source: Caselaw Access Project

author: HOWE, Justice:

license: Public Domain

text:
    2002 UT 82
    Patrick HEGARTY, Petitioner, v. BOARD OF OIL, GAS, AND MINING, DEPARTMENT OF NATURAL RESOURCES, State of Utah, River Gas Corporation, Texaco Exploration and Production, Inc., and Dominion Reserves-Utah. Inc., Respondents.
    No. 20000917.
    Supreme Court of Utah.
    Aug. 13, 2002.
    Rehearing Denied Oct. 23, 2002.

      H. Michael Keller, Thomas W. Clawson, Salt Lake City, for petitioner.
    Mark L. Shurtleff, Att’y Gen., Thomas Mitchell, Kurt Seel, Asst. Att’ys Gen., Salt Lake City, for Board of Oil, Gas, and Mining Frederick M. MacDonald, George S. Young, Salt Lake City, for River Gas, Texaco, and Dominion Reserves.
    Robin Stead, Norman, Oklahoma, and Jack M. Morgan, Troy A. Barsky, Salt Lake City, for amicus National and Utah Association of Royalty Owners.
   HOWE, Justice:

INTRODUCTION

¶ 1 Petitioner Patrick Hegarty seeks review of a Board of Oil, Gas, and Mining order imposing a 225% nonconsent penalty and denying retroactive pooling under the Utah Oil and Gas Conservation Act, codified at Utah Code Ann. §§ 40-6-1 to -19 (1998), relative to two wells draining petitioner’s leased lands.

BACKGROUND

¶ 2 The Drunkards Wash Field is part of the coalbed methane gas-producing Ferron Formation that underlies large portions of Carbon and Emery Counties in this state. In coalbed fields such as Drunkards Wash, methane gas forms a molecular attachment to the coal seam. As pressure is lowered in the well, the gas is removed and produced through fractures in the seam. Coalbed methane reservoirs are also stimulated by hydraulic fracturing and large quantities of water must be drained from the well.

¶ 3 In 1987, Texaco, Inc. drilled two initial wells in the field. These wells went into production in 1988 and as of the date of this appeal were still producing. Subsequently, River Gas Corporation formed the Drunkards Wash Federal Exploratory Unit (the “DW Unit”) under the Mineral Leasing Act, 30 U.S.C. §§ 181 to 287 (1986 & Supp.2000), and specifically 30 U.S.C. § 226 (1986 & Supp.2000), entitled “Lease of oil and gas lands,” which provides for cooperative development and operation of an oil or gas reservoir that encompasses sufficient federal lands. The DW Unit was approved effective December 28, 1990, and is administered by the Utah State Office of the United States Bureau of Land Management (“BLM”).

¶ 4 The unit currently encompasses 90,-965.25 acres and is governed by a unit agreement according to a form specified in the BLM’s regulations, 43 C.F.R. 3186.1 (1999), and by a voluntary unit operating agreement for coalbed methane development signed by River Gas Corporation as the unit operator. These agreements pool the interests of the more than 90 percent of mineral owners and lessees who have joined the DW Unit, and specify the manner in which they share on an acreage basis in production within the participating areas. The unit agreements provide no participation in methane gas production for owners who do not join (“uncommitted owners”), even those whose lands overlay the drainage fields of River Gas wells. However, all of the uncommitted owners in the DW Unit were provided opportunities to join the agreement as required under 43 C.F.R. 3181.3 (1999) (stating all owners “must be invited to join the agreement”).

¶ 5 Seven members of one extended family (“Landowners”) who owned mineral interests in 128 methane gas-producing acres within tract 161 of the DW Unit chose not to commit their lands to the unit. One family member sold his approximately 2.3% undivided interest in Landowners’ tract to River Gas in 1998. Five of the current Landowners reside variously in California, New Mexico, and Virginia, and one resides in Salt Lake City, Utah. River Gas offered to lease all of Landowners’ uncommitted lands relevant to this review. It initiated a number of attempts to reach an agreement with Landowners, all without result. None of these offers, however, gave Landowners notice of any individual well situated to drain their property or an opportunity to participate proportionately therein. In June of 1999, petitioner Patrick Hegarty leased Landowners’ interests.

¶ 6 Subsequent to the drilling of the 1987 wells, River Gas, as operator of the unit, continued to drill wells in the unit on 160-acre spacing. By the fall of 1993, there were thirty-three producing wells and by the fall of 1994 a total of seventy-three producing wells in the DW Unit. Plans of unit development were approved by the Bureau of Land Management based on 160-acre well pattern density.

¶ 7 In 1991 and 1993, River Gas wrote to one of the Landowners, Larue Layne, who lived in California and served as spokesperson for Landowners, offering to lease their lands. Ms. Layne responded with questions and asked specifically when a well would be drilled. On October 18, 1993, River Gas replied by letter that it “plans a well 1½ miles south of your property, and if that well comes in as expected, then they will probably drill on your property, but cannot say when that will be.” River Gas sent a follow-up letter dated November 3,1993, urging Layne to lease before the offer was withdrawn on November 20 and adding, “I don’t want there to be any misunderstanding as you consider our lease offer. Our company cannot promise that our operations in the area will result in your tract being put into production.”

¶ 8 In March of 1995, River Gas wrote again to Layne, this time seeking to acquire a road right-of-way across her lands to a development area. The letter provided a diagram of the “approximate locations” of three wells that River Gas proposed drilling that year on state-owned lands, including the Utah 5-94 well. However, although River Gas stated that the drilling would be governed by the Drunkards Wash Federal Unit Agreement and the unit operating agreement, it gave no indication that any planned wells might drain Landowners’ tract, nor did it offer an opportunity to participate in any well.

¶ 9 Section 40-6-18 of the Utah Code provides, “This act shall apply to all lands in the State of Utah, lawfully subject to its police power, and shall apply to the lands of the United States or the lands subject to the jurisdiction of the United States.” Utah Code Ann. § 40-60-18 (1999). Therefore, as unit operator of the DW Unit, River Gas was obligated to file an application for permission to drill (“APD”) with the Utah Division of Oil, Gas and Mining (the “Division”). It did so, stating that the Utah 5-94 well would be drilled on 160-acre well density spacing. The Division approved the APD in May of 1995. Meanwhile, River Gas continued to seek a lease of Landowners’ mineral rights. In July of 1995, it sent the owners certified letters containing a thirteen-page, fine-print proposed lease agreement. Each offer was expressly conditioned on agreement from all Landowners to lease to River Gas. Curiously, the letters made no mention of the recently approved Utah 5-94 well, 65.7% of whose drainage field lay beneath Landowners’ property. Apparently unaware of this new well that was situated to drain their land, the owners did not respond to the lease proposal or otherwise take action to secure their rights.

¶ 10 On September 11, 1995, River Gas spudded the Utah 5-94 well on state-owned land within the same 160-acre drilling block as Landowners’ uncommitted acres. The well began producing methane by November of that same year at the rate of approximately 500,000 cubic feet per day. From the beginning of production until the time of this review, the well had produced over 882 million cubic feet of methane. Beginning in November of 1995, River Gas and other committed owners began to reap the benefits of production from the Utah 5-94 well. Landowners, whose tract covered 65.7% of the drilling block, did not share in the production. And River Gas continued to drill.

¶ 11 By the fall of 1998, there were more than 170 wells producing coalbed methane gas on 160-aere drilling blocks in the DW Unit. On November 5, 1998, River Gas extended to Landowner Terry Olsen a thirty-day offer to lease or purchase the undivided interest of all the Landowners, which expired without being accepted. The letter made no mention of the drilling of any well, and contained no offer to participate on a single well basis. Seven days later, on November 12, River Gas spudded the Woolstenhulme 5-266 well only 350 feet north and 411 feet east of the boundaries of Landowners’ tract. This well was drilled outside the drilling window established by the Division’s general well-siting rule, Utah Administrative Code rule 649-3-2.1, placing it significantly closer to Landowners’ tract than that rule permitted.

¶ 12 Under rule 649-3-3, the Division has authority to grant a location exception upon receipt from the well operator of:

1.1 Proper written application for the exception well location.
1.2 Written consent from all owners within a 460 foot radius of the proposed well location....

River Gas, however, failed to file the application or to request Landowners’ consent to the exception. The Division approved the well without the required consent, through an “oversight,” evidently under the misapprehension that the well was already part of a unit.

¶ 13 Late in 1998, Olsen was working on his land and noticed the Woolstenhulme 5-266 well “close enough that he could throw a rock and hit the well.” Aware that they were receiving no proceeds from the well, the Landowners approached petitioner Patrick Hegarty, leased him their lands, and sought his help in protection of their interests. On July 13, 1999, shortly after Hegarty became involved, River Gas initiated Cause No. 243-2, a proceeding before the Board of Oil, Gas, and Mining (the “Board”) relating to well spacing in lands outside of Landowners’ tract, but also seeking retroactive approval of the noncompliant location of the Woolsten-hulme 5-266 well. Hegarty attended the hearing and entered a letter of objection, but withdrew when Division staff and personnel erroneously assured him that the proceedings did not affect his lands and recommended that he seek other avenues to protect his interests.

