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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 321 Supreme Court observed that the Court would be slow to make any changes in the findings of fact of the referee (the State administrator) unless it were as qualified as such official to dispose of such complicated matters.485 Judicial review of administrative action.-Statutes of all water administra- tion States make provision for recourse to the courts from an action of the administrator that denies a substantial right. This might be denial of a permit to an applicant who considers that he has fully complied with all the statutory requirements. Or it might be the approval of an application in the face of protests that existing rights would be seriously impaired, or that the proposed appropriation would not be conducive to the public welfare. In many other situations, an administrative act, or a failure to act, would conflict with the aims of some interested party. For example: cancellation of a permit; refusal to issue a final license or certificate of appropriation; application for change in exercise of a water right; prolonged delay in taking some expected action; requirement that a headgate be repaired, or a measuring device installed, at the expense of the appropriator; or regulation of water distribution in claimed violation of decreed rights. In some of the statutes, this recourse to the courts of one who deems himself aggrieved is referred to as an appeal, in others a review. The Nevada water law provides that the aggrieved party "may have the same review by a proceeding for that purpose, insofar as may be in the nature of an appeal * * *."486 In the view of the Oregon Supreme Court, the "appeal" granted by the Oregon statute487 to the circuit court from any order or regulation of the State Engineer contemplated an original proceeding in the circuit court for a review of the administrative order, governed by the procedure in suits in equity.488 The circuit court's function in reviewing such an order would be limited to determining whether the official acts were within the authority conferred upon him, and whether they were arbitrary or not justified by the facts. The Oregon Supreme Court has held further that the trial court may voluntarily limit its review by refusing to disturb administrative findings in those areas in which the administrative agency is expert.489 The original California provision for a review of action on an application to appropriate water, by bringing an action in the superior court, was held unconstitutional.490 It has been replaced by authorization to file a petition for a writ of mandamus in the superior court to inquire into the validity of the action.491 This procedure, provided by the Civil Code, the supreme court had AS5InreAhtanum Creek, 139 Wash. 84, 91, 245 Pac. 758 (1926);/n re Crab Creek & Moses Lake, 134 Wash. 7, 17-18, 235 Pac. 37 (1925). 486 Nev. Rev. Stat. § 533.450 (Supp. 1969). 487 Oreg. Rev. Stat. § 536.060 (Supp. 1969). A8*Broughton's Estate v. Central Oregon Irr. Dist., 165 Oreg. 435,462, 101 Pac. (2d) 425, 108 Pac. (2d) 276 (1940). 489 Warner Valley Stock Co. v. Lynch, 215 Oreg. 523, 557-558, 336 Pac. (2d) 884 (1959). *90Mofave River Irr. Dist. v. Superior Court, 202 Cal. 717, 725-726, 262 Pac. 724 (1927). 491 Cal. Water Code § 1360 (West Supp. 1970). 450-486 O - 72 - 23 |
