Petition for Writ of Certiorari — Duane Morley Cox, Petitioner v. Teresa Wilhelmsen, et al.

No.

FEB 28 2026

-F1CE QFTHEJ3LERK

Duane Morley Cox

Petitioner

v.

Teresa Wilhelmsen, Utah State Engineer and

Utah Division of Water Rights

Respondents

On Petition For Writ of Certiorari

To The 1st District Court of Utah

PETITION FOR WRIT OF CERTIORARI

Duane Morley Cox, Pro Se

1199 Cliffside Dr.

Logan, Utah 84321

Ph: 801-755-3578

An Issue of First Impression

QUESTIONS PRESENTED

Petitioner, an Owner on water right 25-11775,

and an Applicant on Change Application 25-11775

a48940, asserts that this Petition for Certiorari Case

is a Case of “First Impression” which presents three

Federal Constitutional Questions to this Court which

the Utah Court of Appeals and the Utah Supreme

Court each declined to consider.

Petitioner filed a “Complaint” seeking Judicial

Review in Utah’s 1st District Court after Respondent

State Engineer issued an “Order of Rejection” for

Quantity Impairment which rendered 25-11775 to be

“Worthless”, where the State Engineer failed to serve

Mr. Cox with a copy of the Order.

These three Constitutional Questions

“Appeared” when the Utah 1st District Court Granted

Respondent’s Motion to Dismiss Petitioner’s

Complaint seeking Judicial Review of the State

Engineer’s Order of Rejection which rendered

Petitioner’s Water Right to be “Worthless”, where

Judicial Review on the Agency Action, although

mandatory under the 5th Amendment to the U.S.

Constitution, became “Unavailable” to Petitioner Cox

(See Similarly Cochran v. Kansas and Dowd v. United

States ex rel. Cook where “Remand” was ordered by

this Court).

A.

First Constitutional Question: “Does the Order

of the District Court Granting Respondents Motion

To Dismiss Violate Petitioner’s Due Process Rights

Under the 5th Amendment to The U.S. Constitution?”

B.

Second Constitutional Question: “Does the

Order of the District Court Granting Respondent’s

Motion to Dismiss violate Petitioner’s Right to Equal

Treatment Under the 14th Amendment to the U.S.

Constitution?”

C.

Third Constitutional Question: “Does the Order

of the District Court, Granting Respondent’s Motion

to Dismiss, if sustained, create a new and novel

Precedent which gives a Utah State Agency power to

impair an Individuals property right and avoid

subsequent Judicial Review by simply with-holding

service of the Order on the impacted individual?

After Petitioner filed with the District Court for

Judicial Review, which Review is required to be

available in order for Agency Actions to be

Constitutional, the District Court Dismissed the Cox

“Complaint” seeking Judicial Review thereby

assuring that the due process elements of Notice and

a Fair Trial by a Competent Court [ Warren v. Indiana

Telephone Co., 26 N.E.2d 399, 404 and 410, 409 (Ind.

Sup. Ct. 1940)] were never accomplished, in violation

of Separation of Powers Considerations [State v.

Finch, 315 P. 2d 529, 532 (Idaho Sup. Ct. 1940) Citing:

Bis Butte, 308 P.2d 225, 229 & Laisne, 19 Cal.2d 831,

123 P.2d 457)], thereby violating Petitioners due

process and equal protection rights under the 5th and

14th Amendments to the U.S. Constitution.

Pg H

List of Parties

List of Parties

Duane Morley Cox

1199 Cliffside Dr.

Logan, Utah 84321

Teresa Wilhelmsen

Utah State Engineer

1594 West North Temple, Suite 220

Salt Lake City, Utah 84111

Utah Division of Water Rights

1594 West North Temple, Suite 220

Salt Lake City, Utah 84111

Table of Contents

Page

Topic

Questions Presented.................................................

i

List of Parties................................................................ iii

Table of Contents........................................................ iii

Table of Authorities..................................................

v

Citations To Opinions Below.................................. vii

Jurisdiction .................................................................. viii

Pg iii

Table Of Contents Continued

Summary & Status of Case..................................... x

Facts.................................. ............................................. 1

Sworn Affidavit............................................... 13a

Argument...................................................................... 14

