Hamilton Trust, Apsalooke (Crow) Tribe

Annotate this Case

Download PDF

. 9 Montana Water Court PO Box 1389 Bozeman MT 59771-1389 (406) 586-4364 1-800-624-3270 (IN-STATE) FAX: (406) 522-4131 MONTANA WATER COURT - YELLOWSTONE DIVISION TONGUE NVER ABOVE AND INCLUDING HANGING WOMAN CREEK-BASIN 42B CLAIMANT: Hamiton Trust CASE 42B-3 42B 39287-00 I1 OBJECTOR: Apsaalooke (Crow) Tribe ORDER ADOPTING MASTER'S REPORT Pursuant to Montana Code Annotated, 5 85-2-233(5), the above entitled case was assigned to Senior Water Master Kathryn L. W. Lambert. The Senior Water Master filed a report containing Findings of Fact and Conclusions of Law with the Clerk of Court. Copies of the report were served upon the parties on June 7,2012. Over ten (10) days have elapsed since service, and no objections to the Findings and Conclusions have been filed by any party. The Court has reviewed the Senior Water Master's Findings, Conclusions, and Recommendations, and each Post Decree Abstract of Water Right Claim served with the report. Pursuant to Rule 53(e), Montana Rules of Civil Procedure, the Court ADOPTS the Master's Report and its Recommendations, and APPROVES the changes to the centralized computer record system that are reflected on each abstract served with the report. DATED this J7 day of C. Bruce Loble Chief Water Judge CERTIFICATE OF SERVICE I, Jamie Pope, Deputy Clerk of Court of the Montana Water Court, hereby certify that a true and correct copy of the above ORDER ADOPTING MASTER'S REPORT was duly served upon the persons listed below by depositing the same, postage prepaid, in the United States mail. Hamilton Trust C/O James S. and Marjorie K. Hamilton Trustees HC 59 Box 13 Decker, MT 59025-9702 Nathan A. Espeland, Esq. Espeland Law Office, PLLC PO Box 1470 Columbus, MT 59019 DATED this a'day o Deputy Clerk of Court Montana Water Court PO Box 1389 Bozeman MT 59771-1389 (406) 586-4364 1-800-624-3270 (IN-STATE) FAX: (406) 522-4131 MONTANA WATER COURT - YELLOWSTONE DIVISION TONGUE RIVER ABOVE AND INCLUDING HANGING WOMAN CREEK-BASIN 42B CLAIMANT: Hamiton Trust CASE 42B-3 42B 39287-00 OBJECTOR: Apsaalooke (Crow) Tribe NOTICE OF FILING OF MASTER'S REPORT This Master's Report was filed with the Clerk of the Montana Water Court on the above stamped date. Please read this Report carefully. If you disagree with the Master's Findings of Fact, Conclusions of Law, or Recommendations; or if there are errors in the Report, you may file a written objection to the Report within 10 days from the above stamped date. (Rule 23, W.R.Adj.R.) If you file an objection, you must also mail a copy of the objection to all parties on the Service List found at the end of the Master's Report. The original objection and a certificate of mailing to all parties on the Service List must be filed with the Water Court. If you do not file a timely obiection. the Water Court will conclude that you agree with the content of this Master's Report. MASTER'S REPORT The Apsaalooke (Crow) Tribe objected to Hamilton Trust stock claim 42B 3928700. The following issue remarks appeared on the abstract of this claim in the Preliminary Decree: THE CLAIMED FLOW RATE EXCEEDS THE 35 GPM GUIDELINE FOR THIS PLTRPOSE AND CANNOT BE CONFIRMED DUE TO LACK OF DATA. THE PRIORITY DATE MAY BE QUESTIONABLE. IT APPEARS THE FORM GW4, DECLARATION OF VESTED GROUNDWATER RIGHTS, FILED JUNE 3,1968 WAS USED IN LIEU O F A FORM GW2, NOTICE OF COMPLETION OF GROUNDWATER APPROPRIATION. On May 11,2009 the claimant filed a Verified Motion to Amend Water Right Claim specifying reduction of the flow rate from 40.00 gpm to 20.00 gpm. As flow rate is at issue, this is an deemed an affidavit rather than a motion to amend pursuant to section 852-233(6), MCA. On April 5,2012 the claimant filed a letter stating that the priority date should be changed to June 8, 1968 and that the static level of the well should be 8 feet. On May 15,2012 the Apsaalooke (Crow) Tribe filed a Withdrawal of Objection stating that the changes requested by the claimant resolve its objection. FINDINGS OF FACT and CONCLUSIONS OF LAW CONCLUSION OF LAW 1) The Montana Water Court has jurisdiction over all matters relating to the determination of existing water rights. Section 3-7-224, MCA. CONCLUSION OF LAW 2) A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content. Section 85-2-227, MCA. This prima facie proof may be contradicted and overcome by other evidence that proves, by a preponderance of the evidence, that an element of the prima facie claim is incorrect. This is the burden of