Eliasson Ranch Company, Maria Rodeghiero, Bruno Rodeghiero

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Montana Water Court PO Bo* 879 Bozeman MT 59771-0879 1-800-624-3270 (In-state only) (406) 586-4364 IN THE WATER COURT OF THE LOWER MISSOURI STATE OF MONTANA DIVISION MUSSELSHELL RIVER ABOVE ROUNDUP BASIN (40A) ******************** IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND WITHIN THE MUSSELSHELL RIVER DRAINAGE AREA ABOVE ROUNDUP, INCLUDING ALL TRIBUTARIES OF THE MUSSELSHELL RIVER ABOVE ROUNDUP IN WHEATLAND, GOLDEN VALLEY, MEAGHER, FERGUS, MUSSELSHELL, SWEET GRASS, PARK, YELLOWSTONE, AND STILLWATER COUNTIES, MONTANA. CLAIMANT: Eliasson Ranch Eliasson Ranch CASE 4 0A-115 40A-W-151882-00 Company OBJECTOR: ) ) ) ) ) ) ) ) ) ) Company- Maria Rodeghiero OCT 2 7 1993 and Bruno Rodeghiero MASTER'S REPORT FINDINGS 1. Claim for a flow rate and a volume of 121.70 acre priority date of Lindstrand v. (hereafter FACT Eliasson Ranch Company filed direct flow flood irrigation 40A-W-151882-00 inches) OF May Jarrett, the 1952 1, 1897, of 3.125 upon (125.00 as decreed to adjudication Musselshell River by Naderman dam and ditch. Albert of 5115 (June 2, water Harold O. Gerntholz as successor in interest of Albert Gerntholz. Claim is underscoring 15, 16, 17, 2. an the and incomplete Gerntholz copy right, of but the not in 1952) diverted from Eliasson signed the Statement of Claim as president of Eliasson Ranch Company, of miner's feet per year on 29.80 acres with a Musselshell County Case No. decree), CFS claiming Attached to the Statement 1952 decree, including including pages 5, 6, 7, and 8, 18. During routine examination of Claim 40A-W-151882-00, Montana Department of Natural Resources and Conservation (DNRC) the entered the flow rate as 3.13 CFS of acres of did not irrigated but 3. volume, of change the Eliasson Ranch Company flow rate, 64.4 0 the of elements During verification because acres place of use, irrigated and a computer the program claim, 29.80 DNRC acres flow rate of irrigated, of 6.76 verified 31.00 claimed. filed a Notice and acres limitations. Objection alleging CFS. as a to total Attached to the Notice of Objection is a copy of Notice of Water Right executed October 29, 1900, 1897, by for Notice John 25.00 of On Donald J. claims Technician claimant Donald copy a 16, to ditch of part priority right. of an 1987, a On Memorandum DNRC Claim October on that Also aerial claim by means discuss case. a date photo J. Eliasson cited 352.00 and Eliasson Ranch Rights in the claimant's On October 6, flow rate of acre to 1, the adapted Technician 40A-W-151882-00 1987, meeting Company the Water Rights Technician the May to of Naderman ditch. Water 26, of attached the and indicating did not additional met certain Water "does not have any objection to the flow rates...." Claim for a R25E. this claiming original a Eliasson in 5. of is October filed attention of rate the and irrigation under this 4. other Naderman CFS, Objection indicated with P. Rights that the Apparently call acres to the and flow objection. 1989, John D. 35.00 miner's Armstrong filed a Statement of inches feet per year irrigating 34.60 (0.875 acres CFS) and a volume in SE section 5 T7N This Statement of Claim was numbered 40A-W-214125-00 and remarked as filed late. copy of part of Attached to the Statement of Claim 40A-W-214125-00 an aerial photo adapted this claim by means of Naderman ditch. -2- to indicated irrigation The place of use is a under identified is the same place of use proposed to be added to Claim 40A-W-151882-00 the Notice of Objection filed by Eliasson Ranch Company. to Statement of Claim 40A-W-214125-00 adjudication and ditch, Finco of water diverted indicating 35.00 and subject 6. On of late from miner's Also attached is a copy of the 1952 decree, Musselshell inches River (0.875 by CFS) in upon Naderman dam decreed to Otto Claim 40A-W-214125-00. February 12, 1990, Eliasson Ranch Company filed a notarized letter as to Claim 40A-W-151882-00 and certain other claims in this case requesting the standard flood irrigation volume of feet per acre per year in Claim 40A-W-151882-00. was requested in for this claim 7. Courthouse this is 7 This On The letter states that the acre in flow rate ditch length Musselshell County miles. case on April 8. letter. No change 