Hansen Livestock Co. , State of Montana, Board of Livestock Commissioners
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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: (406) 522-4131 I Montana Water Court I THE WATER COURT OF THE STATE OF MONTANA N UPPER MISSOURI DIVISION RED ROCK RIVER BASIN (4 1A) CLAIMANT: an sen Livestock Co. OBJECTOR: State of Montana, Board of Land Commisioners J' CASE 41A-144 4 1A 94703-00 4 1A 94705-00 41A 94713-00 Implied Claims: 41A 30103771 41A 30103772 41A 30103773 CLAIMANT: Hansen Livestock Co. J , CASE 41A-145 4 1A 94689-00 4 1A 94690-00 41A 94691 -00 4 1A 94692-00 41A 94695-00 41A 94696-00 4 1A 94709-00 OBJECTOR: Hildreth Livestock Co. ORDER AMENDING AND ADOPTING MASTER'S REPORTS AND ADDRESSING OBJECTION TO MASTER'S REPORTS I. INTRODUCTION Hansen Livestock Company (Hansen) is the owner of the claims consolidated in cases 4 1A- 144 and 4 1A- 145. Hansen objected to the Master's Report in each case. While the substantive issue raised in the claimant's objections to the Master's Reports is identical, the procedural history of the two cases differs slightly and will be described separately. 1 11. PROCEDURAL HISTORY Case 4 1A- 144 Case 4.1 A- 144 was consolidated in May 20 15. All three claims in the case received an objection from the State of Montana Board of Land Commissioners (TLMD) on the basis that part of the place of use of each claim included lands owned by the State. Claim 4 1A 94705-00 received an objection from the United States, Bureau of Reclamation, but it was withdrawn before case 4 1A- 144 was consolidated. The claims were also subject to several issue remarks. In September 20 15, Hansen filed a Motion to Remove Issue Remarks, which included a stipulation signed by Hansen and TLMD. In the stipulation, the parties identified the portion of each place of use that was owned by the State and agreed that implied claims should be generated in TLMD's name for the portion of each water right used on State lands. In his Report, the Master concluded that pursuant to the parties' stipulation and Department o State Lands v. Pettibone, 2 16 Mont. 36 1, 702 P.2d 948 f (1985), implied claims should be generated for the portions of the places of use owned by the State. The Master further concluded that the evidence entered into the record resolved the issues noted by the remarks on the claims. Hansen filed a timely objection to the Master's Report requesting the removal of the supplemental rights remark from all three claims in case 41A-144. Hansen's objection in case 41A-144 is not predicated on an error of fact or law by the Water Master. The request for removal of the supplemental rights remark does not assert that the Master erred by leaving this remark on Hansen's claims. Case 41A-145 Case 4 1A- 145 was consolidated in May 20 15. Hildreth Livestock Co. (Hildreth) objected to all seven claims consolidated in the case. Additionally, several of the claims received issue remarks. The parties in case 4 1A-145 signed a stipulation addressing Hildreth's objections. Accompanying the filing of the stipulation was a motion by Hansen to remove the issue remarks from Hansen's water rights and to modify claim 41A 94695-00. The motion also asked for dismissal of Hildreth's objections, and for addition of an information remark provided in the stipulation. A Master's Report was filed in September 201 5, granting the requests in Hansen's motion. Hansen filed a timely objection to the Master's Report. In its objection to the Master's Report, Hansen requests revisions to the place of use for claim 4.1A 94695-00. In addition, Hansen requests that the supplemental rights remark be removed from the claims in case 4 1A-145. 1Vei.therof Hansen's objections in case 4 1A- 145 is predicated on an error of fact or i 1 I I 1 law by the Water Master. The request to correct the place of use for claim 41A 94695-00 is based upon a mistake regarding the place of use in an earlier filing made by Hansen. The request for removal of the supplemental rights remark does not assert that the Master erred by leaving this remark on Hansen's claims. 