Conclusions.................................................................. 17

Relief To Be Granted................................................ 18

Appendix A - Order of State Engineer............. A-l

Appendix B - Order of 1st District Court.......... B-l

Appendix C - Order of Court of Appeals.......... C-l

Appendix D - Order Denying Rehearing.......... D-l

Appendix E - Order Denying Cert, by

Utah Supreme Court.................... E-l

Appendix F - Detailed Table of Authorities.... F-l

Appendix G - Copy of Portions of Change

Application 25-11775 a48940 ..........G-l

Appendix H - Copy of Deed for Water Right

25-11775 ..................... H-l

Pg iv

Table of Authorities

Precedents

Pages

Aragon v. Clover Club Food Co., 857 P.2d

250, 252 (Ut. Ct. App. 1993)

7, 8, 9

Berry v. Beech Aircraft, 717P.2d 670, 672

(Sup. Ct. 1985)

10

Big Butte v. State Board of Education, 308

P.2d 225, 229 [Supporting Citation only\

ii, viii

Becton Dickinson & Co., 668 P.2d 1254,

1257 (Utah 1983)

9

Borgnis v. Falk, 133 N.W. 209, 219 (Wisconsin

Sup. Ct. 1911).........................................

viii

Cochran v. State of Kansas et. al., 86 L.Ed

1453 (U.S. Sup. Ct. 1942)

16

i, x, 14,

Dowd v. United States ex rel. Cook, 95 L.Ed

215 (U.S. Sup. Ct. 1951)

...... i, 14, 16, 17

Horn, 151 P. 2d 555 (1915) [Internal

Citation]

10

Johnson v. Ind. Comm. 87 N. W.2d 822, 826

(Wisconsin Sup. Ct. 1958)

viii

Laisne v. State Board of Optometry, 123 P. 2d

457 [Supporting Citation Only\

ii, viii

Pg v

Merton v. Ind. Comm., 50 N.W.2d 42, 46

Wisconsin Sup. Ct. 1951)

viii

Meyers v. McDonald, 635 P.2d 84, 88 (Ut Sup.

Ct. 1981, Justice Howe concurring)

10

Milkovitch v. Industrial Commission, 64

P.2d 1290 (Ut. Sup. Ct.)

...........12

Perez v. South Jordan, 2013 UT 1 @ 8, 257

P.3d 441 [ Respondent Citation]

11

R.R. Telegraphers, 88 L.Ed 788 (1944)

[Internal Citation]^

9

St. Joseph Stock Yard Co. v. United States,

80 L.Ed 1033, 1054 (U.S. Sup. Ct. 1936Brandeis

Concurring)

ix, 12

State v. Finch, 315 P.2d 529, 532 (Idaho

Sup. Ct. 1940)

.......... ii, viii

U.S, v. Richmond, 279 F.2d 212, 279 (U.S. Ct.

App. 2nd Cir. 1960)

viii

Warren v. Indiana Telephone Co., 26 N.E.2d

399 @ 404 and 401, 409 (Ind. Sup. Ct. 1940)

ii, 15

5th Amendment, U.S.

Constitution

i, ii, x, 7, 13, 14, 17, 18

Pg vi

14th Amendment, U.S.

Constitution

ii, x, 16, 17, 18

Art. 1, Sec. 10 of the U.S. Constitution

UCA 68-3-3

x, 8, 18

x, 3, 4, 8, 18

UCA 73-3-8(6) (c)(i)

UCA 73-3-10(2)

4

6, 11, 12, 15, 17

Citations To Opinions Below

Page

Appendix A - Order of State Engineer

Rejecting change Application 25-11775

a48940 on grounds of Quantity Impairment

A-l

Appendix B - Order of 1st District Court

Granting Respondents Motion To Dismiss

Petitioner’s “Complaint” Seeking Judicial

Review

B-1

Appendix C - Order of Affirmance By

Utah Court of Appeals of 1st District Courts

Order Granting Respondent’s Morion to

Dismiss

C-l

Appendix D - Order Denying Petitioner’s

Petition for Rehearing by the Utah Court

of Appeals

D-l

Appendix E - Order by Utah Supreme Court

Denying Petitioner’s Petition for Certiorari

Pg vii

E-l

Jurisdiction

The U.S. Supreme Court has jurisdiction to hear

this case because the Utah Supreme Court has Denied

Petitioner Cox’s Petition for Certiorari on 05

December 2025, and the U.S. Supreme Court has

Jurisdiction on all cases which arise from adverse

decisions by the Highest Court of each and every

State [See U.S, v. Richmond).

