Breffeilh, Montana DNRC, Montana Fish, Wildlife & Parks, US (Bureau of Indian Affairs)
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P2F1 sLt IN THE WATER COURTS OF THE STATE OF MONTANk [C UPPER MISSOURI DIVISION GALLATIN RIVER BASIN (41H) I 71990 Montana Water Court IN THE MATTER OF THE ADJUDICATION OF ) CASE NO. 41H-95 THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND,) 41H-W-032976-00 WITHIN THE GALLATIN RIVER DRAINAGE AREA ) INCLUDING ALL TRIBUTARIES OF THE GALLATIN RIVER IN GALLATIN, PARK AND MADISON COUNTIES, MONTANA. CLAIMANT: John A., Robert A., Richard A. and William A. Breffeilh ON MOTION OF THE WATER COURT OBJECTOR: United States of America (Bureau of Indian Affairs) Montana Dept. of Natural Resources & Conservation MASTER'S REPORT FINDINGS OF FACT 1. Water right claim 41H-W-032976-00 was filed by John A., Robert A., Richard A. and William A. Breffeilh for irrigation. 2. The Montana Dept. of Natural Resources & Conservation (DNRC) filed an objection to this claim based on volume, place of use, acres irrigated and flow rate. Without change to this claim, the DNRC withdrew its objection on July 28, 1987. 3. The United States of America (Bureau of Indian Affairs) filed an objection to this water right claim on the basis of acres irrigated. 4. This claim was called in On Motion of the Water Court because there appeared to be problems with acres irrigated, volume and flow rate. 5. Pursuant to a December 22, 1988 Order from the Montana Water Court, a field investigation of this claim was conducted on June 21, 1989, by Rusty Taylor of the DNRC. This investigation was conducted to identify acres irrigated, volume and flow rate. The Field Investigation Report was filed with the Montana Water Court on July 13, 1989. 6. A Hearing in the above entitled matter was held on August 29, 1990. No one appeared to represent the United States of America as the objector. No one appeared to represent the Breffeilh family as claimants. 7. On August 7, 1990, George A. Breffeilh, father and representative of the claimants, filed a statement with the Montana Water Court advising the Court that claimants would be standing on their water right claim as filed. Claimants further requested the Court to read their statement into the record at the August 29, 1990 Hearing. 8. Claimants' August 7, 1990, statement does not contain personal knowledge of the actual historical use of this water for irrigation. 9. The Field Investigation did not produce any evidence of historical irrigation other than locating some farming equipment and a pump within the cabin site. No ditches were found and no permanent point of diversion was found. No evidence was produced as to the actual historical flow rate and volume for this water right. CONCLUSIONS OF LAW I. The Water Court has jurisdiction to review all objections to temporary preliminary decrees pursuant to Mont. Code Ann. Sec. 85-2-233. The Montana Water Court has jurisdiction over all matters relating to the determination of existing water rights and may consider a matter within the Court's jurisdiction on its own motion. Mont. Code Ann. Sec. 3-7-224. Water right claim 41H-W-032976-00 is a claim of an existing right filed in accordance with 85-2-221 and such statement of claim of existing right constitutes prima facie proof of its content. See Mont. Code Ann. 85-2-227. "Prima facie evidence" is that which proves a particular fact until contradicted and overcome by other evidence. Mont. Code Ann. Sec. 26-1-102(6). The objector, therefore, has the burden of proof and must actually overcome the facts stated in the claim of existing water right. There being no evidence presented by the objector at hearing, the objector has not met the necessary burden of proof to overcome the prima facie status of water right claim 41H-W-032976-00. -3- IV. The Field Investigation produced by the Montana Department of Natural Resources & Conservation under the direction of the Water Court pursuant to