proof for every assertion that a claim is incorrect. Rule 19, W.R.Adj.R. CONCLUSION OF LAW 3) The information in the claim file is sufficient to resolve the issue remark without evidentiary hearing. Sections 85-2-248(3) and (1 I), MCA. FINDING OF FACT 1) The Preliminary Decree states that the flow rate is 40.00 gpm. The flow rate should be 20.00 gpm. The issue remark concerning the flow rate should be stricken from the abstract as addressed and resolved. FINDING OF FACT 2) A copy of the Declaration of Vested Groundwater Right (GW4 form) is attached to the Statement of Claim. It identifies a well constructed in and first used in September 1967. The Clerk and Recorder stamp indicates this Declaration was filed on June 3, 1968. CONCLUSION OF LAW 4) For groundwater appropriatioiis between January 1, 1962 and July 1, 1973 a Notice of Appropriation and a Notice of Completion (GW2) both had to be filed in order to have the priority date relate back to when the water was first diverted and used. Sections 89-2912 and 89-2913, RCM. If only a Notice of Completion was filed, the priority date is the date the Notice of Completion was filed. Section 8929 13(e), RCM. For groundwater appropriations made prior to January 1, 1962, a Declaration of Vested Groundwater Rights could be filed. Sections 89-29 13(h), RCM. FINDING OF FACT 3) As the claimed priority date - date of first use - is after January 1, 1962, the appropriate documents to be filed are either a Notice of Appropriation and a Notice of Completion, or, a Notice of Completion. In this instance, the Declaration of Vested Water Rights form was completed and filed rather than the Notice of Completion form. CONCLUSION OF LAW 5) Until a Notice of Completion is filed for any use of groundwater instituted after January 1, 1962, "no right to that use of water shall be recognized." Section 89-29 13(e), RCM. The question is whether a Declaration of Vested Groundwater Rights form can be treated as the Notice of Completion. CONCLUSION OF LAW 6) The statutes require specific details on the Notice of Completion forms and on the Declaration of Vested Groundwater Rights forms. Section 89-2913, RCM. A comparison of the information required for each of the forms shows required is substantially identical with the following exception: the that the inforn~ation Notice of Completion requires the additional details about drilling the well which are not required on the Declaration. This makes sense. The Notice of Completion is for a contemporary drilling and the information is readily available. The drilling information for a well drilled prior to January 1, 1962 may no longer be available. CONCLUSION OF LAW 7) Where the information furnished on the two forms is substantially identical, allowing the printed designation and name of the form to control provided is the unwarranted elevation of form over over the substance of the inforn~ation substance. See In re the Charles M Bair Family Trust, 2008 MT 144,743, 343 Mont. 138, 183 P.3d 61 ; Yurczyk v. Yellowstone County, 2004 MT 3,722, 319 Mont. 169, 83 P.3d 266. For a Declaration of Vested Groundwater Rights to be considered as a Notice of Completion simply filed on the wrong form, the information provided on the form must meet the statutory requirements for a Notice of Completion. FINDING OF FACT 4) In this instance, the Declaration of Vested Groundwater Rights attached to the Statements of Claim meets the statutory requirements for a Notice of Completion concerning the water right but does not meet the statutory requirements as to some of the drilling information. The missing information is: the name address and license number of the driller; the approximate surface elevation at the well head; the casing record; and, the drilling log showing the character and thickness of all formations penetrated. As the missing information involves no element of a water right, allowing the printed designation and name of the form to control over the substance of the information provided is the unwarranted elevation of form over substance. The content of this Declaration does meet the core water right requirements for a valid Notice of Completion. CONCLUSION OF LAW 8) The Declaration of Vested Groundwater Rights attached to these Statements of Claim does qualify as a Notice of Completion. FINDING OF FACT 5) The Preliminary Decree states that the priority date is September 15, 1967 and the type of historical right is use. The priority date should be June 3, 1968 (the date the Declaration was filed) and the