Peterson Ranch LLC

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Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 l-800-624-3270 (In-state 011ly) (406) 586-4364 FAX (406) 522-4131 IN THE WATER COURT Or THE STATE or MONTANA UPPER MISSOURI DIVISION RCBY RIVER BASIN (41C) ******************** CLAIMANT: Peterson Ranch LLC 41C-260 4IC 41C 41C 41C 130162-00 130163-00 130170-00 130176-00 ORDER GRANTING MOTION TO AMEND lN PART AND ORDER CLOSING CASE I. INTRODUCTION This Order concerns irrigation claims 41 C 130162-00, 4 IC l 30 I 63-00, 4 IC 130170-00, and 41C 130176-00, which all claim a water right decreed to Federal Land Bank in Dauterman v. Federal Land Bank, Fifth Judicial District, Madison County, Cause No. 3089. Part of this Decree, known as the Ruby River Decree, granted 240 miner's inches of water from California Creek to the Federal Land Bank with a priority date of June 20, 1918. Claims 41C 130163-00, 4IC 130170-00, and 41C 130176-00 claim 8.55 CFS, or 342 miner's inches, from California Creek, while claim 41C 13016200 claims 3.5 CFS, or 140 miner's inches, from Harris Creek. Together, 41C 130162-00, 41C 130163-00, 41C 130170-00, and 41C 130176-00 claim 482 miner's inches ofwater, exceeding the 240 miner's inches allotted to the decreed right. The Water Court consolidated these claims into case 41 C-260 to resolve the issue remarks and decree exceeded issue. II. BACKGROUND The Basin 41C Temporary Preliminary Decree was issued on November 14, 1990. The abstracts of claims 41 C I 30162-00, 4 IC I 30 I 63-00, 41 C 130170-00, and 41 C 130176-00 contained the following issue remark in the Temporary Preliminary Decree for Basin 41 C: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE FILED ON THE SAME FORMLERLY DECREED WATER RIGHT. THE SUM OF THE CLAIMED FLOW RATES EXCEEDS THE 240.0 MINERS INCHES DECREED IN CASE NO. 3089. In addition, claim 41 C 130 l 63-00 had a second issue remark: THIS CLAIM PRESENTS ISSUES OF FACT AND LAW THAT MAY BE ADDRESSED AT THE OBJECTION STAGE. IT APPEARS THAT 26.3 ACRES ARE ACTUALLY IRRIGATED AND PROBLEMS COULD EXIST WITH FLOW RATE AND VOLUME. TO ASSURE THE ORDERLY ADMISNISTRATION OF WATER RIGHTS, Tl-IE WATER COURTS WILL SET A HEARING TO DETERMINE THESE ISSUES IF NO OBJECTIONS ARE MADE. The Basin 41 C Temporary Preliminary Decree objection list provided notice to other water users of possible modifications to several elements of these water rights. These claims were consolidated into case 41 C-260 on December 16, 2008 and the claimants were required to meet with personnel from the Montana Department of Natural Resources and Conservation (DNRC) to resolve the issue remarks. On May 14, 2009, after claimant contact, a DNRC water resource specialist submitted a memorandum containing the following proposed changes to these water rights: 41C 130162-00: Amend type of historical right from decreed to use right. 41C 130163-00: Amend place of use acreage from 30 to 26.3 acres. 41 C 130170-00: Amend point of diversion to NWSENE Sec. 27, Twp. 5S, Rge. 4W. 1 1 As originally claimed on the Statement of Claim, the point of diversion was the SENWNE Sec. 28, Twp. 5S, Rge. 4W. This is how the claim appeared in the 4JC Temporary Preliminary Decree. During the claimant's consultation with the DNRC in 2009, the DNRC examined aerial photographs which indicated the point of diversion is actually in NWSENE Sec. 27, Twp. 5S, Rge. 4W. The claimant submitted an Amendment to Statement of Claim, which was 2 41C 130176-00: Amend the flow rate from 6 CFS to 3.45 CFS. On November 30, 2009, claimants filed a withdrawal of their amendment to claim 41 C 130162-00. The withdrawal of the 2009 amendment to 41 C 130162-00 meant the combined flow rate of Peterson's four claims still exceeded the decreed amount. The flow rate reduction to claim 41 C 130176-00 would have brought the combined flow rate of all four Peterson rights to 9.5 CFS, or 380 miner's inches, which was still above the 240 decreed inches. No further proceedings occurred to resolve the issues until 2016, at which time the Court issued an order stating the reduction to claim 41 C 130176-00 did not resolve the decree exceeded issue. On October 31. 