Bass Trust, DNRC, Mouat, USDA Forest Service, deLannooy

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_ IN THE WATER COURTS OF THE STATE OF MONTA;044_, T YELLOWSTONE DIVISION r=i STILLWATER RIVER BASIN (43C) 'NUJ 1-1: IS° * * * * * * * * * * * * * * A * * * \r_ IN THE MATTER CF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND,) WITHIN THE STILLWATER RIVER DRAINAGE ) AREA, INCLUDING ALL TRIBUTARIES OF THE ) STILLWATER RIVER IN STILLWATER, SWEET ) GRASS, PARK AND CARBON COUNTIES, MONTANA. CASE NO. 43126; CLAIM NO. 43C-W-189828-00, 169E91-00, 189892-00, CLAIMANT: William Mouat, Margaret deLannoy OBJECTOR: Department of Natural Resources & Conservation United States Department of Agriculture, Forest Service, Harry W. Bass III Trust ON MOTION OF THE WATER COURT MASTER'S REPORT FINDINGS 1. OF FACT The Montana Department of Natural Resources and - Con3ervation (DNRC) filed timely objections contesting volume. 2. The Court calle6 these in on 31 rs own notio,is regarding volume on 43C-W-189892 and priority data 43C-W-189888 and 189891. The Harry Bass III T r ust filcd =tiTreJv o bj ection to 43C-W-189,!383 contesting prori'.:y dEte, volume, place f use, irrigated an.1 4. The United States Department of Agriculture, 'icrest Service filed a timely objection to 43C-W-1SY88C contesting volume and flow rate. 5. The Court received a stipulation on 43C-W-189888 signed by Wiliiam Mouat, William C. deLannov, tfustee, Leanne Schraudner, attorney representing the Harry Bass III Trust and Ken Pitt, Special Assistant U.S. Attorney, representing the United States Department of Agriculture, Forest Service agreeing to changeb 111 piititiLy (IdLe anj volum. Tiit unJ.L.0 Harry Bass III Trust withdrew their objections upon the Courts acceptance of the stipulation. 6. After reviewing these facts the Master finds that there has been no overfeaching or misunderstanding by tl-e parties in the signing of this stipulation. 7. The Court received a withdrawal of objection on 43C-W-189888, 189891 and 189892 from the DNRC along with a September 26, 1986 report from Charley Carpenter of the DNRC with findings that the method of irrigation was natural overflow and water spreading. 8. The Court received an affidavit and letter from William Mouat regarding historical use and need for decreed volume amounts on 43C-W-189891 and 189892. 9. The lands claimed in 43C-W-189888 and 189891 were part of the Crow Indian Reservation on the priority dates claimed. 10. There is no evidence that the lends contained in 43C-W-189888 and 189891 were originally Indian allotments. 11. The lands in 189888 and 189891 were signed over to the United States by the Crow Indians through a treaty dated December 8, 1890, which was ratified by Congress March 3, 1891, and the lands were opened for public settlement on October 12, 1892. 12. In the 1987 Legislative Session, Section 85-2-234 MCA, Final Decrees, was amended by Senate Bill 102. SB 102 stated that the amount of water for direct flow rights such as irrigation rights shall be measured by flow rate unless the Water Judge determines otherwise. -2- 13. These are not direct flow irrigation claims as evidenced by the method of irrigation and hence not susceptible to measurement by flow rate. CONCLUSIONS OF LAW I. The Water Court has jurisdiction to review all ojections to Temporary Preliminary Decrees pursuant to Sec. 85-2-233, MCA. Indian lands become part of the public domain when a cessation treaty is signed by the Indians and then ratified by Congress, not when the land is officially opened up for settlement Cook et al