Bull Ranch, United States of America (Bureau of Indian Affairs), Northern Cheyenne Tribe

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MAR 27 2014 Montana Water Court Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 (In-state only) Fax:(406)522-4131 IN THE WATER COURT OF THE STATE OF MONTANA YELLOWSTONE RIVER DIVISION TONGUE RIVER BELOW HANGING WOMAN CREEK (42C) # * * * * ********************** CLAIMANT: Bull Ranch CASE 42C-21 OBJECTORS: United States of America (Bureau of Indian Affairs) 42C 35373-00 NOTICE OF INTENT TO APPEAR: Northern Cheyenne Tribe 42C 37719-00 42C 35370-00 42C 35378-00 42C 37721-00 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 30 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 mailing 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 objection, the Water Court will conclude that you agree with the content of this Master's Report. MASTER'S REPORT The United States of America (Bureau of Indian Affairs) ["United States"] and the Apsaalooke (Crow) Tribe each objected to Bull Ranch claims 42C 35370-00, 42C 3537300, 42C 35378-00, 42C 37719-00, and 42C 37721-00. The Northern Cheyenne Tribe filed a notice of inten, to appear for each claim. On September 20, 2010 the Apsaalooke (Crow) Tribe filed an unconditional withdrawal of all its objections. On June 23, 2011 the parties filed a Stipulation addressing and resolving the objections and notices of intent to appear for claims 42C 35370-00 and 42C 35373-00. The hearing for all unresolved objections, notices of intent to appear, and issue remarks was held on July 19, 2011. On August 22 2011 the claimant filed the Affidavit of Gary E. Bull and Carolyn M. Bull concerning the capacity of the reservoir for claim 42C 35373-00 as well as Claimant Bull Ranch's Proposed Findings of Fact, Conclusions of Law, and Order. On August 22, 2013 me United States of America's Proposed Findings of Fact, Conclusions of Law, and Bnef in Support was filed. The Northern Cheyenne Tribe did not file any post hearing documents. Some of the Findings of Fact and Conclusions of Law are repetitive. The first draft of this Report included a single set but the resulting cross-reference back to Findings of Fact and Conclusions of Law twenty to thirty pages back in the Report made for a far too onerous read. Each claim is addressed in its own section. The sect1On for each claim includes all the Findings of Fact and Conclusions of Law needed for the analysis of and recommendations for that claim. BURDEN OF PROOF FOR IANTTARY 1. 1962 On July 14, 2011, prior to the July 19, 2013 hearing, the United States Trial Memorandum was filed stating that the two pre-1962 subirrigation claims, 42C 35378-00 and 42C 37721-00, do not have Declarations of Vested Ground Water Rights attached to the Statements of Claim and therefore, asserts that the claimant's (or its predecessor's) failure to file Declarations of Vested Ground Water Right results in shifting the burden of proof from the objector to disprove the claimed rights to the claimant to prove the claimed rights. The United States asserts that Bull Ranch bears the burden to prove the claimed rights as stated in section S9-2913(h), RCM (1961). The United States cited Montana Water Court Case 40K-38 in its Trial Memorandum concerning the 1961 Ground Water Code. Case 40K-38 concerned appropriations made between January 1, 1962 and June 30, 1973 and the relevant portions of the Code which directed mandatory filing. Case 40K-38 is not relevant to the ground water issues in this matter. This matter includes ground water appropriations made prior to January 1, 1962 and the relevant portions of the Code which provided an optional filing. The 1961 Ground Water Code The 1961 Ground Water Code [89-2911 et seq., RCM (1961)] did two things: 1) set up a mandatory filing system for all ground water appropriations made after January 1, 1962, and 2) recognized ground water rights appropriated prior to the new mandatory filing system as valid appropriations of ground water and set up an optional filing system for those rights. '"Ground water' means any fresh water under the surface of the land including the water under the bed of any stream, lake, reservoir or other body of surface water" [892911 (a), RCM]. This includes water extracted through wells whether pumped or naturally flowing, developed springs, and subirrigation (ground water used even though not extracted to the surface like wells or developed springs). Use right appropriations initiated and completed prior to January I, 1962 were recognized as valid appropriations of ground water [89-2912, RCM (1961)]. Provision was made for the owners of such pre-January 1, 1962 ground water rights to make those rights of record by filing a declaration. By complying with the statutory filing requirements specified for those pre-January 1, 1962 use right appropriations, the declarations for those rights "shall be taken and received in all courts of this state as prima facie evidence of the statements therein contained." "Failure to comply with this requirement shall in no wise work a forfeiture of such rights, or prevent any such claimant from establishing such rights in the courts, but he must maintain the burden of ghls" [89-2913(h), RCM (1961) (emphasis added)]. The statute only allowed two years for the declarations to be filed [January 1, 1962 to 3 December 31, 1963] but this was extended an additional two years to December 31, 1965. [89-2913 (h), RCM (1965)] The statute includes a very specific list of the required information to be included on the declaration. The form developed was entitled Declaration of Vested Ground Water Rights [form GW-4]. This form was for all ground water appropriations regardless of whether with a well or without a well. A Declaration of Vested Ground Water Right could be filed for a pre-January 1, 1962 subirrigation appropriation. In 1971 the legislature amended 89-2911, RCM by adding new subsection (j) which defines a declaration to state that the Declaration of Vested Ground Water Right form [GW-4] expired on January 1, 1966 and amended part of 89-2913(h), RCM, concerning filing a declaration as follows: Persons who had put ground water to a beneficial use, including subirrigation or other natural process, prior to January 1, 1962 had a four (4) year period after January 1, 1962 to file a "declaration of vested ground water rights" in the office of the county clerk of the county in which the claimed right was situated. The right to file a "declaration of vested ground water rights" expired on January 1, 1966- therefore, any person desiring to file on ground water put to beneficial use prior'to January 1, 1962, but not filed on by December 31, 1965 may file a "notice of completion." The appropriators right will commence on the date thgjiotice is filed, except as hereinafter provided. (Emphasis added). The Ground Water Code was in effect until June 30, 1973. So from January 1, 1962 until June 30, 1973, the owner of a ground water appropriation made prior to January 1, 1962 had three options: 1) file a Declaration of Vested Ground Water Right [form GW-4] in compliance with the statute by December 31, 1965 and the "declared" priority date would be preserved because the Declaration was "prima facie evidence of the statements therein contained" per section 89-2913(h), RCM; 2) file a notice of completion [form GW-2, the notice of completion form for new ground water appropriations made between January 1, 1962 and June 30, 1973] BUT the priority date would be changed from the date the ground water was first put to beneficial use to the date the notice of completion was filed per section 89-2913(h), RCM, or 4 3) file nothing and take your chances on proving the details including the priority date of "such rights in the courts, but he must maintain the burden of proving such unrecorded rights" per section 89-2913(h), RCM. As neither a Declaration of Vested Ground Water Right nor a Notice of Completion were offered in evidence for the claimed November 12, 1897 subirrigation rights (42C 3735800 and 42C 37721-00), it would appear the owners of these claimed rights from 1962 to 1973 chose the third option: prove them in court if ever such occasion should arise. The 1979 Water Use Act The Ground Water Code was in effect from January 1, 1962 until June 30, 1973 when it was replaced by the 1973 Water Use Act [89-865 et seq., RCM (1973)] which was the precursor of our current comprehensive adjudication effort. In 1979, the 1973 Water Use Act was replaced by the 1979 Water Use Act [85-2-101 et seq., MCA (1979)] which is still in effect today. Those who chose option 3 would now find themselves in court but the mechanics of the court adjudication were changed. Prior to the first Water Use Act in 1973, all water right disputes, large or small as well as efforts at comprehensive adjudication of all water rights on a particular source, followed traditional district court pleading and practice: the owner of the alleged water right had to plead and prove the validity and elements of the asserted water right in court. There were no special rules for asserted ground water appropriations except the benefit of the recorded Declarations of Vested Ground Water Right and Notices of Completions being treated as "prima facie evidence" of those rights. Absent the filings required or allowed by the 1961 Ground Water Code, the owners had to prove their ground water appropriations. The 1979 Water Use Act changed that protocol. Every existing water right across the state had to be pleaded on a Statement of Claim. There were optional exceptions for ground water rights if used for domestic or livestock purpose, but no exception for ground water used for irrigation purpose. By complying with the filing requirements of section 85-2-221, MCA, each Statement of Claim "constitutes prima facie proof of its content until the issuance of a final decree" per section 85-2-227, MCA. In simplest terms, the effect of this "prima facie proof shifted the traditional burden from the claimant to prove the right to the opposite - the burden is now on the objector to disprove the right as claimed. This shift in the initial burden of proof was explained as follows by former Chief Water Judge C. Bruce Loble in his Memorandum Opinion, Case 40G-2, filed March 11, 1997 (although lengthy, this excerpt provides the necessary background to determine the burden of proof issue raised in this Case and alleviates the need for the parties to secure a copy of this decision in order to read the analysis - NOTE: the reference to "declared water rights" concerns the "declarations" for all surface and ground water rights filed per the 1973 Water Use Act, not to Declarations for Vested Ground Water Rights filed per the 1961 Ground Water Code): Evidentiary problems were also present in Montana's early adjudication history. feMSfe 20 Mont. 260, 268, 50 P. 723 (1897). In 1924 Chief Justice cl^^i^mn^lm^, 69 Mont. 373, 375, 222 P. 451 (1924) that Whe trial court^o^ed with that condition which frequently appears in water suits where old rights are involved: All or nearly all of the settlers who did the original work are gone. Those who do appear are hampered with failing memories or are unable to dissociate fact from hearsay. Neighbors testify from impressions remaining after the lapse of years; much of their testimony is guesswork. Men who were boys when the things inquired about were being done appear, and their testimony is colored by the free fancies of boyhood which memory still retains. So the appellate as well as the trial court must do the best it can with what it has to work with. For purposes of this adjudication, the legislature could have required al water right claimants to prove every element of their water right claim. Historically, any pfry asserting a right had the burden of proving each of the matenafRation,.of a cause of action by satisfactory evidence. ^^^^^fj^^l\d Mont. 91, 100, 250 P. 11 (1926), ^ood^dv^ns 11 Mont. 46 U P-2d 1016 (1944) Hiiason and Indreiand v.Evans, 178 Mont. 212, 219, 583 P.2d 398 (1978), and section 93-1501-1, R.C.M. 1947 (repealed July 1,1973) In sustaining that burden, a water user was required to prove a date of first appropriation, the flow rate appropriated, privity of title with the original appropriated a system of distribution and beneficial use of the water A failure to ^e any of the essential elements of a water right would result in a decree of no nghIn 1978 the Montana Department ofNatural Resources and Conservation (DNRC) estimated that as many as 500,000 water right claims would be included within a general adjudication and that its experience in the Powder River adjudication effort was that 70% of declared water rights were totally undocumented. See DNRC April 14, 1978 Report to the Montana Legislature Interim Subcommittee on Water Rights at page 1 and the Subcommittee's November 1978 report at page 18. One of the reasons for the 1979 passage of Senate Bill 76 (SB 76) was legislative frustration and concern over the extremely slow pace of the initial efforts to adjudicate water rights under the Water Use Act of 1973. See Senate Joint Resolution No. 48, approved April 19, 1977, and Stone, Montana Water Law pp. 6-8 (1994). Requiring every claimant to satisfy the burden of production of evidence for every element of a claim, even when a claim was uncontested, would not have speeded up the adjudication. Recognizing the potential evidentiary problems present in adjudicating prior existing water rights and the need to speed up the process, the 1979 Legislature enacted, through SB 76, § 85-2-227, MCA, the prima facie proof statute. Until 1989, the statute provided: 85-2-227. Claim to constitute prima facie evidence. A claim ot an existing right filed in accordance with 85-2-221 constitutes prima facie proof of its content until the issuance of a final decree. * * * * The legislature is presumptively aware of the existing law, including the Montana Supreme Court's interpretation of statutes. Gaustad v. City of Columbus, 265 Mont 379 382 877 P.2d 470 (1994). If the 1979 legislature had used the term prima facie evidence within the body of § 85-2-227, it would have been a clear signal that the new statute was to be construed in the same manner as the old statute. This would have necessitated a hearing on beneficial use for each SB 76 statement of claim Requiring a hearing on beneficial use on every claim would be a time consuming process. The prima facie proof statute was part of an effort to "expedite and facilitate" the adjudication. The legislative use of prima facie "proof in the body of the statute rather than prima facie "evidence" must be construed as an effort to create a distinction between the two terms as they are used in water law. But what does this statute mean as a practical matter? * * * * This Court believes the legislature intended claims to have a significant measure of rectitude but did not intend water right claims to be beyond review or for water judges to be mere rubber stamps in their review of those claims. See Memorandum and Order, Water Court Case No. WC-92-3, February 8, 1995 (the On Motion ^Claims are prima facie proof of their content. A precisely worded definition of the meaning of "prima facie proof of its content" is not easy, but in the context ot this adjudication, we believe the legislature intended that a properly filed claim would establish a prima facie case. The Supreme Court in State ex rel. Fitzgerald v District Court, 217 Mont. 106, 118, 703 P.2d 148 (1985) defined "prima facie case to mean: the production by the plaintiff of such evidence which, although not compelling a verdict on the issue for the party whose contention it supports, is sufficient to satisfy the burden of proof to support a verdict in favor of the 7 party by whom it is introduced when the trier of fact finds the prima facie case not rebutted by other evidence. A prima facie case brings a claim before the trier of fact but does not require or guarantee a preordained result. A prima facie claim meets the minimum threshold of evidence necessary to establish the facts alleged and shifts the burden of production to an objector to overcome that threshold. The burden of persuasion remains ultimately with the claimant to prove up a water right claim. Section 26-1402 MCA Without evidence to the contrary, the prima facie claim may satisty a claimant's burden. The Court is not compelled to accept the prima facie statement of claim as true. The Water Court is permitted to use information provided in accordance with Rule 1.11(2), Water Right Claim Examination Rules, § 85-2-243, MCA, attachments to the claim, and any other data obtained by the water judge under § 85-2-231(2), MCA, to evaluate water right claims. In the absence ot contradictory evidence, the Court usually accepts a prima facie claim as true. (Pages 4-13, internal footnotes omitted.) The interplay of the statutes governing ground water appropriations made prior to January 1, 1962 and the statutes directing the pleading of those rights in this ongoing adjudication, results in shifting the burden of proof from the claimant to prove the right, to the objector to rebut or disprove the right. This is exactly the same burden of proof shift for surface water appropriations under the 1979 