Clark, Coyle, Wallingford

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Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (In-state only) (406) 586-4364 FAX: 522-4131 LW IN THE WATER COURT OF THE STATE OF MONTANA NOV 16 2004 UPPER MISSOURI DIVISION GALLATIN RIVER BASIN. (4111) * * ***** * Montana ater Court IN THE MATTER OF THE ADJUDICATION OF ) THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND) WITHIN THE GALLATIN RIVER DRAINAGE AREA ) INCLUDING ALL TRIBUTARIES OF THE ) GALLATIN RIVER IN GALLATIN, PARK AND ) MADISON COUNTIES, MONTANA ) ) CASE 4111-416 41H-W-036672-00 41H-W-110336-00 CLAIMANT: Thomas H. Clark and Carolyn S. Clark; Steven M. Wallingford and Dawn L. Wallingford. ON MOTION OF THE WATER COURT ORDER ADOPTING AMENDED MASTER'S REPORT Pursuant to Montana Code Annotated, §85-2-233(5), the above entitled case was assigned to Water Master Colleen Coyle. The Water Master filed a report containing Findings of Fact and Conclusions of Law with the Clerk of Court. Copies of the report were served upon the parties on October 20, 2004. An error was discovered and the Water Master filed an Amended Master's Report containing Findings of Fact and Conclusions of Law with the Clerk of Court. Copies of the Amended Master's Report were served upon the parties on October 22, 2004. Over ten (10) days have elapsed since service, and no objections to the Findings and Conclusions have been filed by any party. The Court has reviewed the Water Master's Findings and Conclusions. Pursuant to Rule 53(e), Montana Rules of Civil Procedure, the Court ADOPTS the Amended Master's Report and ORDERS that each Abstract of Water Right Claim as Modified by the Montana Water Court be served with this Order to confirm that the recommendations set forth in the Amended Master's Report have been adopted for each claim listed in the above caption. DATED this / 6 day of 4/0 , 2004. C. Bruce Loble Chief Water Judge CERTIFICATE OF SERVICE I, Patricia J. Gunderson, 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 persons listed below by depositing the same, postage prepaid, in the United States mail. Thomas H. & Carolyn S. Clark 10894 Dixon Road Rives Jct., MI 49277-9645 Steven M. & Dawn L. Wallingford 57 Prospector Trail Bozeman, MT 59718 This Order Only Rusty Taylor, DNRC Water Resources Regional Office 2273 Boothill Court, Suite 110 Bozeman, MT 59715 DATED this 4, day of , 2004. Patricia J. Anderson Deputy Clerk of Court 2 November 1, 2004 41H 36672-00 Page 1 of 1 Modified Abstract For Water Court ABSTRACT OF WATER RIGHT CLAIM AS MODIFIED BY THE WATER COURT GALLATINI RIVER BASIN 4111 IMPORTANT NOTICE AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM CHANGED BY ORDER OF THE MONTANA WATER COURT AFTER ISSUANCE OF THE PREVIOUS DECREE. Water Right Number: 41H 36672-00 STATEMENT OF CLAIM Version: 2-- POST DECREE Status: Owners: ACTIVE CAROLYN S CLARK 1308 W WASHINGTON JACKSON, MI 49203 THOMAS H CLARK 1308 W WASHINGTON JACKSON, MI 49203 Priority Date: JUNE 30, 1868 Type of Historical Right: DECREED Purpose (use): IRRIGATION Irrigation Type: SPRINKLER *Flow Rate: 0.41 CFS *Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. Climatic Area: Maximum Acres: 4- MODERATELY LOW 40.00 Source: EAST GALLATIN RIVER Source Type: SURFACE WATER Point of Diversion and Means of Diversion: Qtr Sec Sec Tu Egs. County ID Govt Lot 1S 5E GALLATIN SENWSE 4 1 Diversion Means: PUMP Period of Use: Place of Use: ID 1 Total: MAY 1 to OCTOBER 4 Acres Govt Lot Qtr Sec Sec hyp && County 40.00 40.00 NWSE 4 15 5E GALLATIN Page 1 of 2 November 1, 2004 41H 110336-00 Modified Abstract For Water Court ABSTRACT OF WATER RIGHT CLAIM AS MODIFIED BY THE WATER COURT GALLATIN RIVER BASIN 41H. IMPORTANT NOTICE AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM CHANGED BY ORDER OF THE