111. ISSUES I 1. Should the place of use for claim 41A 94695-00 be modified? 2. Should the supplemental rights remark be removed from Hansen's claims? IV. DISCUSSION 1. Should the place of use for claim 41A 94695-00 be modified? The place of use for claim 41A 94695-00 identified in the Master's Report was based upon information supplied to the Master by the claimant. The claimant has determined that information was incorrect. On that basis, it seeks to have the place of use for claim 41A 94695-00 modified. In effect, Hansen is seeking to correct its own clerical error. Hansen's request is reasonable. The abstract for claim 41A 94695-00 is modified in accordance with Hansen's request. Place of use ID #5, as it appeared in the Preliminary Decree, was for 5.00 acres in the E2E2SE of Section 13, TI OS, R12W. The Water Master removed place of use ID #5 from claim 41A 94695-00 pursuant to Hansen's earlier request. Place of use ID #5 shall be reinstated and place of use ID #2 shall be removed. Maximum acres is modified to 161 acres, which is a reduction from the 170 acres originally claimed and the 165 acres recognized in .the Master's Report. These changes to place of use and acres irrigated are reflected on the modified abstract attached to this Order. 2. Should the supplemental rights remark be removed from Hansen's claims? Hansen seeks removal of the supplemental rights remark for claims in both cases. Hansen makes two arguments to support removal of the remark. First, Hansen argues that such remarks do not clarify the use of these claims because each water right is already limited by flow rate, place of use, and historic volume. Neither objector has opposed Hansen's request to remove the supplemental rights remark. The supplemental rights remark which is the subject of Hansen's request extends to a number of claims which are not included in cases 4 1A- 144 and 4 1A- 145. Claims with the same remark have been consolidated in cases 4 1A- 143 and 4 1A- 146, while other claims have not been consolidated in any case, and have not received objections or issue remarks. Hansen's objection to the Master's Report does not specify whether the supplemental rights remark should be removed froin claims in cases 4 1A- 143 and 4 1A146, as well as from other claims that are not consolidated in cases. Hansen's request to remove the remark from the claims in cases 4 1A- 144 and 4 1A- 145 comes after issuance of a Master's Report. Although Hansen is correct that supplemental rights remarks may not make administration of water rights more efficient, it is also true that removal of supplemental rights remarks confers little meaninghl benefit to the claimant. Administration of water will be not be enhanced by either the presence or absence of the remarks. Although the benefits associated with removal of such remarks are questionable, the costs are real. To remove such remarks, the Water Court must forward the abstracts to the DNRC, which makes changes to the claims in the database. This process consumes the Water Master's time, the DNRC's staff time, and in this instance, the time of a Water Judge. Those costs may be worthwhile when such remarks are removed prior to or as part of a Master's Report, but they are hard to justify when the request comes for the first time in an objection to a Master's Report. The return on investment for removal of supplemental rights remarks late in the adjudication process is low. This Court will not, as a general practice, entertain objections to Master's Reports seeking removal of supplemental rights remarks unless the remarks are inaccurate or misleading. Hansen's second argument1 is that the attachment of the supplemental rights remark is inappropriate because two of the water