The U.S. Supreme Court also has Jurisdiction

over Federal Questions of First Impression, and this

case is one of First Impression where for the First

Time in Utah, the Utah Courts, at the urging of the

Utah Attorney General’s Attorneys, have created a

Precedent which allows a State Agency to “Destroy”

an Owners valuable Water Right and avoid the

necessary Judicial Review by “Intentionally” or

“Negligently” failing to serve Notice of the Agency

Order on the Owner, so that the injured Owner was

not able to timely file for Judicial Review.

This circumstance is in violation of the 5th

Amendment to the U.S. Constitution and strikes at the

very heart of our Administrative form of government

which requires that Agency Actions to be

Constitutional must be subject to a subsequent

Judicial Review on the Merits (See Borgnis v. Falk

(Wisconsin); Johnson v. Ind. Comm. (Wisconsin);

Merton v. Ind. Comm. (Wisconsin); State v. Finch

(Idaho) Citing Big Butte v. State Board of Education,

(Idaho) and Laisne v. State Board of Optometry

(California) and five additional Jurisdictions. And is

best said by this very Court as Quoted below:

Pg viii

"... agencies, with varying qualifications work

in a field peculiarly exposed to political

demands. Some may be expert and impartial,

others subservient. It is not difficult for them

to observe the requirements of law in giving a

hearing and receiving evidence. But to say

that their findings of fact are conclusive where

constitutional rights of liberty and property

are involved, although the evidence clearly

established that the findings are wrong and

constitutional rights have been invaded, is to

place those rights at the mercy of

administrative officials and seriously impair

the security inherent in our Judicial standards

[St. Joseph Stock Yard Co. v. United States, 80

L.Ed 1033, 1041 (U.S. Sup. Ct. 1936)]

Yet today, Petitioner Cox appears before this

Court without having been allowed to have the

Order of Rejection by the Utah State Engineer,

Division of Water Rights (which makes Cox’s Water

Right 25-11775 a48940 “Worthless”) reviewed on its

Merits by a Utah District Court because he was never

served with the Order of Rejection.

Such a circumstance creates a Precedent which

may be followed by Utah Agencies and other

Jurisdictions to the detriment of existing

Jurisprudence, and the guidance previously

articulated by this Court.

This Court surely has the Jurisdiction, if not a

duty, to review a decision which erodes and conflicts

with prior articulated Precedents by this Court and

the U.S. Constitution. Pg ix

Statement and Status Of Case

A.

This case is a case of First Impression.

B.

If Respondents prevail, the State of Utah will

have created a Precedent which allows the Division

of Water Rights or any other State Agency to impair,

take or destroy valuable water rights, or other

property rights, and avoid Judicial Review by

“Intentionally” or “Negligently” with-holding service

of Notice of the Order or Agency Action from the

affected individual (s) in contradiction to the 5th and

14th Amendments of the U.S. Constitution.

C.

The principal that all Agency Actions must be

subject to Judicial Review to be Constitutional will

be set aside in Utah.

D.

And the State Engineer for the Division of

Water Rights will CONTINUE to Reject Change

Applications by “Retroactively” asserting Quantity

Impairment against various Water Rights, as has

been occurring for years, which Rejections makes

such Water Rights “Worthless”, in violation of Utah

Code 68-3-3 and Article 1, Section 10 of the U.S.

Constitution.

E.

However, Petitioner believes that the precedents

of Cochran v. State of Kansas et. al., 86 L.Ed 1453 (U.S.

Sup. Ct. 1942j and Dowd v. United States ex rel. Cook,

95 L.Ed 215 (U.S. Sup. Ct. 1951) are controlling with

respect to due process and equal protection violations

under the 5th and 14th Amendments to the U.S.

Constitution.

Pg x

Facts

Denials must fairly meet the substance of the

Facts being denied. And Facts and Statements

followed by (Aff], are part of an imbedded Sworn

Affidavit, which Affidavit is at the end of this section.

1.

On 13 May 2022, Applicants Cox, his wife Jeanne

and the Egbert Children Family Revocable Trust

(Trust) jointly filed Change Application 25-11775

a48940 seeking to return to beneficial use 0.25 acre

feet of irrigation water under 25-11775 which had

been in protective Non-Use since 16 July 2016 (Aff)

[See Copy of Change Application for 25-11775 a48940

which show that Mr. Cox and his Wife Jeanne were Co­

Applicants, Appendix G].

2.

On 5 August 2022, the Logan Regional Engineer

gave Notice of Quantity Impairment (QI) against 2511775 a48940 (Aff) stating:

“... the period of nonuse from 2003 to November

2017 qualifies a finding of quantity impairment.

[Memo To File by William Atkin, Logan Regional

Engineer]

2a.