MONTANA WATER COURT AFTER ISSUANCE OF THE PREVIOUS DECREE. Water Right Number: 41H 110336-00 STATEMENT OF CLAIM Version: 2-- POST DECREE Status: Owners: ACTIVE STEVEN M WALLINGFORD 57 PROSPECTOR TRAIL BOZEMAN, MT 59718 DAWN L WALLINGFORD 57 PROSPECTOR TRAIL BOZEMAN, MT 59718 Priority Date: JUNE 30, 1868 Type of Historical Right: DECREED Purpose (use): IRRIGATION Irrigation Type: SPRINKLER/FLOOD *Flow Rate: 0.84 CFS *Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. Climatic Area: Maximum Acres: 4- MODERATELY LOW 520.93 Source: EAST GALLATIN RIVER Source Type: SURFACE WATER Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec NWSWSE 1 Diversion Means: HEADGATE Period of Use: Place of Use: ID 1 2 3 4 5 Sec 10 Twp Eat 1S 5E Qtr Sec Sec I'm S2NW S2NE NWSE W2NESE 3 3 3 3 3 15 1S 1S 1S 1S County GALLATIN MAY 1 to OCTOBER 31 Acres 80.00 80.00 40.00 10.00 38.37 Govt Lot 1 Rge County 5E GALLATIN 5E GALLATIN 5E GALLATIN 5E GALLATIN 5E GALLATIN Page 2 of 2 November 1, 2004 41H 110336-00 Place of Use: ID 6 7 8 9 10 11 Total: Modified Abstract For Water Court Acres 38.40 38.42 38.57 80.00 38.58 38.59 520.93 Govt Lot Qtr Sec 2 3 4 S2NE 1 2 Sec 2 .1...0 3 3 3 4 4 4 1S 15 1S 1S 1S 1S Me County 5E GALLATIN 5E GALLATIN 5E GALLATIN 5E GALLATIN 5E GALLATIN 5E GALLATIN Remarks: THE WATER RIGHTS FOLLOWING THIS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS OF THE CLAIMANT'S TOTAL 520.93 ACRES. EACH RIGHT IS LIMITED TO THE FLOW RATE AND PLACE OF USE OF THAT INDIVIDUAL RIGHT. THE SUM TOTAL VOLUME OF THESE WATER RIGHTS SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 132779-00 110340-00 110339-00 110338-00 110337-00 110336-00 IN THE WATER COURT OF THE STATE OF MONTANA ******************* NOTICE OF FILING OF AMENDED MASTER'S REPORT OCT 22 2004 iontana Water Court TO: ALL PARTIES RE: CASE 4111-416; Claims 41H-W-036672-00, 41H-W-110336-00 This is to provide you with Notice that the Water Master has filed a Amended Master's Report (Findings of Fact and Conclusions of Law) with the Clerk of the Water Court for the water right(s) listed above. A copy of the Amended Master's Report is enclosed with this Notice. Please review this Amended Master's Report carefully. If there are any corrections or changes that need to be made, you have 10 days from service of this Notice to file a written objection. You must mail a copy of your written objection to all the other parties who have been involved in this proceeding and file a certificate of such mailing with the Water Court. (This procedure is required by Rule LH. Water Right Claims Examination Rules and by Rules 5 and 53 of the Montana Rules of Civil Procedure.) DATED this 22th day of October, 2004. ANNA M. BURTON Clerk of Court Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 (in Montana) Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (In-state only) (406) 586-4364 FAX: 522-4131 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION GALLATIN RIVER BASIN (41H) * * * 4: * * 4. * * 4: * 4: * * 4: * IN THE MATTER OF THE ADJUDICATION OF ) THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND) ) WITHIN THE GALLATIN RIVER DRAINAGE AREA INCLUDING ALL TRIBUTARIES OF THE ) GALLATIN RIVER IN GALLATIN, PARK AND ) MADISON CO-UNTIES, MONTANA ) ) CASE 4111-416 41H-W-036672-00 41H-W-110336-00 -1LEB OCT CLAIMANT: Thomas H. Clark and Carolyn S. Clark; Steven M. Wallingford and Dawn L. Wallingford. 