rights listed do not have overlapping places of use. This argument has merit. The existence of a supplemental rights remark on claims that do not have overlapping places of use is misleading. Because removal of one water right from a supplemental rights remark requires modification of all other claims referenced in the remark, the path of least resistance here is to remove the supplemental rights remark from all the claims referenced in the remark. Accordingly, the supplemental rights remark will be removed from all claims with the remark, including the claims that are not consolidated in cases 4 1A- 144 and 4 1A- 145. A tabulation of claims from which the remark will be removed is provided below.2 4 1A 94689-00 (Case 4 1A- 145) 41A 94690-00 (Case 4 1A-145) 41A 94691-00 (Case 41A-145) 4 1A 94692-00 (Case 4 1A- 145) 4 1A 94693-00 (Case 4 1A- 146) 41A 94694-00 (Not currently involved in Water Court proceedings) 4 1A 94696-00 (Case 4 1A- 145) 4.1A 94703-00 (Case 4 1A- 144) 4.1A 94705-00 (Case 4 1A- 144) 4 1A 94706-00 (Not currently involved in Water Court proceedings) 4 1A 94707-00 (Not currently involved in Water Court proceedings) 4 1A 94708-00 (Case 4 1A- 146) 41A 9471 1-00 (Case 41A-143) 41A 94712-00 (Case 41A-146) 4 1A 947 13-00 (Case 41A-144) 41A 94715-00 (Case 41A-146) 4 1A 947 16-00 (Case 4 1A- 146) 4 1A 94724-00 (Case 4 1A- 146) ' It should be noted that Hansen raises this argument only in case 41A-144. However, the reasoning of the argument applies to all claims containing the supplemental rights remark at issue. 2 The supplemental rights remark on the claims that are currently involved in proceedings in cases 41 A-143 and 41 A-146 will be removed by the Master during the course of those proceedings. V. CONCLUSION AND ORDER The Master's Report in case 4 1A- 144 is ADOPTED; The Master's Report in case 41A-145 is AMENDED to incorporate Hansen's clerical correction to the place of use and is ADOPTED as amended; Hansen's request to remove the supplemental rights remark from its claims in cases 41A-144 and 41A-145 is GRANTED. That request is expanded to remove the remark from all claims on which it appears, though the remark on the claims in cases 4 1A- 143 and 4 1A- 146 will be removed pursuant to the Master's Report in those proceedings; and Cases 4 1A- 144 and 4 1A- 145 are CLOSED. DATED this q* day of \ ,' O Y . McElyea Chief Water Judge R;SS [ Dana E. Pepper Pepper Law Firm, PLLC PO Box 477 Bozeman, MT 5977 1-0477 (406) 599-7424 dana@pepperlawfirm.com Kirsten Madsen Montana Attorney General Agency Legal Services Bureau PO Box 201440 Helena, MT 59620 (406) 444-5850 krnadsen@mt.gov W G Gilbert I11 W.G. Gilbert 111, P.C. 15 South Idaho Street PO Box 345 Dillon, MT 59725 (406) 683-61 16 Joe Fairbank Max A. Hansen & Associates, PC 8 South Idaho Street, Suite A PO Box 1301 Dillon, NIT 59725 (406) 683-4301 joe@irc 1 03 1x.com Note: Service List Updated 11/16/2015 S:\Share\WC-BASW FOLDERSW I A\CASES:4 1 A-1 44\4 1 A-144.4 1 A-1 45 and Unconsolidated Claims OAA 1 1-16-1 5 sjs.docr 6 Montana Water Court ' Box 1389 PO Bozeman, MT 59771-1389 1-800-624-3270 (In-state only) (406) 586-4364 Fax: (406) 522-4131 FILED S F 2 9 2015 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION RED ROCK RIVER BASIN (4 1A) CLAIMANT: Hansen Livestock Co. OBJECTOR: State of Montana, Board of Land Commisioners CASE 41A-144 4 1A 94703-00 4 1A 94705-00 41A 94713-00 Implied Claims: 41A 30103771 41A 30103772 41A 30103773 NOTICE OF FILING OF MASTER'S REPORT You may file a written objection to the Report if you disagree with the Master's Findings of Fact, Conclusions of Law, or Recommendations; or if there are errors in the Report. The above stamped date indicates the date the Master's Report was filed and mailed. Rule 23 of the Water Rights Adjudication Rules requires that written objections to a Master's Report must be filed within 10 days of the date of the Master's Report. Because the Report