Rosemary J. Beless

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Rosemary Beless B

Rosemary J. Beless

Email: rbeless@fabianvancott.com

Direct Line : 801.323.2268

Fax : 801.532.3370

215 South State Street Suite 1200
Salt Lake City, Utah 84111

Biography

Rosemary J. Beless has over 30 years of experience in a practice focused on natural resources and environmental law, representing clients in the areas of water, mining, oil and gas, public lands, condemnation, and environmental law. In addition to the state and federal courts, she regularly appears before the Utah Division of Water Rights, the Utah Board of Oil, Gas & Mining, and the U.S. Interior Board of Land Appeals. Rosemary conducts comprehensive title analyses for the acquisition of large blocks of mining claims, oil and gas leases, and water rights for industrial and municipal development. She recently obtained the title for a developer to over 100 scattered fragments of public land in a BLM land exchange and completed the sale of an oil and gas field to an international resource group. Rosemary represented the prevailing parties in the landmark oil and gas case of Cowling v. Board of Oil, Gas & Mining, which defined where the law of capture ends and the law of correlative rights begins in Utah. She has successfully resolved complex False Claim Act, eminent domain, and CERCLA cases with the support of Fabian VanCott’s litigation team. Rosemary received her Ph.D. in English and her law degree from the University of Utah.

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Professional

Member and Vice Chairman, Redevelopment Agency Advisory Committee of Salt Lake City, 2005 - Present
Director, 1999 - Present; Chairman of Public Lands Committee, 1991-1997; Member of Legislative Taxation, and Environmental Committees, Utah Mining Association
Recipient, Distinguished Service Award, presented by Utah State Bar, Energy, Natural Resources and Environmental Law Section, 2000
Rated AV by Martindale Hubbell
Recognized as “Outstanding” in the field of Energy and Natural Resources Law in Chambers USA - Guide to America’s Leading Business Lawyers
Recognized as “Outstanding” in the field of Water Law in The Best Lawyers in America
Recognized as "Outstanding" in the field of Natural Resources law, Utah Business Magazine
Recognized as "Outstanding" in the field of Real Estate by Mountain States Super Lawyers
Chairman, Energy, Natural Resources and Environmental Law Section, Utah State Bar, 1994 - 1995
Director, Utah Wildlife Federation, 1988 - 1992
Recipient, Natural Resources Lawyer of the Year, presented by Utah State Bar, Energy, Natural Resources and Environmental Law Section, 1989 - 1990
Admitted to the Utah State Bar and U.S. District Court, District of Utah, 1980; U.S. Court of Appeals, Tenth Circuit, 1997; U.S. Supreme Court, 2000

Representative Projects

ENVIRONMENTAL LAW

CERCLA, RCRA, Toxic Torts - Complex Litigation:

Rosemary has over 30 years of experience in environmental administrative practice and litigation. She has represented landowners, cities, real-estate developers, generators, secured parties, adjacent landowners, and potentially responsible parties, at a variety of Superfund and CERCLIS sites, including smelter sites, a PCB storage facility, a sugar factory, a copper mill, a dry cleaning facility, a barrel recycling facility, municipal landfills, mine tailings sites, a contaminated floodplain site, a battery disposal facility, metal recycling facilities, salvage yards, a truck assembly plant, a waste oil disposal facility, a residential area, a paper mill, and leaking underground storage tank sites.

Rosemary has extensive experience in complex, multiparty CERCLA, RCRA, and toxic tort litigation, including the Sharon Steel, Ekotek/Petrochem, Hansen Container, Lowry Landfill, Weld County Landfill, Operating Industries, Inc. Landfill, Casper Downtown PCE Plume, Southland Oil, Grand Calumet River, and Fogerty Oil cases, throughout the U.S. She was successful in the dismissal of a mining company from a third-party contribution claim filed against it in the Sharon Steel litigation. She has defended and resolved claims against companies for EPCRA violations, and she has also been successful in causing the EPA to rescore sites proposed for the National Priorities List ("NPL").