¶ 14 Subsequently, Hegarty filed a request for agency Action with the Board seeking 160-acre state spacing in the DW Unit. River Gas opposed the request. At the hearing, Hegarty made an oral request that the spacing order be retroactive to the dates of first production of the two wells, which River Gas opposed. On January 26, 2000, the Board announced its order effective as of that date granting the request for 160-acre spacing but denying retroactivity.

¶ 15 River Gas, its associates, and Hegarty were unable to agree on the terms of voluntary pooling. Therefore, Hegarty filed a request for agency action seeking pooling and requesting that the order be made retroactive to the date of first production. River Gas opposed retroactivity, arguing that pooling could only be retroactive to the effective date of the state spacing order because prior to that the correlative rights of the tract owners remained undefinable. River Gas further contended that its offers to lease the land satisfied the notice and offer requirement of Utah Code Ann. § 40-6-2(11), rendering Hegarty a nonconsenting owner under that provision because of Landowners’ refusal of those offers. River Gas argued for a 300% penalty on the basis that the Utah 5-94 and the Woolstenhulme 5-266 wells were both on the “edge” of the DW Unit and were therefore “wildcat,” or exploratory wells, involving a high risk to the driller.

¶ 16 Following the close of testimony at the hearing, the Board recessed briefly and then returned to announce its decision granting pooling but denying retroactivity and imposing a 225% nonconsent penalty. Hegarty seeks oür review under Utah Code Ann. § 78-2-2(3)(e)(iv), which grants the Supreme Court appellate jurisdiction over final orders and decrees originating in formal adjudicative proceedings of the Board of Oil, Gas and Mining.

STANDARD OF REVIEW

¶ 17 Under Utah Code Ann. § 63-46b-16 (4) (1997 & Supp.2001), the appellate court reviewing an agency action may grant relief if “the agency has erroneously interpreted or applied the law” and a party has been “substantially prejudiced.” See WWC Holding Co. v. Pub. Serv. Comm’n of Utah, 2001 UT 23, ¶ 7, 44 P.3d 714. We review the Board’s statutory construction of the spacing and pooling provisions of the Oil and Gas Conservation Act under a correction of error standard, granting the board no deference. See Cowling v. Bd. of Oil, Gas & Mining, 830 P.2d 220, 224 (Utah 1991). Under section 63-46b-16(4)(g), we uphold the Board’s findings of fact if they are supported by substantial evidence. See WWC Holding Co., 2001 UT 23, ¶ 8, 44 P.3d 714 (citing Harken Southwest Corp. v. Bd. of Oil, Gas & Mining, 920 P.2d 1176, 1180 (Utah 1996)).

ANALYSIS

¶ 18 The Utah Board of Oil, Gas, and Mining filed a brief in this review, and the oil companies, consisting of Phillips Petroleum Company in substitution for River Gas Corporation, Texaco Exploration and Production, Inc., and Dominion Reserves-Utah, Inc., collectively filed a brief. For clarity, we will refer to the petroleum companies as River Gas, to the Board of Oil, Gas, and Mining as the Board, and to both together as respondents.

A. FEDERAL AND STATE LAW

¶ 19 The interaction of federal and state law on a single oil and gas field makes this a case of first impression in Utah. Furthermore, as far as we can discover, no other court in the United States has addressed these circumstances. Therefore, we engage in a brief survey of the applicable laws.

¶20 The Utah Oil and Gas Conservation Act (the “Utah Act”) controls oil and gas development in the state under sections 40-6-1 to -19 of the Utah Code (stating it is in the public interest “to provide exclusive state authority over oil and gas exploration and development”) and section 40-6-18 of the Utah Code (stating “this act shall apply to all lands in the State of Utah”). However, tracts containing sufficient federal lands, such as the DW Unit, may be developed under 30 U.S.C. § 226 (1986 <& Supp.2000) as implemented by 43 C.F.R. Pt. 3181 (1999) (the “Federal Act”).

¶ 21 The Division staff surveyed both acts in a staff memorandum submitted to the Board in connection with Hegarty’s request for a well spacing order. The memorandum compares federal unitization to state well spacing and notes that “unlike the Board, the BLM does not have the authority to force the unitization or compulsory pooling of non-federal acreage.” As a consequence “the participation of non-federal acreage in federal exploratory units is completely voluntary and elective on the part of nonfederal mineral owners.” Therefore, according to. the Division, if a non-federal owner chooses not to commit his land to a federal exploratory unit, then that owner must on his own find other ways of protecting his correlative rights.

¶ 22 The memorandum further remarks that “[w]hen a mix of land types [i.e., federal and non-federal] is prevalent or uncommitted land exists in a federal exploratory unit, it may be necessary for the area to be covered by a Board spacing order to protect non-federal acreage.” Therefore “there may be good reasons to maintain Board well spacing requirements within federal exploratory units when the federal unitization process may allow the drainage of non-federal or uncommitted lands to occur.” The staff memorandum then describes the state pooling system with its provision for compulsory pooling to protect the interests of all parties and observes that “[i]n the general area of the Drunkards Wash Unit, it has been commonly accepted for some time that well spacing of one well per 160 acres promotes efficient recovery of the coalbed methane re-source_”

¶ 23 Section 40-6-1 of the Utah Code declares that “it is in the public interest” to promote efficient and waste-free exploitation of oil and gas natural resources, while protecting “correlative rights.” Section 40-6-2(2) defines correlative rights as “the opportunity of each owner in a pool to produce his just and equitable share of oil and gas in a pool without waste.” To this end, the Board “may order the establishment of drilling units for any pool.” Id. § 40-6-6(1) (establishing uniform spacing throughout the field). Furthermore, “[i]n the absence of a written agreement for pooling, the board may enter an order pooling all interests in the drilling unit for the development and operation of the drilling unit.” § 40-6-6.5(2)(a). Thus, a party in interest to an oil or gas development field may seek a state spacing order defining drilling unit size, and then seek an order pooling the interests of all owners for cooperative development. See Matter of SAM Oil, Inc., 817 P.2d 299, 305 (Utah 1991); Cowling, 830 P.2d at 225.

¶ 24 The Utah Act defines a consenting owner as “an owner who consents in advance to the drilling and operation of a well and agrees to bear his proportionate share of the costs of the drilling and operation of the well.” Utah Code Ann. § 40-6-2(4) (1993). A nonconsenting owner, in contrast, is “an owner who after written notice does not consent in advance to the drilling and operation of a well, or agree to bear his proportionate share of the costs.” Id. § 40-6-2(11). In addition to bearing its share of costs, plus a reasonable interest charge under section 40-6-6.5(4)(d)(i) to -(iii), the nonconsenting owner is subject to a penalty of not less than 150% or more than 300% of its share of development and production costs as defined in section 40-6-6.5(4)(d)(i)(D).

¶ 25 Unlike the Utah Act, the Federal Act, as noted in the staff memorandum, has no provision for compulsory pooling. Also in contrast to the Utah Act, the Federal Act has no definition for consenting or nonconsenting owners, no notice requirements, and no statutory penalty. Furthermore, the Federal Act does not formally mandate uniform spacing throughout the field. Therefore, participants share in production based on their percentage of acreage ownership of the committed lands in the whole unit, rather than their percentage of the drainage field of an individual well. 30 U.S.C. § 226(m).

¶ 26 As further noted above, the Federal Act does not protect the rights of nonparticipating owners. However, it allows considerable latitude in the provisions of the*unit operating agreement. For example, the participating owners themselves may invoke a nonconsent penalty. The record in the case before us contains a reference to a 500 percent nonconsent penalty to be levied against Landowners under the unit operating agreement if they sought to join the federal unit after receiving notice that their lands were being drained.

¶27 Notwithstanding their differences, however, the Utah and the Federal Acts share common objectives. Much like the Utah Act, the Federal Act states a purpose of “more properly conserving the natural resources of any oil or gas pool, field, or like area,” and “adequately protecting] the rights of all parties in interest.” Id.

B. NONCONSENT PENALTY

¶ 28 The Board imposed on Landowners a 225% nonconsent penalty under section 40-6-6.5(4)(d)(i)(D). However, section 40-6-2(11) premises a nonconsenting owner first upon “written notice.” As the Board correctly paraphrases in its brief, the statute provides that a “nonconsenting owner is simply nothing more than a person who, after written notice, does not consent to the drilling and operation of ‘a well ’ or agree to share costs in ‘a well (Emphasis added.)

¶ 29 Imposition of a statutory penalty demands strict adherence to statutory notice requirements. See Sears v. Southworth, 563 P.2d 192, 194 (Utah 1977); see also Longley v. Leucadia, 2000 UT 69, ¶ 22, 9 P.3d 762. Section 40-6-2(11) requires written notice relative to “a well” and our case law has strictly adhered to that requirement. We noted in Bennion v. ANR Production Co. that “[u]nder the statutory scheme established by the Utah statute ... a nonconsent penalty is determined on a well-by-well basis. An election to participate is made anew each time an additional well is drilled....” 819 P.2d 343, 351 n. 11 (Utah 1991). Therefore, the threshold requirement for nonconsent is the establishment of written notice sufficient to trigger the necessity for consent and sharing of costs in a specific well impacting a landowner’s tract, or deliberate refusal. Any communication that does not rise to this level falls short of fulfilling the statutory requirement for written notice. Bennion provides us with an example of proper statutory notice. In that case, “the letter dated March 20, 1990, in which ANR offered Bennion the opportunity to participate in the second well clearly states that the nonconsenting parties will be subject to the statutory penalty of 150 percent to 200 percent.” Id. at 351 n. 12.

