United States of America (Fish & Wildlife Service), Huntsman Ranch Family, LLC

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Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 l-800-624-3270 (In-state only) (406} 586-4364 Fa:•: (406) 522-4131 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION RED ROCK RIVER BASIN (41A) ** * * *** *** **** *** * ** * * * * ** ** ** CLAIMANTS: United States of America (Fish & Wildlife Service); Huntsman Ranch Family, LLC OBJECTOR: Huntsman Ranch Family, LLC NOTICE OF INTENT TO APPEAR: Huntsman Ranch Family, LLC CASE41A-6 41A 94435-00 41A 94935-00 41A 94936-00 41A 94937-00 41A 94938-00 41A 94939-00 41A 94940-00 NOTICE OF FILING OF MASTER'S REPORT You may file a written objection to the Report if you disagree with the Master's Findings of Fact, Conclusions ofLaw, or Recommendations; or if there are errors in the Report. The above stamped date indicates the date the Master's Report was filed and mailed. Rule 23 of the Water Rights Adjudication Rules requires that written objections to a Master's Report must be filed within 10 days of the date of the Master's Report. Because the Report was mailed to you, the Montana Rules of Civil Procedure allow an additional 3 days be added to the 10 day objection period. Rule 6(d) M.R.Civ.P. This means your objection must be received no later than 13 days from the above stamped date. If you file an objection, you must mail a copy of the objection to all parties on the Service List found at the end of the Master's Report. The original objection and a certificate of mailing to all parties on the Service List must be filed with the Water Court. If you do not file a timely objection, the Water Court will conclude that you agree with the content of this Master's Report. I MASTER'S REPORT FINDINGS OF FACT 1. The above-captioned water right claims are owned by the Huntsman Ranch Family LLC (Huntsman) and the United States Fish & Wildlife Service (FWS). The claims appeared in the Preliminary Decree for Basin 41A and were consolidated into this case based on the common link between Huntsman claim 41A 94936-00 and FWS claim 41A 94435-00. 2. The claims also received issue remarks based on pre-decree examination by the State Department of Natural Resources and Conservation (DNRC). Huntsman Ranch Family objected to its own claims. 3. Proceedings in this case began in April of 2015. Huntsman and FWS were ordered into settlement regarding claims 41A 94936-00 and 41A 94435-00. FWS filed a withdrawal of claim 41A 94435-00 on July 8, 2015. Meanwhile, Huntsman was ordered to consult with a representative of the DNRC and attempt to resolve the issue remarks that appeared on the claims. At the request of the claimant, the applicable deadlines were extended on August 31, 2015 and again on October 9, 2015. 4. On December 9, 2015, the DNRC filed a memorandum with the Court. According to the memorandum, the claimant met with the DNRC in October but never filed the documents necessary to resolve the issue remarks. The DNRC was able to make recommendations for resolving the issues with some of the claims. 5. On December 15, 2015, the Court issued a Show Cause order, which stated that if nothing was filed by the deadline, the claims would be amended or dismissed as follows: 41A 94435-00 WITHDRAWN 41A 94935-00 NO CHANGE 41A 94936-00 Flow Rate: 4.3() CFS 3.10 CFS Maximum Acres: lli,00 82.00 2 Place of Use: ID Acres I ~ 29.00 2 89,00 53.00 Total: +-l+.00 82.00 41A 94937-00 Qtr Sec Sec Twp Rge Counfy SWNW NE 13 14 14S 14S IE IE Beaverhead Beaverhead DISMISSED 41A 94938-00 Maximum Acres: U,00 10.00 Flow Rate: 1.00 CFS 213.70 GPM Qtr Sec Sec Twp Rge Counfy 13 14S IE Beaverhead Place of Use: ID Acres I U,00 41A 94939-00 10.00 NW DISMISSED 41A 94940-00 Flow Rate: 1.40 CFS 3.20 CFS Maximum Acres: Place of Use: Acres ID I 2 3 8.30 37.00 39.00 37.00 Qtr Sec Sec Twp ~ Counfy E2SESE N2NW S2SW 9 IO IO 14 S 14S I 1S lE IE lE Be1Werhead Beaverhead Bewrerhead Total: 84,W 37.00 6. Nothing was filed by the deadline. The relevant facts are as follows: 41A 94435-00 7. Claim 41A 94435-00 is an irrigation claim. The claim received issue remarks indicating, among other things, that the right may have been abandoned or was never perfected. On July 8, 2015, the claim was withdrawn by FWS. The claim should be withdrawn. 41A 94935-00 8. Claim 41A 94935-00 represents an irrigation claim. The claim received issue remarks questioning the number of historically irrigated acres. The claim also received a remark indicating the flow rate may need to be reduced consistent with any change in 3 acreage. The DNRC reviewed the claim file and a historical aerial photograph and was able to confirm the claimed irrigation. The DNRC recommended that the claim remain unchanged and that all issue remarks be removed. 41A 94936-00 9. Claim 41A 94936-00 represents a claim for irrigation use. The claim received issue remarks questioning the number of historically irrigated acres. The claim also received a remark indicating the flow rate may need to be reduced consistent with any change in acreage. The DNRC reviewed available information and concluded that the claimed acreage and flow rate should be reduced as outlined above in Finding of Fact #5. If those changes were implemented, the DNRC recommended removing all issue remarks. 