Water Use Act addressed by Judge Loble in his 1997 Memorandum. The burden of proof is the same for every Statement of Claim for an existing water right whether the source type is surface water or ground water. Judge Loble's 1997 Case 40G-2 Memorandum Opinion also details how much evidence is needed to meet the burden of proof: Therefore, once an objection is filed and hearing requested, objectors (whether other parties or claimants objecting to their own claims) have the initial burderrto produce evidence that overcomes one or more elements of the prima facie statement of claim Section 26-1-401, MCA. Burkhartsmeyer argues that a prima facie case need only be balanced by other evidence of equal weight or put in equihbnum by an objector and, once that is accomplished, the burden of production shifts to the other A prima facie case must be overcome, not placed in mere equilibrium. Contradictory evidence is balanced against the prima facie claim and any other evidence presented by the claimant and the weight and credibility of the evidence is measured by the trier of fact. To some extent, this concept comes full circle to the statutory definition of prima facie evidence i.e. "that which proves a particular fact until contradicted and overcome by other evidence." (Emphasis added.) The answer to the first issue for determination here - what degree or weight of evidence is needed to contradict or overcome the prima facie proof statute - is a preponderance of the evidence. In resolving this issue, the Court believes that the higher standard of proof of clear, unambiguous and convincing evidence referenced in an early Supreme Court decision to overcome a properly filed notice of appropriation is not applicable. First, the modern measure of persuasion in civil cases is the preponderance of the evidence standard. See, e.g., § 26-1-403(1), MCA, and Commission Comments to Rule 301, M.R.Evid., p. 213 (1996) Annotation, (citing differing standards of proof historically applied to the myriad of presumptions which existed prior to passage of Rule 301, M.R.Evid.) Clear legislative intent for the application of a higher standard is not present. Second, requiring clear, unambiguous and convincing evidence to overcome an element of a prima facie claim would discourage meritorious objections. The higher standard might raise the bar so high that the validity of an exaggerated or inaccurate historical claim might become almost unassailable. (Pages 13-14, internal footnote omitted.) This determination was confirmed by the Montana Supreme Court as Rule 19, W.R.Adj.R. which states: A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content pursuant to 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 the elements of the claim do not accurately reflect the beneficial use of the water right as it existed prior to July 1,1973. This is the burden of proof for every assertion that a claim is incorrect including for claimants objecting to their own claims. The entirety of this Rule is the standard Conclusion of Law which appears in Montana Water Court decisions which include making a change to a claim for an existing water right. As stated by Judge Loble in his Memorandum above, prima facie does not mean true or unassailable, it just means all the required elements and documentary support were provided and are subject to challenge by an objector. If those Statement of Claim elements are obviously incorrect and the attached documentary support is weak, then the claim will be easy to assail, ie, the burden of proof borne by the objector may be fairly easy to meet by presentation of a preponderance of evidence which contradicts and overcomes the prima facie claim. It is not the claimant's burden to prove that claim elements are correct or that the claimed right is valid. It is the objector's burden to prove that the claim elements are incorrect or that the claimed right is invalid. Application to Claims 42C 35378-00 and 42C 37721-00 In 1981 Bull Ranch complied with the 1979 Water Use Act by filing a Statement of Claim for each of these asserted 1897 ground water use right appropriations for irrigation purpose. By complying with the filing requirements of section 85-2-221, MCA, each of these claims "constitutes prima facie proof of its content until the issuance of a final decree" per section 85-2-227, MCA. Due to the nature of subirrigation, there may not be a known specific date or event when someone appropriated a water right from this natural occurrence by putting the water to beneficial use; the overt physical on-the-ground evidence is not as tangible as a ditch, pump station, or reservoir, and an aerial photograph may not show as sharp a contrast as that which evidences a cultivated field or the clear perimeter of a regularly flood irrigated field. For these reasons, subirrigation claims may be more difficult to contradict and overcome than claims for other types of irrigation. Regardless of whether evidence is easy to secure or difficult to secure, a preponderance of evidence contradicting and overcoming the elements as claimed is required. 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. This jurisdiction includes resolution of all issue remarks. Section 85-2-247, 85-2-248, and 852-250, MCA. Conclusion of Law 2) "All issue remarks to claims that are not resolved through the filing of an objection as provided in 85-2-233 must be resolved as provided in this section." Section 85-2-248(2), MCA. Conclusion of Law 3) A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content pursuant to 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 the elements of the claim do not accurately reflect the 10 beneficial use of the water right as it existed prior to July 1, 1973. This is the burden of proof for every assertion that a claim is incorrect including for claimants objecting to their own claims. Rule 19, W.R.Adj.R. Claim 42C 35370-00 Finding of Fact 1) The abstract of this claim appeared in the Preliminary Decree with the following issue remark: THE OWNERSHIP OF THIS RIGHT MAY BE QUESTIONABLE. PART OF THE PLACE OF USE APPEARS TO BE ON FOREST SERVICE LAND. Agreement Paragraph 1 of the June 23, 2011 Stipulation states: "Based upon Claimant's representation in both correspondence and the Parties' Joint Prehearing Order, that 'No portion of the irrigated properties [for Water Right Claim 42C 35373-00] is on forest service ground,' the United States unconditionally withdraws its objections." There are no changes to be made to the place of use legal description. The issue remark should be stricken as addressed and resolved. Conclusion of Law 4) The settlement documentation filed by the parties is sufficient to contradict and overcome the prima facie claim. Claim 42C 35373-00 Finding of Fact 2) The abstract of this claim appeared in the Preliminary Decree with the following issue remarks: THE PERIOD OF DIVERSION FROM THE SOURCE INTO STORAGE CANNOT BE IDENTIFIED. THE CLAIMED VOLUME APPEARS TO BE EXCESSIVE FOR THE CLAIMED PURPOSE. THE CLAIMED VOLUME EQUALS 16.8 TIMES THE CAPACITY OF THE RESERVOIR. The Preliminary Decree does not include a period of diversion. The period of diversion for this water spreading claim should be January 1 to December 31. The period of diversion issue remark should be stricken as addressed and resolved. The Preliminary Decree states that the capacity of the reservoir is 5.00 acre feet. 11 The capacity should be 15.00 acre feet. The reservoir capacity issue remark should be stricken as addressed and resolved. Conclusion of Law 5) The settlement documentation filed by the parties is sufficient to contradict and overcome the prima facie claim. Claim 42C 35378-00 Finding of Fact 3) The Preliminary Decree states that claim 42C 35378-00 is for a November 12, 1897 use right for natural subirrigation by an unnamed tributary of Lyon Creek to irrigate 15.00 acres in section 6, T6S, R46E. The following issue remark appeared on the abstract of this claim: IT APPEARS THIS WATER RIGHT MAY NOT HAVE BEEN PERFECTED. ACCORDING TO INFORMATION IN THE CLAIM FILE, THERE APPEARS TO BE NO APPROPRIATION OF WATER. ALL ELEMENTS OF THIS CLAIM MAY BE QUESTIONABLE. SEE CLAIM FILE FOR ADDITIONAL INFORMATION. Finding of Fact 4) The DNRC Examination Worksheet documents that claim examiner Jamie Ellis confirmed the claimed 15.00 acres as the maximum acres irrigated by checking "ok" (on Page 2 of 4), that the 1978 aerial photograph shows 15.75 acres of the claimed place of use as irrigated, and that the 1944 aerial photograph shows 13.28 acres of the claimed place of use as irrigated (on Page 3 of 4). Mr. Ellis changed the flow rate, volume, and period of use to the standards specified for subirrigation claims (on Page 2 of 4) and confirmed the claimed maximum acres and place of use as irrigated. On Page 4 of 4, his notes indicate he decided to add the "P655" remark concerning nonperfection, then changed his mind as evidenced by striking the remark. Mr. Ellis' January 26, 2006 letter to Bull Ranch identifying all Bull Ranch claims with issue remarks does not include claim 42C 35378-00. The Review Abstract Of Water Right Claim printed on March 27, 2007, reviewed by and endorsed by Mr. Ellis that same date, shows there are no issue remarks on the abstract of claim 42C 35378-00 when he completed his examination. A second claim examiner, Jim Ferch, later changed the source from Lyon Creek to "subirrigation, unnamed tributary of Lyon Creek" and added the issue remark concerning 12 nonperfection which appeared in the Preliminary Decree, apparently on or after June 27, 2007. Conclusion of Law 6) Judicial notice is taken of the Water Rights Claim Examination Manual, July 2005 Edition. Rule 202, M.R.Evid.R. Finding of Fact 5) The basis for changing the source name is a standard direction for the source name for all subirrigation claims found in Chapter VI.D.8.b of the Water Right Claim Examination Manual. In addition to the specific direction for changing the source name for a subirrigation claim in Chapter VI, Chapter VII of the Water Right Claim Examination Manual is exclusively devoted to irrigation claims. Subsection A concerning type of irrigation system, includes the standard code to be used for natural subirrigation. Subsection B concerning flow rate, includes the standard flow rate remark to be used for natural subirrigation. Subsection C concerning volume, includes using the standard direct flow volume remark on subirrigation claims. Subsection D concerning place of use gives special directions not to use the Water Resources Survey for examining subirrigation claims. Finding of Fact 6) In this instance, there is no apparent basis for adding the nonperfection issue remark. The Water Right Claim Examination Manual, Chapter VI.C.3.f. states that this issue remark should be added to "claims where it is apparent the right has never been perfected, document these findings thoroughly in the claim file. If a nonperfected claim is not withdrawn by the claimant, add an issue remark . . .". How ever, there is no documentation of such findings. The findings are the opposite: this is an irrigation claim and the place of use was confirmed as irrigated. It appears the nonperfection issue remark was added solely because the irrigation type and means of diversion is natural subirrigation. On July 12, 2007 Mr. Ferch sent a letter to Bull Ranch stating that this issue remark raising the issue of nonperfection is regularly added to natural subirrigation claims "for the water court's purposes ..." - apparently missing the significance of the fact that the Water Right Claim Examination Manual has multiple guidelines and directions for decreeing subirrigation claims and includes no direction to add the nonperfection issue remark to the abstract of a subirrigation claim. It appears the 13 addition of this issue remark was completely erroneous as unauthorized and as unsupported by the examination. Conclusion of Law 7) The issue remark should be stricken as not authorized by the Water Right Claim Examination Manual and as unsupported by any findings in the DNRC Claim Examination Worksheet. Finding of Fact 7) The Statement of Claim specifies that the claimed right is a use right with a November 12, 1897 priority date. Item 14 on the Statement of Claim form states: "Attach copies of the Decree, Record of Filing, or Proof of Use Right". The following was typed on the Statement of Claim form at this item: "Sub-irrigated land has been used at least as long as the development described in the attached filing. Custer County Book A, p. 414." The "attached filing" is a copy of the Water Right of Charles Bull describing an Otter Creek appropriation dated November 12, 1897 and filed with Custer County on November 17, 1897. It is clear from the notation added to item 14 that the claimant was not asserting that this claimed Lyon Creek subirrigation right was included on this notice of appropriation. The Water Right of Charles Bull was attached as evidence that Charles Bull was in the area and filing a notice of appropriation for a different water right for agricultural purposes in the vicinity, ie, Charles Bull, predecessor of Bull Ranch, was in the business of agriculture in the area in 1897. Finding of Fact 8) The United States and the Northern Cheyenne Tribe challenged the priority date by asserting that there was no intent to appropriate an irrigation right from the ground water tributary to Lyon Creek by Charles Bull in 1897. In its Proposed Finding of Fact 4, the United States argues that Bull Ranch did not "attach, introduce or reference" a Declaration of Vested Ground Water for this claimed subirrigation appropriation. The United States then argues in Proposed Conclusions of Law 5, 6, and 7 that Bull Ranch's predecessor's failure to file a Declaration of Vested Ground Water Appropriation as required by the 1961 Ground Water Act, shifts the burden of proof from the objector to disprove the claimed right to the claimant to prove the claimed right, and that the evidence presented by the United States "conclusively demonstrates that 'the elements of the claim do not accurately reflect the beneficial use of the water right as it 14 existed prior to July 1, 1973' and the burdens of persuasion and proof shift to the claimant." Conclusion of Law 8) The 1961 Ground Water Code [89-2911 etseq., RCM (1961)] recognized ground water rights appropriated prior to the new filing system as valid appropriations of ground water and set up an optional filing system for those rights. '"Ground water' means any fresh water under the surface of the land including the water under the bed of any stream, lake, reservoir or other body of surface water" [89-2911 (a), RCM (1961)]. This includes water extracted through wells whether pumped or naturally flowing, developed springs, and subirrigation (ground water used even though not extracted to the surface like wells or developed springs). Use right appropriations initiated and completed prior to January I, 1962 were recognized as valid appropriations of ground water [89-2912, RCM]. Provision was made for the owners of such pre-January 1, 1962 ground water rights to make those rights of record by filing a declaration. By complying with the statutory filing requirements specified for those pre-January 1, 1962 use right appropriations, the declarations for those rights "shall be taken and received in all courts of this state as prima facie evidence of the statements therein contained." "Failure to comply with this requirement shall in no wise work a forfeiture of such rights, or prevent any such claimant from establishing such rights in the courts, but he must maintain the burden of proving such unrecorded rights." [89-2913(h), RCM] (emphasis added). The statute only allowed two years for the declarations to be filed [January 1, 1962 to December 31, 1963] but this was extended an additional two years to December 31, 1965 [89-2913(h), RCM (1965)]. The statute includes a very specific list of the required information to be included on the declaration. The form developed was entitled Declaration of Vested Ground Water Rights [form GW- 4]. This form was for all ground water appropriations regardless of whether with a well or without a well. A Declaration of Vested Ground Water Right could be filed for a preJanuary 1, 1962 subirrigation appropriation. In 1971 the legislature amended 89-2911, RCM by adding new subsection (j) which defines a declaration to state that the Declaration of Vested Ground Water Right 15 form [GW-4] expired on January 1, 1966 and amended part of 89-2913(h), RCM, concerning filing a declaration as follows: Persons who had put ground water to a beneficial use, including subirrigation or other natural process, prior to January 1, 1962 had a four (4) year period after January 1, 1962 to file a "declaration of vested ground water rights" in the office of the county clerk of the county in which the claimed right was situated. The right to file a "declaration of vested ground water rights" expired on January 1, 1966; therefore, any person desiring to Hie on ground water put to beneficial use prior to January 1, 1962, but not filed on by December 31, 1965 may file a "notice of completion." The appropriators right will commence on the date the notice is filed, except as hereinafter provided. (Emphasis