate what, if any, address for Penta Creeks’
claims appeared on the list of addresses on file with the clerk
of the court. 	The district court’s order granting the State
Engineer’s motion to dismiss reflected the parties’ subordination
of the court’s roster of claimant addresses when it noted “that
it is the burden of the protestant/water user to notify the State
Engineer’s Office of any change in mailing addresses and/or
provide for the forwarding of mail from any former address.” 	The
district court’s assignment to water claimants of the burden to
update their identifying data finds clear support in section 73-
4-3. 	By contrast, the district court’s designation of the State
Engineer as the recipient of identifying data conflicts with the
statutory directive that changes to the certified list of
claimants on file with the clerk of the court be made by the
clerk and not by the State Engineer.
¶29 	Thus, the State Engineer is both accurate and
misleading when he exhorts us to affirm the district court’s
ruling that “service of a proposed determination or addendum is
effective when mailed to the address of record.” 	We might well
heed this call but for the fact that the parties have not
disclosed to us the address of record, the one that appears, or
does not appear as the case may be, in the list maintained by the
clerk of Seventh District Court.
¶30 	We approach warily what appears to us to be the
omission of the vital, obvious, and readily accessible fact that
a definitive list of the names and addresses should, if the State
Engineer and the clerk of the court have performed their duties
under section 73-4-3, be in the possession of the clerk of the
court. 	The obviousness of this statutory mandate to us
inevitably causes us to search for reasons why it is not obvious
to others. 	Our curiosity is particularly acute when the State
Engineer himself downplays the significance of the district court
list, treating it as a secondary source of information.

4 In his briefs, the State Engineer refers to the Division
of Water Rights as the entity that serves as the repository for
data relevant to water rights. 	The Division is under the
jurisdiction of the State Engineer, and we find that the
(continued...)
11 	No. 20060234
¶31 	While the State Engineer is a strident advocate for the
imperatives of legal formalism in the realm of objection
verification, he undergoes an abrupt conversion to pragmatism
when the topic turns to the interpretation and enforcement of
notice requirements. 	When it comes to selecting the list of
addresses to use for sending a first addendum to water claimants,
the State Engineer lists several practical considerations that
justify his practice of supplanting the clerk of the court’s
claimant list with his own. 	He points out that the State
Engineer is the repository for a broad range of filings related
to water, most of them bearing address information. 	Recent
statutory amendments, he adds, directed at facilitating the
update of water right ownership records require water right
conveyances to be filed with the State Engineer. 	See Utah Code
Ann. § 73-1-10(3) (Supp. 2007). 	Additionally, the State Engineer
stated to the district court that
[t]he common practice is not for any claimant
to ever update their address with the court.
. . . 	[T]hey only do it with the State
Engineer. 	And then because the State
Engineer has a correct address, . . . then
people get as good a notice as they’re [going
to] get, . . . because people just honestly
don’t come into the court and give [them] the
new address.
His statements indicate that claimants seldom notify the clerk of
the court of changes of address as required by the procedure set
out in section 73-4-3. 	We accept each of these claims to be
true. 	That the address identification practices of the State
Engineer may be more efficient and even more effective than those
established by law does not confer legal legitimacy on them.
Only the legislature can transform the de facto into the de jure.
¶32 	Both before the district court and before us, the State
Engineer insisted that Penta Creeks failed in its obligation to
provide the State Engineer with its correct address and that it
was, moreover, responsible for the State Engineer’s acquisition
of an incorrect address because the deed containing the incorrect
address was transmitted by the county recorder to the Division of
Water Rights. 4 	It appears to us that both the assertion that a

