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Show 45 8 ADJUDICATION OF WATER RIGHTS IN WATERCOURSES procedure that also is rather similar to the Oregon system except that it is initiated by bringing a court action and a court order is required which authorizes the State Reclamation Engineer to make an examination of the water system, join water-rights claimants, and determine the various water rights.93 Another State, Washington, has a statutory procedure that may be rather similar to the Oregon system. However, the Washington procedure is initiated by bringing a court action and the Director of Ecology is appointed by the court to act as its referee. Moreover, the extent to which the Director is to make a determination of water rights is unclear.94 In Oregon, the determination of water rights may be undertaken after receipt of a petition from one or more claimants. In a number of the other States, such as Nevada and Arizona, the administrator may also initiate the determination on his own initiative.95 The Bien Code System In 1903, at the request of commissions appointed by the governors of Oregon and Washington, a draft for a code was prepared by Mr. Morris Bien of the United States Reclamation Service.96 The draft prepared by Mr. Bien, which became known as the "Bien Code," was a comprehensive code relating forth in the claims, making such investigations as deemed necessary, and prepares a report and proposed determination of water rights. Id. § 73-4-11. "Idaho Code Ann. § § 42-1406 to -1413 (Supp. 1969). See § § 42-1406 to -1409. The district judge may determine whether the waters in the water system to be adjudicated are interconnected and whether the engineer's petition embraces some waters which are not tributary or excludes some waters which should be included to achieve adjudication of all rights that might be affected thereby, and if funds are available for the engineer's investigation, the judge shall issue an order defining the boundaries of the water systems to be adjudicated and authorize the engineer to begin his investiga- tion and determination of the various rights existing in the system. Id. § 42-1407. 94 Wash. Rev. Code § § 90.03.110 -90.03.240 (Supp. 1961). Among other provisions, the court shall refer the proceeding to the Director or his representative "to take testimony" and file with the court "a transcript of such testimony for adjudication thereon by the court." Id. § 90.03.160. If no exceptions to the Director's report are filed, the court enters a decree determining the water rights "according to the evidence and report of the [Director]." Id. § 90.03.200. During pendency of the proceedings, or upon appeal, the water involved shall be regulated "according to the schedule of rights specified in [the Director's] report," upon an order of the court authorizing such regulation, unless stayed by a stay bond. Id. § 90.03.210. 95 In some States, such as Texas, a petition from a minimum number of water users may be required. See Tex. Rev. Civ. Stat. Ann. art. 7542a, § 1 (Supp. 1970). In Utah, which with certain exceptions resembles the Oregon system, as noted above, the proceeding may be initiated by an action in court brought by the State Engineer upon his receipt of a petition from claimants, or such an action may be initiated by claimants' direct petition to the court under particular circumstances. Utah Code Ann. § § 734-1,73-4-3, 734-18 (1968). 96Wiel, S. C, "Water Rights in the Western States," 3d ed., vol. II, § 1428, pp. 1327-1332 (1911). |