10.20 was 10, set to be heard in the 1990. March 30, 1990, Eliasson Ranch Company filed an Affidavit alleging a total 64.40 acres irrigated and a flow rate of 4.00 CFS based upon the 3.125 CFS Gerntholz and the 0.875 CFS in the 1952 originally decree. claimed (125.00 miner's (35.00 miner's inches) The by Affidavit Eliasson Ranch Company is appurtenant Eliasson Ranch Co. filed stated a Withdrawal in the to land since of owned by the John Objection conditioned hearing vacated. -3- set CFS 3.125 decreed Armstrong Simultaneously, The the appurtenant 0.875 1977. Affidavit. that is D. decreed to Albert decreed to Otto Finco indicates owned by Eliasson Ranch Company and that Finco inches) and CFS to land to Otto leased to Eliasson Ranch Company on for entry April of 10, the changes 1990, was 9. Regional the By Office, 64.40 total 10. letter of July 26, 1991, to the the Water Master requested a DNRC standard verification of August 13, 1991, the DNRC Water Resources filed a Memorandum verifying 67.50 acres irrigated, 11. filed a Resources acres now claimed. On Eliasson Ranch Water Company and 34.50 On August Clarification 20, of acres 1991, 33.00 acres owned by owned by John D. counsel Representation for as Armstrong. Eliasson to Specialist Notice Ranch of Company Appearance, requesting creation of an implied claim for the purpose of adjudicating the Notice of Objection filed by Eliasson Ranch Company in Claim 4 0A-W151882-00. 12. Draft Report On January finding 13, that 1993, no the implied Water claim Master should filed be a Master's generated Statement of Claim 40A-W-151882-00 and allowing until February 12, for 1993, comment. 13. granted, the from Requests for enlargement allowing until October 18, Master's 14. Draft On as 1993, the comment for the period filing of were comment on Report. October 19, 1993, Eliasson Ranch Company on Master's stating of the Draft claimant Report filed Comments Filed January 13, follows. 1. Claimant objects to Conclusion of Law No. IV, to the extent it suggests that an implied claim may only be granted if a review is requested by the DNRC. While the rules allow the DNRC to request review of a claim which the DNRC feels reflects an implied claim, there is no prohibition against parties to the adjudication raising the issue. 2. Claimant objects to extent it concludes that the implied claim is Conclusion of Law No. V, to the standard of proof to support an other than a preponderance of the evidence. -4- of 1993, 3. Claimant has testified that the land sought to be added to the claim is owned by John D. Armstrong and does not contest Mr. Armstrong's claim No. 40A-W-213215-00. 4. claimant believes, however, that there are sufficient grounds upon which to decree the implied water right: (1) the prior decree was attached to the claim and establishes the water right decreed to Otto Finco; (2) copies of the water resources survey were attached which reflect irrigation in the area asserted in the cliamant's [sic] objection; and (3) the attached aerial photograph clearly shows areas of active and potential irrigation on the lands sought to be added by claimant/s [sic] objection. Based upon this information the water court could find an implied claim in the successor in interest to Otto Finco. 5. If an implied claim were granted, this claimant has no objection to the claim being issued in the name of John D. Armstrong. 6. If an implied claim is not decreed, then the irrigated acres and flow rate asserted in claimant's objection should be decreed in claim No. 40A-W-213215-00 . 15. There is a claimant's The claim Motion Court notes there 43A-W-213215-00 for Extension indicates that the John D. filed after that issuance of filed of is no by Time Westling filed Armstrong claim at the claim 40A-W-213215-00. Ranch Inc. September issue 17, The 1993, is 40A-W-214125-00, Basin 40A Temporary Preliminary Decree. CONCLUSIONS OF LAW I. The Montana Water Court has jurisdiction to review objections to temporary preliminary decrees pursuant to Mont. all Code Ann. §85-2-233 . II. The information entered upon the to by the claimant section 85-2-227. Statement is prima facie evidence pursuant Prima facie validity -5- may be of Claim and sworn to Mont. Code Ann. overcome by other evidence in the record. III. Upon Objection, and Report filed, in