was mailed to you, the Montana Rules of Civil Procedure allow an additional 3 days be added to the 10 day objection period. Rule 6(d) M.R.Civ.P. This means your objection must be received no later than 13 days from the above stamped date. If you file an objection, you must mail a copy of the objection to all parties on the Service List found at the end of the Master's Report. The original objection and a certificate of mailing to all parties on the Service List must be filed with the Water Court. If you do not file a timely objection, the Water Court will conclude that you agree with the content of this Master's Report.. 1 MASTER'S REPORT FINDINGS OF FACT 1. Claims 41A 94703-00,4.1A 94705-00 and 4.1A 94713-00 are owned by Hansen Livestock Co. The claims appeared in the Preliminary Decree for the Red Rock River Basin (Basin 4 1A) and were subject to issue remarks resulting from pre-decree examination by the State Department of Natural Resources and Conservation (DNRC). The claims received objections from the State of Montana, Board of Land Commissioners (TLMD) indicating that parts of the claimed places of use are on state land. 2. The Court set deadlines for the parties to discuss the objections to the claims and potentially reach an informal resolution. On September 18,20 15, Hansen Livestock filed a Motion to Remove Issue Remarks, along with an affidavit in support of claim 4.1A 94705-00 and a Stipulation between Hansen Livestock and the TLMD (Stipulation). The parties believe these filings resolve objections to these claims. The relevant facts are as follows: Claim 41A 94703-00 3. Claim 4 1A 94703-00 represents an irrigation right for Noble Creek. The claim received a single issue remark noting that part of the place of use appears to be on lands owned by the State. TLMD filed an objection to the claim. 4. According to the Stipulation, the parties agree that the Statement of Claim 4 1A 94703-00 encompasses two distinct rights. Therefore, pursuant to the Montana Supreme Court's decision in Department o State Lands v. Pettibone, 216 Mont. 361, 702 P.2d 948 f (1 985), an implied claim should be generated consisting of place of use #5. 5. The parties agree that the Court should amend claim 41A 94703-00 to remove place of use #5 and generate an implied claim on behalf of the TLMD. Accordingly, implied claim 4 1A 30 10377 1 should be generated by the DNRC based on information in the Statement of Claim filed for claim 41A 94703-00. A map depicting the point of diversion and place of use for the implied claim was attached to the Stipulation. A copy of this map has been placed in the claim file for implied claim 41A 30103771. The parties' Stipulation resolves all issues and objections to claim 41A 94703-00. 2 Claim 41A 94713-00 6. Claim 41A 94713-00 represents an irrigation right for Noble Creek. The claim received a single issue remark noting that part of the place of use appears to be on lands owned by the State. TLMD filed an objection to the claim. 7. According to the Stipulation, the'parties agree that the Statement of Claim 41A 947 13-00 encompasses two distinct rights. Therefore, pursuant to the Montana Supreme Court's decision in Department o State Lands v. Pettibone, 2 16 Mont. 36 1, 702 P.2d 948 f (1985), an implied claim should be generated consisting of place of use #5. 8. The parties agree that the Court should amend claim 41A 94713-00 to remove place of use #5 and generate an implied claim on behalf of the TLMD. Accordingly, implied claim 41A 30103772 should be generated by the DNRC based on information in the Statement of Claim filed for claim 41A 947 13-00. A map depicting the point of diversion and place of use for the implied claim was attached to the Stipulation. A copy of this map has been placed in the claim file for implied claim 41A 30103772. The parties' Stipulation resolves all issues and objections to claim 4 1A 947 13-00. Claim 41A 94705-00 9. Claim 41A 94705-00 represents the right to irrigate 105 acres utilizing water from Cochran Creek. The claim received an issue remark noting that part of the place of use appears to be on lands owned by the State. The claim also received issue remarks questioning the number of historically irrigated acres. Historical aerial photographs appear to show between 70 and 80 acres of irrigation. TLMD filed an objection to the claim. 