Teton Co-op Canal Co. , Lower Teton Joint Objectors, Teton Coop Reservoir Co. , Farmers Coop Canal Co.

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Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800624-3270 (In-state only) (406) 5864364 FAX: (406) 522-4131 , " FILED E B 03 2815 lontaraa Water Court - IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION TETON RIVER BASIN (410 ) CLAIMANT: Teton Co-op Canal Co. OBJECTORS: Lower Teton Joint Objectors; Teton Coop Reservoir Co.; Farmers Coop Canal Co ORDER REGARDING TETON CO-OP CANAL COMPANY WATER RIGHT CLAIMS This case was originally consolidated on August 1,2008. Hearing in this case took place on October 1 and 2,2012. At that time this author was presiding over cases in this Basin as a ~ e n i & r Water Master. On September 16,2013, this author was appointed as the Associate Water Judge for the Montana Water Court. The trier of fact who presided over hearing in this case must issue the decision. Since that trier of fact is now the Associate Water Judge, the parties are receiving this decision rather than a master's report. FINAL ORDER INDEX Case 410-132 PROCEDURAL HISTORY........................: .................................................................................3 ISSUES PRESENTED................................................................................................................... 5 SUMhURY OF DECISION ...................................................................................................... 5 ADMISSIBILITY OF TCRC EXHIBIT.23. APPENDIX I11 .......................................................6 ............................................................................................. 8 FINDINGS OF FACT......................; I. Historical Background ........................................................... . . . . . . . . . .......................... 8 I1. TCCC Early Development ................................................................................................... 9 I11. Priority Date for TCCC Reservoir Development.............................................................. 12 IV. Volume .............................................................................................................................17 V . Period of Diversion and Period of Use .............................................................................. 20 VI. Place of UseIAcres Irrigated ............................................................................................. 23 VII. TCCC Stock Claims ........................................................................................................26 27 VIII. TCCC's Equitable Arguments ....................................................................................... CONCLUSIONS OF LAW .........................................................................................................28 I . Burden of Proof ............................................................................................................ 28 I1. Priority Date for the Eureka Reservoir Claims ................................................................. 30 A. Eureka Reservoir as part of the Original Appropriation ................................................ 30 B. 1947 and 1957 additions to the Eureka Reservoir.......................................................... 32 I11. Volume............................................................................................................................. 33 I . Period of DiversionPeriod of Use All Claims ................................................................34 V A . Period of Diversion ........................................................................................................ 34 B. Period of Use .................................................................................................................. 35 V . Place of UseIAcres higated All Claims ........................................................................... 35 VI . TCCC Stock Claims ........................................................................................................ 36 VII. Issue Remarks................................................................................................................. 36 VIII. TCCC's Equitable Arguments ...................................................................................... 37 3 ORDER ....................................................................................................................................... 7 PROCEDURAL HISTORY Water Court Case 4 10-132 includes six claims owned by the Teton Co-op Canal Company (TCCC). Two of the claims represent a Teton River water right decreed to TCCC in Perry v. Beattie, Case No. 37 1, Teton County (1908) (Perry v. Beattie). The remaining four claims are bzsed on filed rights fiom the Teton River. In each case, TCCC filed a separate irrigation and stock claim for the same historical water right: Claim 410 192867-00 St . 4 1 0 192871-00 Ir 410 192868-00 St 410 192872-00 Ir 410 192869-00 St 410 192873-00 Ir Priority Date 4/18/1890 4/18/1890 4/18/1890 SourceIType Teton River Decreed in Perry v. Beattie Teton River Filed Right Teton River Filed Right Flow Rate 75.00 cfs 100.00 cfs None All six claims appeared in the Temporary Preliminary Decree for this Basin with the same priority date, source, period of diversion, period of use, point of diversion, and place of use. TCCC acknowledges it is entitled to a 75.00 cfs (3,000.00 miner's inch) total flow rate fiom the Teton River. Assuming its decreed rights, 4 1 0 192867-00 and 4 1 0 192871-00, are confirmed through this process, TCCC has indicated claims 410 192868-00,41 0 192869-00,41 0 192872-00, and 410 192873-00 are duplicate filings that can be dismissed. All six claims received objections fiom the Teton Co-op Reservoir Company (TCRC) and the Lower Teton Joint Objectors (LTJO). The Farmers Co-op Canal Company (Farmers) filed and subsequently withdrew objections to all three irrigation claims. The C Hanging L Ranch filed and subsequently withdrew Notices of Intent to Appear on all three irrigation claims. This left TCRC and LTJO as the only objectors. There are four irrigation companies located on the Teton River above Choteau, Montana. Cases addressing the water right claims held by each company have been on the same hearing track. The Court conducted a separate hearing for each case and did not issue any decisions until all four cases had been through a hearing. The final hearing i took place in December 2012. Decisions in these cases are being issued in the order the case was heard. The Court has issued decisions in cases 410-129 (Eldorado Co-op Canal Company) and 410-118 (~armers).' Case 4 10-132 is the third decision in this group of cases. Cross motions for summary judgment filed by TCCC, TCRC, and LTJO, were denied by the Court on August 9,201 1. On December 28,201 1, the Chief Water Judge dismissed .the objections to the Master's Summary Judgment ruling and recommitted the case to the Court for further proceedings. L All exhibits were exchanged prior to hearing. Following this exchange, the parties filed objections to exhibits. By agreement, all exhibits that did not receive objections are a part of the record, even if they were not used at hearing. Exhibits that received prehearing objections and were not offered into evidence at hearing are excluded fi-om the record. Objections to specific exhibits were addressed at hearing as those exhibits were offered into evidence. Exhibits with prehearing objections that were used at hearing were deemed admitted if the objection was not renewed at hearing. At - - hearing, the Court took objections to TCRC Exhibit 23 Appendix III under advisement and allowed testimony based on this portion of the exhibit. These objections are addressed below. The Court takes judicial notice of the 1962 Teton County Water Resource Survey text and maps (Water Resource Survey). The Court also takes judicial notice of proceedings in cases 4.10-84 (TCRC), 4 10-118 (Farmers), and 4 10-129 (Eldorado). On October 1,2012, TCCC and LTJO filed a Stipulation that served to resolve all LTJO objections. The terms of the Stipulation are addressed as necessary in this Order. Hearing in Case 410-132 was held on October 1 and 2,2012, in Choteau, Montana. TCRC was the single remaining objector. The hearing addressed the TCRC objections, the terms of the TCCC-LTJO Stipulation, and all issue remarks. The decision in Case 410-129 was issued as a Master's Report. The report received objections. On November 21,2014 the Chief Water Judge issued his Order Amending and Adopting the Master's Report. The decision in Case 410-1 18 was issued as an Order of the Associate Water Judge. Both decisions are currently on appeal to theMontana Supreme Court. ISSUES PRESENTED The following issues were raised by TCRC objections, issue remarks, and the I TCCC-LTJO Stipulation: 1. Priority Date: Can TCCC claim offstream storage in Eureka Reservoir as part of the original 1890 appropriation represented by claims 4 1 0 192867-00 and 410 192871-OO? ., Do 1947 and 1957 additions to the storage capacity of Eureka Reservoir constitute expansions of the original appropriation, more appropriately represented by water right claims with junior priority dates? 