41A 94937-00 10. Claim 41A 94937-00 represents an irrigation claim. The claim received issue remarks indicating that the claimed conveyance ditch could not be identified. The claim also received remarks indicating that the DNRC was unable to find any evidence of historical irrigation on the claimed place of use. Huntsman objected to the claim but failed to provide any evidence in support of the claim and failed to respond to repeated orders from the Court. The claim should be dismissed. 41A 94938-00 11. Claim 41A 94938-00 represents an irrigation claim. The claim received issue remarks questioning the number of historically irrigated acres. The claim also received a remark indicating the flow rate may need to be reduced consistent with any change in acreage. The DNRC reviewed available information and concluded that the claimed acreage and flow rate should be reduced as outlined above in Finding of Fact #5. If those changes were implemented, the DNRC recommended removing all issue remarks. 41A 94939-00 12. Claim 41A 94939-00 represents an irrigation claim. The claim received issue remarks indicating that the claimed diversion facility and conveyance ditch could not be identified. The claim also received remarks indicating that the DNRC was unable to find any evidence of historical irrigation on the claimed place of use. Huntsman objected to 4 the claim but failed to provide any evidence in support of the claim and failed to respond to repeated orders from the Court. The claim should be dismissed. 41A 94940-00 13. Claim 41A 94940-00 represents an irrigation claim. The claim received issue remarks questioning the number of historically irrigated acres. The DNRC reviewed available information and was able to confirm 37.00 acres of historical irrigation. The Master finds that the claim should be changed as outlined above in Finding of Fact #5. If those changes are implemented, all issue remarks will be resolved. CONCLUSIONS OF LAW 1. In order to ensure historical accuracy, the Water Court is required to address all issue remarks that appear on a claim as well as any objections the claim receives. 2. A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content. Section 85-2-227, MCA. This prima facie proof may be contradicted and overcome by other evidence that proves, by a preponderance of the evidence, that an element of the prima facie claim is incorrect. This is the burden of proof for every assertion that a claim is incorrect. Rule 19, W.R.Adj.R. 3. Therefore, the overarching legal issues in this case are: I) whether the proposed changes resolve all issue remarks and objections; and 2) whether the evidence before the Court overcomes the prima facie proof found on the Statements of Claim. 4. Huntsman Ranch Family LLC filed objections and a NOIA on their own claims. They were ordered to provide the DNRC and the Water Court with the information necessary to address the issue remarks on the claims and the objections. The objectors failed to comply with repeated orders from the Court and have not filed any motions or evidence related to their objections. 5. When objections/NOIA are not resolved, the next procedural step is generally to put the case on hearing track. Section 85-2-233, MCA. However, the right to a hearing can be lost and objections can be dismissed if a party fails to comply with repeated orders from the Court. In this case, the Court has repeatedly ordered the objectors to provide the information necessary to resolve their objections, and they have failed to do so. 5 6. Pursuant to Rule 22, W.R.Adj.R., an objector/NOIA who fails to comply with an order issued by the Court is subject to sanctions, including dismissal of the objections. The appropriate sanction in this case is to dismiss Huntsman Ranch's objections and NOIA. 7. In resolving issue remarks other than through the objection process, the Court shall determine if the issue remarks can be resolved using information available in the claim file. In this case, the evidence gathered from the claim files supports amending the claims as detailed above in Findings of Fact #5. The record before the Master is sufficient to overcome the prima facie status of the claims. Rule 19, W.R.Adj.R. 8. For the above-mentioned reasons, the claims should be modified as shown on the attached abstracts to resolve all issue remarks and to accurately reflect historical use. RECOMMENDATIONS Based upon the above Findings of Fact and Conclusions of Law, this Master recommends that the Court make the changes specified above to correct the Preliminary Decree for this Basin. Post Decree Abstracts of Water Right Claim are served with this Report to confirm that the recommended changes have been made in the state's centralized record system. DATED this _J day of /jjll,,4~_:/ , 2016 -IL---='l-V::::::~/ .· Andrew Gorder Water Master 6 Caitlin B. lmaki, Trial Attorney Joseph H. Kim, Trial Attorney Joseph T. Mathews, Trial Attorney Anna K. Stimmel, Trial Attorney James DuBois, Trial Attorney United States Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box 7611 Ben Franklin Station Washington, D.C. 20044-7611 (202) 305-0247 (Imaki) (202) 305-0207 (Kim) (202) 305-0432 (Mathews) (415) 744-6480 (Stimmel) (303) 844-1375 (DuBois) Fax: (202) 305-0506 caitlin.imaki@usdoj.gov joseph.kim@usdoj.gov joseph.mathews@usdoj.gov anna.stimmel@usdoj.gov james.dubois@usdoj.gov William A. Hritsco Davis, Warren & Hritsco POBox28 Dillon, MT 59725 (406) 683-2363 hritsco@qwestoffice.net DNRC-Helena Regional Office Water Resources Division 1424 9th Ave. PO Box 201601 Helena, MT 59620-1601 S :\Share\WC-BASIN FOLDERS\41 A\CASES\4 lA-6\4 tA-6 MR (1-27-16) jbc.docx 7

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