v. Hudson 110 MT 263, 103 P2d 137, (1940) The date the cessation treaty regarding the land in claims 43C-W-189888 and 189891 was ratified by Confess was March Eence ::117se claims cannot have a priorit7 earlier then March 3, 1891. IV. Pursuant to SB.102 the flow rate amounts should be r .a. -cved - from the iAp stracts these until he Court rules at some future time that flow rate is a necessary element to adequately administer these ri9hts. V. The objections of the DNRC, USDA Forest Service and Harry Bass III Trust are deemed withdrawn. VI. The motions of the Court are deemed withdrawn. VII. Based uPon the evidence presented the following changes should be made to the abstracts of claims as they appear in the Temporary Preliminary Decree of the Stillwater River Basin: 43C-W-189888-00 PRIORITY DATE: FLOW RATE: VOLUME: February 25, 1894 0 230.00 afy Remove remarks regarding volume and p riority date and add: The method of irrigation is natural over-flow and water spreading. 43C-W-189891-00 PRIORITY DATE: FLOW RATE: March 3, 1891 Remove remarks regarding vo l and add: e and priority date The method of irrigation is nEturEA ever-flow end vatf:.7: spreading. 43,7-W-139892-00 FLOW RAI: Remove remark zy:Tr.nc, v.ure anti The method of i-Lrigation is natural over-flow and water spreading. DATED this day of november 1982. / ,ziAtQafit.-- Carcl Brown Water Master CERTIFICATE OF SERVICE I, Judith A. Salvas, DePuty Clerk of Court of the Montana Water Court, hereby certify that a true and correct copy of the above Master's Report was duly served upon the following ersons listed herein, by de p ositing the same, postage prepaid, in the United States mail. Margaret deLannoy Harry W. Bass III Trust %William G. Mcuat, Att. 6Leanne Schraudner, Att. - P Suite 317 222 East Main, Suite 301 Bozeman, PT 59715 First Federal Savings Bldg. Billings, MT 59101 James Madden, Legal Counsel Kenneth Pitt, Special Mt. Dept. of Natural Resources & Conservation Asst. U. S. Attorney P. 0. Box 7669 1520 East Sixth Missoula, MT 59807 Helena, MT 59620 John R. Hill, Jr., Attorney Department of Justice 2952 Stout Et., Drawer 3607 Denver, Colorado 80294 17,LTED this AJ,-...?9 dav of NoverbP.r I I - I . t ./ 1 _:/r7 ]vas veputy CJ_::-!rk of Court s IN THE WATER COURTS OF THE STATE OF MONTANA YELLOWSTONE DIVISION STILLWATER RIVER BASIN - 43C * * * * * * * * * * * * IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL ) 'I tiE WATER, BOTH SURFACE AND UNDERGROUND, ) TAITHIN THE STILLWATER RIVER DRAINAGE INCLUDING ALL TRIBUTARIES OF THE ) STILLWATER RIVER IN STILLWATER, SWEET ) GRASS, PARK AND CARBON COUNTIES, f,'!DNTANA. * **** /- Ns-Cf1. ¢ 1S37 ; . -" 5.;,. ¢ CF...;e No. 43C-126 Claim N. 43C-W-189883 STIPULATION The Unite6 States of America, Objector, by and through its undersigned attorneys, William Mouat, as legal counsel for William Mouat and Margaret Ddannoy, Claimant, and Leanne M. Schraudner, as legal counsel for the Harry BF,ss Trust III, Objector, submit the following "STIPULATION" with respect to Claim No. 43C-W-189888: 1. Volume shall be reduced from 554 acre feet to 230 acre feet. 2. Priority date shall be changed from 1883 to February 25, 1894. All remaining portions of the rights as decreed shall remain as evidenced the temporary preliminary decree. When the foregoing corrections :;:-& erterad i77.to the Tr =df,mi: ary and Final Decrees and with no other changes, except for a reduction in volLae or flow in th-: "Abstract of Water Right" for ToT2tr Right o 4: -.