DSHW-2025-002023

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DENTONS DURHAM JONES PINEGAR P.C.
Bradley R. Cahoon (5925)
Tyler R. Cahoon (16412)
Cole P. Crowther (16432)
111 South Main Street, Suite 2400
Salt Lake City, Utah 84111
[phone]
[e-mail]
[e-mail]
[e-mail]

Attorneys for Petitioner Promontory Point Resources, LLC

BEFORE THE EXECUTIVE DIRECTOR OF THE
UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY
In re matter of: Promontory Point Resources, LLC Docket No. SW416
PROMONTORY POINT RESOURCES, LLC’S OPPOSITION TO THE DIRECTOR’S MOTION TO DISMISS Richard D. McKelvie Administrative Law Judge March 6, 2025

Pursuant to Utah Admin. Code R305-7-211, Petitioner Promontory Point Resources, LLC
(“PPR”), through counsel, submits to the Administrative Law Judge (“ALJ”) this opposition to
the Dispositive Motion to Dismiss Promontory Point Resources, LLC’s Dormant Commerce
Clause Claim (the “Motion”) filed by the Respondent Director of the Utah Division of Waste
Management and Radiation Control (the “Director”).
RELIEF REQUESTED AND GROUNDS FOR RELIEF
The ALJ should recommend that the Executive Director deny the Director’s Motion. As a
preliminary matter, PPR has not brought a “dormant Commerce Clause claim,” and the Director
mischaracterizes the requested relief in PPR’s Petition for Review (“Petition”). Specifically, the
Director’s Motion is premised on the implication that PPR is asking the ALJ (or the Executive

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Director) to declare Utah Code § 19-6-108(10)(b) unconstitutional. (Motion, ¶¶ 6-7.) The
Director therefore requests that PPR’s “Argument 1” be dismissed based on the lack of subject
matter jurisdiction. (Id.) But the Director is mistaken. PPR is not requesting the ALJ to declare
Utah Code § 19-6-108(10)(b)(i) unconstitutional. Rather, PPR’s legal argument regarding the
dormant Commerce Clause is that, under the canon of constitutional avoidance, the Director
should have interpreted Section 10(b)(i) to avoid “grave doubts as to the statute’s
constitutionality.” (See Petition, pp. 18-19); see also Castro v. Lemus, 2019 UT 71, ¶ 54, 456
P.3d 750.
The Executive Director has no “claim” to dismiss because no “dormant Commerce
Clause claim” exists. The Executive Director can, and should, consider PPR’s legal arguments to
find the Director should have applied the canon of constitutional avoidance when interpreting
Section (10)(b)(i). The Executive Director should accept PPR’s interpretation of the statute that
raises no constitutional concerns. The Director’s Motion should be denied.
STANDARD OF REVIEW
The Director’s Motion is equivalent to a motion to dismiss. See Utah Code § 19-1-
301.5(b)(i). And so, all factual allegations in the Petition must be accepted as true. Hudgens v.
Prosper, Inc., 2010 UT 68, ¶ 14, 243 P.3d 1275 (holding a motion to dismiss “should be granted
only if, assuming the truth of the allegations in the complaint and drawing all reasonable
inferences therefrom in the light most favorable to the plaintiff, it is clear that the plaintiff is not
entitled to relief”) (cleaned up). Further, in accordance with Utah Code § 63G-4-403(4) and Utah
appellate court decisions, the ALJ must review for correctness the Director’s interpretation of
Section 19-6-108(10). Indeed, the ALJ’s “role is equivalent to the role that would be played by
the Utah Court of Appeals in the event of an appeal under Section 19-1-301.5(14).” In the Matter

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of: Approval Order No. DAQE AN1011230041-13 (11/18/2013) Holly Refining & Marketing
Company—Woods Cross, LLC Heavy Crude Processing Project No. N10123-0041, 4; see also
PPR’s Motion for Summary Judgment, pp. 7-9, adopted by reference herein.
STATEMENT OF FACTS
Pursuant to Utah R. Civ. P. 10(c), PPR herein adopts by reference all statements of facts
set forth in its Petition, which must be accepted as true for purposes of this Motion.
ARGUMENT
The Director’s Motion focuses on whether the “Executive Director has subject matter
jurisdiction to declare Utah Code § 19-6-108(10)(b) unconstitutional on its face or as applied.”
(Motion, ¶ 5.) The Director misses the mark. PPR is not requesting the Executive Director
determine the constitutionality of Section (10)(b). Rather, PPR argues the Director should have
applied the canon of constitutional avoidance to interpret Section (10)(b)(i) in a manner that does
not “raise grave doubts as to the statute’s constitutionality.” (Petition, ¶ 39 (quoting Castro v.
2019 UT 71, ¶ 54) (cleaned up).) As it stands, the Director’s interpretation of Section (10)(b)—
that only considers physical airspace capacity, without regard to location, landfill quality, or
cost-of-disposal—results in a violation of the dormant Commerce Clause. (See Petition, ¶ 39.)
This interpretation should have been avoided and is incorrect.
PPR agrees that the Director cannot find as a matter of law that a statute is
unconstitutional. However, the ALJ can, and should, apply the canon of constitutional avoidance
when considering the Director’s interpretation of Section (10)(b). See Castro, 2019 UT 71, ¶ 54
(“Under the canon of constitutional avoidance, courts may reject one of two plausible
constructions of a statute on the ground that it would raise grave doubts as to the statute's
constitutionality. This practice reflects the prudential concern that constitutional issues not be