22 2004 Montana Water Court ON MOTION OF THE WATER COURT AMENDED MASTERS REPORT FINDINGS OF FACT . Claims 41H-W-036672-00 and 41H-W-110336-00 are both based upon the 50.00 Miner's Inches (MI) of East Gallatin River water decreed to Pat Toohey with a June 30, 1868 priority date in Toohey v. Campbell, Cause No. 2889, Gallatin County. Together these claims have exceeded this previously decreed right as follows: CLAIM NO 41H-W-036672-00 41H-W-110336-00 CLAIMANT CLAIMED FLOW RATE Carolyn S. Clark Thomas H. Clark 40.00 MI Steven M. Wallingford Dawn L. Wallingford 17.00 MI ¢ CLAIM NO CLAIMANT CLAIMED FLOW RATE TOTAL 57.00 MI DISTRICT COURT DECREE 50.00 MI 7.00 MI TOTAL EXCEEDED As a result of this "decree exceeded" situation, a remark noting the potential issue appeared on each of these claims in the Temporary Preliminary Decree for this Basin. The claims were consolidated into Water Court Case 41H-416 for adjudication and a first status conference took place on January 21, 2004 in Bozeman, Montana. 2. On January 26, 2004, Rusty Taylor, DNRC Water Resource Specialist, filed a memorandum setting forth the issues in this case and possible options for resolution. Generally, his proposal provided that based on historic evidence, 33.5 miner's inches be distributed to the Wallingfords and 16.5_ miner's inches be distributed to the Clarks. 3. On February 17, 2004, Steven M. Wallingford filed a letter indicating agreement with Mr. Taylor's proposal for resolution. 4. On March 26, 2004, Thomas H. Clark and Carolyn P. Clark filed a response indicating agreement with Mr. Taylor's proposal for resolution. 5. The parties' agreement resolves the decree exceeded situation, as follows: 2 CLAIM NO 41H-W-036672-00 CLAIMANT Carolyn S. Clark Thomas H. Clark CLAIMED FLOW RATE MODIFIED FLOW RATE 40.00 MI 16.5 MI (.41 CFS) 17.00 MI 33.5 MI (.84 CFS) TOTAL 57.00 MI 50.00 MI DISTRICT COURT DECREE 50.00 MI 50.00 MI 41H-W-110336-00 Steven M. Wallingford Dawn L. Wallingford 6. The decree exceeded issue remark should be removed from claims 41HW-036672-00 and 41H-W-110336-00. CONCLUSIONS OF LAW The Montana Water Court has jurisdiction to review all objections to temporary preliminary decrees pursuant to § 85-2-233 MCA. This jurisdiction includes the ability to call claims in on Motion of the Water Court even if there are no filed objections to the claims. This authority is discretionary and is only exercised when the facts presented warrant proceedings despite the lack of objections. Water Court Case 41H-416 presents the type of facts that warrant calling these claims in on Motion of the Water Court. Both of the claims in this case are based on the same decreed right from the 3 East Gallatin River, and together, they have overclaimed this decreed right. In essence, these parties have filed claims that are adverse to one another. It is therefore appropriate to address the issues raised by these filings even though there have been no objections filed on the claims on these issues. A properly filed Statement of Claim for existing water right is prima facie proof of its content, § 85-2-227 MCA. This prima facie validity may be overcome by other evidence that proves that one or more elements of the prima facie statement of claim are incorrect. This is the applicable standard of proof regardless of whether the objectors are adverse parties or the claimants objecting to their own water right claims. See Memorandum Opinion, Order Adopting Master's Report, Water Court Case 40G-2 (March 11, 1997). The agreement of the parties constitutes a voluntary reduction in the elements that comprise water right claims 41H-W-036672-00 and 41H-W-110336-00. These reductions are within the parameters of the original statements of claim as filed for these water rights. IV The recommended changes to the claims in this case, as found in the Findings of Fact, address and resolve the potential decree exceeded issues noted by remarks that appeared on these claims in the Temporary Preliminary Decree. 4 V The volume quantification on these direct flow irrigation claims shall be removed as authorized by Mont. Code Arm. §85-2-234(6)(b)(I). RECOMMENDATIONS 1. The changes to claims 41H-W-036672-00 and 41H-W-110336-00, as stated in the Findings of Fact, should be adopted by the Water Court to correct the Temporary Preliminary Decree for this Basin. 