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Show 22 ORGANIZATION upon the users, and each user is given an opportunity to protest the evaluation which has been placed on either his or any other water right on the system. Once the protest period expires, all protests thus submitted are heard and ruled upon by the court. Provision is also made for appeals from the decision of the lower court to the State's appellate court. Most State statutes provide that, once the user has been properly joined in the action, if he thereafter fails to assert his claim his right is deemed forfeited. (5) CONSTITUTIONALITY OF PROCEDURE While some features of the general adjudication statutes have been invalidated by a few State courts, thus requiring a revision and reenactment to cure objectionable provisions, these statutes have generally been upheld as a valid exercise of the State's police power. The question is not whether State legislatures have the power to enact general adjudication procedures, but whether they have provided for constitutional due process in doing so. o. Statutory Resolution of Conflicts in the East The Eastern States have no system of statutory adjudication of water rights, because of the difficulties encountered in any effort to quantify such rights for any appreciable segment of a stream sys- tem, as already pointed out in section 2.1.b(2) of this chapter. How- ever, certain legislation has had the effect of eliminating many con- flicts between riparian users, such as the "harmless use" statute enacted in New York and mentioned in section 2.1.b(3) above. That act prevents prescriptive rights from arising from uses which are unreasonable but harmless, and thus obviates litigation which other- wise would arise to enjoin such uses. c. Administrative Resolution of Conflicts (1) WESTERN APPROPRIATION RIGHTS While administrative officers and agencies have no authority to adjudicate private appropriation water rights, they do frequently resolve disputes and conflicts among private contestants in admin- istrative proceedings. This may happen in a number of ways. For example, when an application is filed to appropriate water, another water user may protest the application on the ground that it would interfere with his established water right. The applicant for the new appropriation might, in turn, reply that the protestant did not hold a valid water right (perhaps on the ground that the water user held only an invalid unrecorded use, or had never per- fected his right, or had lost a perfected right through nonuse, etc.). In this instance the administrative officer would have to make an administrative determination as to the validity of the water right of the protestant in order to determine whether the new appropriation would interfere with a valid right, and in order to determine whether there was unappropriated water available to satisfy the application. |