-1 T-18988S, the i'ctice of Objection of the United States of America and the Harry Bass Trust shall be deemed to have been withdrawn. DATED this P-day of January, 1987. /12 ¢ : ¢ , ¢ WTLLIAM MOULT -... -- ¢ e _ LI, ' -, ,:..- ; . ¢ -4- ;.1-..- ¢, ¢.--u I. ¢ F- n,,, i - ¢ , " ' t.,. -0'2- it itt,: 4: 17. /9 . ,,,,, ip,--1-:::,,.:faCe-,.. Z4.1., ,,e,Ii ,..j..7.44-.711 ,,,, -ei . 77- MARGARET DELANNOY ClAimAtrrs q,EANNE M. SCHRAUDNER Attorney for Harry Bass Trust III OBJECTOR BYRON H. DUNBAR United States Attorney Efstrtet of !:-,:;:zoa By: . / e JOHN R. HILL, JR., Attorney U.S. Department of Justice & natwal Resources DrFver =',507 1961 Stot Q trE-ct, Denver, Cu 80234 (303) 844-2892 KENNETH P. PITT Special Assistant United States Attorney P.O. Box 7669 5;ari (406) 29-3066 KEORNEY', UNITED SIVES IN THE WATER COURTS OF THE STATE OF MONTANA YELLOWSTONE DIVISION STILLWATER BASIN * * * * * * * * * * IN THE MATTER OF THE ADJUDICATION OF THE EXIS T ING RIGHTS TO THE USE OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND, WITHIN THE STILLWATER RIVER DRAINAGE AREA, INCLUDING ALL TRIBUTARIES OF THE STILLWATER RIVER IN STILLWATER, SWEETGRASS, PARK AND CARBON COUNTIES, MONTANA. ) ) ) CASE NO.41T.7-176 ) WATER RIGHT CLAIM - / ) ) ) ) nCS. 43C-1Z-18988k 8_ 42C-W-189891 43C-W-189892 * * * * * * * * * * WITHDRAWAL OF OBJECTION * * * * * * * * * X * * * The 1987 s Montana Legislature authorized the Water Court to delete volume for certain water rights in its decrees (SB 102). By Order of June 4, 1987, the Water Court ruled that volume will not be decreed for the above water rights claim(s), unless an winterested party makes a motion requesting-that volume be considered-as a necessary element to adequately administer the right. The Department of Natural Resources and Conservation objection(s) to the above claim(s) pertained only to volume. Based upon SB 102 and the Water Court's Order of June 4, 1987, the Department of Natural Resources and Conservation, by and through the undersigned attorney, withdraws is o.,3 °tic:nisi to the above water rights claim(s). DATED this W day of -Pru -bL, 1987. By 1\N t%:== Dj5rtnient of Natural Resources d Conservation East Sixth Avenue Helena, MT 59620-2301 CERTIFICATE OF SERVICE I, the undersigned attorney for the Department of Natural Resources and Conservation, hereby certify that on the ?1: '\ day ¢ of A-asu-st, 1987, a true and accurate copy of the WITHDRAWAL OF OBJECTION was duly served upon all parties or counsel of record, by depositing the same, postage prepaid, in the United States Mail. William G. Mouat Attorney at Law Suite 317 First Federal Savings Building 2929 Third Avenue North Billings, MT 59101 Ken Pitt USFS P.O. Box 7669 Missoula, MT 59801 John Hill, Jr. U.S. Dept. of Justice 1961 Stout Street Drawer 3607 Denver, CO 80294 tN\, rtment of Natural hesources d Conservation F.!, 17± Eefene, 1. 1T 59620-2301 E .)ABTMENT NATURAL S RESOURCES AND CONSERVATION BILLINGS WATER RIGHTS FIELD OFFICE N\ . 1537 AVENUE D SUITE 352 SCHVYIN DEN GOVER Noi, TED Yr ¢ .- .1- ' STAT E C ri M ONTAN /\ m.rarzt. BILLINGS, /sIONTANA 7.9102 ti40E; MEMORANDUM TO: Jim Madden, Legal Staff FROM: Charley Carpenter Adjudication Specialist DATE: September 26, 1986 ¢ / SUBJ: Volume - Mouat 17136-12-b y f' 11 -! Bill Mouat come in to the Billings Field Office toda to discuss DNRC objections to his claims. Claims 430-W189888, W189891 and W189392 are irrigation claims with DNRC objections to volume. Mr. Mouat explained to me that in all three cases, the method of irrigation is by natural overflow and waterspreading. He indicated that he would be willing to agree in these cases to the volume and flow rate guidelines for this method. Flow rate is not quantified for natural overflow or waterspreading. The Water Court volume guideline for these methods in Climatic Area 5 is 1.4 acre-feet per year. The uideline volume for the claims would be as follows: g W189888 - 35.00 acre-feet W189891 - 28.00 acre-feet W189892 - 7.00 acre-feet CC/kb cp rELE:r) . ¢:-. --I NOV 5 ;237 LI . 