Mont. Code Ann. Sec. 85-2-243(1)(c) is admissible. Water Right Claim Examination Rules, Rule 1.11 Water Court Procedures. V. Historically, there have been two means by which a person could make a valid appropriation of water. First, by simply putting the water to a beneficial use. Second, by following the statutory method enacted in 1885 requiring posting notice at the point of diversion, appropriation and filing notice of such appropriation. See R.C.M. Ann. Sec. 89-810. Even with the enactment of statutory procedures in 1885, the essence of an appropriation - a completed ditch, actually diverting water, and putting it to a beneficial use - remained the same as it had been before and a valid water right will be recognized where water has actually been diverted and put to a beneficial use. Murray v. Tingley (1897) 20 Mont. 260. Water right claim 41H-W-032976-00 was filed as a use right for irrigation but was not historically diverted and put to use. VI. There being no evidence as to historical acreage irrigated, volume and flow rate of water right claim 41H-W-032976-00, this claim shall be terminated and the abstract of this water right shall not appear in the Preliminary and Final Decrees of the Gallatin River Basin (41H). DATED this 1 4-i-1- day ofixLevroz)2--y- -770J:a_ , 1990. \210A.3(aA--NJ Patti L. .Rowland Water Master CERTIFICATE OF SERVICE I, Lori M. Burnham, 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 persons listed below by depositing the same, postage prepaid, in the United States mail. John A., Robert A., Richard A. and William A. Breffeilh c/o George Breffeilh 8 Fairway Drive Lake Charles, LA 70605 Bureau of Indian Affairs John Chaffin, Attorney Richard Aldrich, Attorney P. 0. Box 31394 Billings, MT 59107-1394 Thomas Pacheco, Attorney Department of Justice P. O. Box 44378 Washington, DC 20026-4378 Tim D. Hall, Attorney Dept. of Natural Resources 1520 East Sixth Helena, MT 59.20 DATED this day , 1990. kvv---._ L Clerk ¢f Court -5-- STATE OF LOUISIANA PARISH OF CALCASIEU AFFIDAVIT BEFORE ME, the undersigned authority duly qualified in the State and Parish aforesaid personally came and appeared GEORGE BREFFEILH who after being sworn declared: Lake Charles, LA. 1990 August Fit 3, AUG To: State of Montana Water Court Bozeman Montana Water Court Ref: Case 41H-95 Claim 41H-W-032976-00 In accordnance with Water Master Patti L. Rowland's letter of June 19, 1990 the Water Court is hereby advised that neither I nor other representative of the water rights claim will be available for the hearing on -August 29, 1990. The owners of the p ro g erty stand on their water rights claim as filed. It is the wishes of the claimants that the inclosed statement be read to the Water Court at the Auguat 29, 1990 hearing. eorge A. Breffeilh THUS DONE AND SIGNED THIS AT LAKE CHARLES, LOUISIANA 4 DAY OF 7 1990 1990 Montana Water Court Bozeman, Montana 59715 AUG 7 1990 Montana Re: Case 41H-95 Claim 41H-W-032976-00 8 Fairway Drive Lake Charles, LA 70605 August 3, 1990 Water Court Pursuant to Water Master Patti L. Rowland's letter of June 19, 1990, I am sending the following comments and observations for presentation to the Water Court hearing to be held August 29, 1990. The Claim involves 120 acre feet of water per year to irrigate 30 acres of land on the West Gallatin River. Title to the land and water rights were granted to Mrs. Anna Benham by President Woodrow Wilson on Patent No. 711363 dated October 7, 1919. When the land was selected by Mr. Benham, homesteaders were going through many difficulties to secure land on which to make a living. In this case the homesteader selected a parcel of land level enough on which to plant crops and alongside the West Gallatin River to supply water for his operations. If Mr. Benham's crops needed water, he logically considered the river a reliable and permanent source. The proximity of the river was probably the major factor in selecting that particular parcel of land. The land was cleared