The QI Statutes became law effective May 12,

2015 [See State Engineer’s Order of Rejection on 2511775 a48940, Appendix A, Pg A-4\

2b.

For QI to exist there has to be “a period of at

least seven consecutive years, [where] a portion of the

right identified in a change application has not been:

Pg 1

This Page Intentionally Blank

Information Moved To Appendix G

Select Parts of Change Application

Showing That Cox and His Wife Were Applicants

Pg 2

“ (A) diverted from the approved point of diversion; or

(B) beneficially used at the approved place of use.”

[See State Engineer’s Order of Rejection on 25-11775

a48940, Appendix A, Pg A-3\

2c.

UCA 68-3-3 states:

“A provision of the Utah Code is not retroactive,

unless the provision is expressly declared to be

retroactive.”

2d.

The QI Statutes do not expressly state that the

QI Statutes are to be applied retroactively (Aff),

which means the years prior to the date of enactment

of the QI statutes (as declared by the Regional

Engineer) are retroactive and cannot be used in the

computation of the continuous seven year period

necessary for there to be Quantity Impairment {Affj.

2e.

Thus, where water right 25-11345 was placed in

approved protective non-use by an Approved Non-Use

Application as of 6 July 2016 (Aff), and where 25-11775

was segregated from 25-11345 on 22 October 2021 (Aff)

25-11775 has been in protective non-use since 6 July

2015 (Aff).

2f.

Thus it is a Fact that Water Right 25-11775 was

in unprotected prospective non-use from the

enactment date of the QI Statutes of 12 May 2015 until

6 July 2016 which is less than the continuous seven

years period required for QI to exist (Aff).

Pg 3

2g.

Therefore the time period of possible non-use

from 2003 until 12 May 2015 is “Retroactive” to the

date of enactment {Aff), and cannot be “Retroactively”

counted in the determination of Quantity Impairment

for Change Application 25-11775 a48940 {Aff).

3.

At the Hearing held on 10 November 2022, Cox

as an Applicant representing the other Applicants,

prepared and presented “Hearing Chart # 1" {Aff)

which variously stated {Aff):

“The Quantity Impairment Statutes Are Not

Retroactive And the Change Application Does

Not Meet The Seven (7) Year Time Period of

Non-Use Under 73-3-8(6) (c)(i)

1.

See Indenture A, Pg 2 of Justification

Attached to the Change Application.

2.

The Quantity Impairment Statutes were

effective on or abut 1 June 2015.

3.

Pursuant to 68-3-3 ... the Quantity

Impairment Statutes are not retroactive, and no

exceptions have been argued.

4.

Parent Water Right 25-11345 was

segregated from 25-3494 on 27 May 2016 in the

amount of 33.91 acre feet, and 25-11345 was

placed in protective Non-Use as of 6 July 2016

via a Non-Use Application which was not

protected and was Approved on 22 November

2017.

5.

For Quantity Impairment purposes, the

longest consecutive time period of non-use is

from 1 June 2015 to the filing date 6 July 2016

for the protective Non-Use Application.

Pg 4

5a. Which is only one (1) year, thirty-six (36)

days, which does not meet the seven (7) [year]

continuous time period required for there to be

Quantity Impairment under 73-3-8(6) (c)(i) (Att

#3) in order for there to be Quantity

Impairment.

On these grounds alone, the assertion of

Quantity Impairment must be Rejected and the

Change Application Approved." (Afi) (Citations

Omitted).

3a.

And the Division noted On the bottom of

Hearing Chart #1, that Morley Cox (that’s Mr. Cox),

an Applicant, was the submittee of this Chart (Aft).

This Space Intentionally Blank

Due To Changing the Chart to be Stated Facts

In Lieu of Creating Another Appendix

Per Request of Clerk

While Preserving the Source of Chart Deleted

Pg 5

4.

On 30 November 2023, the State Engineer issued

an Order of Rejection of Change Application 25-11775

a48940 on grounds of Quantity Impairment (See

Appendix A here-iri) which rendered 25-11755 to be

“Worthless” (Aff) because Quantity Impairment is the

Administrative equivalent to Judicial Forfeiture (Aff).

4a. On Pg 1 there in, the Order of Rejection

indicates that the Trust was the Applicant, omitting

to include Mr. Cox and his Wife Jeanne Cox as

Applicants (Afi).