1, State of 1 ¢1:::;:11,;:r:A likter ¢ IN THE WATER COURTS OF THE STATE OF MONTANA YELLOWSTUE DIVISION STILLWATER RIVER BASIN - (43C) - ¢ \ ,7 I ************************* IN THE MATTER OF THE ADJUDICATION OF THE ) EXISTING RIGHTS TO THE USE OF ALL THE ) WATER, BOTH SURFACE AND UNDERGROUND, T iTHIN THE STILLWATER RIVER DRAINAGE AREA, INCLUDING ALL TRIBUTARIES OF THE STILLWATER RIVER IN STILLWATER, SWEET GRASS, PARK AND CARBON COUNTIES, MONTANA. Case No. 43C-126 Claims No. 189888, 189891 and 189892 AFFIDAVIT NILLIAM G. MOUAT, of lawful age, being first duly sworn on oath deposes and says: That he is one of the owners of certain water rights in the waters of Basin 43C, in the Stillwater River, Stillwater County, Montana, under Claims No. 189888, 189891 and 189892. Claim No. 43C-W-189891 (Axtel Creek): The Temporary Preliminary Decree was 322 acre feet p er year. The land i=igated by this stream is rocky and porous and the guidelines for alfalfa would not apply to the area irrigated by this c,:ream because the amount of water needed wou2d be mLch greater than ithe amount needed under the guidelines for alfalfa. The volume amount for this claim should be 322 acre feet p er year. Claim No. 43C-W-189892 (Unnamed stream parallel to and South of Ax',:el Creek): The Temporary Prelimn,q ry Pecfe ,,. wE-Is 45.2 acre fee:: oar -) car. fhe land irrigated by this SCYEIM Ls rocky Lna porous an tne guidelines for alfalfa would not apply to the area irrigated by this stream because the amount of water needed would be much greater than the amount needed under the guidelines for alfalfa. The volume amount for this claim should be 45.82 acre feet per year. Claim No. 43C-W-189888 (Silver Creek) The Temporary Preliminary Decree was 564.00 acre feet per year. On January 28, 1987, I signed a Stipulation, a copy of which is attached hereto, in which I agreed that the volume would be reduced from 564 acre feet to 230 acre feet, and that the priority date would be changed from 1883 to February 25, 1894. The volume amount for C116C claim should be 230 acre fe2t per year. DATED this day of November, 1987. William G. Mouat Subscribed and sworn to before me this November, 1987. i day of .4/ Notary u lid -for"the State of Montana. Residing/ at -billings, Montana. My Commission expires August 30, 1988. IN THE WATER COURTS OF THE STATE OF MONTANA YELLOWSTONE DIVISION STILLWATER RIVER BASIN (43C) * * * * * * * * * * * * * * * * * * * * IN THE MATTER OF THE ADJUDICATION OF ) THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND,) WITHIN THE STILLWATER RIVER DRAINAGE ) AREA, INCLUDING ALL TRIBUTARIES OF THE ) STILLWATER RIVER IN STILLWATER, SWEET ) GRASS, PARK AND CARBON COUNTIES, ) MONTANA. ) ) CASE NO. 43C-126 CLAIM NO. 43C-W-189888-00 43C-W-189891-00 43C-W-189892-00 CLAIMANT: William Mouat, Margaret deLannoy OBJECTOR: Department of Natural Resources & Conservatio United States Department of Agriculture, Forest Service, Harry W. Bass III Trust ON MOTION OF THE WATER COURT AMENDED MASTER'S REPORT FINDINGS OF FACT 1. On November 22, 1988, the Master's Report was issued in the above entitled case with Findings and Conclusions conerning the volumes on these claims as follows: 43C-W-189888-00 43C-W-189891-00 43C-W-189892-00 2. 