Rosemary has litigated a number of cases about insurance coverage of cleanup costs for environmental contamination, and she has been successful in getting insurance coverage for cleanup costs for a lessee of leaking underground storage tanks and for a commercial laundry at a municipal landfill site. She has successfully settled EPA complaints against entities, including hospitals and public school districts, for PCB and asbestos violations, and she has negotiated a number of agreements with EPA for removal and remedial actions at Superfund sites. Rosemary has obtained "no further action" letters and certificates of completion from state environmental agencies for clients who have completed voluntary cleanup programs.

Environmental Compliance:

Rosemary regularly reviews Phase I and II environmental site assessments for a number of commercial clients, and she prepares environmental representations, warranties, releases and indemnifications in purchase and sale agreements for clients. Her clients include cities and towns, mining companies, real estate development companies, utilities, municipalities, commercial laundries and dry cleaners, major construction companies, banks and commercial lenders, school districts, and hospitals.

She has also provided NEPA compliance review for various major federal actions subject to NEPA compliance.

Water Quality:

Rosemary has addressed water quality issues such as groundwater and surface water contamination and remediation issues at about a dozen Superfund sites. She represented a major laundry regarding pre-treatment standards in California, Oregon, Arizona and Illinois. She has participated in issuance of NPDES and UPDES permits, addressed chronic and acute toxicity testing issues, and she has negotiated variances for major corporations, including mining companies, highway construction companies, and real estate development companies, in NPDES permits and Section 404 permits. She advises a major construction company on stormwater and dewatering permits for construction sites and point and nonpoint source contamination issues. Rosemary has also prepared applications for stormwater permits for a variety of industrial and construction sites.

Land Use Planning:

Rosemary has prepared master declarations of covenants, conditions and restrictions, which specifically address water quality, water rights, environmental, recreation and access issues, for residential subdivisions in resort and recreation communities. She has also prepared drinking water source protection plans for community drinking water systems.

Air Quality:

Rosemary regularly advises commercial and industrial clients on air quality issues and reporting issues under the Clean Air Act and EPCRA.

USTs:

She has prepared the financial responsibility compliance program under the underground storage tank regulations for a national corporation with multi-state tank sites and has assisted Utah school districts and local service stations with compliance issues under the underground storage tank requirements.

False Claims Act:

Rosemary also successfully defended a major construction company against environmental and construction claims filed under the federal False Claims Act.

WATER RIGHTS

Administrative Adjudications:

Rosemary has over 30 years of experience in water law both in administrative adjudications before the Utah State Engineer and in civil litigation. She has prepared Applications to Appropriate, Change Applications, Exchange Applications, Segregation Applications, Diligence Claims, and Underground Water Claims and has seen them through the administrative process. She has obtained water rights for wells and permits to drill wells. She has prepared many applications to change irrigation water rights to municipal use and has successfully guided the change applications through the administrative process before the State Engineer.

Rosemary has worked with hydrologists and geologists in Utah, Idaho, Wyoming, and Montana in administrative hearings on water rights. In Idaho, she represented a client in aquaculture as part of the Snake River Adjudication and litigation concerning geothermal rights. In Utah, she has participated in the General Adjudication of Emigration Creek and has sold a major water right in Emigration Creek.

Title Opinions/Sales and Acquisitions:

Rosemary has prepared title opinions, acquisition agreements, and change applications for water rights for residential and commercial real-estate development projects in Summit, Tooele, and Wasatch Counties, and for a major recreational development in Wasatch County, Utah. She has prepared title opinions on water rights in Emigration Creek and Red Butte Creek and negotiated a settlement agreement with Salt Lake City and the U.S. Army Corps of Engineers on federal reserved water rights in Red Butte Creek. She participated in a major sale of water rights in the Jeremy Ranch area and prepared exchange and change applications for these water rights. Rosemary has worked extensively with water rights in the Snyderville Basin, in the Weber River Drainage and in the Provo River-Utah Lake Drainage. She has prepared title opinions on most of the major water rights in the Park City area, and she participated in the $6,000,000 sale of water rights to Park City. She has directed major litigation about water rights in the Park City area and in Oakley, Utah. She has addressed water issues in a number of condemnation cases and prepared opinion letters on issues of forfeiture and water use in the Price area.