4b. And it is a Fact that the Order refers to Mr. Cox

as the Applicant’s Representative (See Appendix A, Pg

Pg A-4, Pg A-4 a second time, and Pg A-5), while

omitting to include Mr. Cox and his wife Jeanne Cox

on the distribution list for the Order of Rejection (See

Appendix A, Pg A-8), even though UCA 73-3-10(2)

requires that service be made to the Applicants on the

same day as the Decision is made (Afl), and even

though Morley Cox (that’s Mr. Cox) is recognized as

an “Applicant” on the bottom of Hearing Chart #1 as

presented above (Afif).

4c.

Thus, it is a Fact that these actions to “pretend”

that Mr. Cox and his wife were not Applicants creates

the impression that it was done in order to knowingly

deny Mr. Cox and his Wife Jeanne of service of the

Order (Afi) in violation of the State Engineer’s duty

under 73-3-10(2) (Afi), so that Mr. Cox could not timely

file an Appeal for Judicial Review which might

prevail (and put an end to the on going “Retroactive"

use of the Quantity Impairment Statutes) (Aff).

Pg 6

5.

And it is a Fact that where the Order of

Rejection renders the Water Right to be “Worthless”

(Aff), the State Engineer was duty bound to serve the

Cox’s as Owners of Water Right 25-11775 a copy of the

Order of Rejection pursuant to the 5th & 14th

Amendments to the U.S. Constitution (Aff) which

guarantees Owners of Property due process when

their property rights are impaired, taken or

destroyed by an Agency Action (Aff) [See Deed for 2511775, Appendix H which was twice filed with the

Division of Wa ter Righ ts].

6.

It was near a year and 1/4 before Cox realized

that the Order of Rejection on 25-11775 a48940 had

been issued (Aff), but not to himself or his wife (Aff).

6a.

In an attempt to understand why he had not

been served, on 9 January 2025, Cox drove to Salt

Lake City and met with Deputy State Engineer Eric

Jones (Aff), who after examining the Division Data

Base advised Cox that it appeared that the reason

Cox had not been served was because of an

administrative error (Aff).

6b.

Mr. Jones indicated he would talk to the State

Engineer about the issue on Monday, and would then

call Mr. Cox (Aff).

6c.

But when that call never came, Mr. Cox, being

aware of Utah’s ‘Discovery Rule’ (See Aragon v. Cover

Club Foods Co.) filed a Request for Reconsideration

(Aff), which was acknowledged but when no action

was taken (Aff), the Request by statute was deemed

DENIED as of 6 February 2025 (Aff).

Pg 7

7.

Mr. Cox then timely filed his “Complaint Appeal of the Rejection of Change Application 2511775 a48940" with the 1st District Court on 24

February 2025 (A/Z)7a.

This “Complaint” was focused upon the alleged

“Retroactive” application of the Quantity Impairment

Statutes in violation of UCA 68-3-3 and Article 1,

Section 10 of the U.S. Constitution (A/Z).

7b.

Instead of filing an Answer, Respondents on 17

March 2025 interposed a Motion to Dismiss which

was based upon the strict application of the statutes

and rules governing Appeals, asserting Cox’s

“Complaint “ was untimely (Aff).

“The Complaint is untimely and thus is barred

under the Administrative Procedures Act.”

7c.

On 22 March 2025, Petitioner filed his “Response

in Opposition to Respondents Motion to Dismiss”

with the 1st District Court which recounted his

meeting with Deputy State Engineer Jones (Aft), and

on Pg 12 there-in responded as quoted below:

“In Utah, Limitation Periods are sometimes

subject to circumstances not always

contemplated by the “Applicable” Statutes of

limitations.

“Limitation periods begin to run when a

cause of action has accrued, which occurs

‘upon the happening of the last event

necessary to complete the cause of

Pg 8

action’.” Citing Becton Dickinson & Co.,

668 P.2d 1254, 1257 (Uth 1983). Quoting

Order of R.R. Telegraphers, 64 S. Ct. 582,

586, 88 L.Ed 788 (1944). “This general rule

may be subject to the ‘Discovery Rule”

such that the running of the statute of

limitations is tolled until the Plaintiff

discovers (or should have discovered) all

of the facts that form the basis for the

cause of action.” (See Aragon v. Clover

Club Foods Co., 857 P.2d 250, 252 (Ut. Ct.

App. 1993)

Unfortunately, in this case, the last event

necessary to understand why Petitioner was not

sent a copy of the State Engineer’s Rejection of

his change Application 25-11775 a48940

occurred when Petitioner met with Deputy

State Engineer Eric Jones, and he indicated

that the Division should have sent him a Notice

that he needed to file a “Record of Conveyance”,

but apparently failed do so. So the Division’s

apparent delinquency to so Notify Petitioner

was the root cause for Petitioner failing to

receive a timely copy of the Order of Rejection.”