of boulders and trees were removed from 30 of the 160 acres. A cabin and shelter for live stock were built. A barbed wire fence and discarded agriculture tilling equipment are still to be seen in the field. So it is clear that Mr. Benham built a fence, purchased farming equipment, prepared the field and evidentally planted crops but apparently did not use water from the river on his crops. There appears to be no evidence that water from the river was ever used on the crops. There are no ditches, pipelines or other distribution structures to convince one that irrigation was practiced. The lack of evidence could possibly be due to the financial status of the owner. Those were war and depression years when people survived on a minimum of practically everything. If it became necessary, the farmer delivered water to the crops he and his family needed to survive. The irrigation facilities could not have been elaborate and were probably used only during dry periods. For example, one visiting the property today would wonder how the early settlers crossed the river to get to their land. There is no evidence today that a bridge was built across the river near the cabin; however, I have a letter mentioning the bridge. Could irrigation have been a similar situation? It is understood that the irrigation claim for 30 acres is being contested by the Bureau of Indian Affairs. This seems strange. From June to December, my son Richard, with his dog as companion, paddled a canoe from the West Gallatin River to our home in Lake Charles, Louisiana. He actually Page 2 of 2 paddled along thousands of acres of Indian land on the Missouri River and lakes. Practically none were under cultivation nor irrigated. When the land was deeded to the Indians, they probably received water rights the same as did Mr. Benham. Are those rights being threatened because the water has not been used to irrigate the idle land? It is not the intention of the present landowners to deprive the Indians, or anyone else, of water. They do not expect to exploit the land for commercial purposes. One of the owners, like Mr. Benham, plans to earn part of his living on the land when he retires from the military. It is not certain if the river water will ever be used for irrigation, and it is most probable it will not be used in the maximum quantities. However, if and when it is needed to serve the land, it should be available as originally intended. It is doubtful that the Bureau of Indian Affairs can tell the Court exactly where the 120 acre feet of water will be used each year, or what it will produce. With the assurance of that water, the occupant of the land along the Gallatin can plant the 30 acres with a degree of satisfaction that his crop will not be lost due to a water shortage. We are not requesting the continual consumption of water, but rather that we are assured that crops will not be lost due to a lack of water. DEPAR'1,./IENT OF NATURAL RESOL_ACES AND CONSERVATION BOZEMAN WATER RIGHTS FIELD OFFICE TED SCI-IWINDEN, GOVERNOR 1201 EAST MAIN STREET STATE OF VO\TA\A BOZEMAN, MONTANA 59715 (406) 586-3136 FIELD INVESTIGATION REPORT TO: Montana Water Courts - Bill Dockins FROM: Rusty Taylor, Bozeman DNRC Field Office APPROVED BY: Larry Holman, 20 reau Chief DATE: June 30, 1989 RE: Case No. 41H-95 (Breffeilh) AUTHORIZATION AND PURPOSE Pursuant to a December 22, 1988 Order from the Montana Water Court, a field investigation of water right claim 41H-032976 was completed on June 21, 1989 by Rusty Taylor of the Department of Natural Resources and Conservation (DNRC). This investigation was completed to review on site evidence of historical use. SOURCES OF INFORMATION Primary Source: Secondary Source: -Field investigation completed by Rusty Taylor on June 21, 1989. - USDA Aerial Photograph 30031-279-2L, dated 1979. - 1953 Gallatin County Water Resources Survey (WRS) - USGS Topographic Quadrangle Map, Spanish Peaks, Montana, dated 1950. - Aerial Photograph M-30, dated 