230 AFY 322 AFY 45.82 AFY On December 7, 1988, the Court received an objection to the Master's Report from the Montana Department of Natural Resources and Conservation (DNRC) contesting the Volumes and requesting that they be decreed as consumptive volumes as follows: 43C-W-189888-00 43C-W-189891-00 43C-W-189892-00 3. 35 AFY 28 AFY 7 AFY On December 28, 1988, the Court received claimants response to DNRC's objection to the Master's Report. 4. On February 15, 1989, the Court received DNRC's Brief in Support of Quantification of Water Spreading Systems by Consumptive Volume. 5. The DNRC bases its contentions on the claims examination rules which serve as guidelines in claims examination. Consumptive volumes for alfalfa represent the guidelines volumes for water spreading systems based on climatic area. However, the rules are only guidelines as indicated by the volume remark that appears on each of these claims "Standards on volumes found in the findings of fact are only guidelines. Claimed volumes may be modified by the Court on individual objection." 6. Claims of existing rights are considered prima facie proof of their contents until overcome by objection and weight of evidence, pursuant to Sec. 85-2-227 MCA. 7. The claimant has produced evidence of soil type and climate area in support of volume amounts in excess of the guideline amounts. 8. While guideline consumptive volumes are useful where conveyance losses are difficult or impossible to ascertain there is no rule that demands that only consumptive volumes be used where the parties have made the effort to ascertain the actual volumes historically used. 9. The DNRC contends that the Court should deviate from the comsumptive volume guideline only where a diversion volume has been measured by field investigation. However, the Water Court is not limited to the acceptance of only one type of evidence, but may consider all evidence in its decisions Sec. 85-2-231(d), MCA. 10. The preponderance of the evidence favors granting volumes that include conveyances losses. However, in consideration of consistency the claims should be remarked that the volume amounts include conveyance losses. CONCLUSIONS OF LAW I. The Water Court has jurisdiction to review all objections to Temporary Preliminary Decrees pursuant to Sec. 85-2-233, MCA. Based upon the foregoing, the following modification and no other should be made to the Master's Report in Case 43C-126: Add to Conclusions of Law No. VII., page 4 claims 43C-W-189888-00, 189891-00 and 189892-00 the following remark: The volume amount represents the consumptive use and conveyance losses. DATED this 62? day of June 1989. alM1 &WL, Carol Brown Water Master CERTIFICATE OF SERVICE I, Judith A. Salvas, Deputy Clerk of Court of the Montana Water Court, hereby certify that a true and correct copy of the above Amended Master's Report was duly served upon the following persons listed herein, by depositing the same, postage prepaid, in the United States mail. Margaret deLannoy %William G. Mouat, Att. Suite 317 First Federal Savings Bldg. Billings, MT 59101 Harry W. Bass III Trust %Leanne Schraudner, Att. 222 East Main, Suite 301 Bozeman, MT 59715 Kenneth Pitt, Special Asst. U. S. Attorney P. 0. Box 7669 Missoula, MT 59807 James Madden, Legal Counsel Mt. Dept. of Natural Resources & Conservation 1520 East Sixth Helena, MT 59620 John R. Hill, Jr., Attorney Department of Justice 1962 Stout St., Drawer 3607 Denver, Colorado 80294 DATED this .9(764(, day of June 1989.

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