2. Volume: Do TCCC's claims require a quantified volume, and if so, what is the appropriate total volume and how should that volume be divided among TCCC's claims? 3. Period of Diversion/l?eriod of Use: What is the appropriate period of diversion and period of use for all TCCC's claims? 4. Place of UseIAcres Irrigated: What is the appropriate place of use and acres irrigated for TCCC's claims? 5. Stockwater: Are separate statements of claim for stockwater a valid reflection of TCCC's historical use? 6. Equitable Arguments: Is TCRC estopped by Laches, Waiver, Judicial Estoppel, and Collateral Estoppel fiom asserting any right to take Teton River water ahead of TCCC? SUMMARY OF DECISION The original 1937 Eureka Reservoir was contemplated as part of TCCC's April 18, 1890 appropriation and is therefore properly included on water right claims 4 1 0 192867-00 and 410 192871-00. Additions to the capacity of the Eureka Reservoir in 1947 and 1957 constitute expansions of the original appropriation that must be reflected in more junior water right claims. Claims 410 192868-00,4 1 0 192872-00,4 1 0 192869-00, and 410 192873-00 will be amended to represent these junior water right claims. A quantified volume is necessary for the future administration of TCCC7swater right claims. TCCC is entitled to a 12,000.00 acre foot annual volume for its 1890 water right claims; 1947 priority date irrigation and stock water right claims with a combined 1,000.00 acre foot annual volume; and 1957 priority date irrigation and stock water right claims with a combined 1,000.00 acre foot annual volume. TCCC7stotal annual volume for all claims is 14,000.00 acre feet. TCCCyshas historically diverted water throughout the year. Its period of diversion, for all claims, shall remain as claimed, January 1 to December 3 1. TCCC failed to support an expansion to its period of use. Therefore the period of use shall remain as claimed, April 20 to October 14, for all claims. TCCC's historical place of use totals 17,322.00 acres with a 7,650.00 acre limit on annual irrigation. TCCCysstockwater claims are valid reflections of historical use. The combined use for each corresponding irrigation and stock claim does not serve to expand the original appropriation. The stock claims can only be used when TCCC is diverting the corresponding irrigation claims. TCCC raised several equitable arguments including; Laches, Waiver, Judicial Estoppel, and Collateral Estoppel. Based on these arguments, TCCC asserts TCRC cannot claim a right to Teton River water ahead of TCCC. These arguments are appropriately addressed in Case 4 10-84. ADMISSIBILITY OF TCRC EXHIBIT-23, APPENDIX 111 Exhibit TCRC-23 is the TCCC By-Laws as amended and adopted by the Board of Directors on February 2 1, 1990. There are four Appendices to the By Laws: a. Transcript of excerpts from the March 9, 1894 edition of Northwest Magazine. b. List of TCCC officers and board members from 1920 to 1990. c. Document entitled "A Little History and a Few Interesting Tidbits about the Teton Coperative [sic] Canal Company" by Les Otness. d. Water Conversion Table. At the time Les Otness wrote his "History and Interesting Tidbits," he was TCCC president. His stated purpose for this attachment to the By-Laws was to preserve important company history that was slipping away. He noted that all of the people that could have told him things about the early days were dead and gone. Otness himself has passed away. He identified several sources for his history including oldrecords in the courthouse, several local abstracts, the local newspapers, TCCC minutes, and word of mouth. TCRC introduced the exhibit at hearing through the testimony of Charles Crane who is the current SecretaryITreasurerof TCCC. Mr. Crane was a company director in 1990 when the By-Laws in TCRC-23 were adopted. Mr. Crane took issue with some of the information in Appendix 111indicating it was mostly correct but not complete. (Crane 9:22, Day 1) Mr. Crane did not dismiss the Otness history as wrong, he simply had somewhat different recollections. TCCC objected to Appendices I and I11 as hearsay. The Court allowed Appendix I (magazine excerpts) under the Rule 803(16), M.R.Ev., exception to hearsay for ancient documents. The Court took the hearsay objections to Appendix I11 under advisement and allowed TCRC to obtain testimony on the entire exhibit. TCCC renewed its objections to Appendix I11 in its post-hearing filings. TCRC acquired this exhibit &om TCCC through discovery. It appears TCCC has kept all three attachments with the By-Laws since they were adopted in 1990. Therefore, Appendix 111is over twenty years old. TCCC does not question the authenticity of the document. Rather it takes issue with the accuracy of the document. As a result, it qualifies under the Rule 803(16), M.R.Ev., exception to hearsay for ancient documents. In addition, a history of the company drafted by the company president in an attempt to preserve that history has the circumstantial guarantees of trustworthiness that qualify under the Rule 803(24), M.R.Ev., exception to hearsay. Appendix I11 is admissible as part of Exhibit TCRC-23 and should receive the appropriate weight and credibility. FINDINGS OF FACT I. Historical Background 1. The Teton River rises northwest of ~ho-teau, Montana, on the Rocky Mountain Front. After leaving the mountains, the river travels generally east for several . miles. About twenty miles fiom the mountains, the river reaches the junction ofU.S. Highway 89 and the Teton Canyon Road. At @is point, the river turns southeast for -. several miles passing just south of Choteau. It then turns northeast and travels in this direction until it passes under Interstate 15 near Collins, Montana. The river then turns generally east and travels nearly one hundred miles to its confluence with the Marias River at Loma, Montana. (Water Resource Survey) 2. North of the river and generally east of Highway 89 lies the Burton Bench. The bench is relatively flat, sloping to the northeast. Early settlers identified the Burton, Bench as prime farming land that would greatly benefit fiom irrigation. However, due to its distance fiom the Teton River, it was clear irrigation development would be expensive. As a result, several private groups embarked on projects to develop ditch systems capable of servicing the Burton Bench and the surrounding area. The earliest of ' these projects was the Eldorado Ditch Company, followed in succession by the Teton Co-op Canal Company, Farmers Co-op Canal Company, and Teton Co-op Reservoir All four companies developed ditch systems capable of taking water from the Teton River and delivering it to the Burton Bench and surrounding area. The TCCC point of diversion is below the other three companies on the river. As a result, TCCC is able to service only the southern-most portion of the Burton Bench with its canal system. 