10. According to the Stipulation, the parties agree that the Statement of Claim 4 1A 94705-00 encompasses two distinct rights. Therefore, pursuant to the Montana Supreme Court's decision in Department o State Lands v. Pettibone, 2 16 Mont. 36 1,702 f P.2d 948 (1985), an implied claim should be generated consisting of part of place of use #3. 11. The parties agree that the Court should amend claim 41A 94705-00 to split place of use #3 and generate an implied claim on behalf of the TLMD. Accordingly, implied claim 4 1A 30 103773 should be generated by the DlVRC based on information in .the Statement of Claim filed for claim 41A 94705-00. A map depicting the point of diversion and place of use for the implied claim was attached to the Stipulation. A copy of this map has been placed in the claim file for implied claim 4 1A 30 103773. The parties' Stipulation resolves all objections to claim 4 1A 94705-00. 12. With respect to the historically irrigated acreage of the claim, Hansen Livestock filed the affidavit of Paul Hansen. As president of Hansen Livestock Co., Mr. Hansen has personal knowledge of the historical and contemporary use of this water right. Mr. Hansen's affidavit supports the claimed acreage of 105 acres. 13. Based upon the foregoing, each claim should be modified as shown to resolve all issue remarks and objections and to accurately reflect historical use. Claim 41A 94703-00 Flow Rate: 44N€FS 3.34 CFS Maximum Acres: W 289.00 Place of Use: ID - Acres Govt Lot 1 69.00 2 70.00 3 47.00 4 102.00 < ."" Qtr Sec SW SE S2N2 SW J 4 , ~7 nn h11li1 6 5 1.00 NENWNW Sec Twp 25 34 35 35 10s 10s 10s 10s 12W 12W 12W 12W County BEAVERHEAD BEAVERHEAD BEAVERHEAD BEAVERHEAD 7 I; i nc I ~ U I ac- 3 11s 12W BEAVERHEAD 1 " Total: 346;88 289.00 ADD R15 REMARK: IMPLIED CLAIM NO. 41A 301 03771 WAS AUTHORIZED AND GENERATED BASED ON INFORMATION IN THIS CLAIM. IMPLIED Claim 41A 30103771 Owners: Priority Date: Montana, State Board of Land Commissioners Trust Land Management Division PO Box 201601 Helena, MT 59620 September 1, 190 1 Type of Historical Right: FILED Purpose: IRRIGATION Irrigation Type: FLOOD Flow Rate: 295.00 GPM Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE Maximum Acres: 57.00 Source Name: NOBLE CREEK Source Type: SURFACE WATER ALSO KNOWN AS HARKNESS CREEK Point of Diversion: ID - Govt Lot 1 Sec Qtr Sec NWSENW 36 Twp 10s & 12W County BEAVERHEAD Period of Diversion: MAY 1 TO NOVEMBER 1 Diversion Means: HEADGATE Period of Use: MAY 1 TO NOVEMBER 1 Place of Use: ID 1 Acres Govt Lot 57.00 Qtr Sec NW Sec 36 Twp 10s & 12W County BEAVERHEAD ADD C5 REMARK: THIS IMPLIED CLAIM WAS AUTHORIZED AND GENERATED BASED ON INFORMATION IN CLAIM NO. 41A 94703-00. Claim 41A 94713-00 Flow Rate: %k%€FS 10.44 CFS Maximum Acres: W 289.00 Place of Use: ID - Acres GovtLot 1 69.00 2 70.00 3 47.00 4 102.00 QtrSec SW SE S2N2 SW nfi ."" J < a 47 I kT\X I 4 5 1.00 NENWNW Set - Twp 10s 10s 10s 10s & 25 34 35 35 12W 12W 12W 12W Countv BEAVERHEAD BEAVERHEAD BEAVERHEAD BEAVERHEAD 7L 1AC 1 ?