this review of the Comments Memoranda, of Eliasson Affidavits, Ranch and Company on Withdrawal Master's of Draft they have been considered in reaching the ultimate results case. IV. As decreed in 1.111(28) to 1952 of authorized the to the by request Otto generate Finco, Water the to Right water an claim claim is Examination to be from multiple 6.IV(1) the Water Right Claim Examination Rules single claim appears to evident contain more in one than one for or as and more right in "a Rule claim individually claims." states: right, the defined Rules separated identified of rights implied implied Claim court an the Rule "Whenever a claim will be sent by the Montana Department of Natural Resources and Conservation to the water review request court was requesting requested by DNRC, the as a to review Claim for possible implied 40A-W-151882-00. claimant may petition the When Court claims." No no is review for relief. V. The rules allow a claimant to secure an implied claim when it is clear from the claim that the claimant has more than one water right. The Water Court has power to create to than one contain more implied claims when a claim appears right. VI. The principal the claim for purposes issue of confronting the generation of -6- an Court implied is what constitutes claim. There being nothing entered on Statement of Claim 40A-W-151882-00 claim with the right decreed to Otto Finco, to connect the claimant reaches to the documentation attached to Statement of Claim 40A-W-151882-00 generation of an implied the to justify claim. VII. In Comments of Eliasson Ranch Company on Master's Draft Report, filed October 19, 1993, for generation of an the claimant argues that the implied claim is standard of proof a preponderance of the evidence, and that a preponderance of evidence may be found in documents attached to the Statement of water resources clearly sought show to any facie § would be validity Therefore, the whether there Once has it of Claim to the to Court any implied an claim. is meaningless. resources to claimant irrigation If of water looks to the information the on Court the to an § indicated Statement there generation of aerial under is to the lands adopts the statements of photo, 85-2-227 in those of Claim support an original the or the prima determine implied the Court Statement part documents. to information on implied claim, the alleges, filing by anyone of a copy survey, entered that attached The establish use the elements of the the requirement for individual been determined support which, potential water any documentation determine in photo and sufficient of is aerial active 85-2-221 decree, in this instance copies of the prior decree, and interpretation, prior thereof, of covered claims under of survey, areas be claimant's Claim, of claim. Statement may look Claim to implied claim. VIII. As to Statement of Claim -7- 40A-W-151882-00, Eliasson Ranch Company claimed flow rate of a flow rate of 3.125 CFS decreed to Albert Gerntholz (125.00 in the 121.70 acre feet per year used on 29.80 May 1, 1897. Eliasson owned John 151882-00. inches), decree, and a volume 1952 the acres with a priority date of The Statement of Claim appears to claim only land owned by Ranch by miner's Company. D. Neither Armstrong are John D. evident Armstrong in as Statement owner of nor Claim land 4 0A-W- There is nothing on the Statement of Claim to suggest either an additional 35.00 miner's inches and 34.50 acres or connection to more than one decreed right. IX. To decree pages the for of omitted an to the 1952 from the look that implied 40A-W-151882-00. were extent to claim decree copy claimant to the relevant of No that the the attempts right to Otto decree to decreed to Otto 5 to as prima the 1952 Finco, and Statement implied claim may be generated even attachment on (pages Finco attached rely 15) the were of the if Claim Court facie. X. No implied claim should be generated 40A-W-151882-00, nor from the documents 40A-W-151882-00, for the right decreed from Statement of Claim attached to Statement of Claim to Otto Finco. XI. The not empower decreed to Notice the Otto of Objection Court Finco to and vest filed in by Eliasson Eliasson Ranch succeeded to by John D. Ranch Company Company the does right Armstrong. XII. The volume quantification should -8- be removed