(Petitioner’s Response to Respondent’s Motion to

Dismiss, Pg 12)

7d.

Petitioner reinforced this argument with

citation to additional Precedents as presented on Pg

13 of Petitioner’s Response to the Motion to Dismiss.

“ “The limitation period should not be allowed to

run before the suit can be effectively filed.” (See

Becton Dickinson,, Pg 252) ”

Pg 9

““To be constitutional, a statute of limitation

must allow a reasonable time for the filing of an

action after a cause of action arises.” (See Berry

v. Beech Aircraft, 717 P. 2d 670, 672 (Sup. Ct.

1985) (Citing Horn, 151 P.2d 555 (1915))”

““We should always be careful not to encroach

on legislative prerogative. However, there may

well be a denial of constitutional rights in

foreclosing persons from access to the court

under these unusual circumstances. Besides,

the constitutional guarantees of due process

and equal protection of the law, our

Constitution, Article 1, Section II provides that

“All courts shall be open, and every person for

an injury done to him in person ... shall have

remedy by the due course of law which shall be

administrated without denial...” (See Meyers v.

McDonald, 635 P. 2d 84, 88 (UtSup. Ct. 1981,

Justice Howe concurring) ”

8.

Unfortunately, it is a Fact that the 1st District

Court’s Order dated 8 April 2025 Granting

Respondent’s Motion to Dismiss adopted Respondents

position that Cox’s Request for Reconsideration

and/or Complaint to the District Court were untimely

without any discussion as to why the Precedents

cited by Mr. Cox did not entitle him to relief (Aff}.

8a.

In addition, it is a Fact that the Order of the 1st

District Court created the three Constitutional

Questions which are now before this Court for

consideration (Aff}.

Pg io

9.

Petitioner Cox then timely filed an “Appeal Of

Order of Dismissal” with the Utah Court of Appeals

on 8 May 2025, which Appeal was based on the three

Constitutional Questions now before this Court (Aft).

10.

On 30 September 2025, the Utah Court of

Appeals issued its “Order of Summary Affirmance” of

the District Court’s Order Granting Respondent’s

Motion to Dismiss (See Appendix C).

10a. This Order first sought to create grounds to

avoid Petitioner’s three Constitutional Questions by

asserting that Cox was not an Applicant and was

therefore not entitled to be served with a copy of

State Engineer’s Order of Rejection on Change

Application 25-11775 a48940 (Aft) because UCA 73-310(2) only required the State Engineer to serve copies

on Applicants (Aff).

10b. In Footnote #1, the court touched on Cox’s

“Discovery Rule” argument, citing Perez v. South

Jordan, which is distinguished because unlike Cox

who had no delinquency because he was not served

and thus had no idea he had to take any action, where

Perez knew that he had a duty to respond but failed

to timely do so. (Aff).

10c. Then the Order of Affirmance asserted that Cox

instead “failed to address the district court’s

rationale”, and that “He instead chose to focus on the

“detrimental effects” of the district court’s order

rather than on alleged “errors of logic or discretion”

in the ruling” (See Appendix C, Pgs C-2 & C-3).

Pg 11

lOd. In this case the “Detrimental Effects” happened

to be the three Constitutional Questions which

according to this Court’s Precedent in St. Joseph

Stock Yard Co. v. United States, has indicated that

Constitutional Questions must be ruled upon by some

court at some time (Aff).

lOe. Mr. Cox properly brought the three

Constitutional Questions to the Court of Appeals, and

the Court had an affirmative duty to address them

not insist that other allegations and evidence be

presented (Aft) (See Milkovitch v. Industrial

Commission, 64 P.2d 1290 (Ut. Sup. Ct.))

11.

It is a Fact that Mr. Cox respectfully requested

Re-Hearing which Request included a copy of the

Change Application which showed that Mr. Cox and

his wife Jeanne were Applicants on Change

Application 25-11775 a48940 (Aff), which had the effect

of nullifying the basis of the Order of Affirmance (Aff)

because the cause of the inability to timely file a

Request for Reconsideration with the State Engineer

was caused by the failure of the State Engineer to

serve Mr. Cox and his wife with the Order of

Rejection pursuant to UCA 73-3-10(2) (Aff), and not

any lack of due diligence on Mr. Cox’s part (Aff).

12.