added). The Ground Water Code was in effect until June 30, 1973. So from January 1, 1962 until June 30, 1973, the owner of a ground water appropriation made prior to January 1, 1962 had three options: 1) file a Declaration of Vested Ground Water Right [form GW-4] in compliance with the statute by December 31, 1965 and the "declared" priority date would be preserved because the Declaration was "prima facie evidence of the statements therein contained" per section 89-2913 (h), RCM; 2) file a notice of completion [form GW-2, the notice of completion form for new ground water appropriations made between January 1, 1962 and June 30, 1973] BUT the priority date would be changed from the date the ground water was first put to beneficial use to the date the notice of completion was filed per section 89-2913(h), RCM, or 3) file nothing and take your chances on proving the details including the priority date of "such rights in the courts, but he must maintain the burden of proving such unrecorded rights" per section 892913(h),RCM. The Ground Water Code was in effect from January 1, 1962 until June 30, 1973 when it was replaced by the 1973 Water Use Act [89-865 et seq., RCM (1973)] which was the precursor of our current comprehensive adjudication effort. In 1979, the 1973 Water Use Act was replaced by the 1979 Water Use Act [85-2-101 et seq., MCA (1979)] 16 which is still in effect today. Those who chose option 3 would now find themselves in court but the mechanics of the court adjudication were changed. Prior to the first Water Use Act in 1973, all water right disputes, large or small as well as efforts at comprehensive adjudication of all water rights on a particular source, followed traditional district court pleading and practice: the owner of the alleged water right had to plead and prove the validity and elements of the asserted water right in court. There were no special rules for asserted ground water appropriations except the benefit of the recorded Declarations of Vested Ground Water Right and Notices of Completions being treated as "prima facie evidence" of those rights. Absent the filings required or allowed by the 1961 Ground Water Code, the owners had to prove their ground water appropriations. The 1979 Water Use Act changed that protocol. Every existing water right across the state had to be pleaded on a Statement of Claim. There were optional exceptions for ground water rights if used for domestic or livestock purpose, but no exception for ground water used for irrigation purpose. By complying with the filing requirements of section 85-2-221, MCA, each Statement of Claim "constitutes prima facie proof of its content until the issuance of a final decree" per section 85-2-227, MCA. In simplest terms, the effect of this "prima facie proof shifted the traditional burden from the claimant to prove the right to the opposite - the burden is now on the objector to disprove the right as claimed. See Memorandum Opinion, Case 40G-2, filed March 11, 1997. The interplay of the statutes governing ground water appropriations made prior to January 1, 1962 and the statutes directing the pleading of those rights in this ongoing adjudication, results in shifting the burden of proof from the claimant to prove the right, to the objector to rebut or disprove the right. This is exactly the same burden of proof shift for surface water appropriations under the 1979 Water Use Act addressed by Judge Loble in his 1997 Case 40G-2 Memorandum Opinion. The burden of proof is the same for every Statement of Claim for an existing water right whether the source type is surface water or ground water. Finding of Fact 9) Neither a Declaration of Vested Ground Water Right nor a Notice of 17 Completion were attached to the Statement of Claim or offered in evidence for the claimed November 12, 1897 appropriation of ground water tributary to Lyon Creek for subirrigating the claimed place of use. The claimed water right is not a filed right as allowed by filing a declaration in the 1961 Ground Water Code. Just as claimed, it is a pre-January 1, 1962 ground water use right appropriation categorically recognized as valid in section 89-2912, RCM of the 1961 Ground Water Code. Finding of Fact 10) Besides the assertion that a Declaration of Vested Ground Water Right was required under the Ground Water Code, there were no other assertions that Statement of Claim 42C 35378-00 was not filed in compliance with sections 85-2-221 and 85-2-224, MCA. A review of the Statement of Claim shows that it was timely filed on September 28, 1981 and that it meets all of the content and verification requirements. Conclusion of Law 9) Statement of Claim 42C 35378-00 constitutes prima facie proof of its content. Section 85-2-227(1), MCA. Its content is a November 12, 1897 use right appropriation of ground water tributary to Lyon Creek for subirrigation of 15.00 acres in the S2NE of section 6, T6S, R46E. Conclusion of Law 10) A valid appropriation of a use right prior to July 1, 1973 required 1) an intent to appropriate a water right, 2) an actual diversion, impoundment or withdrawal of water, and 3) beneficial use of the water diverted, impounded, or withdrawn. See Murray v. Tingley, 20 Mont. 260 (1897), Power v. Switzer, 21 Mont. 523 (1898), Bailey v. Tintinger, 45 Mont. 155 (1912), and Wheat v. Cameron, 64 Mont. 494 (1922). In 2002 the Montana Supreme Court held that a diversion, impoundment or withdrawal is not necessary for some types of beneficial uses. In re Adjudication of Existing Rights to the Use ofall Water, 2002 MT 216, *\ 32, 311 Mont. 327, If 32. Finding of Fact 11) United States witness Daniel Gallacher, a research historian, testified that the Charles Bull patent for land in section 6, T6S, R46E was dated July 7, 1901 following the October 1, 1900 hearing in which Charles Bull and his witnesses testified at the Land Office in support of his land claim and that Charles Bull described this land as "agricultural land" rather than "grazing land." Hearing Recording marker 3:06:02 to 3:7:40. 18 Finding of Fact 12) On cross-examination, Daniel Gallacher testified that Charles Bull moved to section 6, T6S, 46E in 1895. Hearing Recording marker 3:24:34 to 3:24:40. Mr. Gallacher testified on cross-examination that the patents he reviewed for this Case all stated that the patentees turned the sod so they each would have been the first irrigator but that wouldn't preclude stock grazing on the ground prior to the first irrigation and that none of them referenced the number of animals on the property at the time, as follows: Mr. Green: and, uh, just because somebody applied for a patent in a particular year, say in the 18 or 1920s, that doesn't mean that land hadn't been used by somebody else, correct? Mr. Gallacher: If you're talking specifically about the patents that I looked at... Mr. Green: Yes. Mr. Gallacher: uh, the accounts that they gave of what they did on the land was that they turned the sod over. So that would suggest they were the first people on the land. Mr. Green: Would, why, are you suggesting there'd been no cattle grazed on the ground prior to that? Mr. Gallacher: They were the first people to turn the sod over. I'm not saying that no one ran a cow past there. Mr. Green: Okay, um, so, we're talking about here beneficial use and one of the things that we do for beneficial use of irrigated ground is to pasture cattle. So, you have no independent testimony as to when cattle were pastured on these particular pieces of property? Mr Gallacher: I don't but I, I do need to . . , I've, I've looked at a lot of land patent files over the years, uh, in a lot of different places, New Mexico, Arizona, Montana, Colorado, and a lot of them say, in addition to what they did to physically improve their patent, they give the number of animals they had on their land . . . chickens, goats, cattle. Neither Bull nor Hagen ... I'm not saying they didn't have them, but there's no mention of them in their patent file, in the testimony of fact witness or the testimony of claimant if they had any animals and I, I can't believe that that was totally true but they didn't talk about 5000 head of Herefords or Texas Longhorns. Hearing Recording marker 3:27:10 to 3:28:56. Finding of Fact 13) As the claimed method of irrigation is subirrigation, when sod was first turned may not necessarily be relevant to determining the priority date if the ground 19 irrigated was in native grass which could be grazed or hayed then grazed, rather than cultivated and seeded ground. Finding of Fact 14) Daniel Gallacher testified that the Water Resources Survey for Powder River County includes a map for T6S, R46E and that the field notes for that section state that then owners/operators Anne Thex and Harold N. Bull stated that they used the 1897 Charles Bull Otter Creek right for stock water. Hearing Recording marker 3:13:03 to 3:14:36 and 3:19:24 to 3:20:56. This appears to refer to the water right described in the copy of the Water Right of Charles Bull attached to the Statement of Claim. Conclusion of Law 11) Chapter VII.D.2.C of the Water Rights Claim Examination Manual concerns examination of the place of use for subirrigation claims and includes the following caution on page 368: The WRS usually does not indicate areas of subirrigation or natural overflow. A remark will not be added to denote the WRS data unless the area is specifically documented in the survey and disagrees significantly with the claimed acreage. The plain reading of this direction is do not use the Water Resources Survey to examine subirrigated acreage unless the Water Resources Survey states that the area being examined is specifically documented as subirrigated acreage - there must be some overt statement that the particular map includes acreage confirmed as subirrigated. The routine for the Water Resources Survey was exclusion of subirrigated ground, not its inclusion. If subirrigated ground was included for some particular owner for some particular reason, there must be specific documentation of its inclusion in the Water Resources Survey. Finding of Fact 15) United States exhibit US-1 is a composite of copies of the two volumes of the Water Resources Survey for Powder River County (June 1961) and copies of some of the various field notes for that Survey. The field notes are not part of any of the published Water Resources Surveys. They are a separate archive maintained by the DNRC as contemporary successor to the what was then called the State Engineer. Finding of Fact 16) The map for section 6, T6S, R46E in the published Water Resources Survey shows Lyon Creek but none of the claimed subirrigated area is mapped 20 as irrigated. The claimed subirrigated area is not specifically documented in the published Water Resources Survey. The 1960 field notes were then reviewed to determine if any subirrigation was specifically documented in those notes. Again, subirrigation is not mentioned. There is no specific documentation in either the published Water Resources Survey or the field notes for that Survey, that any subirrigated acreage was discussed much less discounted and therefore, excluded from the mapping. Absent affirmation that the subirrigated acreage was "specifically documented", the absence of the subirrigated ground on the published Water Resources Survey map is of no significance. Conclusion of Law 12) As this claimed ground water tributary to Lyon Creek water right is not based on the Charles Bull 1897 Otter Creek filed notice, the fact that the field notes state that the 1897 Otter Creek right was used for stock water in 1960 rather than irrigation is not relevant to whether this claimed ground water tributary to Lyon Creek right was being used for subirrigation in 1960. Finding of Fact 17) Gary Bull, President of Bull Ranch, testified that he is 74 years old and has lived his entire life on what is now called Bull Ranch, in Otter Creek country. Hearing Recording marker 3:42:22 to 3:42:38. Mr. Bull testified that the Charles Bull who filed the 1897 Water Right of Charles Bull was his grandfather, that he came to the Otter Creek area in 1895, and that he believes this grandfather "was more of a farmer" than a rancher. Hearing Recording marker 3:44:07 to 3:45:37. It is noted that the Charles Bull appropriation described in the Water Right of Charles Bull is for an Otter Creek right used to irrigate the N2SE, the S2NE, the SENW and lot 3, all in section 6, T6S, R46E. The marked topographic map attached to Statement of Claim 42C 35378-00 shows the claimed 15.00 acres subirrigated by Lyon Creek fall within the S2NE of section 6, T6S, 46E. The S2NE is part of the area identified on the Water Right of Charles Bull. For the claimed Lyon Creek subirrigation appropriation, Charles Bull clearly was in precisely the same area in 1897 as detailed on the Water Right of Charles Bull (S2NE section 6). Finding of Fact 18) Daniel Gallacher testified as follows on cross-examination: 21 Mr. Green: In fact, in the 1870s there were cattle drives from Texas up to this area for grazing, for the purpose of grazing cattle, isn't that correct? Mr. Gallacher: Late 1870s Nelson Story led one of the first herds up. Hearing Recording marker 3:25:27 to 3:25:44. Mr. Gallacher testified that his recollection was that Fort Howe was built in the 1880s. Hearing Recording marker 3:26:21 to 3:26:39. Gary Bull testified on direct that his other grandfather, Charles Thex, first came to "Otter Creek Country" as a trailherd from Texas in 1877, returned to Texas for a while then returned, that he was always a cowboy and running cows. Hearing Recording marker 3:44:06 to 3:45:30. Mr. Bull testified: Mr. Green: And, uh, you heard me ask Mr. Gallacher a little bit about the, the Howe Fort, um, where is the Howe Fort compared to the property we've been talking about here? Mr. Bull: It's about five miles up the road, south. Mr. Green: And what is the Howe Fort? Mr. Bull: Well, it's a rock structure built up on a clay knob. They was scared of, I can't remember the year, but they got spooked by the Indians, and they gathered up all the ranchers and built this Fort on top of the hill. Mr. Green: And, so, back at that time which, uh, Mr. Gallacher says was in the 1880s, uh, the ranchers around there got together and built that fort. Mr. Bull: Yeah. Mr. Green: Now were, were there fences back then? Mr. Bull: Well, I'm not sure. Mr. Green: Ok, but, uh, was all that ground, that, the stuff that you're on now, on O'Dell Creek and that, and Otter Creek, was that all used for grazing back in the 1880s? Mr. Bull: Oh I'm sure it was. Mr. Barry: I, I'm, I'm, sorry. I, could you repeat his answer? I didn't hear it. Mr. Green: "I'm sure it was." 22 Mr. Barry: "I'm sure it was", ok. Mr. Green: And that included all that subirrigated ground that we've been talking about today? Mr. Bull: Probably. I don't know when they started putting it into hay, planting alfalfa. Hearing Recording marker 3:46:34 to 3:47:55. (Emphasis added) This provides general historical confirmation that large numbers of cattle were grazed in the area beginning some twenty years and some ten years before the claimed 1897 priority date, and some twenty years before the 1901 patent to Charles Bull for the ground claimed as the subirrigation place of use. Conclusion of Law 13) The burden borne by the United States and the Northern Cheyenne Tribe as to the priority date is to submit a preponderance of evidence to contradict and overcome the claim that Charles Bull appropriated a water right for subirrigation from the ground water tributary to Lyon Creek in 1897. No evidence was presented by the Northern Cheyenne Tribe. No evidence was presented by the United States challenging the prima facie claim that the claimed place of use was subirrigated by ground water tributary of Lyon Creek in 1897. The only evidence presented by the United States is that the patent for section 6 was issued in 1901 to Charles Bull, the patent states that sod was turned in section 6, and that Gary Bull believes his grandfather Charles Bull was more of a farmer than a rancher. There was no evidence presented that the claimed 15.00 acre place of use ever had its sod turned such that the sod turning event might be pivotal to determining first beneficial use and an intent to appropriate. There is no indication that turning sod is even relevant to appropriating ground water for subirrigation. There was no evidence presented that Charles Bull did not or could not take advantage of the subirrigation by haying or grazing the area in 1897. There was no evidence presented that the first utilization of the benefit of that subirrigation did not or could not occur until after patent was issued in 1901. Conclusion of Law 14) The evidence presented by the United States and the Northern Cheyenne Tribe is far less than the preponderance needed to contradict and overcome the 23 priority date and did not trigger a shift in the burden of proof to Bull Ranch to rebut the United States evidence and argument. No evidence was presented suggesting much less contradicting and overcoming the claim that Charles Bull, the original appropriator per the Statement of Claim, did not have the requisite intent to appropriate a water right for subirrigation from the ground water tributary to Lyon Creek in 1897. There is no change to