3. Eldorado has historically been considered the most senior of the four companies, followed by TCCC, Farmers, and TCRC. The actual priority dates for each company's water rights and the terms for their water right claims under those priority dates are at issue in this adjudication. The Eldorado system has no storage capability. It Teton Co-op Canal Company (TCCC) is commonly referred to as ''Ewek" and bccasionally as the "Burton Ditch" Teton Co-op Reservoir Compqy (TCRC) is commonly referred to as "B'pum." This decision uses TCCC .and TCRC to refer to these companies. , is a direct flow system that is completely reliant on available flows fiom the Teton River during the irrigation season. Farmers and TCCC have limited offstream storage and are able to use a combination of direct flow water and stored water. TCRC has an offstream storage right for the Bynum Reservoir which is significantly larger than the other companies. TCRC relies almost completely on stored water for irrigation. In addition, Eldorado, Farmers, and TCCC all have agreements that allow private irrigators to receive their water rights through the various company canals. For example, Ottis Bryan (Case 410-134) accesses his Teton River water rights through the TCCC Canal. 4. TCCC maintains a single headgate on the Teton River located in the NENWNE of Section 35, T25N, R6W, Teton County. From this point, the TCCC Canal travels a short distance east to Eureka Reservoir located in Sections 25 and 36, T25N7 R6W and Section 3 1, T25N, R5W. The current capacity of the reservoir is 5,500 acre feet. From the reservoir, the Eureka Canal travels generally east along the north side of the TCCC project. Two main lateral canals split off fiom the Eureka Canal as it flows through the TCCC place of use. Lateral A leaves the main canal at the center point between Sections 25 and 36, T25N, R5W, and travels,generally south and then east for several miles. This lateral and its branches service the western portion of TCCC7splace of use. Lateral B leaves the main canal at the center point between Sections 29 and 32 T25N, R4W and travels generally southeast, terminating a short distance fiom the Teton River in Section 5, T24N, R3W. This lateral and its branches service the eastern portion of TCCC7splace of use. (TCCC-32 and TCRC-9) 11. TCCC Early Development 5. TCCC7sTeton River water right claims 410 192867-00 and 410 192871- 00 are based on a Notice of Appropriation filed by a group of Helena, Montana investors led by Zachery T. ~ u r t o n .The group claimed an April 18, 1890 priority date for 3,000 ~ miner's inches for "...gathering said waters in a reservoir and using it to irrigate adjacent lands in Township number 25 North of Range 4 and 5 west." The In addition to Burton, the group included Rettie Burton, U'lysses G. Allen, Millard F. Allen, Sarah E. McGanghey, and Clara S. Hannell. contemplated point of diversion was located on the north bank of the Teton River "...six I hundred sixty five feet from the S.E. corner of the S.W.4 of Section thuty one (3 1) Township Twenty five (25) North of Range five (5) West, thence running, or to run, to I and upon said described land (and through said land, if we so desire, to any requisite point of h a l discharge)." (TCRC-1) I 6. The actual point of diversion developed by the Burton group was located about two miles further up the Teton River in the NENWNE of Section 35, T25N, R6W. I The change was necessary to develop the Eureka Reservoir site. (TCRC-9; Westenberg 4: 10, Day 1) It does not appear TCCC ever developed the Section 3 1 diversion referenced by the Burton Notice of Appropriation. 7. I I I Zachery T. Burton and others filed at least three additional notices of appropriation for Teton River water rights. Although Burton and his successors asserted some of these claims in subsequent litigation, they did not survive the Perry v. Beattie Decree and were not a factor in the development of the TCCC system.' None of the water rights identified in these notices of appropriation are at issue here. 8. The original appropriators of the April 18,1890 right formed the Eureka Reservoir, Canal and Irrigation Company with Zachery T. Burton as company president. This company functioned for a few years before it became necessary to refinance the I project. In about 1893, Zachery T. Burton formed the Montana Land and Water I I Unfortunately, all records of both companies have been lost. As a result, the actual I district court to adjudicate certain water rights in this stretch of the Teton River. The I Company which assumed all debt and obligations of the previous company. (TCRC-23) structure and purpose of the companies is unknown. 9. In 1898, the Montana Land and Water Company filed a complaint in April 9, 1890 I 3,000.00 miner's inches (TCRC-4); August 27, 1890 / 20,000.00 miner's inches (TCRC-2); and.. April 29,189 1 I 10,000.00 miner's inches (TCRC-3) The August 27,1890 appropriation never appears again in the evidence and is never asserted by TCCC or its predecessors. The April 9, 1890 and April 29,189 1 appropriations were asserted in the complaint in Montana Land and Water Company v. Fanners Cooperative Canal Company Case 2 19, Teton County. The district court decreed 3,000.00 miner's inches with an 1891 priority date to Montana Land and Water Company. (TCRC-5) The successor to Montana Land and Water Company, Russell E. Shepherd, again claimed the April 9,1890 and April 29,189 1 appropriations in his amended answer in Peny v. Beattie. The Peny v. Beattie decree awarded TCCC 3,000.00 miner's inches with the April 18, 1890 priority date as Shepherds' successor. company's Second Amended Complaint, filed on March 29, 1899, sheds some light on its business. The filing states the purpose of the organization is, "among other things," to construct canals, ditches, flumes and other works for conveying water and supplying that water to the public. Those "other things" apparently included acquiring land serviced by the project. The complaint states that the Montana Land and Water Company owned over 8,000.00 acres of land at that time. This is distinct fiom the other irrigation cooperatives which did not speculate in land. (TCRC-4) By the time the Montana Land and Water Company filed its complaint, it had developed an extensive ditch system and diverted water for several years. However, it had not issued any shares to water users. 10. By 1902, Zachery T. Burton had left the area under questionable circumstances. (TCRC-23) Burton apparently issued a series of Montana Land and Water Company bonds that were all purchased by L.F. Easton. Shortly thereafter, Burton absconded with the money. Easton's partner Russell E. Shepherd of Austin, Minnesota, took over management of the Montana Land and Water Company. (TCRC23) In 1903, Shepherd incorporated the Teton Co-operative Canal Company with capital stock valued at $30,000.00 divided into 60 shares with a par value of $500.00 each. Shepherd was listed as the owner of 56 shares. The two other incorporators owned two shares each. The Articles of Incorporation did not identify or claim ownership of any water rights. (TCCC-4) While there were a number of parcels that were being irrigated by this point in time, it does not appear any stock had been transferred to land owners. 11. Shepherd was named as a defendant in the Perry v. Beattie litigation and filed a separate answer and cross complaint. (TCRC-6) In his April 17,1905 Amended Answer and Cross Complaint, Shepherd claimed ownership of the same 8,000.00 acres identified in the prior Montana Land and Water Company litigation. He asserted ownership of the April 18, 1890 Teton River water right first appropriated by Burton and his partners. Shepherd referenced the Montana Land and Water Company litigation and stated that he was the successor to this company. Although he had formed the Teton Co- op Canal Company two years prior to this filing, Shepherd made no mention of his new company. (TCRC-6) By the time the district court issued the Perry v. Beattie decree in 1908, Shepherd had transferred ownership of the April 18, 1890 Teton River water right to TCCC. The Decree awards the April 18, 1890,3,000.00 miner's inch right to TCCC as Shepherd's successor. There is no further reference to Russell E. Shepherd in the record. 