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Show 450 ADJUDICATION OF WATER RIGHTS IN WATERCOURSES The Colorado statutory adjudication procedure is judicial.23 By virtue of 1969 legislation, this procedure has been augmented by statutory proceedings in which the division engineer in each division, with the approval of the State Engineer, provides the water clerk in his division with tabulations of priorities of decreed water rights. The tabulations to be completed in 1974 and thereafter are to be approved by the water judge, with or without modifications. These tabulation proceedings are termed "general adjudication proceedings."24 Even as augmented by such tabulation proceedings, however, the Colorado statutory procedure is predominantly judicial. The Oregon statutory system of adjudicating water rights25 combines features of both the Wyoming and Colorado adjudication systems but, in its totality, differs from them both. Specifically, Colorado statutory adjudications are predominantly made by the judiciary; those in Wyoming are made by an administrative agency and are final unless appealed to the courts. Oregon has an integrated proceeding, the first part of which is an administrative determination by the State Engineer26 which must be filed in court as the basis of a civil action. This procedure ends with the court's approval or modification of the State Engineer's determination, subject to appeal,27 thus throwing over the whole proceeding the cloak of judicial finality. The Oregon Supreme Court had occasion to construe the statutory powers of the administrative agency as executive or administrative in their nature. "It might be said that the duties * * * are quasi judicial in their character." Their findings and orders are only "prima facie final and binding * * *."28 The United States Supreme Court has expressed its approval of the Oregon procedure.29 The Texas Legislature included in its 1917 water rights statute a statutory adjudication provision30 (based largely upon those of Wyoming and Nebraska), which the Texas Supreme Court held unconstitutional. In Board of Water Engineers v. McKnight the supreme court concluded that as the legislature had attempted to confer on persons belonging to the executive branch of the State governmental powers that properly attached to another branch, without express permission of the constitution, the statute was void. Referring to the 23See Colo. Rev. Stat. Ann. § § 148-21-18 to 148-21-23 (Supp. 1969). 24Id. §§ 148-21-27(l)(a) and (4), 148-21-28(1) and (2)(d) to (g) and (1). These proceedings are discussed later at notes 238 et seq. infra. 25Oreg. Rev. Stat. § 539.020 et seq. (Supp. 1955). 26Id. § 539.130. 21Id. § 539.150. 28In re Willow Creek, 74 Oreg. 592, 610-611, 144 Pac. 505 (1914), 146 Pac. 475 (1915). 29Pacific Live Stock Co. v. Lewis, 241 U.S. 440, 451-452, 454 (1916). The administrative agency merely paves the way for a court adjudication of all rights involved, its duties being much like those of a referee. "That the State, consistently with due process of law, may thus commit the preliminary proceedings to the board and the final hearing and adjudication to the court, is not debatable." 30Tex. Laws 1917, ch. 88, § § 105-129. |