be made to the priority date for this claimed right. Finding of Fact 19) The Preliminary Decree states that the maximum acres irrigated is 15.00 and the place of use is: ACRES 15.00 QTRSEC SEC S2NE 6 TWP 6S RGE COUNTY 46E POWDER RIVER 15.00 Finding of Fact 20) Based on his training and work experience, United States witness Bill Bishop was qualified as an expert in hydrology, aerial photograph interpretation, and statements of claim and objections in this ongoing adjudication. Finding of Fact 21) United States witness Bill Bishop testified that he confirmed 15.00 acres in the S2NE section 6, T6S, R46E subirrigated by ground water tributary to Lyon Creek as claimed. Hearing Recording marker 12:27:35 to 12:27:54. Conclusion of Law 15) There are no changes to be made to the maximum acres irrigated and place of use for this claimed right. Claim 42C 37719-00 Finding of Fact 22) There were no assertions by the United States or by the Northern Cheyenne Tribe that Statement of Claim 42C 37719-00 was not filed in compliance with sections 85-2-221 and 85-2-224, MCA. A review of the Statement of Claim shows that it was timely filed on September 28, 1981 and that it meets all of the content and verification requirements. Conclusion of Law 16) Statement of Claim 42C 37719-00 constitutes prima facie proof of its content. Section 85-2-227(1), MCA. Its content is a November 12, 1897 use right appropriation of natural overflow from an unnamed tributary of O'Dell Creek for irrigation of 7.00 acres in the E2SENE of section 34, T5S, R44E and W2SWNW section 24 35, T5S, R44E. The place of use for this claim falls within Rosebud County rather than Powder River County. Finding of Fact 23) The United States and the Northern Cheyenne Tribe did not raise an issue as to the means of diversion and irrigation type in the Prehearing Order. In its Proposed Conclusions of Law 11, 12, and 13, the United States argues that the means of diversion is not natural overflow, that "[t]o be natural overflow, there must be no manmade diversion involved. Manual at 38, W.R.C.E.R. 2(a)(43). The uncontroverted testimony is that any flooding that might occur at the POU is no longer natural because it is controlled by the culvert which passes water under the road and discharges into the swale", that the culvert through which the creek passes under the highway is the actual diversion of the water used, and therefore, there is a man made diversion rather than natural overflow. Conclusion of Law 17) Judicial notice is taken of the Water Rights Claim Examination Rules (Amended 2006). Rule 202, M.R.Evid.R. Conclusion of Law 18) '"Natural Overflow' means the water that results in the flooding of land adjoining a stream during high flow with no man-made diversion involved." Rule 2(a)(43), W.R.C.E.R. (emphasis added). Finding of Fact 24) The following testimony is cited by the United States as evidence that the means of diversion and irrigation type are not natural overflow: Mr. Barry: Okay. I just have a couple of more cleanup questions and then, then we can move on to the next claim, but um, I don't know if we got this, if you addressed this issue but is there any outlet for water on the, that the west side of the road? Mr. Bishop: Yes. Mr. Barry: And, and what is it? Mr. Bishop: It's a 24 inch, uhh, corrugated steel, uhh, culvert Mr. Barry: Okay. Is . . and is there any other outlet for the water at the base of the, uhh, road grade there? Mr. Bishop: No. 25 Mr. Barry: Okay, and um, have you looked at the aerial photos . . . uhh, well let me ask you, have you made a, a study of, of how long that road has been depicted as being there? Mr. Bishop: That road, looking at the oldest aerial photograph which I believe is 1944, uhh, has been there since 1944. Mr. Barry: Okay. Hearing Recording at marker 11:31:25 to 11:32:25. Finding of Fact 25) As is clearly shown on all the relevant aerial photographs and topographic maps in evidence, the source - the unnamed tributary of O'Dell Creek - flows from east to west and its natural course is bisected by the roadway apparently built some time before 1944. Of particular note is the topographic map copy marked by the claimant and attached to the Statement of Claim, and the two copies of the same map (one without the claimant's markings and the other an enlarged version) prepared by the DNRC and attached to the DNRC Examination worksheets for the claim which have the natural stream course clearly identified by the United States Geological Survey. Absent a culvert under the road, the natural flow of the creek would be impeded by the roadway, an impediment which may well cause an impoundment, a man made diversion of water. However, there is no such impoundment. The creek continues its course from the east side of the road through the culvert and out the west side of the road. There is no indication in the record that this culvert causes a diversion of water out of the creek. It clearly is simply protecting the flow of the creek on its natural course as well as probably protecting the stability of the roadbed which could be compromised if the creek were blocked by the roadway and impounded against the roadbed on its east side. The natural overflow claimed occurs west of the road, out of the natural stream course, not out of a culvert carrying water diverted out of the creek. Conclusion of Law 19) The burden borne by the United States as to the means of diversion and irrigation type is to submit a preponderance of evidence to contradict and overcome the claim that the means of diversion and irrigation type are natural overflow. The only evidence presented by the United States is that there is a culvert under the road through which the creek passes. The United States presented no evidence that this 26 culvert diverts water out of the creek to the place of use. The United States presented no evidence that the point of diversion is anything other than that claimed west of the road, and therefore, that the means of diversion is anything other than the natural overflow which occurs at the point of diversion location west of the road. There was no evidence presented that the type of irrigation is anything other than natural overflow. Conclusion of Law 20) The evidence presented by the United States is far less than the preponderance needed to contradict and overcome natural overflow as the means of diversion and irrigation type. There is no change to be made to the means of diversion and irrigation type. Finding of Fact 26) The Preliminary Decree states that this claim is for a November 12, 1897 use right for natural overflow out of an unnamed tributary of O'Dell Creek to irrigate 7.00 acres in sections 34 and 35, T5S, R44E. The following issue remark appeared on the abstract of this claim: IT APPEARS THIS WATER RIGHT MAY NOT HAVE BEEN PERFECTED. ACCORDING TO INFORMATION IN THE CLAIM FILE, THERE APPEARS TO BE NO APPROPRIATION OF WATER. ALL ELEMENTS OF THIS CLAIM MAY BE QUESTIONABLE. SEE CLAIM FILE FOR ADDITIONAL INFORMATION. Finding of Fact 27) The United States and the Northern Cheyenne Tribe challenged whether this claim right was perfected in the Prehearing Order. In its Proposed Findings of Fact and Conclusions of Law, the United States did not specifically address this issue but did assert that the United States confirmed the actual use of the claimed irrigation right although for fewer acres than claimed. Finding of Fact 28) The DNRC Examination Worksheet documents that claim examiner Jamie Ellis confirmed the claimed 7.00 acres as the maximum acres irrigated by checking "ok" (on Page 2 of 4) and found more acres irrigated than claimed stating that the 1978 aerial photograph shows 9.1 acres of the claimed place of use as irrigated and that the 1944 aerial photograph shows 9.6 acres of the claimed place of use as irrigated (on Page 3 of 4). Mr. Ellis changed the irrigation type, flow rate, volume, means of diversion, and period of use to the standards specified for natural overflow claims (on Pages 1 and 2 of 27 4). His notes (on Page 3 of 4) state he added the "P644" remark citing as his reasons: "Right Not Perfected, NO Diversion, Everything in question." Mr. Ellis's January 26, 2006 letter to Bull Ranch identifying all Bull Ranch claims with issue remarks includes claim 42C 37719-00 stating: The problem with these claims is that it appears that these rights may have never been perfected. According to information in the claim file there appears to be no appropriation of water, it simply flows overland with no means of diversion. All elements of the claims may be questionable. Finding of Fact 29) Chapter VII of the Water Right Claim Examination Manual is exclusively devoted to irrigation claims. Subsection A concerning type of irrigation system, includes the standard code to be used for natural overflow. Subsection B concerning flow rate, includes the standard flow rate remark to be used for natural overflow claims. Subsection C concerning volume, includes using the standard direct flow volume remark on natural overflow claims. Subsection D concerning place of use gives special directions not to use the Water Resources Survey for examining natural overflow claims. Subsection G concerning means of diversion includes the standard means of diversion for natural overflow claims. Subsection K concerning period of use includes the standard dates to be used for natural overflow claims. Finding of Fact 30) A review of the claim file reveals no problems with the claim. The DNRC examination confirms the beneficial use of the water as claimed and described. Although the irrigation was confirmed, the issue remark concerning nonperfection was apparently added because the irrigation type is natural overflow. Conclusion of Law 21) Rule 6(e)(5)(iii), W.R.C.E.R. states: In the summary report to the water court, the department shall provide on each abstract the following data and facts concerning the purpose of a right: * * * * (5) remarks concerning unresolved issues or questions about the claimed purpose such as the following situations: * * * * (iii) the type of irrigation is natural overflow. Finding of Fact 31) Instead of an issue remark stating that there are questions about the claimed purpose because the irrigation type is natural overflow as directed by Rule 28 6(e)(5)(iii), W.R.C.E.R., the Water Right Claim Examination Manual (Chapter VI.C.3.c) directs addition of issue remark "P644" stating it appears the claimed water right was never perfected, that there is no appropriation, and that all elements are questionable. Conclusion of Law 22) Judicial notice is taken of the Master's Report for claim 40O 113812-00, filed October 10, 2008 and the Order Adopting Master's Report entered November 28, 2008. Rule 202, M.R.Evid.R. This is the established Montana Water Court precedent for analyzing whether a claimed water right with natural overflow as the irrigation type and as the means of diversion is a valid appropriation. Conclusion of Law 23) Claim 40O 113812-00 appeared in the Preliminary Decree for Basin 40O with natural overflow as the irrigation type and means of diversion, with the various other elements changed to reference natural overflow as directed in the Water Right Claim Examination Manual, and with the following issue remark apparently added because it was a natural overflow claim: IT APPEARS THIS WATER RIGHT MAY NOT HAVE BEEN PERFECTED. THERE APPEARS TO BE NO APPROPRIATION OF WATER. ALL ELEMENTS OF THIS CLAIM ARE QUESTIONABLE. Conclusion of Law 4 of the Master's Report for this claim states: A valid appropriation exists when there is a bona fide intent to use water for a beneficial purpose. Wheat v. Cameron (1922), 64 Mont. 495, 508, 210 P. 761, 765. Historically, an actual diversion of water was sufficient proof of intent, but was not the only way to determine intent, and was not an essential requirement in and of itself. In re Adjudication ofExisting Rights to the Use of all Water, 2002 MT 216,1(23,311 Mont. 327, If 23, 55 P.3d 396, ]f 23. Indeed, valid water right claims have been found to exist where no diversion is needed to put the water to beneficial use. In re Adjudication ofExisting Rights to the Use of all Water, \ 24. Intent can be proven by other facts and surrounding circumstances, including actual and contemplated use, and the purpose thereof. Toohey v. Campbell (1900), 24 Mont. 13, 18, 60 P. 396, 397, Wheat v. Cameron, (1922), 64 Mont. 494, 501, 210 P. 761, 763. See In re Adjudication ofExisting Rights to the Use of all Water, f 22. After then finding that the DNRC examination confirmed the beneficial use as claimed and finding that there was no evidence to contradict and overcome the prima facie proof that the claimed right was perfected and was a valid appropriation, the issue remark asserting nonperfection because the irrigation type and means of diversion were natural 29 overflow was stricken. Conclusion of Law 24) The United States and the Northern Cheyenne Tribe presented no evidence that the claimed right was not perfected as suggested in the DNRC issue remark and raised in the United States and Northern Cheyenne Tribe Issues of Law identified in the Prehearing Order. Conclusion of Law 25) Under Section 85-2-247(2), MCA, "the information resulting in the issue remark and the issue remark must be weighed against the claimed water right." Under Section 85-2-248(3), MCA, information in the claim file or other information obtained by the Court can be reviewed to determine if it provides a sufficient basis to resolve the issue raised by a remark. Conclusion of Law 26) The examination of the claim confirms the claimed beneficial use. In the absence of any evidence disproving the prima facie claim, the information in the claim file for 42C 37719-00 is sufficient to address and resolve the issue remark. The issue remark questioning perfection of the claimed right should be stricken as addressed and resolved. Finding of Fact 32) The Statement of Claim specifies that the claimed right is a use right with a November 12, 1897 priority date. Item 14 on the Statement of Claim form states: "Attach copies of the Decree, Record of Filing, or Proof of Use Right". The following was typed on the Statement of Claim form at this item: "Naturally flooded land has been used at least as long as the irrigation development described in the attached filing. Custer County Book A, p. 414." The "attached filing" is a copy of the Water Right of Charles Bull describing an Otter Creek appropriation dated November 12, 1897 and filed with Custer County on November 17, 1897. It is clear from the notation added to item 14 that the claimant was not asserting that this claimed unnamed tributary of O'Dell Creek natural overflow right was included on this notice of appropriation. The Water Right of Charles Bull was attached as evidence that Charles Bull was in the area and filing a notice of appropriation for a different water right for agricultural purposes in the vicinity, ie, Charles Bull, predecessor of Bull Ranch, was in the business of agriculture in the area in 1897. 30 Finding of Fact 33) The United States and the Northern Cheyenne Tribe challenged the priority date by asserting that there was no intent to appropriate an irrigation right from this unnamed tributary to O'Dell Creek by Charles Bull in 1897. The United States Proposed Finding of Fact 6, states: "[t]he United States objects to this priority date." The United States then argues in Proposed Conclusions of Law 15, 16, and 17 that the Water Right of Charles Bull does not include this unnamed tributary of O'Dell Creek right, that the sod wasn't turned until 1919, that the "[claimant did not seriously contend that his grandfather Charles Bull ran cattle on the POU . . . [mjoreover, Claimant has failed to explain when the stock right became an irrigation right", and that Gary Bull's testimony that his grandfather Charles Bull was more of a farmer than a rancher it is "too far a leap to assume that Charles Bull grazed cattle with the intent to appropriate on O'Dell Creek." Conclusion of Law 27) A valid appropriation of a use right prior to July 1, 1973 required 1) an intent to appropriate a water right, 2) an actual diversion, impoundment or withdrawal of water, and 3) beneficial use of the water diverted, impounded, or withdrawn. See Murray v. Tingley, 20 Mont. 260 (1897), Power v. Switzer, 21 Mont. 523 (1898), Bailey v. Tintinger, 45 Mont. 155 (1912), and Wheat v. Cameron, 64 Mont. 494 (1922). In 2002 the Montana Supreme Court held that a diversion, impoundment or withdrawal is not necessary for some types of beneficial uses. In re Adjudication of Existing Rights to the Use ofall Water, 2002 MT 216, ^ 32, 311 Mont. 327, If 32. Finding of Fact 34) United States witness Daniel Gallacher, a research historian, testified that the patent for sections 34 and 35, T5S, R44E was issued to Ragnvald Hagen on October 11, 1919. Hearing Recording marker 3:08:48 to 3:09:23. Finding of Fact 35) Daniel Gallacher testified on cross-examination that the patents he reviewed for this Case all stated that the patentees turned the sod so they each would have been the first irrigator but that wouldn't preclude stock grazing on the ground prior to the first irrigation and that none of them referenced the number of animals on the property at the time, as follows: Mr. Green: and, uh, just because somebody applied for a patent in a particular year, say in the 18 or 1920s, that doesn't mean that land hadn't been used by somebody else, correct? 