12. Since 1908, TCCC has owned the April 18,1890 Teton River water right and all canals, ditches, and reservoirs associated with this project. There is no evidence indicating that TCCC ever acquired any real property fiom Russell E. Shepherd, or that TCCC ever engaged in any land speculation. Rather, it managed an irrigation system for the benefit of its shareholders. Company income was based on shareholder assessments for water delivery. System improvements could only take place with approval of the board of directors, and in some cases, shareholders. (TCRC-23) Aggressive development with borrowed money was a thing of the past. Burton, Easton, and Shepherd were gone.. TCCC was now owned and operated by shareholders who depended on the company for their irrigation and stockwater. It is apparent from company minutes that there was now a cautious approach to development and financial risk. ILI. Priority Date for TCCC Reservoir Development Issue #1: Can TCCC claim offstream storage in the Eureka Reservoir as part of the original 1890 appropriation as represented by claims 410 192867-00 and 410 192871-OO? 13. The original appropriators of the April 18, 1890 water right intended to develop reservoirs. They aggressively pursued this development. An 1892 plat map of the entire Eureka Reservoir, Canal and Irrigation Company system shows an extensive system of canals and ditches, as well as three reservoirs: Eureka Reservoir, Glendora Reservoir, and Ivy ~eservoir.' (TCCC-2, TCRC-9) The map is part of the company's application for Government Land Office (GLO) permits and includes sworn statements This plat map and related documents regarding GLO approval of the reservoir sites were not filed with the Teton County Clerk and recorder until March 14, 1929. (TCRC-3 1, p. 110) from company engineer Millard w e n and company president Zachery T. Burton. In his statement, Allen indicates the company constructed 42.87 miles of ditch by April 18, 1892 and surveyed three reservoir sites which it intended to develop. Comparing the 1892 plat map (TCRC-9) to TCCC's current system (TCRC-32) reveals that much of the original ditch system has not substantially changed. Subsequent exhibits show that TCCC received permission to develop the reservoirs and built reservoirs at the Glendora and Ivy sites within a few years. While TCCC controlled the Eureka site and ran its canal through a natural lake bed at this location, it is not clear if TCCC could actually store water at the Eureka site prior to 1936. (TCRC-10) 14. The parties were able to provide very little evidence showing TCCC's development between 1893 and 1908. All of the exhibits accepted into evidence relate to the district court cases that culminated in the P e r v v. Beattie Decree. All of the corporate minutes and other related business documents from Eureka Reservoir, Canal and Irrigation Company and the Montana Land and Water Company are lost. TCCC's record of director and shareholder meeting minutes begins in 1920. As a result, there is a significant period of time with no evidence regarding TCCC's progress towards developing Eureka Reservoir. However, this should not be viewed as a lack of progress. We simply do not h o w what the company was doing in relation to the reservoir. 15. t - On August 4 and 5,1909, GLO Special Agent R. M. Hattersley inspected all three TCCC reservoir sites. In his subsequent reports, Hattersley indicated the Eureka and Glendora Reservoir sites were sufficiently developed to qualify for final GLO approval. (TCRC- 10 & - 11) He was unable to find any development at the Ivy Reservoir site and recommended cancellation of this reservoir site permit. (TCRC- 12) There is no record of any follow-up on Hattersley7sreports for several years by either TCCC or the GLO. The GLO did not revoke the Ivy Reservoir permit. 16. On December 15, 1926, GLO inspector T.J. Garvey issued his report on TCCC. Garvey found the project had been constructed as contemplated with the excection of Eureka Reservoir. It is unclear why Hattersley and Garvey differed in their assessment of the Eureka site and the Ivy site. In any case, TCCC secretary H. E. Passmore informed Garvey the company planned to develop the Eureka site. Garvey recommended the GLO call on TCCC "to file proof of ownership of the grant, and proof of construction, and inform this office relative to further proper procedure." (TCRC- 13) TCCC responded with the joint affidavit of president Yelte Baker and secretary H.E. Passmore i d several supporting documents. I t appears TCCC was forced to obtain several documents relating to their permits, such as the 1892 plat map, fiom GLO archives in Washington D.C., and then submit the same documents to the GLO office in Great Falls, Montana. (TCCC-11) These documents provided sufficient information to satisfy the GLO. There is no evidence indicating any of the reservoir permits were ever revoked or questioned further by the GLO. 17. Director and stockholder minutes fiom the 1920's indicate TCCC maintained and improved the Glendora and Ivy reservoir^.^ Director and stockholder minutes also indicate TCCC continued to explore ways to develop a reservoir at the Eureka site. In 1921 the TCCC board of directors pursued reservoir development with the State Engineer's office. This included additional surveys of the Eureka site, discussions with land owners at that site, and presentations to TCCC shareholders by the State Engineer. (TCRC-31, p. 20-24) During this period of time, TCCC filed a notice of appropriation for 100.00 cfs fiom the Teton River for this project. (TCRC-17) This appears to be an attempt to increase TCCC7savailable flow fiom the river in contemplation of reservoir development and was likely filed at the suggestion of the State Engineer. 18. TCCC pursued h a t e financing of Eureka Reservoir fiom banks in Great I : Falls, Montana, but was unsuccessful. (TCRC-3 1, p. 25) The company considered fonning an idgation district and issuing bonds to finance the project. (TCRC-3 1, p. 3 1) While a majority of the stockholders voted to form the district (33), they were unable to obtain the required 213 majority of all stock (40) and the motion did not pass. (TCRC3 1, pi 35) The board of directors then formed a committee to continue to explore options for developing the Eureka site. (TCRC-3 1, p. 37) For Example, see TCCC-9,3/11/1920,8/18/1921,4/15/1922, 1/23/1923/, 10/6/1923,2/4/1928.. 14 19. Throughthe1920s,TCCC~sannualbudgetranabout$1,500.00to $2,500.00. (For example TCRC-3 1, p.70, 1924; p. 77, 1926; p. 87, 1927; p. 141, 1935) This was apparently sufficient to pay employees, maintain canals and turnouts, and allow for some improvements to the system. The cost of building Eureka Reservoir was estimated at $25,000.00. (TCRC-31, p. 149) This represented a significant financial burden. Nonetheless, in 1936, shareholders voted to apply to the State Water Conservation Board for a loan. The project received state approval and Eureka Reservoir was built over the winter of 1936-37. (TCRC-23) The original capacity of the reservoir was approximately 4,000.00 acre feet. TCCC raised the height of the dam by two feet in 1947 and another two feet in 1957. Each of these additions added approximately 750.00 acre feet in storage capacity. Since 1957, reservoir capacity has been 5,500.00 acre feet. (Crane 9:22, Day 1) 20. Historical reservoir development by TCRC and Farmers offer useful .~ comparisons for this area of ~ o n t a n a The TCRC project began with a July 3, 1902 Notice of Appropriation for 3,000.00 cfs from the Teton River. TCRC is a storage project. Without the Bynum Reservoir, TCRC shareholders would not receive any / siWcant water from the Teton River. The TCRC developers conducted surveys and obtained the necessary rights of way from the GLO. The original appropriator formed the Land Redemption Company and the first Teton Co-op Reservoir Company. By 1906, the original developer, Donald Bradford, had become controversial. At this point, Bradford transferred the water right and rights of way to a new group of water users who incorporated the second Teton Co-op Reservoir Company and proceeded with development. The company made some progress but suffered inevitable setbacks as it attempted to construct a canal and reservoir. The company and potential water users explored various ways to facilitate fimmcing the project, including proceeding under the Carey Land Act or forming an irrigation district. This spawned controversy among See Cases 4 10-84 (TCRC) and 4 10- 1 18 (Farmers). Case 4 10-84 is submitted to the Water Court and is waiting for a decision. The historical recounting of development of TCRC reflects the proposed findings of fact filed in Case 410-84 by TCRC. Case 410-1 18 has a Water Court decision and is currently on appeal to the Montana Supreme Court. shareholders which led to litigation. When the litigation was resolved, work on the dam and canal proceeded. TCRC may have stored