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Show 580 NORTH DAKOTA statutory adjudication of water rights is carried out by the State engineer, the commission has the sole responsibility for water dis- tribution.1 The State engineer has initial authority to act upon all permit applications. After an application is filed, the applicant must give notice by certified mail to all owners of real estate located within a 1-mile radius of the applicant's proposed appropriation, and notice is also published in the area, setting forth the time the application will be heard by the commission.2 The State engineer is required to reject an application if there is no unappropriated water, and he may refuse to consider or approve an application if, in his opinion, the approval thereof would be con- trary to the public interest.3 This broad standard seems to give the engineer considerable discretion in passing upon competing applica- tions. However, in a recent case decided by the State supreme court, the engineer had approved applications in the order in which they were filed, and the court said that priority in time of filing was not the most equitable basis for granting or approving applications, and that some fair consideration should be given to subsequent applicants: ... we do not approve the procedure followed ... in the instant case, which resulted in granting to one of two landowners, who owned adjacent land and who made application at approximately the same time for beneficial use of water, the use of so much water that the other was in effect denied use of any water. The failure ... to determine the actual amount of water available before granting the first neighbor's application resulted in a very dispropor- tionate granting of water rights. Such a procedure, if followed in the future, might well justify some legislative action directed toward preventing the re- occurrence of such inequitable results.* The court did not say that approving applications in the order in which they were filed was contrary to the statutes or otherwise illegal, but simply that it disapproved of such a practice, and that legislative action might be justified to compel a more equitable consideration of water filings. Absent some specific statutory preferences to guide the engineer in deciding which uses better serve the public interest, it is difficult to reconcile the court's admonition with basic appropria- tion principles. It is not known what practical effect, if any, this language has had on the criteria applied by the State engineer in re- viewing and passing upon applications. Applications approved by the engineer are reviewed by the State water conservation commission, but it appears that where applica- tions to appropriate water are rejected by the engineer, the aggrieved applicant may obtain immediate judicial review without seeking an intermediate review by the commission.5 Once an application is approved, the time for completion of the project is designated. This time can be extended upon a showing of good cause by the applicant.6 The State engineer inspects the projects after completion of construction and application of water 112 North Dakota Century Code, chs. 61-02, 61-03, ana 61-04 (1960). 212 North Dakota Century Code, sees. 61-04-04, 61-04-05. For convenience, the North Dakota statutes will be referred to hereafter simply by section numbers. » Section 61-04-07. iBaeth v. Hoisveen, 157 N.W. 2d 728, 733-34 (N.D. 1968). "Sec. 61-04-07. a Sees. 61-04-08, 61-04-14. |