31 Mr. Gallacher: If you're talking specifically about the patents that I looked at... Mr. Green: Yes. Mr. Gallacher: uh, the accounts that they gave of what they did on the land was that they turned the sod over. So that would suggest they were the first people on the land. Mr. Green: Would, why, are you suggesting there'd been no cattle grazed on the ground prior to that? Mr. Gallacher: They were the first people to turn the sod over. I'm not saying that no one ran a cow past there. Mr. Green: Okay, um, so, we're talking about here beneficial use and one of the things that we do for beneficial use of irrigated ground is to pasture cattle. So, you have no independent testimony as to when cattle were pastured on these particular pieces of property? Mr. Gallacher: I don't but I, I do need to . . , I've, I've looked at a lot of land patent files over the years, uh, in a lot of different places, New Mexico, Arizona, Montana, Colorado, and a lot of them say, in addition to what they did to physically improve their patent is the number of animals they had on their land . . . chickens, goats, cattle. Neither Bull nor Hagen ... I'm not saying they didn't have them, but there's no mention of them in their patent file, in the testimony of fact witness or the testimony of claimant if they had any animals and I, I can't believe that that was totally true but they didn't talk about 5000 head of Herefords or Texas Longhorns. Hearing Recording marker 3:27:10 to 3:28:56. Finding of Fact 36) As the claimed method of irrigation is natural overflow, when sod was first turned may not necessarily be relevant to determining the priority date if the ground irrigated was in native grass which could be grazed or hayed then grazed, rather than cultivated and seeded ground. Finding of Fact 37) United States exhibit US-1 is a composite of copies of the two volumes of the Water Resources Survey for Powder River County (June 1961) and copies of some of the various field notes for that Survey. This exhibit does not include the Water Resources Survey for Rosebud County. Finding of Fact 38) Gary Bull, President of Bull Ranch testified that this Charles Bull was his grandfather and that he came to the Otter Creek area in 1895. Hearing Recording 32 marker 3:44:07 to 3:44:20. It is noted that the appropriation described in the Water Right Charles Bull is for an 1897 Otter Creek right used to irrigate the N2SE, the S2NE, the SENW and lot 3, all in section 6, T6S, R46E. Finding of Fact 39) Using the marked topographic map attached to Statement of Claim 42C 37719-00, the ownership polygons depicted on United States exhibits US 3(e)(i) and 3(e)(7), and the legal descriptions for the property described in the Water Right of Charles Bull, sections 34 and 35, T5S, R44E are the adjoining sections north of section 6, T6S, R46E. The northwest corner of the section 6 property described on the Water Right of Charles Bull is just over three miles from the claimed place of use in sections 34 and 35, T5S, R44E. Charles Bull clearly was in the close vicinity of the unnamed tributary to O'Dell Creek in 1897. Finding of Fact 40) Daniel Gallacher testified as follows on cross-examination: Mr. Green: In fact, in the 1870s there were cattle drives from Texas up to this area for grazing, for the purpose of grazing cattle, isn't that correct? Mr. Gallacher: Late 1870s Nelson Story led one of the first herds up. Hearing Recording marker 3:25:27 to 3:25:44. Mr. Gallacher testified that his recollection was that Fort Howe was built in the 1880s. Hearing Recording marker 3:26:21 to 3:26:39. Gary Bull testified that his other grandfather, Charles Thex, first came to "Otter Creek Country" as a trailherd from Texas in 1877, returned to Texas for a while then returned this area, that he was always a cowboy and running cows. Hearing Recording marker 3:44:06 to 3:45:30. Mr. Bull testified as follows: Mr. Green: And, uh, you heard me ask Mr. Gallacher a little bit about the, the Howe Fort, um, where is the Howe Fort compared to the property we've been talking about here? Mr. Bull: It's about five miles up the road, south. Mr. Green: And what is the Howe Fort? Mr. Bull: Well, it's a rock structure built up on a clay knob. They was scared of, I can't remember the year, but they got spooked by the Indians, and they gathered up. all the ranchers and built this Fort on top of the hill. 33 Mr. Green: And, so, back at that time which, uh, Mr. Gallacher says was in the 1880s, uh, the ranchers around there got together and built that fort? Mr. Bull: Yeah. Mr. Green: Now were, were there fences back then? Mr. Bull: Well, I'm not sure. Mr. Green: Ok, but, uh, was all that ground, that, the stuff that you're on now, on O'Dell Creek and that, and Otter Creek, was that all used for grazing back in the 1880s? Mr. Bull: Oh I'm sure it was. Mr. Barry: I, I'm, I'm, sorry. I, could you repeat his answer? I didn't hear it. Mr. Green: "I'm sure it was." Mr. Barry: "I'm sure it was", ok. Hearing Recording marker 3:46:34 to 3:47:43. (Emphasis added) This provides general historical confirmation that large numbers of cattle were grazed in the area beginning some twenty years and some ten before the claimed 1897 priority date, some forty years before the 1919 patent to Ragnvald Hagen for the particular ground claimed as the place of use. Conclusion of Law 28) The burden borne by the United States and the Northern Cheyenne Tribe as to the priority date is to submit a preponderance of evidence to contradict and overcome the claim that Charles Bull appropriated a water right for natural overflow from this unnamed tributary of O'Dell Creek in 1897. No evidence was presented by the Northern Cheyenne Tribe. No evidence was presented by the United States challenging the prima facie claim that there was natural overflow out of the unnamed tributary of O'Dell Creek at the claimed place of use which irrigated the area in 1897. There was no evidence presented that the only beneficial use of the claimed water right prior to 1919 patent was natural overflow irrigation of grass which was grazed in passing by generic large herds of cattle owned by someone outside the Bull Ranch chain of title. There was no evidence presented that Charles Bull did not or could not take 34 advantage of that natural overflow irrigation by haying or grazing the area in 1897. There was no evidence presented that the first utilization of the benefit of that natural overflow did not occur until after patent issued in 1919. There was no evidence presented that the claimed 7.00 acre place of use ever had its sod turned such that the sod turning event might be pivotal to determining first beneficial use and an intent to appropriate. There is no indication that turning sod is even relevant to appropriating natural overflow for irrigation. The only evidence presented by the United States is that the patent for sections 34 and 35 was issued in 1919 to Ragnvald Hagen and the patent states that sod was turned in sections 34 and 35. Conclusion of Law 29) The evidence presented by the United States is far less than the preponderance needed to contradict and overcome the priority date and did not trigger a shift in the burden of proof to Bull Ranch to rebut the United States evidence and argument. No evidence was presented suggesting much less proving that Charles Bull, the original appropriator per the Statement of Claim, did not have the requisite intent to appropriate a water right for the natural overflow from this unnamed tributary of O'Dell Creek in 1897. There is no change to be made to the priority date for this claimed right. Finding of Fact 41) The Preliminary Decree states that maximum acres irrigated is 7.00 and that the place of use is: ACRES QTRSEC SEC RGE COUNTY 4.00 W2SWNW 35 TWP 5S 44E ROSEBUD 3.00 E2SENE 34 5S 44E ROSEBUD 7.00 Finding of Fact 42) United States witness Bill Bishop testified that he parked on the road and observed the 7.00 acre claimed place of use in sections 34 and 35 from three different vantage points. Mr. Bishop testified that his observation of the terrain topography (in particular, the swale) indicates the area which could be irrigated by natural overflow is actually only 3.00 acres rather than 7.00 acres as claimed. Mr. Bishop testified that he did not observe any signs of irrigation on the east side of the road. Hearing Recording marker 11:23:10 to 11:31:25. United States exhibit US 3e(3)(c) is an enlarged copy of a 2009 aerial photograph. The green cross-hatched area illustrates the 35 3.00 acres Mr. Bishop determined could be irrigated by natural overflow. This area is all west of the road. The green cross-hatched area excludes the area where some trees are located. The green cross-hatched area includes ground in both sections 34 and 35. No legal descriptions for the green cross-hatched area were included in Mr. Bishop's testimony, on the exhibit, or in the United States Proposed Findings of Fact, Conclusions of Law, and Brief in Support. On cross-examination, Mr. Bishop testified that the tree area is flood irrigated but he excluded it because he figures the branches would interfere with the grass growth and access for grazing. Hearing Recording marker 2:00:00 to 2:02:07. Finding of Fact 43) Gary Bull testified that he has never measured the entire irrigated area near O'Dell Creek but he estimates the area is 40 to 50 acres, that part of the area is hayed and part is grazed, that he thought about three acres were irrigated by the natural overflow from this unnamed tributary to O'Dell Creek, and that there is some grazing in the area where the trees are which was excluded by Bill Bishop. Mr. Bull also testified that he thought about one acre was irrigated by natural overflow on the east side of the road but his testimony did not include affirmation that he hayed and/or grazed that acre. Hearing Recording marker 3:54:41 to 3:55:35. Finding of Fact 44) As it is not clear exactly where the acre east of the road is located, as an acre on the east side of the road was not confirmed as irrigated by the DNRC examination, and as Bill Bishop testified that he observed no signs of haying on the east side of the road (Hearing Recording marker 1:58:06 to 2:00:00), an acre on the east side of the road should not be added to the maximum acres and place of use. Conclusion of Law 30) Judicial notice is taken of the marked topographic map attached to Bull Ranch Statement of Claim 42C 37720-00. Claim 42C 37720-00 is for natural overflow from a different unnamed tributary to O'Dell Creek which runs south of and parallel to the creek claimed on 42C 37719-00. Judicial notice is also taken of the DNRC examination worksheets for claim 42C 37720-00 which include a topographic map copy and aerial photograph copies with DNRC acreage markings created by the DNRC during the examination of this claim. Rule 201, M.R.Evid.R. 36 Conclusion of Law 31) '"Supplemental Rights' means separate water rights for the same purpose, owned by the same claimant, and used on overlapping places of use." Rule 2(a)(67), W.R.C.E.R. Finding of Fact 45) Claims 42C 37719-00 and 42C 37720-00 are supplemental rights. The DNRC prepared a map which is an enlarged portion of the topographic map showing both sources and added a green shading to the combined places of use for these supplemental rights. This DNRC prepared map is attached to the DNRC Examination worksheet for each claim. Finding of Fact 46) Bull Ranch's Proposed Findings of Fact, Conclusions of Law, and Order state that the DNRC examination found 9.1 acres irrigated on a 1978 aerial photograph and 9.6 acres irrigated on a 1944 aerial photograph. Bull Ranch irrigation claim 42C 37720-00 has a 5.00 acre place of use which overlaps part the 7.00 acre place of use claimed 42C 37719-00. This appears to explain why more acreage was confirmed as irrigated because the area being measured would include acreage irrigated by two different natural overflow water rights and the boundaries within that overlapping area may have been difficult to attribute clearly to one water right and not to the other. Finding of Fact 47 As Gary Bull testified that he thinks the area irrigated by natural overflow from the unnamed tributary to O'Dell Creek claimed on 42C 37719-00, including the tree area excluded by Bill Bishop on United States Exhibit US 3e(3)(c), is about 3.00 acres and as Mr. Bishop testified that he measured 3.00 acres as well, the maximum acres irrigated and place of use should be 3.00 acres. A copy of United States Exhibit US 3e(3) has been added to the claim file for future reference. The following note has been added to this copy by the Court to clarify that the place of use includes the tree area excluded from the green cross-hatched area: "The place of use includes the area within the northwest portion of the green cross-hatched which is not cross-hatched." Conclusion of Law 32) The burden borne by the United States and the Northern Cheyenne Tribe as to the maximum acres irrigated and place of use is to submit a preponderance of evidence to contradict and overcome the claim that 7.00 acres in the E2SENE of section 34, T5S, R44E and W2SWNW of section 35, T5S, R44E are irrigated 37 by natural overflow from this unnamed tributary of O'Dell Creek. No evidence was presented by the Northern Cheyenne Tribe. The evidence presented by the United States, both the testimony of Bill Bishop and exhibits US 3e(i) and US 3e(3)(c), confirms portions of the claimed place of use should be removed as higher ground such that the natural overflow would not cover those areas. Conclusion of Law 33) The evidence presented by the United States is the preponderance needed to contradict and overcome the maximum acres and place of use and did trigger a shift in the burden of proof to Bull Ranch to rebut the United States evidence and argument. The only evidence presented by Bull Ranch was Gary Bull's testimony confirming about 3.00 acres are irrigated by natural overflow and that the tree area excluded by Bill Bishop should be included as it is irrigated and grazed. The maximum acres and place of use should be reduced. Conclusion of Law 34) The evidence presented by the United States is sufficient to contradict and overcome the prima facie claim as to maximum acres irrigated and place of use. Finding of Fact 48) The maximum acres irrigated should be 3.00 acres. As no legal descriptions for the three acres is in evidence, using the copy of United States Exhibit US 3e(3) added to the claim file, it appears the place of use legal descriptions should be: ACRES 1.25 1,75 QTRSEC E2SENE W2SWNW SEC 34 35 TWP 5S 5S RGE 44E COUNTY ROSEBUD 44E ROSEBUD 3.00 THE PLACE OF USE INCLUDES THE AREA WITHIN THE NORTHWEST PORTION OF THE GREEN CROSS-HATCHED WHICH IS NOT CROSSHATCHED. Claim 42C 37721-00 Finding of Fact 49) The Preliminary Decree states that claim 42C 37721-00 is a November 12, 1897 use right for natural subirrigation by an unnamed tributary of Otter Creek to irrigate 126.00 acres in section 14, T5S, R45E and section 6, T6S, R46E. The following issue remark appeared on the abstract of this claim: 38 IT APPEARS THIS WATER RIGHT MAY NOT HAVE BEEN PERFECTED. ACCORDING TO INFORMATION IN THE CLAIM FILE, THERE APPEARS TO BE NO APPROPRIATION OF WATER. ALL ELEMENTS OF THIS CLAIM MAY BE QUESTIONABLE. SEE CLAIM FILE FOR ADDITIONAL INFORMATION. Finding of Fact 50) The DNRC Examination Worksheet documents that claim examiner Jamie Ellis confirmed the claimed 126.00 acres as the maximum acres irrigated by checking "ok" (on Page 3 of 4), that the 1978 aerial photograph shows 152.56 acres of the claimed place of use as irrigated, and that the 1944 aerial photograph shows 154.28 acres of the claimed place of use as irrigated (on Page 3 of 4). Mr. Ellis changed the source name, flow rate, volume, and period of use to the standards specified for subirrigation claims (on Pages 1 and 2 of 4) and confirmed all the claimed maximum acres and place of use, and more, as irrigated. On Page 4 of 4, his notes indicate he added the "P644" remark concerning nonperfection as well as the issue remarks noting that he found more acres irrigated than claimed. Mr. Ellis's January 26, 2006 letter to Bull Ranch identifying all Bull Ranch claims with issue remarks included claim 42C 35378-00 stating: The issue with this statement of claim is that based on the claim map and outside data source examination, there were more acres being irrigated prior to 1973 then were claimed on the claim form. One option you have to remove these issues is to fill out the enclosed Amendment forms and amend up to a higher acreage. The issue remark concerning nonperfection was not discussed in the letter. Finding of Fact 51) The basis for changing the source name is a standard direction for the source name for all subirrigation claims found in Chapter VI.D.8.b of the Water Right Claim Examination Manual. In addition to the specific direction for changing the source name for a subirrigation claim in Chapter VI, Chapter VII of the Water Right Claim Examination Manual is exclusively devoted to irrigation claims. Subsection A concerning type of irrigation system, includes the standard code