¶ 30 In the instant case, however, we search in vain for evidence of any such communication, and the Board made no finding that River Gas gave Landowners specific written notice of either well. The findings of fact address only the “written offers” for lease agreements presented to Landowners and acknowledge that there was never an offer to “participate proportionately on an individual well basis.” The Board concluded that River Gas had no obligation to extend offers to participate because Landowners had no interest in the relevant wells until entry of the spacing order. All of these issues, however, can be addressed only after establishment of statutory written notice. The Board found that Landowners “knew or should have known” the oil and gas characteristics of their property, their oil and gas ownership, and that “two unit wells were planned to be on or near their property.” However, the Board ignored the nonequivalency of statutory written notice and “knew or should have known”

¶ 31 The Board concluded as a matter of law that Landowners failed to “accept or respond to the good faith offers” to lease their lands or otherwise take action to establish and protect their own interests and that the “failure to respond to or accept the offers, constitute^] a refusal and result[s] in petitioner’s Landowners becoming noncon-senting owners.” The Board makes the same argument in its brief, relying on rule 649-2-9 of the Utah Administrative Code, which provides:

1. An owner shall be deemed to have refused to agree to bear his proportionate share of the costs of drilling and operation of a well under section 40 — 6—6[.5](6) if:
1.1 The operator of the proposed well has, in good faith, attempted to reach agreement with such owners for the leasing of the owner’s mineral interests or for that owner’s voluntary participation in the drilling of the well.
1.2 The owner and the operator have been unable to agree upon terms for the leasing of the owner’s interest of for the owner’s participation in the drilling of the well.

Utah Admin. Code R649-2-9 (2000). In its reliance on the rule, the Board has once again leapfrogged the notice requirement. The Utah Act states that “ ‘[nlonconsenting owner’ means an owner who after written notice does not consent....” Utah Code Ann. § 40-6-2(11) (emphasis added). An owner and written notice must be established before consent, or conversely refusal, can become an issue. Thus, the rule must necessarily remain dormant until triggered by statutory written notice, and in the absence of such notice, we do not reach the rule.

¶32 Even the 1995 letter to Layne requesting a right-of-way across her lands and containing a map showing the three proposed wells could not provide statutory written notice of a well under the Utah Act. The 1995 letter and all of River Gas’s offers to Landowners were made while the DW Unit was being operated under the Federal Act, which had no provision for participation on an individual well basis. Yet per-well participation is the substantial focus of the Utah Act, and of the notice requirement. In such a context, notice cannot be inferred. Only actual, detailed, specific, written notice of a well can satisfy the Utah Act.

¶ 33 Thus the written notice requirement moderates the stringency of the nonconsent penalty by assuring that no uninformed owner becomes nonconsenting by default. The instant case graphically illustrates the necessity for such protection. River Gas submitted written lease proposals to Terry Olsen and to Landowners after well approval by the Division and within weeks or even mere days of initiation of drilling the two wells. Yet these lease proposals made no mention of the pending wells. Additionally, River Gas failed to give Landowners notice of the Woolsten-hulme 5-266 well even when statutorily required to seek their consent to drill imper-missibly close to their property in violation of the Utah well-siting rule. In these circumstances, River Gas stood to benefit at Landowners’ expense by obeying what it apparently considered the letter of the law, without actually alerting Landowners to the immediate prospect of wells that would drain their land. Landowners had refused to lease their lands to River Gas before they knew of the wells, but on learning of wells draining their lands they promptly sought to participate through State spacing and pooling. Without the statutory written notice requirement, however, Landowners’ original, uninformed refusal to lease would render them noncon-senting and occasion an exorbitant penalty for the benefit of River Gas. The notice requirement prevents such inequity.

¶ 34 The Board’s opinion is devoid of any finding of specific written notice of a well, and the record contains no evidence that Landowners had in fact received written notice, as required by the statute. Consequently, respondents can offer no valid statutory interpretation within which Landowners can be characterized as nonconsenting owners. The 225% nonconsent penalty imposed by the Board is defined as 225% of Landowners’ proportionate share of the cost of each well. In the case of the Utah 5-94 well, 225 percent of a 65.7 percent interest equals approximately 148 percent of the total cost of the well. The penalty for the Woolstenhulme 5-266 well is much smaller, being based on a 16.3 percent interest, but is still a considerable amount. Therefore, in the correction of error resulting in substantial prejudice, we reverse the Board’s conclusion that Landowners are nonconsenting owners and hold that the nonconsent penalty does not apply.

C. RETROACTIVE POOLING

¶ 35 Landowners argue that the federal DW Unit does not fully protect .correlative rights, and that “[o]nly the Board can do so, through well-spacing or field-wide unitization under the Conservation Act.” This is accurate. However, while the Conservation Act provides the legal framework for protection, and the Board supplies the mechanism, the initiative must come from the interested parties.

¶ 36 In Cowling v. Board of Oil, Gas & Mining, we noted that “[an] owner’s failure to take action to establish and protect his or her interest in production prior to the entry of a spacing order constitutes a waiver of that interest until a drilling unit is established.” 830 P.2d 220, 228 (Utah 1991). We cited Cowling in Adkins v. Board of Oil, Gas & Mining for the principle that the “right protected by the Act ‘initially is nothing more than an “opportunity” to produce a “just and equitable” share of oil and gas “without waste.” ’ ” Adkins, 926 P.2d 880, 884 (Utah 1996) (quoting Cowling, 830 P.2d at 228).

¶ 37 Here, although Landowners had not received written notice of any specific well draining their land, they knew the location of their land and that wells were proposed in the general area. Moreover, correlative rights were well defined under the established DW Unit 160-acre spacing even before 1995. Landowners knew their correlative rights, or at least had notice to inquire after them. River Gas had alerted Landowners to the market interest in their mineral rights by inviting them to join the DW Unit and by offering to lease their lands. The 1995 right-of-way request to Layne showed the proposed location for the Utah 5-94 well. The record indicates that when the Utah 5-94 well was drilled in 1995 both River Gas and Landowners had access to enough information to support a request for state spacing, which both of these interested parties had standing to initiate.

¶ 38 Landowners assert that section 40-6-7 of the Utah Act created an early duty for River Gas to seek state spacing. That provision applies to an “agreement for repressuring or pressure maintenance operations, cycling or recycling operations, including the extraction and separation of liquid hydrocarbons from natural gas, or for carrying on any other methods of unit or cooperative development or operation of a field or pool or part of either.” Utah Code Ann. § 40-6-7(1) (1998). Such an agreement “is authorized and may be performed” and shall not be construed

to violate any statutes relating to trusts, monopolies, or contracts and combinations in restraint of trade, if the agreement is approved by the board as being in the public interest and promotes conservation, increases ultimate recovery and prevents waste of oil or gas provided that the agreement protects the correlative rights of each owner or producer.

Id. Under subparagraph (2), “A plan for the development and operation of a pool or field shall be presented to the board and may be approved after notice and a hearing.” Id. § 40-6-7(2).

¶ 39 Methane gas recovery in the DW Unit has involved depressurization, hydraulic fracturing, and draining. Therefore, River Gas was arguably eligible to create such an agreement with its associated legal protections. Approval under the statute would require protection of Landowners’ correlative rights. However, Landowners’ argument that section 40-6-7 created a duty for River Gas to seek state spacing fails because the statute provides that an agreement “is authorized and may be performed,” rather than is required and must be performed. Therefore the statute is not mandatory, but merely permissive. It is an incentive, not a requirement for the described agreement. Furthermore, the statute does not specify or favor state spacing over leasing or unit participation as the mechanism for the protection of correlative rights.

¶ 40 Landowners further assert that only retroactive pooling will protect correlative rights and give all parties their just and equitable share as contemplated by the conservation act. It is true that here only retroactive pooling will give Landowners the share of production that they failed to secure for themselves by timely action. However, a good law, like a good parent, does nothing for a person that he or she can do independently, and it is not good law to cure one inequity by creating another.

¶ 41 We noted in Adkins that the other parties involved had relied for eighteen years on a state spacing order, unchallenged by plaintiff. Adkins, 926 P.2d at 884. In the instant case, the other owners involved include not only River Gas and the associated oil companies, but all of the owners participating in the DW Unit, including the Utah School Lands Trust. Since the 1995 and 1998 drillings of the 5-94 and 5-299 wells, all of these owners have relied on management of costs and production under the DW Unit with no challenge from Landowners. Here we will not upset the relying owners’ settled expectations of past production in order to restore to Landowners the share of production that they failed to protect for themselves.