some water in the reservoir by 1910. It did not complete the reservoir until 1927,25 years after Bradford filed the original appropriation. (TCRC Proposed Findings of Fact, 4 10-84) 21. Farmers reservoir development may be a better comparison. Both Farmers and TCCC are primarily direct flow systems. Offstream storage allows these companies to provide water further into the summer although they can both function without storage. While Farmers encountered some setbacks with reservoir development, they were not as significant as either TCCC or TCRC. Farmers appropriated its original water right in 1897 and completed Harvey Lake Reservoir by 1913, a period of 16 years. However, Farmers Reservoir was not completed until 1942, a period of 45 years. (Final Order Regarding Farmers Co-op Canal Company Water Right Claims, 4 10-118) 22. All three companies had similar goals and issues. They were all developed during the same era in the same part of the state. Given this history, the inevitable conclusion is that reservoir development by small private irrigation companies during the first half of the 20" century took time. 23. A sizeable reservoir at the Eureka site was part of the original intent of the appropriators. TCCC established an 1890 water right that included offstream storage through the combination of early development of two small reservoirs and the eventual development of a larger reservoir. The preponderance of the evidence indicates that TCCC proceeded with reasonable diligence under the totality of the circumstances presented. The evidence supports offstream storage in Eureka Reservoir, as represented by the 1937 completion of the Eureka Reservoir, as part of TCCC's April 18, 1890 water right. Issue #2: Do 1947 and 1957 additions to the storage capacity of Eureka Reservoir constitute expansions of the original appropriation, more appropriately represented by water right claims with junior priority dates? 24. The evidence before the Court shows that construction of Eureka Reservoir in 1936 and 1937 was the culmination of a process that began in 1890. That process was long and arduous, but ultimately successll. First use of the reservoir in 1937 represents completion of that original intent. There is no evidence indicating that two subsequent expansions of the storage capacity of the reservoir were part of the original plan. Rather, these increases in storage capacity represent expansions of storage capacity beyond the original intent. 25. The 1947 and 1957 expansions resulted in the ability to store more water. This type of expansion has the effect of increasing the burden on the source. By decree, TCCC was limited to a 3,000.00 miner's inch flow rate. Since TCCC could not increase this flow rate, the increased burden on the source would manifest itself in an expansion of annual diverted volume. TCCC would need to take more of its available flow rate for longer periods of time to add to reservoir storage. While TCCC has shown that it historically diverted some water in every month of the year, the evidence prior to 1963 does not show the actual amount of those diversions or how those diversions changed after 1947 and 1957, Commissioner records begin in 1963 and therefore do not provide any comparison of annual volume before and after the reservoir expansions. Nonetheless, adding a total of 1,500.00 acre feet of storage capacity would serve little purpose if TCCC did not increase its total diverted volume. 26. Since the 1947 reservoir expansion and the 1957 reservoir expansion allowed TCCC to increase its total diverted volume, the expansions should be represented by junior irrigation and stockwater right claims. The significant element of these junior rights is the quantified volume. Volume is discussed in the next section of this decision. The actual terms for these junior rights are provided at the end of this decision. 1V. Volume Issue: Do TCCC's claims require a quantified volume, and if so, what is the appropriate total volume, and how should that volume be divided among TCCC's claims? 27. TCCC7soriginal claim filings used irrigation district statement of claim forms provided by the DNRC. Following DNRC policy, TCCC combined all of its irrigation claims on one form and all of its stock claims on a separate form. TCCC claimed an annual volume of 41,233.05 acre feet per year (df)for all its irrigation claims (TCRC-28) and an additional 85.077 a/f for all of its stock claims. (TCRC-29) Dun'ng claim examination, the DNRC determined a l TCCC irrigation claims were l primarily direct flow claims and removed the quantified volumes.' Pursuant to claim examination rules, the quantified volumes were also removed from the stock claims. As a result, all of the TCCC claims appeared in the TPD with volume remarks rather than quantified volumes. 28. The TCCC-LTJO Stipulation calls for a 14,000.00 a/f total volume for all TCCC Teton River water right claims. The first 12,000.00 a/f attach to "any combination of TCCC's irrigation claims with a priority date of not earlier than April 18, 1890." (Stip. 7 5) The Stipulation goes on to state that LTJO does not object to TCCC receiving " an additional high-water irrigation claim, whether one of the claims consolidated in this case, or an implied claim, with an additional volume of 2,000.00 acre feet per year. " (Stip. 7 6 The Stipulation states the water commissioner will determine if high water is available. It then provides two definitions for high water: a. The term "high water" means a year when water availability on the Teton River is sufficient to satisfy the water rights of Teton River users using water below TCCC7spoint of diversion from May 1 to July 1. b. The term "high water year" also includes a year when water availability on the Teton River is sufficient to satisfy stockwater rights senior to TCCC's April 18, 1890 priority date using water downstream from TCCC's point of diversion from November 1 to January 1. (Stip. 7 6) These defitions add restrictions to the "high water" right although it is not clear if they limit the period of diversion or give the right a year round period of diversion with restrictions from May 1 to July 1 and from November 1 to January 1. Irrigation claims where the reservoir capacity is considerably less than the annual volume are considered direct flow claims and receive no quantified volume. Rule 5 1(Q, W.R.C.E.R. In this case, the capacity of Eureka Reservoir, 5,500.00 AF, is considerably less than the original claimed volume, 41,233.05 AF. It is also significantly less than the volume TCCC is currently claiming. . . ~~.. 29. The term high water typically refers to more junior water rights that only receive water during spring runoff. On decreed streams, all rights junior to the decree are-often referred to as high water rights. The language in the TCCC-LTJO Stipulation gives TCCC a high water right for 2,000.00 a/f. This is clearly a junior right that should be administered under its own priority date. The stipulation does not identify a priority date for a junior right. 30. In its post-hearing filings, TCRC agrees with a 14,000.00 a/f total volume but advocates for a smaller volume for the 1890 direct flow decreed right and three junior implied claims for Eureka Reservoir: 1890 8,500.00 a/f (original direct flow right) 1936 4,000.00 a/f (original Eureka Reservoir) 1957 750.00 a/f (first increase to storage capacity) 1947 g e to storage capacitv) Total 14,000.00 a/f This gives TCCC a total volume of 14,000.00 a/f, but makes 5,500.00 a/f of that volume more junior. 3 1. Prior to 1963, there is virtually no record showing annual volumes. Starting in 1963, commissioner records provide this informatioa9 Based on commissioner records, TCCC was able to divert over 12,000.00 a/f in four out of the ten years from 1963 to 1972. In three of those years, TCCC diverted over 14,000.00 a/f. (TCCC-21) This constitutes diversions of over 14,000.00 a/f hrty percent of the time. This amount of use supports a 14,000.00 a/f total volume as within historical use. The commissioner records include volume increases resulting from the 1947 and 1957 expansions to Eureka Reservoir. 