Rosemary is currently addressing water right title issues in Salt Lake, Utah, Summit, Wasatch, Tooele, Morgan, Washington, and Sevier Counties, Utah. She has also researched the relationship of water rights to water quality and presented a number of papers concerning the over-pumping of an aquifer. She regularly presents papers on water rights title issues at major water law conferences.

Municipal Drinking Water System/Bonds:

She recently assisted a town in getting a $2.8 million bond for construction of a municipal drinking water system.

Her clients include cities and towns, real estate development companies, mining companies, construction companies, power companies, mutual water companies, irrigation companies, restaurants, ranchers, farmers, and homeowners.

MINING LAW

Public Land/Mining Claims:

Rosemary has over 30 years of experience in the practice of mining law, both with coal and hard-rock mining. She has represented mining companies on federal public land issues, including mining claim validity determinations and patenting issues and federal coal leasing and compliance issues, before the U.S. Bureau of Land Management, Minerals Management Service, the Office of Surface Mining, the Bureau of Reclamation, the U.S. Forest Service, the Interior Office of Hearings and Appeals, the Interior Board of Land Appeals, and the U.S. District Court for Utah.

Rosemary has represented many owners of unpatented and patented mining claims about issues of discovery, validity determinations, common/uncommon variety issues, state in-lieu selection, survey, adverse contests, patenting, and assessment work, under the Mining Law of 1872, FLPMA, the Stock-raising Homestead Act, and the Omnibus Budget Reconciliation Act of 1993, before the BLM and the IBLA.

Recently, she was successful in quieting the title to Park City patented mining claims in a case before the Utah Court of Appeals. She has also successfully negotiated the preservation and validation of unpatented mining claims through settlements with the Bureau of Reclamation and multiple-use R&PP Act leases with the BLM. She has also represented landowners in negotiating a major assembled land exchange with the BLM.

Coal Leases:

Rosemary has represented a number of coal companies in federal coal lease readjustment cases through the BLM, IBLA, and U.S. District Court. She also wrote the brief for one of the successful coal companies in Rosebud Coal Sales Co. v. Andrus, 667 F.2d 949 (10th Cir. 1982), the initial federal coal lease readjustment case. In addition to federal coal lease readjustment issues, Rosemary has represented coal companies in Utah and Wyoming on issues of diligent development, logical mining units, rights of way, royalty valuation, lease assignment and transfer, and bonding. Rosemary has represented coal companies on similar issues under State of Utah coal leases before the Division and Board of State Lands, including successfully opposing the state's attempt to re-adjust a number of state coal leases. As Chairman of the Public Lands Committee of the Utah Mining Association, Rosemary prepared the industry's comments upon coal rules proposed by state and federal agencies.

Title Opinions/Sales and Acquisitions:

Rosemary has extensive experience in the preparation of mineral title opinions for acquisition, financing, mining and exploration, and division order purposes. She has participated in a number of major acquisitions of mining properties in Utah and Wyoming.

Compliance/Reclamation:

Rosemary has represented both hard-rock and coal mining companies on Mine Safety and Health Act compliance issues. She has also represented hard-rock and coal mining companies about notices of violation, permitting, and bonding issues before the Utah Division and Board of Oil, Gas and Mining. She has extensive experience with the Utah Mined Land Reclamation Act and has successfully defended an owner mining company from the reclamation obligations of the operator mining company under the act.