¶ 42 We held in Adkins that if the plaintiff “had been obstructed in his request for agency action or had been the victim of fraud or inequitable conduct, then the Board could possibly reach back into the past. Here, however, where the inaction was wholly voluntary, we can find no justification under the Act to do so_” Adkins, 926 P.2d at 884 (internal citations omitted). Here also, Landowners’ inaction was wholly voluntary. Like Adkins, Landowners have presented no evidence of actual fraud, although River Gas’s conduct was hardly exemplary. However deliberately River Gas may have omitted any mention of specific wells from its offers to lease, River Gas did not prevent Landowners from investigating the status of their own rights and taking action. Landowners point to River Gas’s objection to the spacing order. However, an objection to a request for agency action does not, in itself, constitute obstruction, and, in fact, both the spacing and pooling orders were timely granted.

¶ 43 We clearly articulated in both Adkins and Cowling that parties in possession of the necessary information to act in protection of their own rights bear the responsibility for doing so. The same principle applies here. River Gas fostered the formation and approval of the DW federal Unit and was operating according to the unit agreements. It had no duty to act contrary to its own interests by seeking another layer of regulation. River Gas’s failure to initiate a request for agency action did not destroy Landowners’ ability to do so. Landowners had, since 1995, substantially the same opportunity to seek state spacing and pooling that they exercised in 1999. By neglecting to protect their rights in the interim, Landowners made a passive choice to allow their land to be drained until they took action. Therefore, we affirm the Board’s denial of retroactive pooling.

CONCLUSION

¶44 We hold that Landowners are not statutory nonconsenting owners and we affirm the Board’s denial of retroactive pooling. Consequently, we remand this case to the Utah Board of Oil, Gas, and Mining with instructions to strike the nonconsent penalty and to deduct from petitioner’s post-pooling portion of production only his fair and reasonable share of costs as outlined in section 40-6-6.5, exclusive of any provisions directed to a nonconsenting owner.

¶45 Reversed in part, affirmed in part, and remanded.

¶ 46 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice RUSSON, and Justice WILKINS concur in Justice HOWE’s opinion.

      . During the times relevant to this appeal, the DW unit was operated by River Gas of Utah, or River Gas Corporation ("River Gas”) for and on behalf of respondents River Gas Corporation, Texaco Exploration and Production, Inc., and Dominion Resources Utah, Inc.

      . Oil and gas industry term for commencing to drill.

      .Under the federal Act, "unit” describes the entire unitized area, such as the DW Unit, consisting of many drilling blocks, while the state nomenclature refers to an individual drilling block as a unit.

      . Utah Admin. Code R649-3-2.1 provides:
      1. In tire absence of special orders of the board establishing drilling units or authorizing different well density or location patterns for particular pools or parts thereof, each oil and gas well shall be located in the center of a 40 acre quarter-quarter section, ... with a tolerance of 200 feet in any direction from the center location, a "window” 400 feet square.

      . The specific amount of the penalty was based on the Board’s finding that "[a]t the time they were drilled, wells 5-94 and 5-266 were located near the edge of the known coalbed methane gas field, and for purposes of imposing a risk penalty under the facts of this matter, and for no other purpose, wells 5-94 and 5-266 constitute exploratory wells.” Because we decide the issue on other grounds, we do not address the exploratory status of the wells.

      . The hearing transcript contains the following exchange:
      Keller [representing Hegarty]: And River Gas’ position, as I understand it, would be that when you get to that future point, then you would say, "It’s time to space,” and then everybody can just — that’s not committed to the unit would share from that point on, and pay a 300 percent penalty, after they've been drained for, you know, five, six, ten, 15 years?
      Ferrens [River Gas's petroleum engineer]: Yeah.


author: RUSSON, Justice: DURHAM, Chief Justice,

text:
    2002 UT 97
    STATE of Utah, Plaintiff and Respondent, v. Jack James TRANE, Defendant and Petitioner.
    No. 20010068.
    Supreme Court of Utah.
    Sept. 17, 2002.

      Mark L. Shurtleff, Att’y Gen., Marian Decker, Asst. Att’y Gen., Jennifer D. Barton, Salt Lake City, for plaintiff.
    Kent R. Hart, Salt Lake City, for defendant.
   RUSSON, Justice:

¶ 1 On writ of certiorari, Jack Trane (“Trane”) seeks review of the court of appeals’ decision affirming Trane’s conviction of possession of a controlled substance, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (2000), in which the court of appeals concluded that the trial court’s denial of Trane’s motion to suppress evidence was proper. We affirm.

BACKGROUND

2 At 4:15 a.m. on November 26, 1998, police dispatch sent out a call that a man was harassing customers at a Salt Lake City convenience store. Officer Walter Dobrowol-ski (“Dobrowolski”) was initially assigned to the call, and Officer Randy Bushman (“Bushman”) was assigned as back-up. Both officers were experienced with intoxicated individuals and had experienced situations where such individuals became violent.

¶ 3 Bushman arrived first in response to the call. He noticed Trane standing near the store at a bank of public telephones. As Bushman approached the store, the store clerk pointed at Trane, indicating that Trane was the focus of the complaint.

¶4 As Bushman approached Trane, he smelled alcohol emanating from Trane’s person and breath. Bushman suspected that Trane was intoxicated and possibly disturbing the peace. Bushman observed that Trane “was a little loud considering the time[ and] location,” was behaving in a “tumultuous-type” manner, was using profanity, and was using his hands to express himself. Trane “puffed his chest out [and] took a defensive posture similar to a boxer” toward Bushman. Bushman also noticed that Trane was exhibiting some anger and was uncooperative.

¶ 5 Bushman requested Trane’s identification. Initially, Trane refused to comply, indicating that Bushman needed “to deal with” the store clerk instead of with him. Specifically, Trane told Bushman that he was angry at the store clerk for refusing to telephone a taxi for him. After Bushman explained that Trane was obligated to identify himself, Trane produced a Utah identification card. As Bushman attempted to take the card, Trane would not release his grip on it until Bushman ordered Trane to relinquish it.

¶ 6 About the time Bushman obtained the card, Dobrowolski arrived in his patrol car. Bushman asked Dobrowolski to watch Trane while Bushman returned to his patrol 'car to check for warrants. Concerned for Dobro-wolski’s safety, Bushman told Dobrowolski that Trane had been “less than cooperative” and was “trying to talk his way into jail.” Bushman explained, “I didn’t want Officer Dobrowolski to step into something without any information [that could protect] Dobro-wolski’s personal safety.” Dobrowolski asked if Trane had been frisked, and Bushman responded negatively.

¶ 7 As Dobrowolski approached Trane, Trane maintained the “stand that he had with” Bushman. Dobrowolski noticed that Trane was swaying, Trane’s speech was slurred, and Trane’s “face had the appearance of one who was intoxicated.” He also noticed that Trane “smelled of alcohol.” Do-browolski believed that Trane was disturbing the peace and intoxicated. Because Trane was intoxicated and Bushman had informed Dobrowolski that Trane was belligerent, Do-browolski “thought that the two coupled made [Trane] a possible danger to” Dobro-wolski and decided to frisk Trane to “ensure that he didn’t have any weapons.” Dobro-wolski asked Trane to turn around, place his hands behind his head, interlock his fingers, and submit to a frisk.

¶ 8 In response to Dobrowolski’s frisk request, Trane backed up a step, “held his arms away,” and said, “That ain’t happening.” After refusing the initial request to submit to a frisk, Dobrowolski became “more concerned” that Trane “had something he didn’t want [Dobrowolski] to find that could hurt” the officers. When Trane refused to comply with a second command to submit to a frisk, Dobrowolski informed Trane that if Trane continued to refuse then Dobrowolski would compel him to submit. , Again Trane refused to comply with Dobrowolski’s order. In response, Dobrowolski told Trane to put his hands behind his back because he was under arrest “for failure to comply with [Do-browolski’s] order.” Trane forcibly resisted. Noticing Trane’s physical resistance, Bushman returned to assist Dobrowolski. Dobro-wolski took Trane’s right arm and Bushman took Trane’s left arm in an arrest control technique.

¶ 9 Trane continued to forcibly resist the officers’ attempt to compel him to submit “with some struggle and some thrashing.” As the struggle continued, the officers and Trane ended up in the eastbound lanes of 2700 South, ten to twelve feet from where the struggle commenced, where all three “went to the ground.” The officers struck Trane on the left cheek and in the ribs a couple of times during the struggle to protect themselves. Eventually, Dobrowolski subdued Trane with pepper spray, enabling the officers to handcuff Trane.

¶ 10 The officers arrested Trane for disturbing the peace, public intoxication,, and interfering with a peace officer. After medical treatment, Dobrowolski transported Trane to jail. At the jail, Trane resisted attempts to search him, but a “small bindle” of cocaine was discovered in his sock.