\XI RE A 3 1 IS 12W BEAVERHEAD - V I \ I E M Total: W 289.00 ADD R15 REMARK: IMPLIED CLAIM NO. 41 A 30 103772 WAS AUTHORIZED AND GENERATED BASED ON INFORMATIOIVnu THIS CLAIM. IMPLIED Claim 41A 30103772 Owners: 'Montana, State Board of Land Commissioners Trust Land Management Division PO Box 201601 Helena, MT 59620 Priority Date: June 13, 1917 Type of Historical Right: FILED Purpose: IRRIGATION Irrigation Type: FLOOD Flow Rate: 2.06 CFS Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE Maximum Acres: 57.00 Source Name: NOBLE CREEK Source Type: SURFACE WATER ALSO KNOWN AS HARKNESS CREEK Point of Diversion: ID - GovtLot 1 Q t r Sec NWSENW Sec 36 Twp 10s & 12W Countv BEAVERHEAD Period of Diversion: MAY 1 TO NOVEMBER 1 Diversion Means: HEADGATE Period of Use: MAY 1 TO NOVEMBER 1 Place of Use: ID 1 Acres Govt Lot 57.00 Qtr Sec NW Sec 36 Twp 10s & 12W County BEAVERHEAD ADD C5 REMARK: THIS IMPLIED CLAIM WAS AUTHORIZED AND GENERATED BASED ON INFORMATION IN CLAIM NO. 4 1 A 947 13-00. Claim 41A 94705-00 Flow Rate: 3.75 CFS 3.5 CFS Maximum Acres: -WkW 98.00 Place of Use: ID - Acres Govt Lot 1 15.00 2 15.00 3 7 ; 8 68.00 58 Total: -I-&XM 98.00 Qtr Sec W2NWSW S2S2NE SE- N2SE Sec 13 14 14 Twp 11s 11s 11s & 12W 12W 12W County BEAVERHEAD BEAVERHEAD BEAVERHEAD ADD R15 REMARK: IMPLIED CLAIM NO. 41A 30103773 WAS AUTHORIZED AND GENERATED BASED ON INFORMATION IN THIS CLAIM. IMPLIED Claim 41A 30103773 Owners: Priority Date: Montana, State Board of Land Commissioners Trust Land Management Division PO Box 201601 Helena, MT 59620 June 1, 1929 Type of Historical Right: USE Purpose: IRRIGATION Irrigation Type: FLOOD Flow Rate: I 12 GPM Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE Maximum Acres: 7.00 Source Name: COCHRAN CREEK Source Type: SURFACE WATER Point of Diversion: ID - GovtLot 1 Qtr Sec NWSESE Sec 14 Twp & 11s 12W County BEAVERHEAD 12W BEAVERHEAD Period of Diversion: MAY 1 TO NOVEMBER 1 Diversion Means: HEADGATE 2 NWSESE 14 11s Period of Diversion: MAY 1 TO NOVEMBER 1 Diversion Means: HEADGATE Period of Use: MAY 1 TO NOVEMBER 1 Place of Use: ID 1 Acres Govt Lot 7.00 Qtr Sec S2SE Sec Twp 14 1 IS 12W County BEAVERHEAD ADD C 5 REMARK: THIS IMPLIED CLAIM WAS AUTHORIZED AND GENERATED BASED ON INFORMATION IN CLAIM NO. 41A 94705-00. CONCLUSIONS OF LAW 1. In order to ensure historical accuracy, the Water Court is required to address all issue remarks that appear on a claim as well as any objections the claim receives. 2. A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content. Section 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. Rule 19, W.R.Adj.R. 3. Therefore, the overarching legal issues in this case are: 1) whether the proposed actions resolve all issue remarks; and 2) whether the evidence before the Court overcomes the prima facie proof found on the Statements of Claim. 4. Pursuant to Rule 35, W.R.C.E.R., the Water Court may generate implied claims whenever a single claim appears to contain more than one right. Based on the information contained in the Stipulation filed by the parties, the record before the Court, and the Statements of Claim for 4 1A 94703-00,4 1A 94705-00 and 4 1A 947 13-00, the f Water Court should generate the implied claims described above. Department o State Lands v. Pettibone, 2 16 Mont. 361,702 P.2d 948 (1985). 5. The evidence entered into the record is sufficient to contradict and overcome .the content of the prima facie claims, justifies the changes to the claims, and resolves the issues noted by remarks on the claims. Rule 17, W.R.Adj.R. RECOMMENDATIONS Based upon the above Findings of Fact and Conclusions of Law, this Master recommends that the Court make the changes specified in the Findings of Fact to correct the Preliminary Decree for this Basin. Post Decree Abstracts of Water Right Claim are served with this Report to confirm that the recommended changes have been made in the state's centralized record system. DATED this dj , 2015. day of 4 y Andrew Gorder Water Master : y Kirsten Madsen Montana Attorney General Agency Legal Services Bureau PO Box 20 1440 Helena, MT 59620 (406) 444-2026 krnadsen@mt.gov Joe Fairbank Max A. Hansen & Associates, PC 8 South Idaho Street, Suite A PO Box 1301 Dillon, MT 59725 (406) 683-4301 joe@irc 103 l x.com Dana E. Pepper Pepper Law Firm, PLLC PO Box 477 Bozeman, MT 59771 -0477 (406) 599-7424 dana@pepperlawfirm.com Note: Caption Updated 9-18-15
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