2. The "decree exceeded" issue remarks should be removed from claims 41H-W-036672-00 and 41H-W-110336-00. DATED this p9d day of Oc1 19_4 Colleen Coyle Water Master 5 , 2004. CERTIFICATE OF SERVICE I, Patricia J. Gunderson, 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 persons listed below by depositing the same, postage prepaid, in the United States mail. Thomas H. & Carolyn S. Clark 10894 Dixon Road Rives Jct., MI 49277-9645 Steven M. & Dawn L. Wallingford 57 Prospector Trail Bozeman, MT 59718 This Order Only Rusty Taylor, DNRC Water Resources Regional Office 2273 Boothill Court, Suite 110 Bozeman, MT 59715 DATED this ezz, day of Z9,e,. Patricia J. Gter erson f Deputy Clerk of Court 6 , 2004. ' IN THE WATER COURT OF THE STATE OF MONTANA , =1 z * * * * * * * * * * * :lc * * * * * * * OCT 20 200k NOTICE OF FILING OF MASTER'S REPORT Man Water Court TO: ALL PARTIES RE: CASE 41H-416; Claims 41H-W-036672-00, 41H-W-110336-00 This is to provide you with Notice that the Water Master has filed a Master's Report (Findings of Fact and Conclusions of Law) with the Clerk of the Water Court for the water right(s) listed above. A copy of the Master's Report is enclosed with this Notice. Please review this Master's Report carefully. If there are any corrections or changes that need to be made, you have 10 days from service of this Notice to file a written objection. You must mail a copy of your written objection to all the other parties who have been involved in this proceeding and file a certificate of such mailing with the Water Court. (This procedure is required by Rule 1.11. Water Right Claims Examination Rules and by Rules 5 and 53 of the Montana Rules of Civil Procedure.) DATED this 20th day of October, 2004. ANNA M. BURTON Clerk of Court Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 (in Montana) Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (In-state only) (406) 586-4364 FAX: 522-4131 1N THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION GALLATIN RIVER BASIN (41H) * * * * * * * * * * *** ) IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND,) WITHIN THE GALLATIN RIVER DRAINAGE AREA ) INCLUDING ALL TRIBUTARIES OF THE ) GALLATIN RIVER IN GALLATIN, PARK AND ) MADISON COUNTIES, MONTANA ) ) OCT 20 2004 (51 'It CAS Mara Water Court 41H-W-036672-00 41H-W-110336-00 CLAIMANT: Thomas H. Clark and Carolyn S. Clark; Steven M. Wallingford and Dawn L. Wallingford. ON MOTION OF THE WATER COURT MASTERS REPORT FINDINGS OF FACT 1. Claims 41H-W-036672-00 and 41H-W-110336-00 are both based upon the 50.00 Miner's Inches (MI) of East Gallatin River water decreed to Pat Toohey with a June 30, 1868 priority date in Toohey v. Campbell, Cause No. 2889, Gallatin County. Together these claims have exceeded this previously decreed right as follows: CLAIM NO 41H - W - 036672 - 00 CLAIMANT CLAIMED FLOW RATE Carolyn S. Clark Thomas H. Clark 41H-W-110336-00 40.00 MI Steven M. Wallingford Dawn L. Wallingford 17.00 MI CLAIM NO. CLAIMANT CLAIMED FLOW RATE TOTAL 57.00 MI DISTRICT COURT DECREE 50.00 MI TOTAL EXCEEDED 7.00 MI As a result of this "decree exceeded" situation, a remark noting the potential issue appeared on each of these claims in the Temporary Preliminary Decree for this Basin. The claims were consolidated into Water Court Case 41H-416 for adjudication and a first status conference took place on January 21, 2004 in Bozeman, Montana. 2. On January 26, 2004, Rusty Taylor, DNRC Water Resource Specialist, filed a memorandum setting forth the issues in this case and possible options for resolution. Generally, his proposal provided that based on historic evidence, 33.5 miner's inches be distributed to the Wallingfords and 16.5 miner's inches be disbibuted to the Clarks. 