OIL AND GAS LAW

Title Opinions/Litigation:

Rosemary began her experience in oil and gas law as a writer for Exxon Company, U.S.A. (1966 - 1980). Since 1980 Rosemary has been preparing oil and gas drilling, financing, and division order title opinions for companies in Utah and surrounding states.

Rosemary has successfully litigated a case about title to tar sands properties in Uintah County, Utah. Rosemary also represented the prevailing parties in the landmark case of Cowling v. Board of Oil, Gas & Mining, 830 P.2d 220 (Utah 1991) before the Utah Supreme Court. In Cowling, the court first defined the issue of where the law of capture ends and the law of correlative rights begins in the State of Utah and held that a pooling order could be retroactive only to the date of its applicable spacing order, absent special circumstances.

Administrative Adjudications:

Rosemary has represented a variety of landowners and oil and gas producers on issues of title, spacing, pooling, enhanced recovery with injection of water and CO2, and royalty valuation in state and federal court and before the U.S. Bureau of Land Management, the Interior Board of Land Appeals, the Utah Board and Division of Oil, Gas & Mining, and the Utah Board and Division of State Lands.

Oil and Gas Leases and Agreements:

Rosemary is also experienced in the drafting of oil and gas leases, pooling agreements, operating agreements, farmout agreements, unit agreements, and the preparation of division orders.

Oil and Gas Liens:

She is an author of the Utah statute on oil, gas and mining liens and is experienced in the filing and enforcement of oil, gas, and mining liens.

Sales and Acquisitions:

Rosemary has provided legal support in the acquisition of an oil and gas field in Uintah County, Utah. She has also successfully negotiated the multimillion dollar sale of a Uintah Basin oil and gas field to an international resource group.

CONDEMNATION LAW

Water Rights, Real Property, Mineral Rights:

Rosemary represented a major electric utility company against the U.S. Bureau of Reclamation in the Bureau's condemnation of a hydroelectric power plant in the U.S. District Court for Utah. This was said to be the largest condemnation of water rights in the State of Utah. The Bureau of Reclamation condemned the water rights, the real property, and operating equipment of the power plant. The case was successfully resolved in a manner in which the power company could continue to use the plant for power production.

Rosemary has also represented a mining company against the Bureau of Reclamation in a case concerning the Bureau's condemnation of parcels of real property, including patented and unpatented mining claims. This condemnation case included issues of valuation, water rights, property descriptions, easements, access, unproductive remnant properties, fencing, and mineral rights.

Rosemary successfully represented a Utah town in its condemnation of land necessary for a municipal water system.

Regulatory Takings:

Rosemary has also represented clients on issues of regulatory takings, including takings initiated by wetland regulation and zoning.

Education

J.D. University of Utah College of Law, 1980

Utah Law Review, Senior Editor, 1979 - 1980; Staff Member, 1978 - 1979

William H. Leary Scholar, 1978 - 1980

Ph.D. English, University of Utah, 1977

M.A. English, University of Utah, 1972

Phi Kappa Phi National Scholastic Honorary, 1969

B.A. Magna Cum Laude, English, University of Utah and Newcomb College, Tulane University, New Orleans, Louisiana., 1969