32. The 1947 and 1957 expansions to the Eureka Reservoir should be represented by junior irrigation and stock water right claims. These expansions are the logical points where volume increased and are'therefore the logical priority dates for However, the commissioner only calculated a volume for the TCCC canal. By agreement, Ottis Bryan has used the TCCC canal for his private direct flow decreed rights since at least the 1960s. (See 410-134) Bryan's annual volume averaged about 1,400.00 df. (Westenberg 10:38,Day 2) After removing Bryan's volume, the commissioner records support a total volume of 14,000.00 d f for TCCC. 19 0 0 junior water rights reflecting those increases.'' The 2,000.00 a/f stipulated high water volume could all be placed under a more junior 1957 date. Or, the volume could be split between the two dates. Splitting the volume is the more historically accurate approach. Since either date is significantlyjunior on this source, splitting the high water volume has no practical effect. Therefore, two junior water rights with 1,000.00,a/f volumes, i one with a 1947 priority date and one with a 1957 priority date, are a reasonably accurate reflection of TCCC's historical use. 33. Based on evidence of historical use and the terms of the TCCC-LTJO Stipulation, TCCC is entitled to a 12,000.00 a/f quantified volume for its April 18,1890 decreed water right claims 410 192867-00 and 410 192871-00. The remaining 2,000.00 a/f will be split between a December 3 1,1947 use right and a December 3 1, 1957 use right. Claims 410 192868-00 and 410 192872-00will be amended to reflect the 1947 water right. 4 1 0 192869-00 and 4 1 0 192873-00 will be amended to reflect the 1957 water right. V. Period of Diversion and Period of Use 34. Charles Crane has been the secretary-treasurer of TCCC since 1989. A life-long area resident, Mr. Crane was about 74 years old at the time of the hearing and has been involved with the TCCC system since the early 1960s. He provided the following overview of TCCC diversion and distribution of water: TCCC typically fills 'Eureka Reservoir to the level of the stand pipe in the fall, reaching that level by midNovember, although they occasionally go further into the fall. In the spring, typically starting between March 1 and March 15, the company tops off the reservoir. This usually takes until early or mid-April. They start delivering water to shareholders in late April or early May and usually stop delivering water between October 1 and October 15. TCCC's diversions fiom the Teton River are usually shutdown by the Commissioner between mid-Jbe and mid-July. The company starts distributing stored water;at that time. TCCC begins fall diversions for storage after Eldorado shuts down. (Crane 11:50 lo The 1947 and 1957 expansions added 1,500.00 d f of additional storage capacity. The Stipulations states 2,000.00 d f of TCCC's total flow rate represents junior high water. The Court will use the stipulated volume rather than storage capacity increase. 20 5 & 3:11, Day 1) Issue # 1: What is the appropriate period of diversion for TCCC7sclaims? 35. All TCCC claims appeared in the Temporary Preliminary Decree with the same January 1 to December 3 1 period of diversion. TCRC asserts the period of diversion should reflect the irrigation season. TCCC's Teton River water right claims are primarily direct flow claims. Meaning, the majority of its diversions occur at a time when the water is being put to beneficial use. At the same time, TCCC's 1890 appropriation included offstream storage. Therefore, TCCC's diversions are not limited to times when it is putting water to beneficial use. TCCC can divert water for storage and later use. Storage diversions typically occur off-season when irrigation is not taking place. 36. TCCC director and shareholder minutes indicate the company made off- season diversions for storage well before Eureka Reservoir was added to the system. (TCRC-3 1, p. 55, 12110123) TCCC tended "c k t off-season diversions to -- -- - -- shareholders, preferring to use these diversions to fill its reservoirs. TCCC eventually set a start and end date on the irrigation season and only continued water deliveries outside of this irrigation season at the request of individual shareholders. The cost associated with these deliveries fell on the shareholder. By 1942, TCCC had amended its By-Laws to define the irrigation season as April 15 to October 15. (TCRC-3 1, p. 171,1110142) The board of directors could alter these dates at their discretion and could deny a request for off-season water delivery. (TCRC-23) Diversions between October 15 and April 15 were initially used to fill the Glendora and Ivy (Gamble) Reservoirs and ev&ually used to fill Eureka Reservoir. TCCC has not maintained Glendora or Ivy since it developed Eureka in 1937. (Crane 1:44, Day 1) 37. TCCC minutes also address competition for off-season diversions with both Farmers and TCRC well before Eureka Reservoir was part of its system. For example: a. On December 10,--1923,the Board initiated the process for obtaining a water - 21 . . commissioner within the next several days. (TCRC-3,l p. 55); b. On March 19, 1924, the Board began exploring a potential injunction against TCRC to shutdown off-season diversions. (TCRC-3 1, p. 62) c. On January 14,1933, the Board decided to meet with the other ditch companies and Bynum (TCRC) to discuss "keeping conditions normal as to water running in the river in the winter season." (TCRC-3 1, p. 134) Clearly, TCCC was exerting an interest in off-season diversions from the Teton River well before Eureka Reservoir became part of its system. However, it is not possible to determine the nature or extent of these diversions prior to 1963 due to the lack of water commissioner records. 38. Although there have been water commissioners appointed to administer the Perry v. Beattie Decree since 1908, records before 1963 are minimal and give little useful information. It does not appear the district court appointed a commissioner every year. Starting in 1963, a commissioner has been appointed every year and has administered the river year round." These commissioner records provide a great deal of - .. . .. - - - ~ - .- . .- -. -- -. - :. -.-=. - .- . ~ . . . . .. . . .. . . - . . - - information. (TCCC-2 1) Although these records post-date ~ u r e k a Reservoir, including the 1947 and 1957 expansions, they offer significant information regarding TCCC's historical diversions.l2 39. From 1963 to 1972 TCCC took water during every month of the year. Diversions after 1972 follow the same pattern. (TCCC-2 1) While these diversions did not take place every year they are sufficiently common to support a year round period of diversion. 40. The evidence supports a January 1 to December 3 1 period of diversion for all TCCC Teton River water right claims. Issue #2: What is the appropriate period of use forTCCC's claims? l1 Although TCRC did not have a decreed right, its deliveries were administered by the commissioner and included in the annual records. 12 In this adjudication, historical use is defined as use prior to the date the Water Use Act became law, July 1, 1973. . . 4 1. All TCCC claims appeared in the Temporary Preliminary Decree with the same April 20 to October 14 period of use. This period of use is the result of a predecree amendment TCCC submitted to the DNRC on August 29,2003. TCCC now asserts an April 1 to November 1 period of use. This constitutes an increase to this claim element and therefore must be-supportedby evidence showing.that this increase is . an accurate reflection of historical use. TCCC presented no evidence to support this period of use increase. . 42. Since 1942, TCCC By-Laws have set the irrigation.season 'or period of use at April 15 to October 15. (TCRC-3 1, p. 171, 1110142) The 2005 By-Laws keep that same period of use. (TCRC-23) Shareholders can request an extension of this season and can receive water at their own expense. (TCRC-23) TCCC provided no evidence showing that shareholders ever take advantage of this option. In fact Charles Crane's testimony did not support any extensions of the irrigation season. In his memory of 50 years as a shareholder, he recalled spring irrigation starting in late April or early May, . . . . and fall irrigation typically ending in the first half of October, although fall irrigation ...... . : - . -. . . . --. - .. . . . . . . . was occasionally extended for a short period of time to irrigate shelter belts. (Crane 3:20, Day 1) 43. The company By-Laws and the testimony of Charles Crane do not support expanding .theperiod of use. If anythmg, they support the current period of use. TCCC has provided no evidence supporting the requested increase. Therefore, the April 20 to October 14 period of use shall remain on all claims. VI. Place of UseIAcres Irrigated Issue: What is the appropriate place of use and acres irrigated for TCCC7s claims? 