3. On February 17, 2004, Steven M. Wallingford filed a letter indicating agreement with Mr. Taylor's proposal for resolution. 4. On March 26, 2004, Thomas H. Clark and Carolyn P. Clark filed a response indicating agreement with Mr. Taylor's proposal for resolution. 5. The parties' agreement resolves the decree exceeded situation, as follows: CLAIM NO 41H-W-036672-00 CLAIMED FLOW RATE CLAIMANT Carolyn S. Clark Thomas H. Clark MODIFIED FLOW RATE 40.00 MI 33.5 MI (.84 CFS) 17.00 MI 16.5 MI (.41 CFS) TOTAL 57.00 MI 50.00 MI DISTRICT COURT DECREE 50.00 MI 50.00 MI 41H-W-110336-00 Steven M. Wallingford Dawn L. Wallingford 6. The decree exceeded issue remark should be removed from claims 41HW-036672-00 and 41H-W-110336-00. CONCLUSIONS OF LAW The Montana Water Court has jurisdiction to review all objections to temporary preliminary decrees pursuant to § 85-2-233 MCA. This jurisdiction includes the ability to call claims in on Motion of the Water Court even if there are no filed objections to the claims. This authority is discretionary and is only exercised when the facts presented warrant proceedings despite the lack of objections. Water Court Case 41H-416 presents the type of facts that warrant calling these claims in on Motion of the Water Court. Both of the claims in this case are based on the same decreed right from the 3 East Gallatin River, and together, they have overclaimed this decreed right. In essence, these parties have filed claims that are adverse to one another. It is therefore appropriate to address the issues raised by these filings even though there have been no objections filed on the claims on these issues. A properly filed Statement of Claim for existing water right is prima facie proof of its content, § 85-2-227 MCA. This prima facie validity may be overcome by other evidence that proves that one or more elements of the prima facie statement of claim are incorrect. This is the applicable standard of proof regardless of whether the objectors are adverse parties or the claimants objecting to their own water right claims. See Memorandum Opinion, Order Adopting Master's Report, Water Court Case 40G-2 (March 11, 1997). The agreement of the parties constitutes a voluntary reduction in the elements that comprise water right claims 41H-W-036672-00 and 41H-W-110336-00. These reductions are within the parameters of the original statements of claim as filed for these water rights. IV The recommended changes to the claims in this case, as found in the Findings of Fact, address and resolve the potential decree exceeded issues noted by 4 2 remarks that appeared on these claims in the Temporary Preliminary Decree. V The volume quantification on these direct flow irrigation claims shall be removed as authorized by Mont. Code Ann. §85-2-234(6)(b)(I). RECOMMENDATIONS 1. The changes to claims 41H-W-036672-00 and 41H-W-110336-00, as stated in the Findings of Fact, should be adopted by the Water Court to correct the Temporary Preliminary Decree for this Basin. 2. The "decree exceeded" issue remarks should be removed from claims 41H-W-036672-00 and 41H-W-110336-00. DATED this d0 day of 0 c% Colleen C ¢Ale Water Master , 2004. CERTIFICATE OF SERVICE I, Patricia J. Gunderson, 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 persons listed below by depositing the same, postage prepaid, in the United States mail. Thomas H. & Carolyn S. Clark 10894 Dixon Road Rives Jet., MI 49277-9645 This Order Only Rusty Taylor, DIN-RC Water Resources Regional Office 2273 Boothill Court, Suite 110 Bozeman, MT 59715 Steven M. & Dawn L. Wallingford 57 Prospector Trail Bozeman, MT 59718 DATED this eday of aerd/W) , 2004. Patricia J. Gurerson Deputy Clerk of Court 6

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