to be used for natural subirrigation. Subsection B concerning flow rate, includes the standard flow rate remark to be used for natural subirrigation. Subsection C concerning volume, includes using the standard direct flow volume remark on subirrigation claims. Subsection D concerning 39 place of use gives special directions not to use the Water Resources Survey for examining subirrigation claims. Finding of Fact 52) In this instance, there is no apparent basis for adding the nonperfection issue remark. The Water Right Claim Examination Manual, Chapter VI.C.3.f. states that this issue remark should be added to "claims where it is apparent the right has never been perfected, document these findings thoroughly in the claim file. If a nonperfected claim is not withdrawn by the claimant, add an issue remark . . .". How ever, there is no documentation of such findings. The findings are the opposite: this is an irrigation claim and the place of use was confirmed as irrigated, and the claim examiner even suggested amending the claim to increase the maximum acres irrigated and place of use. It appears the nonperfection issue remark was added solely because the irrigation type and means of diversion is natural subirrigation. The claim examiner's notes in the DNRC Examination Worksheet (on Page 4 of 4) include the following two entries: "P644: All elements of claim questionable, no appropriation of water" and "Subirrigation is a natural process + as to a right claiming this use I am in no position to make a call the P644 was added in order to notify the Court of this fact." - apparently missing the significance of the fact that the Water Right Claim Examination Manual has multiple guidelines and directions for decreeing subirrigation claims and includes no direction to add the nonperfection issue remark to the abstract of a subirrigation claim. It appears the addition of this issue remark was completely erroneous as unauthorized and as unsupported by the examination. Conclusion of Law 35) The issue remark should be stricken as not authorized by the Water Right Claim Examination Manual and as unsupported by any findings in the DNRC Claim Examination Worksheet. Finding of Fact 53) The Statement of Claim specifies that the claimed right is a use right with a November 12, 1897 priority date. Item 14 on the Statement of Claim form states: "Attach copies of the Decree, Record of Filing, or Proof of Use Right". The following was typed on the Statement of Claim form at this item: "Sub-irrigated land has been used at least as long as the development described in the attached filing. Custer 40 County Book A, p. 414." The "attached filing" is a copy of the Water Right of Charles Bull describing an Otter Creek appropriation dated November 12, 1897 and filed with Custer County on November 17, 1897. It is clear from the notation added to item 14 that the claimant was not asserting that this claimed Otter Creek subirrigation right was included on this notice of appropriation. The Water Right of Charles Bull was attached as evidence that Charles Bull was in the area and filing a notice of appropriation for a different water right for agricultural purposes in the vicinity, ie, Charles Bull, predecessor of Bull Ranch, was in the business of agriculture in the area in 1897. Finding of Fact 54) The United States and the Northern Cheyenne Tribe challenged the priority date by asserting that there was no intent to appropriate an irrigation right from ground water tributary of Otter Creek by Charles Bull in 1897. In its Proposed Finding of Fact 4, the United States argues that Bull Ranch did not "attach, introduce or reference" a Declaration of Vested Ground Water for this claimed subirrigation appropriation. The United States then argues in Proposed Conclusions of Law 5, 6, and 7 that Bull Ranch's predecessor's failure to file a Declaration of Vested Ground Water Appropriation as required by the 1961 Ground Water Act, shifts the burden of proof from the objector to disprove the claimed right to the claimant to prove the claimed right, and that the evidence presented by the United States "conclusively demonstrates that 'the elements of the claim do not accurately reflect the beneficial use of the water right as it existed prior to July 1, 1973' and the burdens of persuasion and proof shift to the claimant." Conclusion of Law 36) The 1961 Ground Water Code [89-2911 etseq., RCM (1961)] recognized ground water rights appropriated prior to the new filing system as valid appropriations of ground water and set up an optional filing system for those rights. '"Ground water' means any fresh water under the surface of the land including the water under the bed of any stream, lake, reservoir or other body of surface water" [89-2911 (a), RCM (1961)]. This includes water extracted through wells whether pumped or naturally flowing, developed springs, and subirrigation (ground water used even though not extracted to the surface like wells or developed springs). 41 Use right appropriations initiated and completed prior to January J_, 1962 were recognized as valid appropriations of ground water [89-2912, RCM]. Provision was made for the owners of such pre-January 1, 1962 ground water rights to make those rights of record by filing a declaration. By complying with the statutory filing requirements specified for those pre-January 1, 1962 use right appropriations, the declarations for those rights "shall be taken and received in all courts of this state as prima facie evidence of the statements therein contained." "Failure to comply with this requirement shall in no wise work a forfeiture of such rights, or prevent any such claimant from establishing such rights in the courts, but he must maintain the burden of proving such unrecorded rights." [89-2913(h), RCM] (emphasis added). The statute only allowed two years for the declarations to be filed [January 1, 1962 to December 31, 1963] but this was extended an additional two years to December 31, 1965 [89-2913(h), RCM (1965)]. The statute includes a very specific list of the required information to be included on the declaration. The form developed was entitled Declaration of Vested Ground Water Rights [form GW- 4]. This form was for all ground water appropriations regardless of whether with a well or without a well. A Declaration of Vested Ground Water Right could be filed for a preJanuary 1, 1962 subirrigation appropriation. In 1971 the legislature amended 89-2911, RCM by adding new subsection (j) which defines a declaration to state that the Declaration of Vested Ground Water Right form [GW-4] expired on January 1, 1966 and amended part of 89-2913 (h), RCM, concerning filing a declaration as follows: Persons who had put ground water to a beneficial use, including subirrigation or other natural process, prior to January 1, 1962 had a four (4) year period after January 1, 1962 to file a "declaration of vested ground water rights" in the office of the county clerk of the county in which the claimed right was situated. The right to file a "declaration of vested ground water rights" expired on January 1, 1966; therefore, any person desiring to file on ground water put to beneficial use prior to January 1, 1962, but not filed on by December 31,1965 may file a "notice of completion." The appropriators right will commence on the date the notice js filed, except as hereinafter provided. (Emphasis added). The Ground Water Code was in effect until June 30, 1973. So from January 1, 1962 until June 30, 1973, the owner of a ground water appropriation made 42 prior to January 1, 1962 had three options: 1) file a Declaration of Vested Ground Water Right [form GW-4] in compliance with the statute by December 31, 1965 and the "declared" priority date would be preserved because the Declaration was "prima facie evidence of the statements therein contained" per section 89-2913 (h), RCM; 2) file a notice of completion [form GW-2, the notice of completion form for new ground water appropriations made between January 1, 1962 and June 30, 1973] BUT the priority date would be changed from the date the ground water was first put to beneficial use to the date the notice of completion was filed per section 89-2913(h), RCM, or 3) file nothing and take your chances on proving the details including the priority date of "such rights in the courts, but he must maintain the burden of proving such unrecorded rights" per section 892913(h),RCM. The Ground Water Code was in effect from January 1, 1962 until June 30, 1973 when it was replaced by the 1973 Water Use Act [89-865 et seq., RCM (1973)] which was the precursor of our current comprehensive adjudication effort. In 1979, the 1973 Water Use Act was replaced by the 1979 Water Use Act [85-2-101 et seq., MCA (1979)] which is still in effect today. Those who chose option 3 would now find themselves in court but the mechanics of the court adjudication were changed. Prior to the first Water Use Act in 1973, all water right disputes, large or small as well as efforts at comprehensive adjudication of all water rights on a particular source, followed traditional district court pleading and practice: the owner of the alleged water right had to plead and prove the validity and elements of the asserted water right in court. There were no special rules for asserted ground water appropriations except the benefit of the recorded Declarations of Vested Ground Water Right and Notices of Completions being treated as "prima facie evidence" of those rights. Absent the filings required or allowed by the 1961 Ground Water Code, the owners had to prove their ground water 43 appropriations. The 1979 Water Use Act changed that protocol. Every existing water right across the state had to be pleaded on a Statement of Claim. There were optional exceptions for ground water rights if used for domestic or livestock purpose, but no exception for ground water used for irrigation purpose. By complying with the filing requirements of section 85-2-221, MCA, each Statement of Claim "constitutes prima facie proof of its content until the issuance of a final decree" per section 85-2-227, MCA. In simplest terms, the effect of this "prima facie proof shifted the traditional burden from the claimant to prove the right to the opposite - the burden is now on the objector to disprove the right as claimed. See Memorandum Opinion, Case 40G-2, filed March 11, 1997. The interplay of the statutes governing ground water appropriations made prior to January 1, 1962 and the statutes directing the pleading of those rights in this ongoing adjudication, results in shifting the burden of proof from the claimant to prove the right, to the objector to rebut or disprove the right. This is exactly the same burden of proof shift for surface water appropriations under the 1979 Water Use Act addressed by Judge Loble in his 1997 Case 40G-2 Memorandum Opinion. The burden of proof is the same for every Statement of Claim for an existing water right whether the source type is surface water or ground water. Finding of Fact 55) Neither a Declaration of Vested Ground Water Right nor a Notice of Completion were attached to the Statement of Claim or offered in evidence for the claimed November 12, 1897 appropriation of ground water tributary to Otter Creek for subirrigating the claimed place of use. The claimed water right is not a filed right as allowed by filing a declaration in the 1961 Ground Water Code. Just as claimed, it is a pre-January 1, 1962 ground water use right appropriation categorically recognized as valid in section 89-2912, RCM of the 1961 Ground Water Code. Finding of Fact 56) Besides the assertion that a Declaration of Vested Ground Water Right was required under the Ground Water Code, there were no other assertions that Statement of Claim 42C 37721-00 was not filed in compliance with sections 85-2-221 and 85-2-224, MCA. A review of the Statement of Claim shows that it was timely filed 44 on September 28, 1981 and that it meets all of the content and verification requirements. Conclusion of Law 37) Statement of Claim 42C 37721-00 constitutes prima facie proof of its content. Section 85-2-227(1), MCA. Its content is a November 12, 1897 use right appropriation of ground water tributary of Otter Creek for subirrigation of 126.00 acres in the E2 and E2W2 of section 6, T6S, R46E [96.00 acres] and the W2W2 of section 14, T5S, R45E [30.00 acres]. Conclusion of Law 38) A valid appropriation of a use right prior to July 1, 1973 required 1) an intent to appropriate a water right, 2) an actual diversion, impoundment or withdrawal of water, and 3) beneficial use of the water diverted, impounded, or withdrawn. See Murray v. Tingley, 20 Mont. 260 (1897), Power v. Switzer, 21 Mont. 523 (1898), Bailey v. Tintinger, 45 Mont. 155 (1912), and Wheat v. Cameron, 64 Mont. 494 (1922). In 2002 the Montana Supreme Court held that a diversion, impoundment or withdrawal is not necessary for some types of beneficial uses. In re Adjudication of Existing Rights to the Use ofall Water, 2002 MT 216, ^ 32, 311 Mont. 327, \ 32. Finding of Fact 57) For the place of use parcel in section 14, United States witness Daniel Gallacher, a research historian, testified that the patent for section 14, T5S, R45E was issued to George Coyle on September 20, 1917. Hearing Recording marker 3:08:26 to 3:08:44. Finding of Fact 58) For the place of use parcels in section 6, Daniel Gallacher testified that the Charles Bull patent for land in section 6, T6S, R46E was dated July 7, 1901 following the October 1, 1900 hearing in which Charles Bull and his witnesses testified at the Land Office in support of his land claim and that Charles Bull described this land as "agricultural land" rather than "grazing land." Hearing Recording marker 3:06:02 to 3:7:40. Mr. Gallacher testified that Magna Hagen was issued a patent for the SW of section 6, T6S, R46E on December 21, 1923. Hearing Recording marker 3:07:44 to 3:08:25. As Magna Hagen was issued a patent for the SW of section 6, T6S, R46E, it would appear that the patent to Charles Bull must be for all but the SW of section 6, T6S, R46E. 45 All of the place of use in the E2 of section 6 and part of the place of use in the E2W2 of section 6 (the E2NW) is covered by the Charles Bull 1901 patent. Part of the place of use in the E2W2 of section 6 (the E2SW) is covered by the Magna Hagen 1923 patent. Finding of Fact 59) On cross-examination, Daniel Gallacher testified that Charles Bull moved to section 6, T6S, 46E in 1895. Hearing Recording marker 3:24:34 to 3:24:40. Mr. Gallacher testified on cross-examination that the patents he reviewed for this Case all stated that the patentees turned the sod so they each would have been the first irrigator but that wouldn't preclude stock grazing on the ground prior to the first irrigation and that none of them referenced the number of animals on the property at the time, as follows: Mr. Green: and, uh, just because somebody applied for a patent in a particular year, say in the 18 or 1920s, that doesn't mean that land hadn't been used by somebody else, correct? Mr. Gallacher: If you're talking specifically about the patents that I looked at... Mr. Green: Yes. Mr. Gallacher: uh, the accounts that they gave of what they did on the land was that they turned the sod over. So that would suggest they were the first people on the land. Mr. Green: Would, why, are you suggesting there'd been no cattle grazed on the ground prior to that? Mr. Gallacher: They were the first people to turn the sod over. I'm not saying that no one ran a cow past there. Mr. Green: Okay, um, so, we're talking about here beneficial use and one of the things that we do for beneficial use of irrigated ground is to pasture cattle. So, you have no independent testimony as to when cattle were pastured on these particular pieces of property? Mr. Gallacher: I don't but I, I do need to . ., I've, I've looked at a lot of land patent files over the years, uh, in a lot of different places, New Mexico, Arizona, Montana, Colorado, and a lot of them say, in addition to what they did to physically improve their patent, they give the number of animals they had on their land . . . chickens, goats, cattle. Neither Bull nor Hagen ... I'm not saying they didn't have them, but there's no mention of them in their patent file, in the testimony of fact witness or the testimony of claimant if they had any animals and I, I can't believe that that was totally true but they didn't talk about 5000 head of 46 Herefords or Texas Longhorns. Hearing Recording marker 3:27:10 to 3:28:56. Finding of Fact 60) As the claimed method of irrigation is subirrigation, when sod was first turned may not necessarily be relevant to determining the priority date if the ground irrigated was in native grass which could be grazed or hayed then grazed, rather than cultivated and seeded ground. Finding of Fact 61) Daniel Gallacher did not testify about the Water Resources Survey for Powder River County concerning section 14, T5S, R45E. Finding of Fact 62) For the place of use parcels in section 6, Daniel Gallacher testified that the Water Resources Survey for Powder River County includes a map for T6S, R46E and that the field notes for that section state that then owners/operators Anne Thex and Harold N. Bull stated that they used the 1897 Charles Bull Otter Creek