¶ 11 The State charged Trane with possession of a controlled substance, a third degree felony, in. violation of Utah Code Ann. § 58-37 — 8(2)(a)(i) (1998); intoxication, a misdemeanor, in violation of Utah Code Ann. § 76-9-701(1) (1999); and interfering with a peace officer, a misdemeanor, in violation of Utah Code Ann. § 76-8-305(2) (1999). Trane moved to suppress the cocaine. In the motion to suppress, Trane argued that the police lacked a reasonable, articulable suspicion of criminal behavior to stop him and that therefore “any evidence obtained by exploitation of the illegal stop must be suppressed.” In addition, Trane argued that the officers arrested him without probable cause and that therefore “the search-incident-to-arrest exception cannot justify the subsequent jailhouse search” where the cocaine was discovered.

¶ 12 The trial court concluded that the police had a reasonable, articulable suspicion to initially detain Trane. The court also concluded that the attempted frisk “was proper and supported by Officer Dobrowol-ski’s reasonable concern for his safety.” Finally, the trial court concluded that the police properly arrested Trane for disobeying a lawful command to submit to a frisk. The court alternatively concluded that the arrest was proper because the police had probable cause or “close to probable cause” to arrest Trane for intoxication. Accordingly, the trial court denied the motion to suppress, concluding, “The subsequent jailhouse search of the defendant is justified and proper as a search incident to [Trane’s] arrest.”

¶ 13 After the trial court denied Trane’s motion to suppress, Trane conditionally pleaded guilty to one count of unlawful possession of a controlled substance pursuant to a plea agreement in exchange for the dismissal of the intoxication and interfering charges. As part of the agreement, Trane reserved the right to appeal the denial of his motion to suppress.

¶ 14 Trane appealed his conviction to the Utah Court of Appeals. The court of appeals ruled in an unpublished memorandum decision that the case of American Fork City v. Pena-Flores, 2000 UT App 323, 14 P.3d 698, controlled the outcome of this case. State v. Trane, 2000 UT App 360U, at 2, 2000 WL 33250537. In Pena-Flores, the court of appeals concluded that an individual can be convicted of interfering with an officer in violation of section 76-8-305 of the Utah Code if (1) the police act within the scope of their authority, and (2) the police order, detention, or arrest had the indicia of lawfulness. 2000 UT App 323 at ¶ 11, 14 P.3d 698. Relying on Pena-Flores, the court of appeals explained that “ ‘a person can be guilty of interfering with a peace officer even when the arrest or detention is later determined to be unlawful,’ ” Trane, 2000 UT App 360U, at 2, 2000 WL 33250537 (quoting Pena-Flores, 2000 UT App 323 at ¶ 11, 14 P.3d 698), and held that “because the officers were acting within the scope of their authority and the arrest had the indicia of lawfulness,” Trane was properly arrested under section 76-8-305, the interfering statute. Id. at 2-3. Accordingly, because the court of appeals held that the arrest was lawful, it affirmed the trial court’s denial of the motion to suppress, holding that the search incident to arrest was valid. Id. at 1-3. Because the court of appeals affirmed the trial court on that ground, it did not reach the issue of whether Trane was properly arrested for intoxication. See id. at 3. Trane then petitioned this court for certiorari, which we granted.

¶ 15 Trane argues that the court of appeals erred by misconstruing the plain language of section 76-8-305 of the Utah Code because the term “lawful” in the statute “requires the police to have a reasonable suspicion for a search or probable cause for an arrest before they can arrest persons for interfering” and by applying Penctr-Flores — which he asserts violates the constitutional ban against unreasonable searches and seizures — to this case. Trane also contends that the police lacked probable cause to arrest him for intoxication and thus any search incident to arrest would be unconstitutional. The State counters that the trial court held the attempted frisk was justified; however, even if its lawfulness is debatable, an individual has no right to resist an arrest or a police order, and therefore the police properly arrested Trane for violating section 76-8-305. The State also argues that the search at the jail was valid as a search incident to the officers’ arrest of Trane for intoxication.

STANDARD OF REVIEW

¶ 16 “On certiorari, we review the decision of the court of appeals, not the decision of the trial court.” State v. Harmon, 910 P.2d 1196, 1199 (Utah 1995); see also Taghipour v. Jerez, 2002 UT 74, ¶ 8, 52 P.3d 1252. We review the decision of the court of appeals for correctness, affording its legal conclusions no deference. State v. James, 2000 UT 80, ¶ 8, 13 P.3d 576. Further, the questions of whether an arrest or a search is constitutional are questions of law that we review for correctness. Harmon, 910 P.2d at 1199; State v. Brown, 853 P.2d 851, 855 (Utah 1992).

ANALYSIS

I. APPLICATION OF PENA-FLORES TO THIS CASE

¶ 17 In this case, the Utah Court of Appeals affirmed the trial court, relying on American Fork City v. Pena-Flores, 2000 UT App 323, 14 P.3d 698, as controlling precedent and concluding that the officers properly arrested Trane under the interfering statute. State v. Trane, 2000 UT App 360U, at 2. The court of appeals explained, “Under Pena-Flores, an arrest for interfering with a peace officer is valid ‘[s]o long as [ (1) ] a police officer is acting within the scope of his or her authority and [ (2) ] the detention or arrest has the indicia of being lawful.”’ Trane, 2000 UT App 360U, at 2 (alterations in original) (quoting Pena-Flores, 2000 UT App 323 at ¶ 11, 14 P.3d 698). Trane contends that the court of appeals wrongly decided Pena-Flores, and even if it did not, the court of appeals erred in blindly applying Pena-Flores to this case. However, we do not need to decide whether Penar-Flores was wrongly decided because that case is inapplicable to the instant case.

¶ 18 The issue in Pena-Flores was whether the interfering statute, section 76-8-305 of the Utah Code, required a “lawful arrest or detention.” 2000 UT App 323 at ¶ 10, 14 P.3d 698 (quoting Utah Code Ann. § 76-8-305 (1999)). In the instant case, Trane contends that the language of subsection two of the interfering statute applies only when an arrest or a detention is lawful. Specifically, Trane contends that because the interfering statute requires a “lawful arrest or detention,” the officers could not legally arrest him under the interfering statute for resistance to an unlawful order.

¶ 19 Although Trane’s argument is substantially similar to the issue in Pena-Flores, the case is inapposite. Penar-Flores specifically addressed when “a person can be guilty of interfering with a peace officer” under section 76-8-305. 2000 UT App 323 at ¶ 11, 14 P.3d 698 (emphasis added). In this case, Trane was never convicted of violating the interfering statute. The actual issue in this case is whether the officers had authority and probable cause to arrest Trane under the interfering statute. Pena-Flores is limited to whether an individual can be convicted of violating the interfering statute and does not apply when the court is attempting to determine whether officers lawfully arrested an individual for allegedly violating the interfering statute. Nevertheless, because the decision of the court of appeals may be sustainable as a search incident to arrest, we now turn to that issue. See Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (holding that appellate court can affirm lower court if judgment is sustainable on alternate theory readily apparent from record).

II. CONSTITUTIONALITY. OF SEARCH INCIDENT TO ARREST

¶20 The ultimate question on certiorari review is whether the police lawfully searched Trane in a search incident to arrest. If the police lawfully arrested Trane, then the search incident to the arrest that produced the cocaine was valid and the court of appeals properly affirmed the trial court’s denial of Trane’s motion to suppress.

¶ 21 It is axiomatic that “the right to be free from unreasonable searches and seizures embodied in the Utah and United States Constitutions is one of the most fundamental and cherished rights we possess.” State v. Thomas, 961 P.2d 299, 303 (Utah 1998) (footnote omitted). The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const, amend. IV. The Utah Constitution provides virtually identical protections:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized.

Utah Const, art. I, § 14.

¶ 22 These constitutional provisions prohibit unreasonable searches and seizures. State v. Brown, 853 P.2d 851, 855 (Utah 1992) (citing Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Under these provisions, “Warrantless searches are per se unreasonable unless undertaken pursuant to a recognized exception to the warrant requirement.” Brown, 853 P.2d at 855; see also State v. Shoulderblade, 905 P.2d 289, 294 (Utah 1995) (stating that search without approval of judge is unreasonable unless subject to one of “ ‘a few specifically established and well-delineated exceptions’ ” (quoting State v. Arroyo, 796 P.2d 684, 687 (Utah 1990))); State v. Banks, 720 P.2d 1380, 1382 (Utah 1986) (“[W]e note that the warrant requirement is an important check upon the power of the State to subject individuals to unreasonable searches and seizures and is not to be lightly disregarded.”). One such recognized exception is a search incident to a lawful arrest based upon probable cause under exigent circumstances. Brown, 853 P.2d at 855; see also Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Banks, 720 P.2d at 1383-84; Utah Code Ann. § 58-37-13(3)(a) (Supp.2001).

¶ 23 Pursuant to the search incident to a lawful arrest exception, “an arresting officer may, without a warrant, search a person validly arrested.” Michigan v. De-Fillippo, 443 U.S. 31, 35, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979); see also State v. Lopes, 552 P.2d 120, 121-22 (Utah 1976). For a search incident to arrest to be constitutional, the underlying arrest must be lawful, but it does not need to be supported by an arrest warrant. Ker v. California, 374 U.S. 23, 41, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The United States Supreme Court explained:

A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment.

