OCR Text |
Show 414 APPROPRIATION OF WATER In determining the question of detriment to the public, the Oregon Board is directed to have due regard for conserving the highest use of water for all purposes, many purposes being specifically named. It must take into consideration maximum economic development of water; control for all beneficial purposes, including drainage, sanitation, flood control; amount of water available for appropriation; prevention of wasteful and other undesirable uses of water; protection of all vested and inchoate water rights; and the State water resources policy.919 In the early history of the Oregon water rights statute, the Board of Control (subsequently abolished) performed the function of deciding questions of public interest referred to it by the State Engineer. In one case decided during that period, the Oregon Supreme Court observed that the Board had the duty of refusing an application if, after full hearing, the public interest demanded it.920 In another case, the court cautioned that it was only when the contemplated use was a menace to the safety and welfare of the public that the application should be referred to the Board for consideration.921 The current directive of the legislature to the State Water Resources Board, briefed above, is in its statutory language so detailed and all-embracing that the Board necessarily must exercise a broad discretion in applying the declared policy to its deliberations and conclusions respecting approval or rejection of applica- tions. Important observations of the Oregon Supreme Court in this field include the following: Under the water rights act, the State Engineer is vested with a wide discretion in exercising his primary responsibility for proper distribution of State waters for beneficial uses. Judges are not super engineers. Hence seldom if ever will the court interfere with his discretionary action on matters involving administration of the water laws and substitute its judgment for his.922 Statutes providing for review of the State Engineer's action would be unconstitutional if so construed as to vest in the courts the power to substitute their judgment for his on matters of legislative policy. This does not mean that all such administrative orders must be affirmed if supported by substantial evidence, for the court may have power to reassess all the evidence. The court may voluntarily limit its review by refusing to disturb administrative findings in those areas in which the administrative agency is expert.923 (9) Alaska. The 1966 Alaska Water Use Act provides that in determining the 919Oreg. Rev. Stat. § §537.170(3) (Supp. 1969) and 543.225(3) (Supp. 1965). 920Cockinham v. Lewis, 58 Oreg. 484, 487497,114 Pac. 88, 115 Pac. 342 (1911). 921 In re Schollmeyer, 69 Oreg. 210, 215, 138 Pac. 211 (1914). 922Smyth v. Jenkins, 208 Oreg. 92, 100, 299 Pac. (2d) 819 (1956). 923 Warner Valley Stock Co. v. Lynch, 215 Oreg. 523,547-561, 336 Pac. (2d) 884 (1959). |