filed right for stock water. Hearing Recording marker 3:13:03 to 3:14:36 and 3:19:24 to 3:20:56. . This appears to refer to the water right described in the copy of the Water Right of Charles Bull attached to the Statement of Claim. Conclusion of Law 39) Chapter VII.D.2.C of the Water Rights Claim Examination Manual concerns examination of the place of use for subirrigation claims and includes the following caution on page 368: The WRS usually does not indicate areas of subirrigation or natural overflow. A remark will not be added to denote the WRS data unless the area is specifically documented in the survey and disagrees significantly with the claimed acreage. The plain reading of this direction is do not use the Water Resources Survey to examine subirrigated acreage unless the Water Resources Survey states that the area being examined is specifically documented as subirrigated acreage - there must be some overt statement that the particular map includes acreage confirmed as subirrigated. The routine for the Water Resources Survey was exclusion of subirrigated ground, not its inclusion. If subirrigated ground was included for some particular owner for some particular reason, there must be specific documentation of its inclusion in the Water Resources Survey. Finding of Fact 63) United States exhibit US-1 is a composite of copies of the two volumes of the Water Resources Survey for Powder River County (June 1961) and copies 47 of some of the various field notes for that Survey. The field notes are not part of any of the published Water Resources Surveys. They are a separate archive maintained by the DNRC as contemporary successor to the what was then called the State Engineer. Finding of Fact 64) For the place of use parcel in section 14, the map for section 14, T5S, R45E in the published Water Resources Survey shows Otter Creek. The claimed subirrigated area generally falls within the area marked on the map as irrigated. The area is not specifically documented as subirrigated ground in the published Water Resources Survey. The 1960 field notes were then reviewed to determine if any subirrigation was specifically documented in those notes. There are no field notes included in United States exhibit US-1 for any ground in T5S, so it is unknown whether any subirrigated acreage was documented and included in the acreage mapped as irrigated. Finding of Fact 65) For the place of use parcels in section 6, the map for T6S, R46E in the published Water Resources Survey shows Otter Creek in section 6. The area mapped as irrigated on the WRS map includes portions of the claimed subirrigated area. The 1960 field notes were then reviewed to determine if any subirrigation was specifically documented in those notes. The area is not specifically documented as subirrigated ground in the published Water Resources Survey. There is no specific documentation in either the published Water Resources Survey or the field notes for that Survey, that any subirrigated acreage was discussed much less discounted and therefore, excluded from the mapping. Absent affirmation that the subirrigated acreage was "specifically documented", the absence of the entirety of the claimed subirrigated ground on the published Water Resources Survey map is of no significance. Conclusion of Law 40) As this claimed ground water tributary to Otter Creek water right is not based on the Charles Bull 1897 Otter Creek filed notice, the fact that the field notes state that the 1897 Otter Creek filed right was used for stock water in 1960 rather than irrigation is not relevant to whether this claimed ground water tributary of Otter Creek right was being used for subirrigation in 1960. Finding of Fact 66) Gary Bull, President of Bull Ranch testified that the Charles Bull who filed the Water Right of Charles Bull was his grandfather and that he came to the 48 Otter Creek area in 1895. Hearing Recording marker 3:44:07 to 3:44:20. It is noted that the Charles Bull appropriation described in the Water Right of Charles Bull is for an Otter Creek right used to irrigate the N2SE, the S2NE, the SENW and lot 3, all in section 6, T6S, R46E. Finding of Fact 67) For the place of use parcel in section 14, the marked topographic map attached to Statement of Claim 42C 37721-00 shows the claimed 30.00 acres subirrigated by ground water tributary to Otter Creek in section 14 T5S, 45E. Using the marked topographic map prepared by the DNRC during examination which includes both the section 14 and section 6 places of use, the area in section 14 T5S, 45E is three sections due north (downstream) of section 6, T6S, R46E, a distance about three and a quarter miles from the northern most point of the claimed place of use in section 6 to the southernmost point of the claimed place of use in section 14. For the claimed Otter Creek subirrigation appropriation claimed as used on section 14, Charles Bull clearly was in the vicinity and on the same source in 1897 as detailed on the Water Right of Charles Bull. Finding of Fact 68) For the place of use parcels in section 6, the marked topographic map attached to Statement of Claim 42C 37721-00 shows the claimed 96.00 acres subirrigated by ground water tributary of Otter Creek in the E2 and E2W2 of section 6 and that they, in part, fall within the N2SE, S2NE, and SENW of section 6, T6S, 46E, part of the area identified on the Water Right of Charles Bull. For the claimed Otter Creek subirrigation appropriation claimed as used on section 6, Charles Bull clearly was in precisely the same area in 1897 as detailed on the Water Right of Charles Bull. Finding of Fact 69) Daniel Gallacher testified as follows on cross-examination: Mr. Green: In fact, in the 1870s there were cattle drives from Texas up to this area for grazing, for the purpose of grazing cattle, isn't that correct? Mr. Gallacher: Late 1870s Nelson Story led one of the first herds up. Hearing Recording marker 3:25:27 to 3:25:44. Mr. Gallacher testified that his recollection was that Fort Howe was built in the 1880s. Hearing Recording marker 3:26:21 to 3:26:39. 49 Gary Bull testified that his other grandfather, Charles Thex, first came to "Otter Creek Country" as a trailherd from Texas in 1877, returned to Texas for a while then came back to this area , that he was always a cowboy and running cows. Hearing Recording marker 3:44:06 to 3:45:30. Mr. Bull testified on direct as follows: Mr. Green: And, uh, you heard me ask Mr. Gallacher a little bit about the, the Howe Fort, um, where is the Howe Fort compared to the property we've been talking about here? Mr. Bull: It's about five miles up the road, south. Mr. Green: And what is the Howe Fort? Mr. Bull: Well, it's a rock structure built up on a clay knob. They was scared of, I can't remember the year, but they got spooked by the Indians, and they gathered up all the ranchers and built this Fort on top of the hill. Mr. Green: And, so, back at that time which, uh, Mr. Gallacher says was in the 1880s, uh, the ranchers around there got together and built that fort. Mr. Bull: Yeah. Mr. Green: Now were, were there fences back then? Mr. Bull: Well, I'm not sure. Mr. Green: Ok, but, uh, was all that ground, that, the stuff that you're on now, on O'Dell Creek and that, and Otter Creek, was that all used for grazing back in the 1880s? Mr. Bull: Oh I'm sure it was. Mr. Barry: I, I'm, I'm, sorry. I, could you repeat his answer? I didn't hear it. Mr. Green: "I'm sure it was." Mr. Barry: "I'm sure it was", ok. Mr. Green: And that included all that subirrigated ground that we've been talking about today? Mr. Bull: Probably. I don't know when they started putting it into hay, planting alfalfa. Hearing Recording marker 3:46:34 to 3:47:55. (Emphasis added) 50 This provides general historical confirmation that large numbers of cattle were grazed in the area beginning some twenty years and some ten before the claimed 1897 priority date, some forty years before the 1917 patent to George Coyle, some twenty years before the 1901 patent to Charles Bull, and some forty years before the 1923 patent to Magna Hagen for the ground claimed as the subirrigation place of use. Conclusion of Law 41) The burden borne by the United States and the Northern Cheyenne Tribe as to the priority date is to submit a preponderance of evidence to contradict and overcome the claim that Charles Bull appropriated a water right for subirrigation from the ground water tributary to Otter Creek in 1897. No evidence was presented by the Northern Cheyenne Tribe. No evidence was presented by the United States challenging the prima facie claim that the claimed place of use was subirrigated by ground water tributary of Otter Creek in 1897. The only evidence presented by the United States is that the patents for the claimed place of use were issued in 1917 to George Coyle, in 1901 to Charles Bull, and in 1923 to Magna Hagen, the patents state that sod was turned in section 14 and 6, and that Gary Bull believes his grandfather Charles Bull was more of a farmer than a rancher. There was no evidence presented that the claimed 126.00 acre place of use ever had its sod turned such that the sod turning event might be pivotal to determining first beneficial use and an intent to appropriate. There is no indication that turning sod is even relevant to appropriating ground water for subirrigation. There was no evidence presented that Charles Bull did not or could not take advantage of that subirrigation by haying or grazing the area in 1897. There was no evidence presented that the first utilization of the benefit of that subirrigation did not or could not occur until after patents were issued in 1917, 1901, and 1923. Conclusion of Law 42) The evidence presented by the United States and the Northern Cheyenne Tribe is far less than the preponderance needed to contradict and overcome the priority date and did not trigger a shift in the burden of proof to Bull Ranch to rebut the United States evidence and argument. No evidence was presented suggesting much less contradicting and overcoming the claim that Charles Bull, the original appropriator per the Statement of Claim, did not have the requisite intent to appropriate a water right for 51 subirrigation from the ground water tributary of Otter Creek in 1897. There is no change to be made to the priority date for this claimed right. Finding of Fact 70) The Preliminary Decree states that the maximum acres irrigated is 126.00 acres and the place of use is: ACRES RGE COUNTY 14 5S 45E POWDER RIVER E2 6 6S 46E POWDER RIVER E2W2 6 6S 46E POWDER RIVER OTRSEC 30.00 W2W2 63.00 33.00 SEC TWP 126.00 The following issue remarks appeared on the abstract of this claim: USDA AERIAL PHOTOGRAPH NO(S). 278-232, DATED 10/26/1978, APPEARS TO INDICATE 152.69 ACRES IRRIGATED. A DESCRIPTION OF THESE ACRES IS IN THE CLAIM FILE. AERIAL PHOTOGRAPH NO(S). 029-014, 029-016, DATED 00/00/1944, APPEARS TO INDICATE 154.28 ACRES IRRIGATED. A DESCRIPTION OF THESE ACRES IS IN THE CLAIM FILE. In addition, the following extraneous remark was added to the general remarks: THE CLAIM MAP APPEARS TO INDICATE 158.71 ACRES IRRIGATED. Place of Use in the W2W2 of Section 14, T5S, R45E Finding of Fact 71) United States witness Bill Bishop testified that he confirmed 16.70 acres subirrigated by ground water tributary to Otter Creek within the claimed place of use in the W2W2 section 14, T5S, R45E based on his review of aerial photographs, observations from the road, and observations while on adjoining property owned by a different claimant. Mr. Bishop testified that he excluded three areas in the northern portion of the claimed place of use which include one area he described as "sodic" (high alkalinity), another area north of that which was greasewood and a higher elevation, and the northernmost portion where there are some trees. Mr. Bishop testified that he included the claimed area south of the "sodic" area as it is in sweet clover and other vegetation, he could see standing water in the oxbow, and there were good indications this area was subirrigated. Hearing Recording marker 11:58:46 to 12:10:12. On United States Exhibit US 3e(4), Mr. Bishop identified the three areas he 52 excluded and the area he included (the blue pen markings). It is noted that the sodic/alkaline area clearly appears as white, unproductive ground and that the northernmost portion is not very proximate to Otter Creek, so unclear if there would be much subirrigation from Otter Creek at that location. On cross-examination, Mr. Bishop testified that he did not think all of the subirrigated area could be hayed due to the topography but that it could be grazed although he did not see cattle there the day he viewed it, and that the hay yards in this area were all fenced. Hearing Recording marker 1:53:47 to 1:55:48. On redirect, Mr. Bishop testified that within the sodic/alkaline area there is a knoll about 5 feet high and that he did not think irrigation of greasewood is a beneficial use of water. Hearing Recording markers 2:08:15 to 2:08:48 and 2:15:20 to 2:16:06. Finding of Fact 72) Concerning the place of use in section 14 and as depicted on exhibit US 3e(4), Bull Ranch witness Gary Bull testified that he himself does not do anything with this ground, that he trades use of this area with a neighbor rather than build fence, that the ground is used, that he thinks part of the area - about 20 acres - is subirrigated, and that he would doubt the "white area" is subirrigated. Hearing Recording marker 3:53:40 to 3:54:00. Conclusion of Law 43) The burden borne by the United States and the Northern Cheyenne Tribe as to the maximum acres irrigated and place of use in section 14, T5S, R45E is to submit a preponderance of evidence to contradict and overcome the claim that 30.00 acres in the W2W2 section 14, T5S, R45E are subirrigated by ground water tributary to Otter Creek. No evidence was presented by the Northern Cheyenne Tribe. The evidence presented by the United States, both the testimony of Bill Bishop and exhibit US 3e(4), confirms portions of the claimed place of use should be removed as either nonproductive land (the sodic area and the greasewood area) which, if subirrigated, such use is not a beneficial use of water, or as land at a higher elevation such that subirrigation is not likely to occur. Conclusion of Law 44) The evidence presented by the United States is the preponderance needed to contradict and overcome the maximum acres and place of use in 53 section 14, T5S, R45E and did trigger a shift in the burden of proof to Bull Ranch to rebut the United States evidence and argument. The only evidence presented by Bull Ranch was Gary Bull's testimony that a neighbor uses the area and that he thinks about 20 acres are probably subirrigated. As Mr. Bull's 20 acre estimate is closer to the 16.70 acres measured by Mr. Bishop on the aerial photograph than it is to the 30.00 acres originally claimed on the Statement of Claim, Mr. Bull's testimony confirms fewer acres are subirrigated. The maximum acres and place of use for section 14, T5S, R45E should be reduced. Finding of Fact 73) The parcel for section 14 in the place of use should be changed from 30.00 acres in the W2W2 section 14, T5S, R45E to 16.70 acres in the W2W2 section 14, T5S, R45E. A copy of Exhibit US 3e (6) which identifies the 16.70 acres confirmed as subirrigated has been added to the claim file for future reference. Places of Use in the E2 6 and E2W2 of Section 6, T6S, R46E Finding of Fact 74) United States witness Bill Bishop testified that he confirmed some subirrigation within the claimed place of use in section 6 but found fewer acres than claimed based on his review of aerial photographs and observations from the road as well as from the property of adjoining neighbor Ted Fletcher. Mr. Bishop also testified that there are other Bull Ranch surface water rights which also irrigate the same area. Hearing Recording marker 12:16:21 to 12:25:59. On United States' Exhibit US 3e7, Mr. Bishop identified three areas that he thought should be removed from the place of use. These areas are identified as #1, #2, and #3 on the exhibit. He testified that areas #1 and #2 are higher ground and area #3 is an escarpment or ridge at an elevation higher than the creek. Hearing Recording marker 12:17:57 to 12:25:12. Mr. Bishop did not testify as to the number of acres contained within these three areas (the number of acres he thought should be removed) or testify as to how many acres he thought were subirrigated in section 6 or testify as to how the place of use should be changed. United States Exhibit US 3e8(c) has all the area Mr. Bishop believes is subirrigated within section 6 shaded with a green cross-hatched and a notation 54 in the margin states "Total Acres 67.20". The margin notations do not include how the 67.20 acres should be apportioned between the two parcels for section 6 in the claimed place of use. Finding of Fact 75) Gary Bull testified concerning United States exhibit US 3e7, the aerial photograph copy to which Bill Bishop added his markings of the areas #1, #2, and #3 which Mr. Bishop thought should be excluded. Mr. Bull testified that the claimed place of use in section 6 as shown on the exhibit is subirrigated or flood irrigated and totals about 140 acres, that all but about 15 to 20 acres within that 140 acre area are