2016. Peterson filed a motion to amend 41 C 130162-00. The 2009 and the 2016 motions to amend are currently before the Court. III. STANDARD OF REVIEW Issue remarks not resolved through the objection process are to be resolved using the process provided in Section 85-2-248, MCA. A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content. § 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. Ruic 19, W.R.Adj.R. The Montana Water Court is permitted to use information submitted by the Montana Department of Natural Resources and Conservation. the Statement of Claim, information from approved compacts, and any other data obtained by the Court to evaluate water right claims. § 85-2-231(2), MCA. When resolving issue remarks, the Montana Water Court must weigh the information resulting in the issue remark and the issue remark against the claimed water right. § 85-2-247(2), MCA. All issue remarks must be resolved before the issuance of a final decree for a basin. § 85-2-234( I), MCA. attached to the DNRC's May 14, 2009 memorandum. The claimant's ;\rnc11dmcnt requested the point of diversion be changed to the SWSENW Sec. 27, Twp. 5S. Rge. 4W. 3 After the issuance of a temporary preliminary dccn:e or preliminary decree, notiee of any motion to amend a statement of claim or a timely filed objection that may adversely affect other water rights is published in the form of an objection list. The objection list provides notice to water users that a particular clement of a claim may change during adjudication of the claim. ~ 85-2-233(6). MCA IV. ISSUES AND ANALYSIS I. Did the 2016 amendment of claim 41 C 130162-00 adequately resolve the decree exceeded issue remarks for the four Peterson claims 0 Decree exceeded problems arise when the combined flow rates of two or more water rights exceed the flow rate of the underlying decreed right upon which they are based. Amendments to water rights that seek to expand an clement of a claim, and thereby have the potential to adversely a!Tcct another water right. typically require public notice pursuant to Section 85-2-233( 6 ), MCA. The water rights subject to this Order received decree exceeded issue remarks in the Ternpora1·v Preliminary Decree. giving individuals notice of the issue. In addition. Peterson's 2016 amendment contained an extensive service list of individuals from the area providing notice to those individuals. However, Peterson is not seeking to expand any element or claim 41 C 130162-00. Peterson is only seeking to amend the type of right. The Court finds no potential to adversely affect another water right and therefore no additional public notice is necessary. The Ruby River Decree states 240 miner's inches or California Creek water were appropriated from a point where the creek intersects the west boundary of Section 28, Township 5 South. Range 4 West on .June 20. 1918. The Decree does not mention Harris Creek. According to the maps in the claim file, the Harris Creek right has a point of diversion which drops water into California Creek about 1.5 miles upstream of the confluence of the two creeks. The Court disagrees with Peterson's characterization of Harris Creek as a separate drainage from California Creek and the Ruby River. The claim 4 file maps clearly show Harris Creek drains into California Creek, which eventually flows into the Ruby River. Regardless of these facts, this Court agrees with Peterson's position that claim 41C 130162-00 should be eonsidered a separate water right from the decreed 240 miner's inches from California Creek. The Decree lists several specific tributaries of the Ruby River by name, but this does not mean the Decree intended to encompass every Ruby River tributary, or all the water rights from those tributaries. Peterson's diversion of Harris Creek water to California Creek enables Peterson to divert Harris Creek water to the place of use for claim 41C 130162-00 only. Californi,1 Creek is only a vessel for Harris Creek water and therefore claim 41 C 130162-00 is not a part of the California Creek water distributed in the Ruby River Decree. The portion of Peterson's motion to amend 4IC LlUlh2-00 to a use right is accepted. Because 41 C I 30 I 62-00 is not based on the Ruby River Decree, only the three California Creek claims, 41 C 130 l 63-00, 41 C 130170-00 . and 41 C 130 l 7h-OO, must not exceed the 240 miner's inches granted in the Decree. Peterson's 2009 amendment to reduce the flow rate of 41 C 130176-00 would bring the three California Creek claims into compliance with the 240 miner's inches allotted in the Ruby River Decree. Therefore, the decree exceeded issue remark is resolved. 