4 (...continued)
distinction between the two is of no importance in this case.
No. 20060234 	12
water claimant failed to provide an updated address to the State
Engineer and the assertion that a claimant provided an inaccurate
address underscore the wisdom of the legislature’s decision to
designate one address roster, the one maintained by the clerk of
the court, to be authoritative. 	We therefore reverse the
district court’s ruling that the address used by the State
Engineer to mail the First Addendum to the Proposed Determination
to Penta Creeks was lawful and remand for a determination of
whether the State Engineer’s notice to Penta Creeks was proper
when compared against the statutorily mandated list maintained by
the clerk of the court.
III. 	DUE CAUSE MAY PERMIT REVISION AND LATE FILING OF THE KAISER
STEEL OBJECTION AND LATE FILING OF THE OBJECTION TO THE FIRST
ADDENDUM
¶33 	The district court also turned away Penta Creeks’
application to be granted, pursuant to Utah Code section 73-4-10,
retroactive extensions of time to file both the Kaiser Steel
objection with a proper verification and its objection to the
First Addendum.
¶34 	By enacting section 73-4-10, the legislature empowered
the district court to spare a water claimant who would otherwise
be caught up in the complex procedural gears of a general
adjudication lawsuit. 	The court’s authority to grant an
extension of the time for filing pleadings is limited by the
requirement that the claimant demonstrate “due cause.” 	Utah Code
Ann. § 73-4-10 (1989). 	We have recently provided operational
guidance to district courts called upon to apply the “due cause”
standard of section 73-4-10. 	See Green River Canal Co. v. Olds,
2004 UT 106, ¶ 43, 110 P.3d 666. 	Our search for a workable due
cause standard was guided by the need to balance the objective of
general adjudication actions to bring certainty to the allocation
of our state’s water resources with fairness in the
administration of rules created to produce that certainty and
finality. 	Id. ¶ 41.
¶35 	In Green River, we discovered in rule 4(e) of our Rules
of Appellate Procedure, the rule governing extensions of time to
file appeals, a workable standard that could be transferred to
the task before us. 	Rule 4(e) grants a court discretion to
extend the time for filing a notice of appeal when a late filing
is the product of excusable neglect or when good cause is
present. 	Green River, 2004 UT 106, ¶ 43. 	We interpreted good

13 	No. 20060234
cause to be a “special circumstance” that was beyond the party’s
control. 	Id.
¶36 	Although both parties relied on Green River’s due cause
standard in their briefs to the district court, the district
court failed to apply Green River’s test for due cause to the
Kaiser Steel objection or the objection to the First Addendum,
nor did the district court explain how it came to conclude that
Penta Creeks’ circumstances did not qualify as due cause. 	We
would typically cede a substantial measure of deference to a
district court’s ruling on an application for relief under
section 73-4-10. 	This is because the assessment of whether due
cause exists is one that is bound up in the facts of a particular
case. 	We are compelled to withhold that deference here because
the district court failed to state what standard it used for
determining due cause and articulated no analysis of which facts
it used to support its finding that there was no due cause.
Moreover, it is clear to us that unchallenged facts in the record
suggest that Penta Creeks may well merit section 73-4-10 relief.
¶37 	Among these facts is the apparent lax adherence of
claimants to section 73-4-11’s verification requirement.
Although section 73-4-11 clearly states that verification of
objections is required, the portion of the general adjudication
record provided to this court demonstrates that most claimants
did not swear to the accuracy of their objections. 	In 1973, the
year the Kaiser Steel objection was filed, it may well have been
the practice of water rights claimants and water rights attorneys
to take a relaxed approach to the verification requirement, much
like it appears to currently be the practice of the State
Engineer to take a dismissive view of the section 73-4-3
requirement that the clerk of the court maintain the list of
claimants in the general adjudication. 	Additionally, the record
indicates that when the State Engineer began responding to
objections in 2000, he did not consistently seek to enforce the
verification requirement.
¶38 	Standing out most prominently in the record is the fact
that the Office of the Attorney General, serving in its capacity
as counsel for the State Engineer, obtained and used the correct
name and address of Penta Creeks’ attorney when it filed an
answer to the Kaiser Steel objection on the State Engineer’s
behalf. 	The extent of the State Engineer’s account of his
attorney’s acquisition of the information is contained in his
statement in his brief that the Attorney General’s Office
“evidently discovered and used the address of Penta Creeks’
registered agent.”