On 28 October 2025, the Utah Court of Appeals

issued an Order on Cox’s case which stated:

“This matter is before the court on Petitioner

Julie Turpin’s Petition for rehearing pursuant

to Utah “Rule of Appellate Procedure 35.”

Pg 12

12a. Petitioner Cox has no idea who Julie Turpin is

(Aff}, certainly she has nothing to do with this case

(Afl), but the message was clear anyway (A/7). So

Petitioner filed a Writ of Certiorari with the Supreme

Court of Utah, presenting the same Constitutional

Questions, which Writ was summarily Denied (Aff).

13.

It is a Fact that the Utah Court of Appeals and

the Utah Supreme Court have failed to rule on Cox’s

three Constitutional Questions or Claims which are

now before this Court (Afl).

13a. It is a Fact that Petitioner Cox was treated

differently than others when the State Engineer

served owners Egbert Children Family Trust but not

owners Mr. Cox and his wife Jeanne Cox with the

Order of Rejection {Aff}.

13b. It is Fact that once Assistant Solicitor General

Dymek was assigned, the State never denied any of

Cox’s factual representations to the Utah Court of

Appeals or the Utah Supreme Court (Aff).

13c. It is a Fact that when the Court of Appeals

issued their Order of Affirmance, there was created a

Precedent which allows any Utah State Agency to

take, destroy or impair property rights and avoid

Judicial Review by “Intentionally” or “Negligently”

failing to make service on the affected individuals in

violation of the 5th Amendment to the U.S.

Constitution (Af?J.

Pg 13

Sworn Affidavit

Duane Morley Cox, after being identified and

duly sworn does hereby swear that the Facts and

Statements contained in the Cox Petition For Writ Of

Certiorari followed by (Aff), are part of an imbedded

affidavit and are true and correct to the best of my

information, knowledge and belief.

fit#

Duane Morley Cc>x, Pro Se

Date

County of Cache:

State of Utah:

On this

^lav of February 2026, Duane

Morley Cox, after being identified and sworn, did

swear before me that the above statement was true

and correct to the best of his information, knowledge

and belief.

Notary

Date

SARAH LEWIS

NOTARY PUBLIC • STATE of UTAH

COMMISSION NO. 738793

COMM. EXP. 08-19-2028

Pg 13a

Argument

Cox argues this case is similar to the cases of

Dowd v. United States ex rel. Cook, 95 L.Ed 212 and

Cochran v. State of Kansas et. al. 86, L.Ed. 1453.

These two cases involved convicted criminals

who were Denied Judicial Review of the convictions

because of post conviction circumstances (prison

rules) beyond their control, one Convicted for

murder and sentenced to life, and the other as a

Habitual Criminal and also sentenced to life.

In this case Cox is similarly Denied Judicial

Review of the State Engineer’s Order of Rejection by

circumstances beyond his control (the failure to be

served with the Order of Rejection by the State

Engineer), which made Petitioner’s Water Right 2511775 to be “Worthless”).

Petitioner Cox argues that his case is a

violation of the 5th Amendment to the U.S.

Constitution which guarantee property will not be

taken, destroyed or impaired without due process.

And the Cook and Cochran cases were similarly 5th

Amendment cases which also guarantees that Liberty

will not be taken without due process.

And the operational part of due process has

been described as follows:

Pg 14

“The Constitutional guarantee of due process is

one of broad and comprehensive implications,

not readily definable with precision. Among its

elements are reasonable notice, an opportunity

for fair hearing, and the right to have a court of

competent jurisdiction determine if the findings

is supported by evidence.” [See Warren v.

Indiana Telephone Co., 26 N.E.2d 399, 217 Ind. 93

(Ind. Sup. Ct. 1940)]

Under this criteria, Mr. Cox’s circumstance is

identical to that experienced by Mr. Cook and Mr.

Cochran. All appeared at the doorstep of the U.S.

Supreme Court having been unable to obtain a

Judicial Review on the Merits of the Orders of

Convictions, or in Cox’s case, a Judicial Review on

the Merits of the Order which destroyed the value of

his property right, protected 5th Amendment Rights.

And the root cause of their inability to obtain a

Judicial Review on the Merits was traceable to

circumstnces which were beyond their ability to

control. Cook’s and Cochran’s circumstance arose

because Prison Rules operated to defeat their rights

to timely appeal, and in Cox’s circumstance, arose

because the State Engineer failed to serve him a copy

of her Order of Rejection on his Change Application

pursuant to UCA 73-3-10(2) thereby defeating Cox’s

ability to timely file a Request for Reconsideration or

for a Court Review within the timelines of the

Administrative Procedures Act as stated on Pg 8 of

the State Engineer’s Order.