subirrigated or flood irrigated, and that cattle graze the area in the fall after haying, including the areas that cannot be cut. Hearing Recording marker 3:49:40 to 3:50:30. For Mr. Bull's resulting estimate that 120 to 125 acres total within the claimed place of use in section 6 were either flood irrigated or subirrigated, Mr. Bull did not specify how many of those acres he thought were subirrigated. Conclusion of Law 45) The burden borne by the United States and the Northern Cheyenne Tribe as to the maximum acres irrigated and place of use in section 6, T6S, R46E is to submit a preponderance of evidence to contradict and overcome the claim that 96.00 acres in the E2 and E2W2 section 6, T6S, R46E are subirrigated by ground water tributary to Otter Creek. No evidence was presented by the Northern Cheyenne Tribe. The evidence presented by the United States, both the testimony of Bill Bishop and exhibits US 3e(7) and US 3e8(c), confirms portions of the claimed place of use should be removed as either higher ground or an escarpment or ridge, land at a higher elevation such that subirrigation is not likely to occur. Conclusion of Law 46) The evidence presented by the United States is the preponderance needed to contradict and overcome the maximum acres and place of use in section 6, T6S, R46E and did trigger a shift in the burden of proof to Bull Ranch to rebut the United States evidence and argument. The only evidence presented by Bull Ranch was Gary Bull's testimony that the claimed place of use is within a 120 to 125 acre area part of which is flood irrigated and part of which is subirrigated. Mr. Bull's testimony is not sufficient to rebut the evidence presented by the United States. The maximum acres 55 and place of use for section 6, T6S, R46E should be reduced. Finding of Fact 76) Bull Ranch claimed 96.00 acres in the E2 and E2W2 of section 6, T6S, R46E as subirrigated by ground water tributary to Otter Creek. Bill Bishop testified that the shaded area on Exhibit US 3e8(c) depicts the area he confirmed as subirrigated and per Exhibit US 3e8(c), the United States asserts that 67.20 acres were measured as confirmed subirrigation. For the Court to determine how to apportion the 67.20 acres amongst six irregularly shaped fields falling within two legal descriptions is folly. The best that can be done is to change to a single parcel for section 6, T6S, R46E and reference Exhibit US 3e(9) {same as Exhibit US 3e8(c) except 8.5" x 11" rather than 20" x 25.5" mounted on foam core} as the location of the acreage. Finding of Fact 77) The parcels for section 6 in the place of use should be changed from 63.00 acres in the E2 section 6, T6S, R46E and 33.00 acres in the E2W2 of section 6 T6S, R46E to 67.20 acres in section 6, T6S, R46E. The following clarification remark should be added to the place of use: THE PLACE OF USE IN SECTION 6 CONSISTS OF SIX FIELDS GENERALLY LOCATED WITHIN THE E2 AND E2W2 OF THE SECTION. SEE THE COPY OF EXHIBIT US 3E(9) ADDED TO THE CLAIM FILE FOR THE SPECIFIC LOCATION OF THIS SUBIRRIGATED ACREAGE. Finding of Fact 78) For claim 42C 37721-00, maximum acres should be 83.90 acres (16.70 in section 14 and 67.20 in section 6). Finding of Fact 79) As stated at the beginning of this portion of the Master's Report for claim 42C 37721-00, during the examination of this claim, an extraneous remark was added stating that the claim map appears to indicate 158.71 acres irrigated, an issue remark was added stating that the 1978 aerial photograph appears to show 152.69 acres irrigated, and the 1944 aerial photograph appears to indicate 154.28 acres irrigated. Finding of Fact 80) The abstract of claim 42C 37721-00 also states that this right is supplemental with five other rights. Finding of Fact 81) As a United States witness, claim examiner Jamie Ellis, testified that he looked at the 1944 aerial photographs used for the WRS rather than the WRS map 56 when he examined the claims. Hearing Recording marker 2:25:39 to 2:30:23. As Bull Ranch witness, Mr. Ellis testified that the perimeter of the area marked on the topographic map attached to Statement of Claim 42C 37721-00 encompasses 158.71 acres but only 126.00 acres were claimed as subirrigated. This testimony concerns the entire claimed place of use in sections 14 and 6. Hearing Recording marker 2:38:28 to 2:41:08 As a Bull Ranch witness, on cross-examination by the United States, Mr. Ellis testified that he did not distinguish between surface irrigation and subirrigation when he measured the number of acres which appeared irrigated on the 1944 aerial photographs. Hearing Recording marker 2:42:31 to 2:43:24. Finding of Fact 82) As the extraneous remark and the issue remarks were based on mapping or aerial photographs acreage measurements which did not distinguish between the acreage that was flood irrigated by the other supplemental rights and the acreage subirrigated by ground water tributary to Otter Creek, and, as no one, in particular the claimant, asserted that the maximum acres irrigated and the place of use for this subirrigation right should be increased to any of the acreage figures noted in the remarks, the extraneous remark and the issue remarks should be stricken as addressed and resolved by the evidence presented at hearing. Claimant's Request for Costs and Attorney's Fees The Proposed Prehearing Order filed on April 19, 2011, finalized with some modifications on April 27, 2011, includes the following item F in Claimant's Issues of Fact: "Whether Claimant is entitled to attorney fees under Rule 11 of the Montana Rules of Civil Procedure." From whom these fees are sought and the factual basis for a Rule 11 sanctions request is not articulated and argued. Rule 11, M.R.Civ.P. (2009) states: Rule 11. Signing of pleadings, motions, and other papers -- sanctions. Every pleading, motion, or other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the party's pleading, motion, or other paper and state the party's address. Except 57 when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper including a reasonable attorney's fees. (Emphasis added) It is clear from the text of this Rule that a request for sanctions pursuant to this Rule begins with a motion filed by the aggrieved party or some action by the court on its own initiative. There is no action being taken by the Court on its own initiative in this instance. The sentence -"Whether Claimant is entitled to attorney fees under Rule 11 of the Montana Rules of Civil Procedure."- is not a motion much less a motion and brief as contemplated and required by Rule 7(b), M.R.Civ.P. (2009) and Rule 2, U.D.C.R. The Claimant, Bull Ranch's, Proposed Findings of Fact, Conclusions of Law and Order filed on July 7, 2011 (prior to hearing) includes the following as item 2 in the proposed Order: "The Objectors, United States of America, Bureau of Indian Affairs and the Northern Cheyenne Tribe, having no basis in law or fact for objecting to Claimant's Claim, shall pay Claimant's costs and attorney fees." This is not a motion much less a motion and brief as contemplated and required by Rule 7(b), M.R.Civ.P. (2009) and Rule 2, U.D.C.R. The Claimant, Bull Ranch's, Proposed Findings of Fact, Conclusions of Law and Order filed on August 22, 2011 (post-hearing) includes the following as item 3 of the proposed Order: "The objectors, United States Bureau of Indian Affairs and the Northern Cheyenne Tribe, having no basis in law or fact for objecting to the Claimant's Water Right Claims Nos. 42C 35378 00, 42C 37719 00, and 42C 37721 00, shall pay claimant's 58 costs and attorney fees." This is not a motion much less a motion and brief as contemplated and required by Rule 7(b), M.R.Civ.P. (2009) and Rule 2, U.D.C.R. As there is no proper motion and brief filed requesting Rule 11 sanctions, there is no action for the Court to take based on an issue of law in the Prehearing Order or based on Proposed Orders filed by Bull Ranch. RECOMMENDATIONS Based on 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 Preliminary Decree for this Basin. A Post Decree Abstract of Water Right Claim for each claim is served with this Report to confirm the recommended changes have been made in the state's centralized record system. DATED this <3j day of March, 2014. Kathryn L. W. Lambert Senior Water Master W. Scott Green Patten, Peterman, Bekkedahl & Green P.L.L.C. 2817 Second Avenue North, Suite 300 Billings, MT 59101 Patrick Barry, Trial Attorney U.S. Department of Justice Indian Resources Section, ENRD PO Box 44378 L'Enfant Plaza Station Washington, DC 20026-4378 59 Jeanne S. Whiteing Attorney at Law 1628 5th Street Boulder, CO 80302 Hertha L. Lund Breeann M. Johnson Lund Law PLLC 662 Ferguson Ave., Unit 2 Bozeman, MT 59718 (406) 586-6254 Lund@Lund-Law.com Johnson@Lund-Law.com Service List updated 03/24/2014 S:\Share\WC-BASIN FOLDERS\42C\CASES\42C-21\2] rar 11-8-13 docxO 60 October 4,2013 W W 42C 35370-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM TONGUE RIVER, BELOW HANGING WOMAN CREEK BASIN 42C 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: 42C 35370-00 Version: STATEMENT OF CLAIM 2 - POST DECREE Status: Owners: ACTIVE BULL RANCH HC71 BOX 1168 ASHLAND, MT 59003 Priority Date: JULY 15, 1966 Type of Historical Right: USE Purpose (use): IRRIGATION Irrigation Type: Flow Rate: WATER SPREADING A SPECIFIC FLOW RATE HAS NOT BEEN DECREED BECAUSE THIS USE CONSISTS OF DIRECT FLOW WATER SPREADING. Volume: 24.00 AC-FT Climatic Area: 2 - MODERATELY HIGH Maximum Acres: 16.00 Source Name: O'DELL CREEK Source Type: SURFACE WATER Point of Diversion and Means of Diversion: IP. Govt Lot Otr Sec Twp Rge County NESENE 1 Sec 21 5S 44E ROSEBUD 44E ROSEBUD 44E ROSEBUD Rge County Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DIKE 2 SENENE 21 5S Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DIKE 3 NENENE 21 5S Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DIKE Period of Use: JANUARY 1 TO DECEMBER 31 Place of Use: ID Acres Govt Lot Otr Sec Sec Twp 1 15.00 E2NE 21 5S 44E ROSEBUD 2 1.00 S2SESE 16 5S 44E ROSEBUD Oetober4,2013 W W 42C 35370-00 Page 2 of 2 Post Decree Abstract Place of Use: ID Total: Acres Govt Lot Qtr Sec Sec Twp Rge County 16.00 Remarks: STARTING IN 2008, PERIOD OF DIVERSION WAS ADDED TO MOST CLAIM ABSTRACTS, INCLUDING THIS ONE. December 5,2013 **"" ^""^ 42C 35373-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM TONGUE RIVER, BELOW HANGING WOMAN CREEK BASIN 42C 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: 42C 35373-00 Version: STATEMENT OF CLAIM 2 - POST DECREE Status: Owners: ACTIVE BULL RANCH HC71 BOX 1168 ASHLAND, MT 59003 Priority Date: JANUARY 1, 1940 Type of Historical Right: USE Purpose (use): IRRIGATION Irrigation Type: Flow Rate: WATER SPREADING A SPECIFIC FLOW RATE HAS NOT BEEN DECREED BECAUSE THIS USE CONSISTS OF DIRECT FLOW WATER SPREADING. Volume: 84.00 AC-FT Climatic Area: 2 - MODERATELY HIGH Maximum Acres: 42.00 Source Name: UNNAMED TRIBUTARY OF OTTER CREEK Source Type: SURFACE WATER Point of Diversion and Means of Diversion: Govt Lot Qtr Sec 1 Sec Twp Rge County SENESW D 6 6S 46E POWDER RIVER *Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion IMeans: * Reservoir:: DAM ONSTREAM Govt Lot Diversion to Reservoir: Qtr Sec Sec Twp Rge County SENESW 6 6S 46E POWDER RIVER DIVERSION # 1 Dam Height: 13.00 Depth: 10.00 Surface Area: 1.25 Capacity: 15.00 FEET FEET ACRES ACRE-FEET THE CAPACITY, DAM HEIGHT, AND SURFACE AREA HAVE BEEN ESTIMATED BY DNRC. Period of Use: JANUARY 1 TO DECEMBER 31 December 5,2013 *"* *" ^ml0 42C 35373-00 Page 2 of 2 Post Decree Abstract Place of Use: ID Acres Govt Lot >tr Sec Sec 1 19.55 W2E2 6 6S 46E POWDER RIVER 2 22.45 E2W2 6 6S 46E Total: Twp Rge County POWDER RIVER 42.00 Remarks: THE WATER RIGHTS FOLLOWING THIS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS. EACH RIGHT IS LIMITED TO THE FLOW RATE AND PLACE OF USE OF THAT INDIVIDUAL RIGHT. THE SUM TOTAL VOLUME OF THESE WATER RIGHTS SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 35373-00 35375-00 35376-00 35377-00 35378-00 37721-00 THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 35366-00 35373-00 M#rch7,2014 -w ^, 42C 35378-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM TONGUE RIVER, BELOW HANGING WOMAN CREEK BASIN 42C 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: 42C 35378-00 Version: STATEMENT OF CLAIM 2 - POST DECREE Status: Owners: ACTIVE BULL RANCH HC71 BOX 1168 ASHLAND, MT 59003 Priority Date: NOVEMBER 12, 1897 Type of Historical Right: USE Purpose (use): IRRIGATION Irrigation Type: NATURAL SUBIRRIGATION Flow Rate: NO FLOW RATE HAS BEEN DECREED FOR THIS USE OF NATURAL SUBIRRIGATION. Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. Climatic Area: 2 - MODERATELY HIGH Maximum Acres: 15.00 Source Name: SUBIRRIGATION, UNNAMED TRIBUTARY OF LYON CREEK Source Type: GROUNDWATER Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec Sec Twp Rge County S2NE 1 6 6S 46E POWDER RIVER Rge County Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: SUBIRRIGATION Period of Use: JANUARY 1 TO DECEMBER 31 Place of Use: ID 1 Total: Remarks: Acres Govt Lot 15.00 15.00 Qtr Sec Sec Twp S2NE 6 6S 46E POWDER RIVER Mfirch7,2014 ^ ^, 42C 35378-00 Page 2 of 2 Post Decree Abstract THE WATER RIGHTS FOLLOWING THIS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS. EACH RIGHT IS LIMITED TO THE FLOW RATE AND PLACE OF USE OF THAT INDIVIDUAL RIGHT. THE SUM TOTAL VOLUME OF THESE WATER RIGHTS SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 35373-00 35375-00 35376-00 35377-00 35378-00 37721-00 STARTING IN 2008, PERIOD OF DIVERSION WAS ADDED TO MOST CLAIM ABSTRACTS, INCLUDING THIS ONE. March 17,2014 <w >m? 42C 37719-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM TONGUE RIVER, BELOW HANGING WOMAN CREEK BASIN 42C 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: 42C 37719-00 Version: STATEMENT OF CLAIM 2 - POST DECREE Status: Owners: ACTIVE BULL RANCH HC71 BOX 1168 ASH LAND, MT 59003 Priority Date: NOVEMBER 12, 1897 Type of Historical Right: USE Purpose (use): IRRIGATION Irrigation Type: NATURAL OVERFLOW Flow Rate: NO FLOW RATE HAS BEEN DECREED FOR THIS NATURAL OVERFLOW METHOD OF IRRIGATION. Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. Climatic Area: 2 - MODERATELY HIGH *Maximum Acres: Source Name: 3.00 UNNAMED TRIBUTARY OF O'DELL CREEK Source Type: SURFACE WATER Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec Sec Twp Rge County E2SENE 1 34 5S 44E ROSEBUD 44E ROSEBUD Rge County Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: NATURAL OVERFLOW 2 W2SWNW 35 5S Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: NATURAL OVERFLOW Period of Use: JANUARY 1 TO DECEMBER 31 *Place of Use: ID Acres Govt Lot Otr Sec Sec Twp 1 1.25 E2SENE 34 5S 44E ROSEBUD 2 1.75 W2SWNW 35 5S 44E ROSEBUD Total: Remarks: 3.00 MSarch 17,2014 W 42C 37719-00 **? Page 2 of 2 Post Decree Abstract THE WATER RIGHTS FOLLOWING THIS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS. EACH RIGHT IS LIMITED TO THE FLOW RATE AND PLACE OF USE OF THAT INDIVIDUAL RIGHT. THE SUM TOTAL VOLUME OF THESE WATER RIGHTS SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 37719-00 37720-00 STARTING IN 2008, PERIOD OF DIVERSION WAS ADDED TO MOST CLAIM ABSTRACTS, INCLUDING THIS ONE. POINT OF DIVERSION AND PLACE OF USE ARE LOCATED IN HOMESTEAD ENTRY SURVEY 645. Mlrch 14, 2014 W <mT 42C 37721-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM TONGUE RIVER, BELOW HANGING WOMAN CREEK BASIN 42C 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: 42C 37721-00 Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: Owners: ACTIVE BULL RANCH HC71 BOX 1168 ASHLAND, MT 59003 Priority Date: NOVEMBER 12, 1897 Type of Historical Right: USE Purpose (use): IRRIGATION Irrigation Type: Flow Rate: NATURAL SUBIRRIGATION NO FLOW RATE HAS BEEN DECREED FOR THIS USE OF NATURAL SUBIRRIGATION. Volume- THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. Climatic Area: 2 - MODERATELY HIGH *Maximum Acres: Source Name: 83.90 SUBIRRIGATION, UNNAMED TRIBUTARY OF OTTER CREEK Source Type: GROUNDWATER Point of Diversion and Means of Diversion: ID Govt Lot Otr Sec Sec Twp Rge County W2W2 1 14 5S 45E POWDER RIVER 46E POWDER RIVER 46E POWDER RIVER Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: 2 SUBIRRIGATION E2 6 6S Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: 3 SUBIRRIGATION E2W2 6 6S Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: Period of Use: SUBIRRIGATION JANUARY 1 TO DECEMBER 31 Page 2 of 2 l\/lrch 14, 2014 Post Decree Abstract 42C 37721-00 "Place of Use: ID 1 2 Acres Govt Lot Qtr Sec Sec Twp 16.70 W2W2 14 5S 45E POWDER RIVER 6 6S 46E POWDER RIVER 67.20 Rge County 83.90 Total: THE PLACE OF USE IN SECTION 6 CONSISTS OF SIX FIELDS GENERALLY LOCATED WITHIN THE E2 AND E2W2 OF THE SECTION. SEE THE COPY OF EXHIBIT US 3E(9) ADDED TO THE CLAIM FILE FOR THE SPECIFIC LOCATION OF THIS SUBIRRIGATED ACREAGE. Remarks: THE WATER RIGHTS FOLLOWING THIS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS. EACH RIGHT IS LIMITED TO THE FLOW RATE AND PLACE OF USE OF THAT INDIVIDUAL RIGHT. THE SUM TOTAL VOLUME OF THESE WATER RIGHTS SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 35373-00 35375-00 35376-00 35377-00 35378-00 37721-00 STARTING IN 2008, PERIOD OF DIVERSION WAS ADDED TO MOST CLAIM ABSTRACTS, INCLUDING THIS ONE.

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