No. 20060234 	14
¶39 	In the State Engineer’s view, there was no need to
elaborate on the circumstances under which his attorney came upon
accurate notification information for Penta Creeks because the
attorney’s knowledge was irrelevant to the issue of proper
notice. 	The State Engineer’s position, one that persuaded the
district court, was that for the purpose of satisfying his
statutory duty to provide notice to water claimants, his field of
vision need not stray beyond the names and addresses in his
records.
¶40 	Whatever one might think about the merits of the State
Engineer’s argument that he was under no obligation to retrieve
from his attorneys the address used to mail the Answer, it is a
legal argument that has little, if anything at all, to do with
the implications of Penta Creeks’ receipt of the Answer on “due
cause.” 	The State Engineer, together with the district court,
merged the two issues. 	In their view, once the State Engineer’s
mailing of the First Addendum to the incorrect address was found
to be lawful, Penta Creeks’ claim to “due cause” evaporated.
Penta Creeks merely joined the list of hundreds of claimants who
failed to provide updated addresses to the State Engineer. 	The
names and addresses of these claimants appear in an attachment to
the State Engineer’s “Affidavit of Undeliverable Proposed
Determination’s First Addendum.” 	The employee of the State
Engineer’s Office who signed the affidavit stated that she sent
copies of the First Addendum “to each claimant to their last
known address on file with the State Engineer’s office.” 	Of
course, this statement serves as further confirmation that the
mailing addresses used by the State Engineer were drawn from an
unauthorized list, but more notably, it is very likely that Penta
Creeks is unique among these claimants in having received
documents from attorneys for the State Engineer mailed to an
accurate, working address. 	This circumstance renders highly
suspect the State Engineer’s contention that Penta Creeks was
duty bound to formally update its address even though the Answer
had been properly addressed to and received by Penta Creeks’
attorney.
¶41 	There are few among us who, having received official
correspondence from the attorney for a state agency, would harbor
a belief that the agency did not have a secure grasp on our
address and would not be capable of using that address in the
future. 	Even if before the official correspondence arrived one
came to suspect that the agency did not have a current address on
file, the receipt of the correspondence would almost certainly
put those fears to rest. 	A person who, despite having received
official correspondence from a state agency, felt compelled to
confirm that the address actually used by the agency was the same

15 	No. 20060234
address found on the roster of addresses used by the agency for
its official mailings would at the least be considered, using the
most generous of diagnoses, excessively prudent.
¶42 	The assessment of whether Penta Creeks’ untimely
response to the First Addendum should be excused for due cause
required the district court to move beyond ascertaining the locus
of legal responsibilities to account for how the circumstances
influenced the reasonable assumptions and behavior of the
parties. 	On remand, if the district court is called upon to
revisit Penta Creeks’ applications for relief under section 73-4-
10, it must take on this task in the context of applying the
Green River standard for due cause.
CONCLUSION
¶43 	We hold that signature of the Kaiser Steel objection by
an attorney did not constitute proper verification of the
objection and uphold the district court. 	We also hold that the
State Engineer’s failure to use the statutorily mandated list of
claimants maintained by the clerk of the court when mailing the
First Addendum was unlawful and reverse the district court’s
holding that it was proper. 	We remand for a determination of
whether the State Engineer’s notice to Penta Creeks of the First
Addendum was proper when compared against the list kept by the
clerk of the court. 	Finally, we hold that the proper test for
determining whether due cause merits a retroactive extension of
the filing deadline under section 73-4-10 is whether excusable
neglect or good cause warrants doing so. 	Accordingly, we remand
to the district court for findings of whether excusable neglect
or good cause merit retroactive extensions of the deadlines for
filing a properly verified version of the Kaiser Steel objection
or for filing the objection to the First Addendum.
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¶44 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.