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Living Rivers v. United States Oil Sands, Inc.2014 UT 25 (June 24, 2014) 

Jun 24, 2014

The Utah Supreme Court held that a petition for review of an administrative determination of the Utah Board of Water Quality (BWQ) was untimely, even though filed within thirty days of a 2011 decision, because in substance it was a collateral attack of an earlier 2008 decision. In 2008, the Utah Division of Water Quality (DWQ) granted a discharge permit to U.S. Oil Sands, which was not challenged within thirty days. In 2011, U.S. Oil Sands informed DWQ of proposed changes, which DWQ determined did not affect the original permit. Living River then intervened and sought a timely review of that decision from an administrative law judge (ALJ), which focused on the basis of the 2008 decision. The ALJ recommended that both permit decisions stand, and BWQ approved. On appeal, the court held that it lacked jurisdiction because the substance of the petition was a collateral attack on the 2008 permit, rather than an attack on the 2011 reaffirmance of the permit, which would have been permissible.