type of historical right should be filed. The issue remarks concerning the priority date and groundwater form filed should stricken as addressed and resolved. FINDING OF FACT 6) The well data includes the static water level. That data is not included on the Water Court abstracts but is included on the DNRC General Abstract. That data currently states that the static water level is 40.00 feet. The static water level should be 8.00 feet. RECOMlMENDATIONS Based upon the above Findings of Fact and Conclusions of Law, this Master recommends that the Court make the changes specified in the Findings of Fact to correct the Temporary Preliminary Decree for this Basin. A Post Decree Abstract of Water Right Claim is served with this Report to confirm the recommended changes have been made in the state's centralized water right record system. As the static water level is not included on a Post Decree Abstract, a copy of the General Abstract is also enclosed so the parties can see that it has been changed as requested. DATED this 3- day of 2012. Kathryn L. ~ F a m b e r t Senior Water Master CERTIFICATE OF SERVICE I, Jamie Pope, Deputy Clerk of Court of the Montana Water Court, hereby certify that a true and correct copy of the above NOTICE OF FILING OF MASTER'S REPORT and MASTER'S REPORT was duly served upoil the persons listed below by depositing the same, postage prepaid,.in the United States mail. Hamilton Trust C/O James S. and Marjorie K. Hamilton Trustees HC 59 Box 13 Decker, MT 59025-9702 Nathan A. Espeland, Esq. Espeland Law Office, PLLC PO Box 1470 Columbus, MT 59019 DATED this v*day o I " June 6,2012 Page 1 of 1 Post Decree Abstract 426 39287-00 POST DECREE ABSTRACT OF WATER RIGHT CLAIM TONGUE RIVER, ABOVE & INCLUDING HANGING WOMAN CREEK BASIN 42B IMPORTANT NOTICE AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM CHANGED BY ORDER OF THE MONTANA WATER COURT AFTER ISSUANCE OF THE PREVIOUS DECREE. Water Right Number: 42B 39287-00 2 -- POST DECREE Status: ACTIVE Version: Owners: "Priority Date: STATENIEIVT OF CLAIM HAMILTON TRUST %JAMES S & MARJORIE K HAMILTON TRUSTEES HC 59 BOX 13 DECKER, MT 59025 9702 JUNE 3,1968 *Type of Historical Right: FILED Purpose (use): *Flow Rate: STOCK 20.00 GPM Volume: THIS RIGHT INCLUDES THE AMOUNT OF WATER CONSUMPTIVELY USED FOR STOCK WATERING PURPOSES AT THE RATE OF 30 GALLONS PER DAY PER ANIMAL UNIT. ANIMAL UNITS SHALL BE BASED ON REASONABLE CARRYING CAPACITY AND HISTORICAL USE OF THE AREA SERVICED BY THIS WATER SOURCE. Source Name: Source Type: GROUNDWATER GROUNDWATER ALSO KNOWN AS HAMILTON WELL Point of Diversion and Means of Diversion: ID Twp Rge County Qtr Sec Set Govt Lot 1 NWSENE 11 8 s 38E BIG HORN Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: WELL Period of Use: Place of Use: ID Acres - -Govt Lot 1 JANUARY 1 TO DECEMBER 31 Qtr Sec Set Twp NWSENE 11 8s Rge County 38E BIG HORN Remarks: STARTING IN 2008, PERIOD OF DIVERSION WAS ADDED TO MOST CLAIM ABSTRACTS, INCLUDING THIS ONE. I ' I Page 1 of 1 General Abstract June 6,201 2 42B 39287-00 STATE OF MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION 1424 9TH AVENUE P.O.BOX 201601 HELENA, MONTANA 59620-1601 GENERAL ABSTRACT See most recent version for current wafer right details. Water Right Number: 428 39287-00 STATEMENT OF CLAIM 2 -- POST DECREE Version Status: ACTIVE Version: Owners: HAMILTON TRUST %JAMES S & MARJORIE K HAMILTON TRUSTEES HC 59 BOX 13 DECKER, MT 59025-9702 Priority Date: JUNE 3,1968 Enforceable Priority Date: JUNE 3, 1968 Type of Historical Right: FILED Purpose (use): STOCK Maximum Flow Rate: 20.00 GPM Maximum Volume: THIS RIGHT INCLUDES THE AMOUNT OF WATER CONSUMPTIVELY USED FOR STOCK WATERING PURPOSES AT THE RATE OF 30 GALLONS PER DAY PER ANIMAL UNIT. ANIMAL UNITS SHALL BE BASED ON REASONABLE CARRYING CAPACITY AND HISTORICAL USE OF THE AREA SERVICED BY THIS WATER SOURCE. Source Name: GROUNDWATER Source Type: GROUNDWATER ALSO KNOWN AS HAMILTON WELL Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec 1 NWSENE & 11 Twp 8s County 38E BIG HORN Period of Diversion: JANUARY 1 TO DECEMBER 31 DiversionMeans: WELL Well Depth: 45.00 FEET Static Water Level: 8.00 FEET Casing Diameter: 6.00 INCHES Period of Use: JANUARY 1 to DECEMBER 31 Place of Use: Acres 1 ID -Govt Lot Qtr Sec NWSENE & Twp 11 8s 38E County BIG HORN Remarks: STARTING IN 2008, PERIOD OF DIVERSION WAS ADDED TO MOST CLAIM ABSTRACTS, IlVCLUDllVG THIS ONE. OWNERSHIP UPDATE RECEIVED OWNERSHIP LIPDATE TYPE 608 # 19367 RECEIVED 12/01/2004.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.