United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (emphasis added); see also DeFillippo, 443 U.S. at 35, 99 S.Ct. 2627 (stating that “constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search.” (emphasis added)). Under this exception, any evidence, including all evidence discovered by serendipity of crimes other than that for which the suspect is arrested, is admissible in a criminal trial. Harris v. United States, 331 U.S. 145, 154-55, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), overruled on other grounds by Chimel v. California, 395 U.S. at 768, 89 S.Ct. 2034. However, if an arrest violated a defendant’s constitutional rights under either the Fourth Amendment or the Utah Constitution or was otherwise unlawful, then any evidence secured incident to that arrest must typically be excluded from a criminal trial pursuant to the exclusionary rule. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 568-69, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Ker, 374 U.S. at 35, 83 S.Ct. 1623; Shoulderblade, 905 P.2d at 292; State v. Ramirez, 817 P.2d 774, 786 (Utah 1991).

¶24 In this case, Officers Bushman and Dobrowolski arrested Trane for interfering with a peace officer, public intoxication, and disturbing the peace. After Trane was arrested and transported to the jail, officers searched Trane and discovered cocaine on his person. Unmistakably, this was a search incident to an arrest, see United States v. Edwards, 415 U.S. 800, 803, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974) (holding that full search of person incident to arrest can take place after accused arrives at place of detention); Curd v. City Ct. of Judsonia, Ark, 141 F.3d 839, 843 (8th Cir.1998) (same); Swain v. Spinney, 117 F.3d 1, 6 (1st Cir.1997) (same), but the remaining question is whether the arrest was lawful, State ex rel. K.K.C., 636 P.2d 1044, 1046 (Utah 1981).

¶ 25 The underlying arrest is lawful if it is supported by probable cause and authorized by statute. State v. Harmon, 910 P.2d 1196, 1199-1204 (Utah 1995); see also United States v. Trigg, 878 F.2d 1037, 1041 (7th Cir.1989). The United States Supreme Court explained, “[W]hile a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause.” Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); see also State v. White, 577 P.2d 552, 554 (Utah 1978) (explaining that arrest justified by probable cause supports search incident to arrest).

¶ 26 Under both the Fourth Amendment and article I, section 14 of the Utah Constitution, an officer must have probable cause before the officer can effect a warrantless arrest. “[T]he [United States] Constitution permits an officer to arrest a suspect without a warrant if there is probable cause to believe that the suspect has committed or is committing an offense.” DeFillippo, 443 U.S. at 36, 99 S.Ct. 2627. However, a suspect does not need to be guilty of the offense for which the officers arrested the suspect for the officers to have probable cause to arrest. Id.; see also Henry, 361 U.S. at 102, 80 S.Ct. 168 (stating that “[e]vi-dence required to establish guilt is not necessary” for probable cause to arrest); Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (noting that probable cause to arrest is less than that which is required to justify conviction).

¶27 The United States Supreme Court defined probable cause justifying an arrest as “facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” DeFillippo, 443 U.S. at 37, 99 S.Ct. 2627; see also Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Brinegar, 338 U.S. at 175-76, 69 S.Ct. 1302. Similarly, this court explained that in Utah the determination of whether the police had probable cause to arrest someone without a warrant “ ‘should be made on an objective standard: whether from the facts known to the officer, and the inferences [that can] fairly ... be drawn therefrom, a reasonable and prudent person in [the officer’s] position would be justified in believing that the suspect had committed the offense.’” State v. Cole, 674 P.2d 119, 125 (Utah 1983) (quoting State v. Hatcher, 27 Utah 2d 318, 320, 495 P.2d 1259, 1260 (1972)); see also State v. Anderson, 910 P.2d 1229, 1232-33 (Utah 1996).

¶28 A law enforcement officer has probable cause whenever the crime is committed in the presence of that officer because the observing officer knows of sufficient facts to believe that the suspect committed the crime alleged. The United States Supreme Court explained, “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001); see also United States v. Watson, 423 U.S. 411, 418, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (“The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence....”); United States v. Lugo, 170 F.3d 996, 1003 (10th Cir.1999) (holding that officer’s observation of suspect committing misdemeanor offense afforded officer probable cause and legitimate basis to arrest suspect).

¶ 29 In harmony with this case law regarding probable cause for an officer to arrest an individual, the Utah Code sets forth circumstances under which an officer can effectuate an arrest:

A peace officer may make an arrest under authority of a warrant or may, without warrant, arrest a person:
(1) for any public offense committed or attempted in the presence of any peace officer; “presence” includes all of the physical senses or any device that enhances the acuity, sensitivity, or range of any physical sense, or records the observations of any of the physical senses[J

Utah Code Ann. § 77-7-2(1) (1999) (emphasis added); see also Lugo, 170 F.3d at 1003; cf. Utah Liquor Control Comm’n v. Wooras, 97 Utah 351, 361-62, 93 P.2d 455, 460 (1939). The term “public offense” under section 77-7-2(1) generally includes misdemeanors. Oleson v. Pincock, 68 Utah 507, 511-12, 251 P. 23, 24-25 (1926). Accordingly, the officers had probable cause and were authorized to arrest Trane if Trane committed an offense in their presence.

A. Anest For Interfering With Peace Officer

¶ 30 The officers arrested Trane for interfering with an officer in violation of section 76-8-305, which provides:

A person is guilty of a class B misdemean- or if he has knowledge, or by the exercise of reasonable care should have knowledge, that a peace officer is seeking to effect a lawful arrest or detention of that person or another and interferes with the arrest or detention by:
(2) the arrested person’s refusal to perform any act required by lawful order:
(a) necessary to effect the arrest or detention; and
(b) made by a peace officer involved in the arrest or detention!.]

Utah Code Ann. § 76-8-305 (1999).

¶ 31 In this case, the officers had probable cause and statutory authorization to arrest Trane for interfering with an officer because Trane committed the offense in their presence. As the officers arrived, they noticed that Trane smelled of alcohol, swayed, had slurred speech, and otherwise appeared intoxicated. They also noticed that Trane was “loud,” acting in a “tumultuous-type” manner, angry, and uncooperative.. Both officers believed that Trane was intoxicated and possibly disturbing the peace. As a result, the officers began seeking to lawfully arrest or detain Trane for these crimes. While detaining Trane to investigate, Dobro-wolski requested that Trane submit to a’frisk because Dobrowolski feared for his and Bushman’s safety and wanted to ascertain whether Trane had any weapons on his person. Nevertheless, Trane refused to comply with Dobrowolski’s order to turn around, place his hands on his head, and submit to a frisk. The officers then attempted to arrest Trane.

¶32 Trane, having been informed of the officers’ intentions to frisk and arrest him, began to physically struggle with the officers to prevent them from frisking or arresting him. Again, Trane’s physical resistance interfered with the officers’ orders given to effect the arrest and detention. These acts were sufficient to justify the officers’ arrest of Trane under the interfering statute. See State v. Gardiner, 814 P.2d 568, 575 (Utah 1991). Not only did these events occur in the officers’ presence, but they were directed toward the officers. Because these events occurred in the presence of the officers, they had probable cause and were statutorily authorized to arrest Trane under Utah Code section 77-7-2(1).

¶ 33 Despite the foregoing, Trane contends that an individual should not be arrested for violating the interfering statute when the individual refuses “to follow an unlawful order.” Because Trane struggled with the officers in this case, Trane’s argument presupposes that an individual can resist, even physically, an unlawful arrest or order. However, in Utah there is no right to physically resist either an arrest or an order of the police, irrespective of the legality of the arrest or order, so long as the officers are within the scope of their authority. Gardiner, 814 P.2d at 574; see also State v. Griego, 933 P.2d 1003, 1006-08 (Utah Ct.App.1997).

¶ 34 In Gardiner, a case involving physical resistance, we noted that the justification for the common law right to resist an unlawful arrest or seizure had disappeared and that therefore the right has been repudiated in Utah. 814 P.2d at 573-74 (stating that right to resist unlawful police conduct rejected as defense to crime when common law defenses were supplanted by specifically codifying recognized defenses). Quoting the New Mexico Supreme Court, we stated:

“Self-help measures undertaken by a potential defendant who objects to the legality of the search can lead to violence and serious physical injury. The societal interest in the orderly settlement of disputes between citizens and their government outweighs any individual interest in resisting a questionable search. One can reasonably be asked to submit peaceably and to take recourse in his legal remedies.”

Id. at 572 (quoting State v. Doe, 92 N.M. 100, 583 P.2d 464, 466-67 (1978)).

¶ 35 The law prefers judicial settlement of disputes over street brawls and altercations, even when the lawfulness of police conduct is in question. Suspects should not be the judges of the lawfulness of police action, and redress of an unlawful search or seizure, e.g., an arrest not supported by probable cause or a detention not supported by a reasonable, articulable suspicion of criminal activity, is to be obtained in a court of law. Accordingly, the lawfulness of an officer’s order or arrest is not determinative of whether an officer is authorized to arrest an individual under the interfering statute.