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needlessly confronted, but also recognizes that the legislature, like this court, is bound by and
swears an oath to uphold the Constitution.”). This is especially true given that the Director
inserts words into Section (10)(b) to support his statutory interpretation that triggers
constitutional issues. (See, e.g., PPR’s Motion for Summary.) He did not just “apply” the statute
as written, he did not merely “explain” the plain meaning of the statute, but he did rewrite the
statute in way that activates the dormant Commerce Clause. (Motion, ¶¶ 22-23.) Notably, PPR’s
interpretation of Section (10)(b) poses no constitutional concerns, and so the Executive Director
should accept it.1
The Director concedes that the ALJ “could avoid the constitutional issue and resolve this
matter by concluding the Director’s understanding of the statute is incorrect.” (Id., ¶ 23.)
However, the Director cites to Utah Dept. of Transp. v. Carlson, 2014 UT 24, ¶ 25, to argue
“[h]is correct statutory interpretation cannot be overturned just to avoid the discomfort of PPR’s
misplaced constitutional challenge.” (Motion, ¶ 23.) His reliance on Carlson is misplaced.
In Carlson, the court emphasized “[t]he canon of constitutional avoidance is an important
tool for identifying and implementing legislative intent.” Carlson, 2014 UT 24, ¶ 23. The court
further explained that “when a court rejects one of two plausible constructions of a statute on the
ground that it would raise grave doubts as to its constitutionality, it shows proper respect for the
legislature, which is assumed to legislate in the light of constitutional limitations.” Id. (cleaned
up). The court in Carlson determined “[t]his is not a proper case for disposition by the canon of
constitutional avoidance . . . [b]ecause the legislature expressly authorized UDOT’s
condemnation of Carlson’s excess property.” Id., ¶ 25 (emphasis added). Stated differently,

1 For the purpose of this Motion, the ALJ must accept as true all the factual allegations contained in
PPR’s Petition that support the substantial burden imposed on interstate commerce by the Director’s
interpretation. See Utah Code § 19-1-301.5(b)(i) (incorporating U.R.C.P. Rule 12(b)(b)).

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because the statute at issue unambiguously authorized condemnation—meaning there were not
“two plausible constructions” of the statute—the canon of constitutional avoidance was
inapplicable.
As set forth PPR’s Petition, Section 19-6-108(10)(b) is unambiguous, the Director’s
interpretation is nonsensical, and PPR’s interpretation controls. (See Petition, ¶¶ 80-81.) To the
extent the Director’s interpretation is a separate plausible construction; however, the ALJ must
reject that interpretation because it raises grave doubts as to its constitutionality. In other words,
if the Executive Director finds the Director’s interpretation of Section (10)(b) plausible, then the
canon of constitutional avoidance prevents the Executive Director from accepting that
interpretation. And so, the Director’s arguments regarding lack of subject matter jurisdiction and
his references to a “dormant Commerce Clause claim” are red herrings that support dismissing
nothing in PPR’s Petition.
CONCLUSION
Based on the foregoing, the ALJ should recommend that the Executive Director deny the
Director’s Motion.
DATED this 6th day of March 2025.
DENTONS DURHAM JONES PINEGAR P.C.

/s/ Bradley R. Cahoon
Bradley R. Cahoon
Tyler R. Cahoon
Cole P. Crowther

Attorneys for Promontory Point Resources, LLC

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CERTIFICATE OF SERVICE
I hereby certify that on March 6, 2025, I caused a true and correct copy of the foregoing
to be emailed to the following:
Craig Anderson
Assistant Attorney General for Executive Director
[e-mail]

Raymond Wixom
Assistant Attorney General for Director
[e-mail]

Brenden K. Catt
Assistant Attorney General
[e-mail]

Douglas J. Hansen
Director of Division of Waste Management and Radiation Control
[e-mail]

Administrative Proceedings Records Officer
Environment Division
[e-mail]

Richard D. McKelvie
Administrative Law Judge
[e-mail]

/s/ Carol MacKay