2. Should the Court accept Peterson's proposed priority date of.lune 20, 1918 for the 41 C 130162-00 use right? As stated above, this Court accepts Peterson's amendment to 41 C l 30162-00 in part by changing the type of right from decreed to use. The Court must now decide when claim 41C 130162-00 was first put to beneficial use. Peterson's amendment does not address the priority date of this claim other than stating the priority date would remain at June 20, 1918, like the remaining three California Creek claims. However, as discussed above, c l:1 im 41 C 130162-00 is not a part of the Ruby River Decree. Therefore. additional evidence is required to support a June 20, 1918 priority date. ) A use right is a claimed existing water right perfected by appropriating and putting water to beneficial use without written notice, filing, or dccn.:c. Rule 2. W.R.C.E.R. The 2009 DNRC memorandum to the Court states the Madison County Water Resources Survey photograph from October I 0, 1951 indicates that the diversion has been in use since at least the date of the photograph. Claim 4 IC 130162-00 is the only irrigation claim on Harris Creek. Given these facts and the fact that claimant provided no evidence supporting the date of irrigation from Harris Creek. the priority date for claim 41 C 130162-00 is changed to October I 0. 1951. 3. Did Peterson's 2009 amendments resolve the remaining issues with the three California Creek claims? 41C 130163-00: Peterson's amendments from 2009 are approved and implcmcntcd. 2 The amendment to 41C 130163-00 reduced the place of use front 30 to 26.3 acres. No review or determination of the burden of proof is required pursuant to Rule I 7(c). W.R.Adj.R. because the claimant has agreed to reduce or limit an element of the claim. The Water Court may accept a claimant's requested reduction or limitation without li.1rthcr presentation of evidence. Ruic 17( c ). W.R.Ad.i .R. 41C 130170-00: Peterson provided no further information necessary to amend the point of diversion on claim 41C 130170-00 to SWSENW Sec. 27. Twp. 5S, Rgc. 4W. DNRC examination showed the diversion in NWSENE Sec. 27. Twp. SS, Rge. 4 W. Information in the claim file, Peterson's 2009 Amendment, and the DNRC memorandum are consistent and indicate the originally-claimccl point or divc1·sion in the SLNWNE Sec. 28 is incorrect. The map attached to the statement of claim. aerial photographs, and the DNRC memorandum show the actual point of diversion for claim 41 C 130170-00 is NWSENE Sec. 27, Twp. 5S. Rge. 4W. 2 The 2009 amendment to 41 C 130162-00 will not be implemented as Peterson \Vithdrew it on November 30, 2009. 6 41 C 130176-00: Peterson's motion to amend the flow rate on this claim from 6 CFS to 3.45 CFS brings the flow rate for the remaining decreed claims 41 C 130163-00. 41 C 130170-00 and 41C 130176-00 within the decreed amount o/'240 miner's inches. or 6 CFS. V. CONCLUSION AND ORll[R The issue remarks relating to an over-claimed decreed right were resolved by Peterson's amendments. As a result of the proposed changes, the decree exceed issue remark should be removed from these claims. The Court accepts part of the amendment of claim 41 C 130162-00 to amend the type of right from decreed to use but rejects Peterson· s proposed priority date of June 20, 1918 and instead implements the priority date of the first knmvn use: October 10, 1951. The Court further approves and implements Peterson·s amendment to claim 41C 13016300 to resolve all issue remarks for all four claims. The cmn:ctions to 41 C 130170-00 and 41C 130176-00 are also implemented. Post Decree Abstr;1cls ol' Waler Right Claims are served with this Order lo confirm these n:commendatiuns h,ive been incorporated into Montana's water right claims record system. 41C 130162-00: Priority Date: June 20, l 918 October 10, 1951 Type of Historical Right: .g~REED USE 41C 130163-00: Maximum Acres: WcOO 26.30 Place of Use: Sec Otr Sec ID Acres N2SW 27 25 NENES\c 28 2 ~ 1.30 Total: ~MG 26.30 41C 130170-00: Point of Diversion: Otr Sec SENWNE NWSENE 41C 130176-00: Flow Rate: Sec 2-l? 27 6.00 CFS 3.45 CFS 7 Twp 5S 5S R.gc 4W 4\V Countv MADISON MADISON Jwp 5S Rge 4W County MADISON It is ORDERED case 41 C-260 is CLOSED. DATED this /5 /' day of /4;LvN2---Y Russ Mcl--:lvea Chief Water Judge William M. Kebe. Jr. Attorney at Law 129 W Park St PO Box 509 Butte, MT 59703 (406) 782-5800 kebew@aol.com \\JUDGALH20SRV\Datm oJ\Sharc'·,WC-H1\SlN F()l .llERS\-f ll··.C1\Sl'.S·( ·.-\Sl-:2r,1f -! 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