from this direct flow irrigation claim pursuant to Mont. Code Ann. § 85-2-234(6) (b) (i) . XIII. Late consistent 40A-115 claim with is the binding 40A-W-214125-00 will adjudication of on the future all be adjudicated late claims. adjudication of in a Nothing late manner in claim Case 40A-W- 214125-00. XIV. The Temporary 40A-W-151882-00 VOLUME: should be PLACE THE VOLUME PUT MAXIMUM TO THE HISTORICAL FOR USE OF changed in part RIGHT AND Decree SHALL to read NOT BENEFICIAL abstract as EXCEED of Claim follows: THE AMOUNT USE. 33.00 ACRES: OF Preliminary IRRIGATION: OTR. ACRES SEC. SEC. TWP. RGE. COUNTY 001 10..00 SWNE 5 07N 25E MUSSELSHELL 002 17..00 NWSE 5 07N 25E MUSSELSHELL 003 6..00 E2E2SW 5 07N 25E MUSSELSHELL Total: 33..00 XV. To the extent it is not filed by Eliasson Ranch Company DATED this withdrawn, is the Notice of DISMISSED. day of 1993. Edward M.Dobson Water -9- Master Objection CERTIFICATE I, Court, Salvas, SERVICE Deputy Clerk of Court of the Montana Water hereby certify that a true and correct copy of the above MASTER'S REPORT was same, Judith A. OF duly served upon the persons postage prepaid, listed below by depositing the in the United States mail. Eliasson Ranch Co. A Montana Corporation 163 93 Highway 12 West Roundup, MT 59072 Maria Rodeghiero and Bruno Rodeghiero Donald J. Eliasson Roy C. P. 771 P. 0. Box Roundup, MT Jan Rehberg, 1313 - 1st Roundup, 59072 0. St. MT East 59072 Rodeghiero Box Roundup, 448 MT 59072 Attorney 100 N. Park Ave., Suite Helena, MT 59601-6263 DATED this 300 day of 1993. Judith A. ^Salvas Deputy -10- Clerk MEMORANDUM TO: Bill FROM: Dockins, Water Master Gene Gibson, Water Rights Technician Lewistown Water Rights Office APPROVED BY: Larry Holman, Bureau Chief Water Rights DATE: October 20, SUBJECT: Bureau 1987 Flow rates and volumes for claim numbers 40A-W150529, 151880, 151881, 151882, and 151883 filed by Eliasson Ranch Co., Case No. 40A-115 Background On October 2, 1987, Donald J. Eliasson called me to set up an appointment to review the flow rates and volumes on the above claims. Mr. Eliasson and I met on October 16, 1987, at 9:00 AM at the Lewistown Field Office. The following is a brief synopsis of what transpired during this meeting. Flow Rate Claim Numbers 40A-H150529, 151881, 151883 Mr. Eliasson stated that these claims required the claimed flow rate which is higher than the guideline established by the Water Court (see Table I below). I told Mr. Eliasson that there were two ways to justify a higher flow rate. The best quantification for a flow rate would be to measure it. If no water is being diverted through the system the flow rate capacity can be estimated from the irrigation system by using the slope-area method and the Manning formula. Mr. Eliasson stated he would have the Musselshell County Soil Conservation Service do a measurement of his ditches and headgates. He will then submit this information to the Water Courts. Table I: Flow Rate Comparision Claimed Claim Number W150529-40A W151881-40A W151883-40A Water Court Decreed Flow Rate Guideline Flow Rate 333.33 gpm/acre 53.33 gpm/acre 37.78 gpm/acre 17 gpm/acre 17 gpm/acre 17 gpm/acre 17 gpm/acre 17 gpm/acre 17 gpm/acre Claim Numbers 40A-W151880 and 151882 The flow rates for these two claims were already decreed once before in Musselshell County District Court, Case No. 5115. Mr. Eliasson does not have any objection to the flow rates (shown in Table II) for these claims. Table II: Flow Rate Comparison Claimed Flow Rate waterCourt Guideline W151880-40A 28.470 gpm/acre 47.139 gpm/acre 17 gpm/acre W151882-40A 17 gpm/acre Claim Number Decreed Flow Rate 28.470 gpm/acre 47.139 gpm/acre Volumes Mr. Eliasson stated that they had claimed volumes too low on the claims listed below. He thinks that to adequately irrigate the claimed places of use they would require the volume amount as established by the Water Court guideline. Claim Number 40A-W150529 This claim is for a water spreading system in climatic area II. The claimant claimed 1.5 acre feet/acre. The guideline for this type of system is 2 acre feet/acre. Claim Numbers 40A-W151880 and/ These claims are for flood systems in climatic area II. The claimant claimed 4.1 acre feet/acre. The guideline for this type of system is 10.2 acre feet/acre.

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