44.. . TCCC began as a land development company. A small group of investors acquired a certain amount of land they hoped to sell-tosettlers. They acquired water rights and developed a water delivery system to increase the appeal and value of the land they hoped to sell. By design, their irrigation system was capable of servicing not only the land they were selling, but also a significant amount of adjacent land. . - . 45. I By 1908, large tracts of land were irrigated with TCCC shares. Save for the addition of Eureka Reservoir, the original appropriation had become a reality. For the next 70 years, the TCCC place of use changed somewhat as land and shares of company stock were bought and sold. However, the basic footprint of the TCCC development did not significantly change. (TCRC-9 & 32; Westenberg 3:50, Day 1) Throughout its history, TCCC fulfilled the function of delivering water to shareholders. Shareholders retained the ability to move water from place to place so long as TCCC's ditches could deliver the water. The shareholders determined the exact location where water was used. (Crane 2:50, Day 1) 46. TCCC's original irrigation statement of claim filings included a place of use consisting of 8,246.6 1 acres. (TCRC-28) During the DNRC claim examination I i process, TCCC retained the services of expert John Westenberg and began an extensive review of its place of use. Based on his review of various historical data sources, site work, and interviews with shareholders, Westenberg developed criteria for an expanded place of use or "service area" that included far more land than the 8,246.6 1 acres II originally claimed. Westenberg used a "broad" outer boundary for the place of use that included property serviced by the TCCC ditch system. He used simple legal descriptions, following section and quarter section lines rather than field boundaries. (Westenberg 11:30, Day 2) He included not only property confirmed as historically i irrigated on a historical data source, such as an aerial photograph, but also property with strong indicators of historical irrigation. Westenberg stated these strong indicators were location, topography, and access to ditches. This land was included even though he was not able to c o n f m irrigation on a historical data source. In his expert opinion, there is little doubt the property was historically irrigated for at least some period of time. In his review of the aerial photographs from 1937 and 1957 and the 1962 Teton County Water Resource Survey, Westenberg determined the TCCC place of use changed over the years with somewhat different property showing irrigation in each data source. The single highest acreage total showing irrigation was 7,682.00 acres in 1937. (Westenberg 9:56, Day 2) 47. Based on Westenberg's work, TCCC amended its place of use during DNRC claim examination. All TCCC inigation claims appeared in the Temporary Preliminary Decree with a 17,202.00 acre place of use located within 43 parcels. At hearing, Westenberg testified that this place of use failed to include property in the SWSW of Section 28, T25N7R5W, and the S2SE of Section 29, T25N7R5W totaling 120.00 acres. Westenberg stated this property met his criteria and should be added to the place of use. (Westenberg 9:56, Day 2) With this addition, TCCC is claiming a \' place of use that includes 17,322.00 acres inigated. 48. \ The LTJO-TCCC Stipulation is not completely clear on acres inigated. The Stipulation states, "the number of acres inigated for TCCC's inigation claims 4 1 0 192871-00,410 192872-00 and 410 192873-00 is limited to a place of use of not more than 7,650.00 acres." The Stipulation does not specifically acknowledge the 17,322.00 acre place of use TCCC is claiming. However, the Stipulation states the place of use should include "the legal land descriptions as set forth in the claim abstracts referenced in the Temporary Preliminary Decree for the Teton River Basin." The Stipulation then calls for adding the two parcels noted in Westenberg's testimony. The Stipulation also includes a map which identifies the 17,322.00 acre place of use TCCC is currently claiming. It is apparent the party's agreement calls for-a 17,322.00 place of use with a 7,650.00 annual acre limit on inigation. (Stip. 7 4) 49. It is generally acknowledged that the annual limit on acres inigated is far more significant than the size of the place of use. Given the nature of the TCCC project it would be extremely difficult to monitor the exact location of inigation each year when the discretion concerning where to inigate rests with each stockholder. The 7,650.00 acre annual limit reflects inigation practices within the project for the last 50 years. There has been little change in the amount of inigated land and the location of that land over this period of time. (Crane 3:05, Day 1) The 17,322.00 place of use is a composite picture of historical use. It reflects the flexibility given each shareholder to determine where inigation will occur. 50. , In Case 4.10-1 18 (Farmers), this Court found the place of use must meet 0 0 two criteria: 1.) the property must have been historically irrigated with company water, and 2.) property must currently be owned or leased by a company shareholder.13 ~ h e s e criteria were based on the legal requirement for historical use and language in Farmers Articles of Incorporation and By-Laws. In this case, TCCC7splace of use must meet the f ~ scriteria. Specifically the place of use must have been historically irrigated. t However, TCCC7sArticles of Incorporation and By-Laws do not include the restrictions found in Farmers7documents. Under Article XI1 Section 10 of TCCC7sBy-laws, (TCRC-23) TCCC shareholders can lease shares to another shareholder or water user. The water represented by the leased shares must be used within TCCC7sirrigation system "Unless otherwise permitted by a vote of the stockholders at any annual meeting - of the stockholders or at any special meeting of the stockholders called for that purpose." (TCRC-23) In other words, unlike Farmers, TCCC places no restrictions on where its water can be used. 5 1. The evidence before the Court shows that TCCC7scurrent place of use includes land that was historically irrigated by TCCC shareholders and can currently be serviced by its ditch system. While TCCC7sBy-Laws do not specifically limit water use to shareholder owned property (TCRC-23, By-Laws Article XII, Section lo), the evidence indicates TCCC7scurrent place of use is all owned by shareholders. (TCRC32) Therefore, the Court accepts the 17,322.00 acre place of use and the 7,650.00 acre annual limit on irrigation as within historical use. VII. TCCC Stock Claims i Issue: Are separate statements of claim for stockwater a valid reflection of TCCC7shistorical use? 52. TCRC asserts that TCCC is strictly an irrigation company that has never diverted water specifically for stock use. TCRC asserts all of TCCC7sstock claims should therefore be t e h a t e d . However, TCRC offers no credible evidence to support this assertion. In fact the only evidence regarding stock use of TCCC7sTeton River l3 Case 410-1 18 is currently on appeal to the Montana Supreme Court. Farmers place of use is likely a part of this ..-. appeal. water rights was the testimony of Charles Crane. 53. TCCC concedes it does not divert water solely for stock. Any diversions that are used for stock come at a time when the company is diverting water to shareholders for irrigation. Nonetheless, it is common for shareholders to run stock on land within the TCCC place of use and allow that stock to access company ditches-for water. (Crane 11:50 & 3:20, Day 1) This stock use is a multiple use of TCCC's irrigation water rights and is restricted to use during the same period of time. The combined diversions for irrigation and stock do not serve to increase TCCC's flow rate or annual volume. 