Publications & Presentations

Speaker, “Water Rights Update: Latest Case Law, Regulatory and Legislative Developments,” Utah Water Law Conference, October 21, 2010
Speaker, "EPA's Water Transfers Rule: Exclusion from NPDES Permitting," Utah Water Law Conference, October 17, 2008
Speaker, "The Wild West: Survey of Western Water Issues," Western Water Law Institute, Denver, Colorado, September 11, 2008
Speaker, "Recent Developments Under the Clean Water Act," Utah Water Law Conference, October 2, 2007
Speaker, "Wetlands Permits" and "Environmental Site Assessments," Utah Land Development Seminar, October 26, 2006
Speaker, "Water Rights Title Issues," Utah Water Law Conference, October 23, 2006
Speaker, "Recent Developments Under the Clean Water Act," Environmental Laws in Utah, April 25, 2006
Speaker, "Wetlands Permits," Utah Land Development Seminar, January 12, 2006
Speaker, "Storm Water Permits in Utah," Utah Water Law Seminar, November 15, 2005
Speaker, "A Summary of Utah Water Law: Water Rights and Water Quality," Utah Water Law Seminar, November 4, 2004
Speaker, "Fundamentals of Water Law in Utah: Protecting Water Rights, Use and Quality," Utah Water Law Seminar, May 17, 2004
Speaker, "Wetlands Permits and the NEPA Process," Utah Land Development Seminar, September 9, 2003
Speaker, "The Small Business Liability Relief and Brownfields Revitalization Act of 2002," Fall Seminar for Corporate Counsel Section of the Utah State Bar, October 17, 2002
Guest Lecturer, "Financing Environmental Risk," Real Estate Finance Law, University of Utah College of Business, March 1, 2001
Speaker, "Water Rights Title Issues," Utah Water Law Conference, October 21, 1999
Speaker, "Insurance Coverage of Environmental Claims" and "Toxic Tort Suits," NBI Seminar, April 21, 1999
Speaker, "Water Rights Title Issues," Utah Water Law Conference, October 29, 1998
Speaker, "Forfeiture of Water Rights," Utah Water Law Conference, October 6, 1997
Speaker, "Water Rights Title Issues," "Techniques in Maintaining Water Rights," and "The Clean Water Act," NBI Seminar, April 15, 1997
Speaker, "Water Rights in Utah," Young Lawyers Section, Utah State Bar, March 20, 1997
Speaker, "What Every Real Property Attorney Should Know About Water Rights," Real Property Section, Utah State Bar, February 20, 1997
Speaker, "Environmental Pitfalls in the Construction Industry," Utah Chapter of Associated General Contractors of America, 75th Annual Convention, January 17, 1997
Speaker, "Water Rights Title Opinions," Utah Water Law Conference, October 31, 1996
Speaker, "Insurance Coverage for Environmental Claims," NBI Seminar, September 24, 1996
Speaker, "Avoiding Environmental Liability in Utah," NBI Seminar, April 25, 1995
Speaker, "Water Rights Title Opinions," Utah Water Law and Policy Seminar for Utah Water Users Association, St. George, Utah, March 6, 1995
Speaker, "The Water Quantity/Quality Gap," Utah Water Law Conference, November 1993 and November 1994
Speaker, "Utah Environmental Law Update," Utah State Bar Annual Meeting, July 1993
Speaker, "Environmental Law Update," Gibbons & Reed Symposium, February 1993
Speaker, "Mechanics' Liens on Mineral Interests," Joint Meeting of Natural Resources and Real Property Sections, Utah State Bar, April 1985
Author, "Miccosukee: Can the Mere Transport of Unaltered Water Violate the Clean Water Act?" Utah Bar Journal, November 2004
Author, "Superfund's 'Innocent Landowner' Defense: Guilty Until Proven Innocent," 17 Journal of Land, Resources & Environmental Law 189, June/July 1997
Author, "Will Business Insurance Policies Cover Environmental Damage Costs?" Intermountain Contractor (December 30, 1996) at 6
Author, "How to ... Obtain an Environmental Site Assessment (Or, Ignorance Is Not Bliss -- Unless You've Investigated)," Utah Bar Journal, June/July 1996
Author, "Utah Environmental Law Update," The Intermountain Commercial Record, July 1993
Author, "Oil and Gas Law Comes of Age in Utah," Utah Bar Journal, November 1992
Author, "Effect of Withdrawals and Reservations on Existing Locations," Title III, Chapter 16: § 16.04, American Law of Mining, Second Edition.
"Actual Possession of Pooled Mineral Interests," 1979 Utah Law Review 391
"Standing to Sue and Constitutional Challenges," 1978 Utah Law Review 749