1947. INVOLVED PARTIES On June 5, 1989 all parties were sent letters advising them of the field investigation date and time and giving them notice of their opportunity to attend. Only George and Robert Breffeilh accompanied me on the investigation. AN EQUAL OPPORTUNITY EMPLOYER Page 2 Case No. 41H-95 (Breffeilh) OBJECTION TO CLAIM The Water Court moving on its own motion with regard to acres irrigated, volume and flow rate. OBJECTOR GENERAL BASIS FOR OBJECTION U.S. Bureau of Indian Affairs Acres irrigated DESCRIPTION OF SYSTEM The property and system are located approximately 25 miles southwest of Bozeman, on the east side and adjacent to the West Gallatin River. POINT OF DIVERSION/CONVEYANCE SYSTEM No permanent diversion point could be determined. This system consists of a 2 1/2 HP diesel powered pump currently located within a cabin on the site. This pump was manufactured by the Root and Van Dervort Engineering Company with a patent date of 1903-1904. I contacted five (5) pump suppliers in the Bozeman area and none had heard of this model. Only Van Dyke Irrigation Service Inc. would hazard a guess at the flow rate output of this pump which operates at only 360 RPM. Van Dyke Irrigation System Inc. said 40 gpm is the maximum flow rate they thought this pump could provide. According to George Breffeilh this pump may have provided some irrigation water as late as 1935. He has no absolute knowledge of the use of this pump but considers it reasonable that the pump was used because it exists at the cabin. No other evidence of irrigation was found, but old farming equipment was located. Page 3 Case No. 41H-95 (Breffeilh) PLACE OF USE The claimed place of use consists of 20-30 acres of irrigable lands. Currently this ground is in native grasses, sage and young tree growth. No evidence of irrigation exists at the site beyond the pump itself, no ditches were found. Practically speaking water must be pumped to get to the fields claimed. Aerial photograph M-30 dated May 6, 1947 does not readily identify this ground as being irrigated at that time. Much of the young tree growth appears absent in the 1947 aerial. It is quite probably that this ground was farmed prior to 1935 but the actual use of the pump, if it was ever used for an extended period of time, appears to pre date this 1947 aerial. The 1953 Gallatin County WRS does not identify any of the claimed ground as irrigated. RESULTS OF INVESTIGATION It appears from evidence at the site that some attempt at farming this ground was made. It seems reasonable that someone used the pump at some point in history. It may have been used to supply water for some very limited irrigation. That use, if it ever existed was about 50 years ago. te,111 K4: ¢ . . -)'re . ¢ ¢ ¢ 4 ¢ ¢P .,._. 'et- 11 ¢4'..,:A. ¢ ¢ ¢ ¢ 1.:;?):413 ¢ r A:7? ¢ ¢ " ¢ ¢ ¢ ¢ ¢ -V, ¢-"P..L1 14 ¢,=";*+1,-;:tA ¢ q..,615.re4 4 ;/.:0P11-6 Case No. Map: .11-95 Spanish Peaks, Mont. Dated 1950 Shows general flat topography of area SPANISH PEAKS QUADRANGLE MONTANA 15 MINUTE SERIES (TOPOGRAPHIC) BOZEmAN 72 m; 476 GALLAThq aAfre.w.; V' 7 9 111°15. 4 E.1 550 CCO FE .f - 45'3U 1953 Gallatin County WRS Map KLEINSCHMIDT CANAL West Gallatin River Yankee Creek 1 GILMORE TODD DITCH --\ Case No. 41H-95 Scale: 1Inch = 1 Mile Section 20, TO4S, R04E Dark areas represent irrigation. * No irrigation is indicated. REESE OR HOLLI winm ni IIII WEST GALLATIN CANAL CO. (KLEINSCHMIDT) PRIVATE IRRIGATION LIMESTONE DITCH (NOT IN USE) J B MOORE DITCH (NOT IN USE) Spanish Creek WYLIE DITCHES NO. I a NO. 2 Hell Roaring Creek WestGallatinRiver T 4S R. 4E 44 V: ¢ , ¢t '1 Y:4 ¢ k' ¢ f ¢-} . ¢; fl CaEe No. Pabed May 6, 1(Y17 Aerial Photo: 2.6 Inches = 1 Mile Photo Scale: Section 20, T04S, ROIIE I could not see irrigation based on this map. 1 ILL) 6 (Ay,- 1-1.01,J Case No. 41H-95 Numbers on this map relate to locatic pictures were taken. 2.0 cASit3 -11 ¢ WEST GALIATIt.3 RIVIA ¢ i.- ¢,r7.