¶ 36 To determine when an officer is within the scope of the officer’s authority,- a court must decide whether the “officer is doing what he or she was employed to do or is ‘engaging in a personal frolic of his [or her] own.’ ” Id. at 574 (quoting United States v. Heliczer, 373 F.2d 241, 245 (2d Cir.1967)). In this case, Bushman and Do-browolski were acting within the scope of their authority. They were called just after 4:00 a.m. by dispatch to conduct an investigation in response to a call from the clerk of a convenience store, complying with their duties as peace officers. The officers arrived in their patrol cars. Although it is unclear from the record whether the officers were in uniform, Trane knew that Bushman and Do-browolski were police officers conducting a routine investigation and pursuing official police business. Accordingly, Trane had no right to physically resist the order to submit to a search, and the officers therefore properly arrested Trane on that basis.

B. Arrest for Intoxication

¶ 37 The officers also arrested Trane for public intoxication in violation of section 76-9-701(1) of the Utah Code. The court of appeals did not reach the trial court’s alternate holding that the officers had probable cause or “close to probable cause” to arrest Trane for intoxication and that therefore the search incident to arrest that uncovered the cocaine was valid. Trane contends that the officers lacked probable cause to arrest Trane for intoxication because the officers did not believe that Trane posed a danger to himself or anyone else. A person commits the crime of public intoxication under the Utah Code when that person “is under the influence of alcohol ... to a degree that the person may endanger himself or another, in a public place ... where he unreasonably disturbs other persons.” Utah Code Ann. § 76-9-701(1) (1999).

¶ 38 In this case, the officers had probable cause and statutory authorization to arrest Trane for intoxication because Trane committed the offense in the presence of the officers. Both officers heard the call from dispatch that a man was harassing or disturbing customers at a convenience store. When Bushman arrived at the store, the clerk indicated that Trane was the individual who had been disturbing others. Trane was in a public place: he was outside the convenience store near a bank of public telephones.

¶39 As the officers approached Trane, they each individually and independently noticed that Trane smelled of alcohol and exhibited signs of intoxication. For example, Bushman noticed that Trane was “loud” and behaving in a “tumultuous-type” manner. Dobrowolski noticed Trane was swaying, Trane’s speech was slurred, and Trane appeared intoxicated.

¶40 The officers also noticed that Trane was intoxicated enough to potentially pose a danger to himself and others. The officers feared for their safety, recognizing from past experiences with intoxicated individuals that they could become violent. In this case, Trane was angry, was uncooperative, had “puffed his chest out [and] took a defensive posture similar to a boxer,” and initially would not release his identification card upon Bushman’s request. Under such circumstances, the officers had probable cause to arrest Trane for intoxication. Therefore, because the officers had probable cause to arrest Trane for both interfering with a peace officer and intoxication, the search incident thereto did not violate either the Fourth Amendment or article I, section 14 of the Utah Constitution.

CONCLUSION

¶41 The officers lawfully arrested Trane for both interfering with a peace officer and public intoxication because they were statutorily authorized and had probable cause to effectuate the arrest. Accordingly, the search incident to that arrest conducted at the jail was lawful, and the cocaine discovered during the search was admissible. Thus, the court of appeals properly affirmed the denial of Trane’s motion to suppress.

¶ 42 Associate Chief Justice DURRANT, Justice HOWE, and Justice WILKINS concur in Justice RUSSON’s opinion.

DURHAM, Chief Justice,

concurring in the result:

¶ 43 I agree with the majority that the police officers in this case had probable cause to arrest Trane for public intoxication. I therefore concur that the evidence obtained in the search incident to that arrest was properly admitted. The majority goes too far, however, in determining that one may properly be arrested for interfering under section 76-8-305 regardless of whether the officer is engaged in a lawful arrest or detention. This conclusion is unnecessary given the court’s holding that there was an independent, lawful basis for the arrest in this case. Further, the majority’s approach implies a rule that is unnecessarily confusing and overstates our holding in Gardiner.

¶ 44 The majority correctly determines that the court of appeals’ decision in Penar-Flores, 2000 UT App 323, 14 P.3d 698, does not apply to this case. It does so, however, for the wrong reason. Rather than distinguishing Penar-Flores on the grounds that the current case involves a lawful arrest, the majority complicates the question by observing that Peno-Flores addressed what makes for a valid conviction under the statute, whereas this case considers what constitutes a proper arrest under the statute. The majority rationalizes this reading, stating that “a suspect need not be guilty of the offense for which the officers arrested the suspect for the officers to have probable cause to arrest.” Supra ¶ 26. The natural implication of the majority’s approach is that different factors may be considered in determining the propriety of an arrest than are considered when determining the validity of a verdict under the same statute. While it is true that we require different standards of proof for arrest and for conviction, we have never held that a factor not relevant to weighing probable cause is determinative in testing a verdict. To the extent that the majority implies that the rule of law should vary between arrest and conviction, I must disagree.

¶ 45 I also cannot agree with the way in which the majority applies State v. Gardiner, 814 P.2d 568 (Utah 1991), to the statute at issue here. In Gardiner we held that the common-law right to forcefully resist an arrest has been repudiated in Utah. Id. at 573. In that case, the defendant, Gardiner, was convicted of assaulting an officer, in violation of section 76-5-102.4, and interfering with an arresting officer, in violation of section 76-8-305. Id. at 569. The defendant punched an officer who was attempting to make an unlawful search and became more violent when the officer attempted to arrest him. Id. We held that a defendant does not have a right to forcefully resist an arrest, whether the arrest be lawful or not, so long as the officer is acting within the scope of his or her authority and with adequate indicia of authority. Id. at 573-75.

¶ 46 The statute at issue in the current case prohibits more than just forcefully resisting an arrest. It prohibits interference in three different forms:

(1) use of force or any weapon;
(2) the arrested person’s refusal to perform any act required by lawful order
(a) necessary to effect the arrest or detention; and
(b) made by a peace officer involved in the arrest or detention; or
(3) the arrested person’s or another person’s refusal to refrain from performing any act that would impede the arrest or detention.

Utah Code Ann. § 76-8-305 (2001). The majority, however, does not refine its holding by tying Gardiner’s holding to a specific section of the statute, but rather crafts its ruling broadly, concluding that “the lawfulness of an officer’s order or arrest is not determinative of whether an officer is authorized to arrest an individual under the statute.” Supra ¶ 35. I would limit the holding to section one of the statute. While there is wisdom in concluding that a person does not have a right to forcefully resist an arrest, I see no reason also to conclude that a person may never refuse any order given by an officer, whether that order be lawful or not, or take any action, passive as it may be, that might impede an arrest or detention. This dicta unnecessarily suggests that the police may never be limited or questioned when making an arrest.

¶ 47 I would hold that Trane was properly arrested for public intoxication. I would save the interpretation of section 76-8-305 for another day.

      . The parties dispute whether Dobrowolski’s original attempt to frisk Trane was constitutional under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, there is no need to address this question because the issue in this case is whether the officers properly arrested Trane. The officers never actually performed the frisk.

      . Trane asserted that the officers contravened both the Fourth Amendment and article I, section 14 of the Utah Constitution. Although this court has previously indicated that the analyses are not identical under these provisions, see State v. Ramirez, 817 P.2d 774, 785 (Utah 1991), Trane did not argue that the analyses of these constitutional provisions are dissimilar or distinct as applied in this case, nor did he argue that the Utah Constitution affords him greater protection than the United States Constitution. In Ramirez, we refused to embark on an independent analysis under the Utah Constitution when the parties had neither argued for nor briefed a separate analysis. We explained:
      The parties have not argued for a separate analysis under article I, section 14 of the Utah Constitution, and therefore, we address the issue only under the federal constitution. However, that is not to suggest that a separate state constitutional analysis might not be appropriate.
      817 P.2d at 785 (citations omitted). Similarly, the issues on appeal here will be analyzed only under the federal constitution and existing Utah precedent in which this court has applied article I, section 14 of the Utah Constitution. State v. Giron, 943 P.2d 1114, 1120-21 (Utah Ct.App.1997); see also State v. Bean, 869 P.2d 984, 988 (Utah Ct.App.1994) (stating that "an appellate court can decline to address state constitutional claims under article I, section 14 if the party 'fails to proffer any explanation as to how this court’s analysis should differ’ under this section from the federal counterpart.”) (quoting State v. Roth, 827 P.2d 255, 257 n. 1 (Utah Ct.App.1992)).

      . A search of an arrestee’s person is generally justified and supported by exigent circumstances. New York v. Belton, 453 U.S. 454, 457, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Such searches are justified to protect the officers from weapons, to preclude the destruction or concealment of evidence, and to prevent escape. Knowles v. Iowa, 525 U.S. 113, 116-18, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998); Belton, 453 U.S. at 457, 101 S.Ct. 2860; Banks, 720 P.2d at 1384. Additionally, in the past we have held that "exigent circumstances exist when the safety of police officers is threatened.” State v. Anderson, 910 P.2d 1229, 1237 (Utah 1996). Clearly, exigent circumstances existed here where Trane began to resist the officers physically and violently, thereby placing in question their safety and threatening the physical well-being of any officers holding Trane in custody.