Pg 15

And where due process under the 14th

Amendment to the U.S. Constitution not only

necessitates Notice and a Judicial Review, it also

demands that there be equal treatment under the law.

In the case of Cochran, this Court held:

“The State properly concedes that if the alleged

facts pertining to suppression of Cochran’s

appeal ‘were disclosed as being true before the

supreme court of Kansas, there would be no

question but that there ws a violation of the

equal protection clause of the Fourteenth

Amendment’. ... However inept, Cochran’s

choice of words, he has set out allegations

supported by affidavits and nowhere denied

that Kansas refused him privileges of appeal

which it afforded to others. Since no

determination on the verity of these allegations

appears to have been made, the cause must be

remanded for further proceedings.” [See

Cochran, @ 6\

In the case of Cook, this Court held:

"... respondent [Cook] has never had the same

review ofjudgement against him as he would

have had as of right in 1931 but for the

suppression of his papers. We therefore agree

with the Court of Appeals that, while the State’s

“wavier’ theory is ingenuous, it is without

Merit. Under the peculiar circumstances of this

case, nothing short of an actual appellate

Pg 16

determination of the merits of the conviction according to the procedure prevailing in

ordinary cases - would cure the original denial

of equal protection of the law. ... Now that this

Court has determined the federal constitutional

question, Indiana may find it possible to

provide he appellate review to which

respondent is entitled. The Judgements of the

Court of Appeals and the District Court are

vacated and the case remanded. On remand,

the District Court should enter such orders as

are appropriate to allow the State a reasonable

time in which to afford respondent [Cook] the

full appellate review he would have received

but for the suppression of his papers, failing

which he shall be discharged [Citations

omitted] It is so Ordered.” [See Dowd v. United

States exrel Cook, 95L.Ed. 215 @ 3 & 4 (U.S. Sup.

Ct. 1951}

Conclusion

Where Cox’s right to a Judical de novo Review,

as is customary afforded to others, of the State

Engineer’s Order of Rejection on his change

Application 25-11775 a48940, which Order renders the

underlying Water Right 25-11775 to be “Worthless”,

and the State Engineer failed to serve Mr. Cox a Copy

of her Order of Rejection when he was a Co-Owner of

Water right 25-11775, an also failed to serve Mr. Cox

as a Co-Applicant as required by UCA 73-3-10(2), this

Court should find that the State Engineer nullified

Cox’s due process and equal protection rights under

the 5th and 14th Amendments to the U.S. Constitution.

Pg 17

And where Respondents thru Counsel, Assistant

Solicitor General, have not denied any of Cox’s well

presented facts and averments which were supported

by citations to relevant records or a Sworn Affidavit,

it is clear that Cox has been denied his rights under

the 5th and 14th Amendments to the U.S. Constitution

which require due process (Notice and Judic9ial

Review) and equal protection under the law, where

another Owner and Applicant (Egbert Children

Family Trust) was properly and timely served, but

Cox and his wife were never served with the order of

Rejection which set forth the necessary timelines for

Appeal.

Thus, the rights to Notice have been violated,

and he was and is entitled to relief pursuant to Utah’s

“Discovery Rule” which was based upon this Court’s

precedent in R.R. Telegraphers.

In addition Cox has been denied the right of

Appeal normally available to others who were

properly Noticed, and thus has been denied Equal

Protection, as were Cockran and Cook, making

Remand Appropriate.

Relief Be Granted

It is respectfully requested that this Court now

vacate the Orders of the Utah Supreme Court, Court

of Appeals and the 1st District Court in this matter

and Remand to the District Court for a Trial on the

merits pertaining to Cox’s allegations that the State

Engineer wrongfully applied the Quantity

Pg 18

Impairment Statutes “Retroactively” against his

Change Application, in violation of UCA 68-3-3 and

Article 1, Section 10 of the U.S. Constitution which

forbids Ex-Post-Facto laws.

Or in the Alternate also vacate the 1st District

Court Order Granting Respondent’s Motion to

Dismiss, and Remand the case to the State Engineer

the opportunity to decide if she really wants to have

to the Court(s) decide if she is in violation of UCA 683-3 and/or Article 1, Section 10 of the U.S.

Constitution with her alleged “Retroactive”

application of the statutes - which might save the

Court system a lot of unnecessary time and cost of

subsequent litigation.

Respectfully Submitted; -

a^ Pp 2^24

Duane Morley Cox, Pro Se

Pg 19

Date