-tiel_ ¢ ALL PHOTOGRAPHS TAKiYi PHOTO NO. 1 -3JECT - DIESEL POWERED PUMP .;ATED WITHIN THE CABIN 2EARED LIKE IT HAD BEEN USED AT SOME POINT IN HISTORY. PHOTO NO. 2 SUBJECT - DIESEL POWERED PUMP LOCATED IN CABIN. THIS PUMP AS THE ONLY EVIDENCE OF IRRIGATION FOUND. mi Jun!: 1)89 ALL PHOTOGRAPHS TAKEN BY R I:JSCf T.A?Lk,A ON PHOTO NO. 3 r-ttECTION OF VIEW IS NORTHEAST 3JECT - CABIN WHICH HOUSES 2 PUMP. THIS CABIN WAS BUILT ABOUT 1920. PHOTO NO. 4 SUBJECT - THIS LOCATED AT THE DTHER REMNENTS EQUIPMENT WERE SMALL HARROW WAS FIELDS EDGE. OF FARMING ASLO LOCATED. Junn; 21, 19b9 ALL PHOTUbRAPHS TAH: ::!; PHOTO NO. 5 DIRECTION OF VIEW IS SOUTH 'JECT - CLAIMED PLACE OF USE. D HOTO NO. 6 )IRECTION OF VIEW IS EAST 3UBJECT - CLAIMED PLACE OF USE. RUSTY TAYD, ON JUNE 21, 1989 ALL PHOTOGRAPHS TAKEN BY RUSTY TAYLOR ON JUNE 21, 1989 PHOTO NO. 7 DIRECTION OF VIEW IS WEST SUBJECT - THIS PICTURE INCLUDES THE GROUND THE BREFFEILHS BELIEVE MAY HAVE BEEN HISTORICALLY IRRIGATED (CLAIMED PLACE OF USE). DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION BOZEMAN WATER RIGHTS FIELD OFFICE 1201 EAST MAIN STREET TED SCHWINDEN, GOVERNOR STATE OF VO\TA\A BOZEMAN, MONTANA 59715 (406) 586 . 3136 December 27, 1988 George A. Breffeilh Robert A. Breffeilh Richard A. Breffeilh William A. Breffeilh 8 Fairway Drive Lake Charles, LA. 70605 RE: Case 41H-95. Water Court Order issued December 22, 1988 to field investigate water use related to claim 41H-W032976. Dear Sirs, As mentioned above, the Montana Water Court has directed me to field review your water right claim on the West Gallatin River. Because of snow cover conditions it will not be possible to accomplish this until next spring. By chance, will any of the owners be in the Bozeman area next spring or summer ? I think it's always best when the owner can be present during the field investigation. Please let me know when or if any of the owners of this claim would be available next May or June so I may notify the federal government and the Water Court of the field investigation date and time. Thank you, 11(1\k(z___ Rusty Taylor Water Rights Specialist Bozeman Water Rights Field Office cc: Bill Dockins Richard Aldrich Thomas Pacheco AN fOuAt OPPORTUNITY EMPLOYER 8 Fairway Drive Lake Charles, LA 70605 February 10, 1989 Mr. Rusty Taylor Dept. of Natural Resources and Conservation 1201 East Main Street Bozeman, MT 59715 Dear Mr. Taylor, Thank you for your interest in our water rights and for your letter of 27 December 1988. Unfortunately, I was in Costa Rica the latter part of December and most of Janyary, and could not answer your letter. I am the father of the four Breffeilh men, and the former owner of the land for which the water rights are sought. My son, Maj. Robert Breffeilh, will be moving to Juneau, Alaska in June or July, 1989. He will drive from Fort Campbell, Ky. to Seattle. Since I am the only one familiar with the water rights question, we have decided to be in Bozeman the latter part of June or early July. Unfortunately, I cannot give you a specific date since Robert's plans have not been firmed up. I'm still confused about the denial of water rights. The land is part of the 160 acres granted to Mrs. Anna Benham on October 7, 1919 on patent number 711363, a copy of which is enclosed. I thank you and Bill Dockins for the interest you all have shown in this case. Sincerely, George A. Bre ilh RECEIVED FE B 1 6 1989 MONTANA D.N.R.C. BOZEMAN FIELD OFFICE a54 RECEIVED Bozeman 06259 ¢ TIE UNITED STATES OF Al.r.:RIfA, FEB 1 6 1989 TO ALL TO WHOM THESE PREZAZT3 SHALL COME, GRETTINCNONTANA r'n certificate of the Re gister pf the Land Office at ERA!.FI,waIna y it appears that, pur_ has been deposited in the General Land Office whereb susnt to the Act of Congress of May 20, 1862, "To Secure Homesteads to Actual Settlers on the Public Domain" and the acts supplemental thereto, the claim of Anna Benham, widow of Sedgwick F Benham, has been established and duly .consummated in conformity to law for the southwest quarter of section twenty in township four south