      . In her concurrence, Chief Justice Durham states that the majority somehow concludes that "a person may never refuse any order given by an officer, whether that order be lawful or not, or take any action, passive as it may be, that might impede an arrest or detention.” Infra ¶ 46. However, under the facts of this case, our holding above is based upon the officers having probable cause to arrest Trane when he physically and forcefully resisted and does not make the inference that she suggests. Chief Justice Durham does not point to any wording in which we “unnecessarily suggest that the police many never be limited or questioned when making an arrest,” infra V 46, nor can she because our opinion is limited to the facts of this case.

      . While the majority styles its holding as applying to the statute as a whole, it does specify that Trane violated section two of the statute. It is perplexing, however, why the majority chooses to ground its ruling on section two, which prohibits interfering by "refusal to perform any act required by lawful order,” instead of section one, which prohibits interference by "force or any weapon." Utah Code Ann. § 76-8-305 (2001). Surely, the plain language of section two — "required by lawful order” — contemplates that the officer be acting lawfully. A narrow reading of that section is also suggested by the requirement that the officer’s order be "necessary to effect the arrest or detention" and "made by a peace officer involved in the arrest or detention.” I would hold that Trane’s violent acts constituted a violation of section one, which applies to both lawful and unlawful arrests, and leave interpretation of section two for a case that is squarely on point.


author: HOWE, Justice: DURHAM, Chief Justice:

text:
    2002 UT 96
    Angela BYERS, Plaintiff and Appellant, v. CREATIVE CORNER, INC. and Lyn Pelton, Defendants and Appellees.
    No. 20000782.
    Supreme Court of Utah.
    Sept. 17, 2002.
    Robert H. Wilde, Midvale, for plaintiff.
    E. Paul Wood, Salt Lake City, for defendants.
   HOWE, Justice:

¶ 1 Plaintiff Angela Byers, an at will employee, brought this action, alleging that her employer, defendant Creative Corner, Inc., wrongfully terminated her in violation of an alleged public policy against sex discrimination. She alleged that Creative Corner, which employs less than fifteen individuals, terminated her because she was pregnant despite the fact that she had consulted a doctor and was able to lift everything that she had been required to lift in the course of her employment. Creative Corner responded and filed a rule 12(b)(6) motion to dismiss for failure to state a claim, which the trial court granted. Thereafter, Byers filed a rule 59 motion for a new trial which was denied. Byers appeals.

¶2 Byers contends that the trial court erred in ruling that a cause of action against small employers for wrongful termination in violation of an alleged public policy against sex discrimination does not exist in Utah. She urges this court to reverse the trial court by recognizing such a cause of action and remanding to the trial court for a trial on the merits. Creative Corner argues that any common law cause of action for employment discrimination is preempted by the Utah Anti-Discrimination Act, Utah Code Ann. §§ 34A-5-101 to -108 (2001), and that Utah has not established a clear and substantial public policy against gender discrimination.

¶ 3 We addressed precisely this same issue in Gottling v. P.R. Inc., 2002 UT 95, — P.3d —, 2002 WL 31055952, also decided today. There, we refused to recognize a common law cause of action for wrongful termination in violation of a public policy against sex discrimination, holding instead that the Utah Anti-Discrimination Act preempts all state common law remedies for discrimination based on sex, race, color, pregnancy, age, religion, national origin, or disability. See Gottling, 2002 UT 95 at ¶ 24, — P.3d —. We refer the reader to our opinion in Got-tling for a detailed explanation of our holding and the reasoning supporting it. Because we have held that a cause of action for wrongful termination in violation of a public policy against sex discrimination does not exist in Utah, Byers may not raise such a claim in her action against Creative Corner. Consequently, the trial court properly dismissed her complaint and denied her motion for a new trial.

¶ 4 Affirmed.

¶ 5 Associate Chief Justice DURRANT, Justice RUSSON, and Justice WILKINS concur in Justice HOWE’s opinion.

DURHAM, Chief Justice:

¶ 6 For the reasons set forth in my dissent in Gottling v. P.R. Inc., I likewise dissent herein.


author: RUSSON, Justice:

text:
    2002 UT 100
    STATE of Utah, Plaintiff and Appellee, v. Kevin K. BOWERS, Defendant and Appellant.
    No. 20010140.
    Supreme Court of Utah.
    Oct. 11, 2002.
    Mark L. Shurtleff, Att’y Gen., Jeffrey S. Gray, Asst. Att’y Gen., Salt Lake City, for plaintiff.
    Gerald N. Engstrom, Maurice Richards, Randall W. Richards, Ogden, for defendant.
   Memorandum Decision and Order of Dismissal

RUSSON, Justice:

¶ 1 Kevin K. Bowers (“Bowers”) appeals his conviction of possession of a controlled substance within a drug-free zone, a first degree felony, in violation of Utah Code Ann. § 58-37-8 (Supp.1999), and possession of drug paraphernalia within a drug-free zone, a class A misdemeanor, in violation of Utah Code Ann. § 58-37a-5 (1998). The State moves for dismissal, asserting that this court lacks jurisdiction to hear Bowers’ appeal as his filing of notice of appeal was untimely.

PROCEDURAL HISTORY .AND ANALYSIS

¶ 2 On August 16, 2000, following a 2-day jury trial, Bowers was found guilty of possession of a controlled substance within a drug-free zone and possession of drug paraphernalia within a drug-free zone. On August 24, 2000, Bowers filed a rule 23 motion to arrest judgment under the Utah Rules of Criminal Procedure. Rule 23 reads in relevant part as follows:

At any time prior to the imposition of sentence, the court upon its own initiative may, or upon motion of a defendant shall, arrest judgment if the facts proved or admitted do not constitute a public offense, or if the defendant is mentally ill, or if there is other good cause for the arrest of judgment.

Utah R.Crim. P. 23. As sentence had yet to be imposed upon Bowers by the trial court, his rule 23 motion was timely. The trial court, however, denied Bowers’ motion on September 25, 2000, and asked the State to prepare findings of fact, conclusions of law, and an order to that effect. After entry on December 8, 2000, of the findings of fact, conclusions of law, and an order denying the motion to arrest judgment, Bowers objected to the form of the findings, conclusion, and order. The trial court subsequently ordered that the State amend the findings of fact, conclusions of law, and order, and the amended document denying the motion to arrest judgment was entered on January 16, 2001.

¶ 3 On December 11, 2000, following a 60-day presentencing . evaluation, Bowers was sentenced by the trial court to an indeterminate prison term of five years to life on the first degree felony conviction, with a one-year term on the class A misdemeanor conviction to run concurrently. While sentence was pronounced by the trial court on December 11, 2000, the date of entry was not until December 29, 2000. Accordingly, under rule 4(a) of the Utah Rules of Appellate Procedure, Bowers had 30 days after December 29, 2000, or until January 29, 2001, to file a notice of appeal.

¶ 4 Bowers argues that the period to file a notice of appeal did not begin to run until January 16, 2001, upon entry of the amended findings of fact, conclusions of law, and order that denied his motion to arrest judgment. He is incorrect. Rule 4(a) of the Utah Rules of Appellate Procedure provides in part that “[i]n a case in which an appeal is permitted ..., the notice of appeal ... shall be filed with the clerk of the trial court within SO days after the date of entry of the judgment or order appealed from.” Utah R.App. P. 4(a) (emphasis added). In a criminal case, it is “the sentence itself which constitutes a final judgment from which appellant has the right to appeal.” State v. Gerrard, 584 P.2d 885, 886 (Utah 1978) (emphasis added). Therefore, the operative date in this case is not the date of the entry of the amended findings of fact, conclusions of law, and order as Bowers argues, but rather the date of entry of sentence. Here the date of entry of sentence was December 29, 2000. Thus, Bowers had 30 days after entry of his sentence, or until January 29, 2001, to file a notice of appeal with the trial court. Bowers, however, did not file notice of appeal until February 12, 2001, 45 days after entry of his sentence and 15 days after expiration of the period for filing notice of appeal. His filing of notice of appeal was untimely.

¶ 5 This court has previously recognized that the “30-day period for filing notice of appeal in a criminal case ... is jurisdictional and cannot be enlarged by this [cjourt.” State v. Johnson, 635 P.2d 36, 37 (Utah 1981). We have also stated that it is “axiomatic in this jurisdiction that failure to perfect an appeal is a jurisdictional failure requiring dismissal of the appeal.” Prowswood v. Mountain Fuel Supply Co., 676 P.2d 952, 955 (Utah 1984). This court has no authority to extend its jurisdiction beyond the 30-day period for filing notice of appeal plainly stated in the rule. Nor does this court have power to transubstantiate an untimely notice of appeal into a timely one. Accordingly, because Bowers’ filing was outside the 30-day period for filing notice of appeal, this court lacks jurisdiction over his appeal and the appeal is dismissed.

¶ 6 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Judge BILLINGS concur in Justice RUSSON’s opinion.

¶ 7 Justice HOWE does not participate herein; Court of Appeals Judge JUDITH M. BILLINGS sat.

      . The 30th day after entry of the trial court’s judgment fell on January 28, 2001, a Sunday. Bowers thus had until Monday, January 29, 2001, to file notice of appeal. See Utah R.App. P. 22(a).