of range four east of the Montana Meridian, Montana, containing one hundred sixty acres, according to Ow official plat of the survey of the said land, returned to the General Land Office by the Surveyor General: WHEREAS, a NOW XNOW YE_ that there is, therefore, granted by the United States unto the AtID.TO 11OLD the said,tr.4.ct said claimant the tract of land above Zescribed; 570 4.4. of land, with the appurtenances thereof, unto th'sdleiaiPIRAIeWlignbect"e to any _vested and accrued water rights or mining, agricultural, manufacturing Or other purposes and rights to ditches and reservoirs used in connection with such water rights as may be recognized 4nd acknowledged by the local customs, "laws, and decisions of courts; and there is reserved from the lands hereby granted a right of way thereon for ditches or canals constructed by the authority of the United States. ,4-4-,;_a---- ¢ 47 _ IN TESTIMONY tHERMF, I, Woodrow Wilsonl, President of the United States of Amer_ lea, have caused these letters to be made Patent and the seal of the General and Office to be hereunto affixed. GI EN UNDER MY HAND in the District of °olumbia, the Seventh day of October in the year of our Lord one thousand nine hundred and NINETEEN and of the In ependence of the UnitedStates the one hundred and forty fourth. 14, 4 744 .. 5 44. 5iPe' AI& ;-6 rz,:, ¢ .ar ¢ (SEAI) - RECOzDED: Patent DaMber 711363 THE PRESIDENT. Woodrow Wilson, By M.P. Le Roy, Secretary L. C.C. Lamar order of the General ¢ Iand Office. DEPARTMENT OF NATURAL RESO ACES AND CONSERVATION STAN STEPHENS, GOVERNOR 1520 EAST SIXTH AVENUE STATE OF VO\TANA DIRECTOR'S OFFICE (406) 444-6699 TELEFAX NUMBER (406) 444-6721 HELENA, MONTANA 59620-2301 February 21, 1989 George A. Breffeilh 8 Fairway Dr. Lake Charles, LA. 70605 RE: Case 41H-95 Dear Mr. Breffeilh, Thank you for your letter. When you know for sure when you will be in Bozeman please let me know, I will need at least 2 weeks notice so I can give all parties a chance to participate in the field investigation. Your water right claim has not been denied, but it has been questioned. You were to make your claim based on actual . use prior to July 1, 1973 and any affected parties have the right to question your claims accuracy and validity. That is the basis of Montana's Adjudication process. The DNRC (this office) attempted to confirm your ground as irrigated by use of aerial photographs and review of a water inventory study completed in the early 1950's. Neither of these data sources identified your ground as irrigated. Basically, your claim was objected to because your claimed use could not be substantiated by the above mentioned data sources. The Montana Water Court has decided that they want someone from the Department of Natural Resources and Conservation's Water Rights Bureau (this office) to go to the claimed area to look for and report evidence as it relates to your claim. Periods of extended non-use can also be a problem. The Water Court will make the final determination based on the facts, the law and evidence presented as they see it. CENTRALIZED SERVICES DIVISION (406)444-6700 CONSERVATION DISTRICTS DIVISION (406) 444 .6667 ENERGY DIVISION (406) 444-6697 011, AND GAS DIVISION (406)444-6675 WATER RESOURCES DIVISION (406)4444401 That is a very quick review of this process and undoubtedly it is a bit different than what you are use to in the much wetter climate and riparian standards used in Louisiana. Most of Montana is basically a very high desert and surface water beyond snow runoff is quite limited and demand easily exceeds availability. The West Gallatin River is a very competitive source of supply. Sincerely, Rusty Taylor .Water Rights Specialist Bozeman Water Rights Field Office CC: Bill Dockins Richard Aldrich Tom Pacheco . .q. R E CE I VED . 2/6 1-)i ) dru.) ))111JG JUN 0 2 1989 ' )--1Opk Bu))16 kcj D.N.R.C. 5-62 285 487J MONTANA BOZEMAN FIELD OFFICE 2') h) 1-4 . 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