54. TCCC agrees it has never diverted water for stock unless it was already diverting irrigation water. This indicates that only the irrigation claims can trigger the diversions. Some of the water can then be reallocated to stock. ~ u ta,stock claim cannot be diverted unless its corresponding irrigation right is being diverted. This restriction will be noted on TCCC's stock claims with an appropriate remark. 55. With this restriction, the evidence supports TCCC's stockwater claims as valid reflections of historical use. 56. In the.process of reviewing all claim abstracts for this decision, it was discovered that the place of use legal descriptions for stock claim 410 2867-00 differ slightly fiom all of ,the other TCCC claims. To be consistent, the Court will correct the legal descriptions for parcels 6 and 7 on this claim. VIII. TCCC's Equitable Arguments Issue: Is TCRC estopped by Laches, Waiver, Judicial Estoppel, and Collateral Estoppel fiom asserting any right to take Teton River water ahead of TCCC? 57. TCRC claims a July 3, 1902 water right fiom the Teton River.14 The Bynurn Reservoir, which is the heart of TCRC's system, came into use after TCCC began development but before Eureka Reservoir was added to the TCCC system. There is no question that TCCC and TCRC were aware of each other and that they competed l4 Claim 410 113433-00, Case 410-84. (decision pending) The claim received objections from LTJO, Farmers, and TCCC. for the same water resource. Although it was not a part of the Perry v. Beattie Decree, since at least the 1940s, TCRC voluntarily paid the Teton River water commissioner for water deliveries and submitted to the authority of the commissioner to control its diversions. (Testimony Day 2: William Johnson, TCRC ditchrider and shareholder; Tom Maltby, TCRC President and shareholder; and Jay Rice, TCRC Board of Director and shareholder) 58. Bud Olson controlled TCRC diversions throughout the time he was the water commissioner for the Teton River. He started as commissioner in 1963 and held that job for over 40 years. Throughout his tenure, TCRC was administered as junior to TCCC. (Olson, Day 2) Prior to filing objections in this adjudication, TCRC had never questioned use of Eureka Reservoir under TCCC's April 18, 1890 priority date. 59. TCCC argues TCRC is estopped by Laches, Waiver, Judicial Estoppel, and Collateral Estoppel fiom asserting any Teton River water right senior to any TCCC Teton River water right. TCRC bases these arguments on TCRC's voluntary submission to the authority of the Water Commissioner for over 40 years. During this period of time, TCRC's Teton River rights were regularly cutoff in order tb provide water to senior downstream water rights held by TCCC. Prior to this adjudication, TCRC never questioned commissioner decisions. 60. At the commencement of proceedings involving the four irrigation .companies on the Teton River, this Court determined that .the equitable arguments raised . . by TCCC were more properly addressed in T C R C ' ~ C 410-84. This policy was ~S~ followed when.Farmers raised the same arguments in case 410- 118. The Court will continue to follow this policy in this case. CONCLUSIONS OF LAW I. Burden of Proof 1. A properly filed Statement of Claim or an Amended Statement of Claim (amended prior to issuance of a Water Court Decree) for an existing water right is prima facie proof of its content, Section 85-2-227, MCA. This prima facie validity may be . . 28 overcome by other evidence that proves that one or more elements of the prima facie statement of claim are incorrect. A prima facie claim meets the minimum threshold of evidence necessary to establish the facts alleged, and shifts the burden of production to an objector to overcome that threshold. The burden of persuasion remains ultimately with the claimant to prove up a water right claim. Section 26-1-402, MCA. Without evidence to the contrary, the prima facie claim may satisfy a claimant's burden. However, the Court is not compelled to accept the prima facie Statement of Claim as true. Burkhartsmeyer v. Burkhartsmeyer, Case 40G-2 at p. 12-13 (Mont. Water Court Memorandum Opinion and Order Adopting Master's Report Mar. 11, 1997). 2. If a claim appears in a Water Court decree with issue remarks resulting fkom DNRC claim examination, the information resulting,in the issue remarks and the issue remarks themselves must be weighed against the claimed water right. Section 852-247(2), MCA. The' issues raised by the remarks must be resolved as part of the adjudication process. Section 85-2-248(2), MCA. 3. The degree or weight of evidence needed to contradict or overcome the prima facie presumption that a Statement of Claim is correct as filed is a preponderance of the evidence. Burkhartsmeyer v. Burkhartsmeyer, Case 40G-2 at p. 13 (Mont. Water Court Memorandum Opinion and Order Adopting Master's Report Mar. 11, 1997). The Montana Supreme Court has defined preponderance as "a relatively modest standard that the statutory criteria are more probable than not to have been met." Hohenlohe v. State, 2010 MT 203,T 33,357 Mont. 438,240 P.3d 628. 4. Objector TCRC asserts TCCC's Teton River water right claims are not historically accurate as they appear in the Temporary Preliminary Decree for this Basin. Therefore, TCRC has the burden of proof to show how the claims are inaccurate. TCRC failed to carry that burden on the majority of its objections. TCRC did provide sufficient evidence to support junior priority dates for the 1947 and 1957 expansions of the Eureka Reservoir. 5. By seeking an expansion to its period of use, TCCC assumed the burden of proof to overcome the presumption that the period of use that appeared on all its claims in the Temporary Preliminary Decree is correct. TCCC failed to carry that burden. TCCC assumed the same burden of proof by seeking to increase the size of its place of use. TCCC provided sufficient evidence to support the increase in the place of use it is seeking. H. Priority Date for the Eureka Reservoir Claims A. Eureka Reservoir as part of the Original Appropriation 6. TCCC's April 18, 1890, water right claims 410 192867-00 and 4.10 192871-00 are based on a Notice of Appropriation that was subsequently decreed by the district court. The statutes providing for Notice of Appropriation filings allowed an appropriator to first claim a water right and then develop that water right. So long as the appropriator complied with the statutory requirements, the date when water was first claimed applied to the subsequent development. Sections 89-8 10-814, RCM (1947) (repealed 1973). 7. TCRC asserts Eureka Reservoir was not a contemplated part of the original 1890 appropriation and that TCCC failed to proceed with reasonable diligence in adding the reservoir to the system. 8. A preponderance of the evidence shows that a sizeable reservoir at the Eureka site was part of the intent of the 1890 Notice of Appropriation filing. The Notice of Appropriation itself indicates the development will include reservoirs. TCCC began the process of obtaining a permit for the Eureka site shortly after posting the notice. Therefore, TCCC can relate this part of its development back to its original filing if it "prosecute[s] adding the same with reasonable diligence to completion." Section 898 11, RCM (1947) (repealed 1973). 9. Reasonable dligence in developing an irrigation system is a question of fact specific to each particular project. Montana Dep't o Natural Resources & f Conservation v. Intake Water Company, 171 Mont. 4 16,436, 558 P.2d 1110, 1121, (1976). In this case, the Court looked at the size and complexity of the project to determine if the Intake Water Company was proceeding with reasonable diligence. Projected to cost several million dollars and take a number of years to complete, the 1 project was in its early stages at the time of the litigation. The DNRC sought a I water from the Yellowstone River. Citing favorably to Clark, Waters & Water Rights, I I declaratoryjudgment asserting the water company did not have a valid appropriation of Vol. 6, 8 5 14.1, pp. 308,309, the Court provided guidance for an ad hoc case-by-case review: . . What constitutes due diligence is a question of fact to be determined by the court in each case. Diligence does not require unusual or extraordinary effort, but it does require a steady application of effort -- that effort that is usual, ordinary and reasonable under the circumstances. So long as the applicant prosecutes the construction of works in good faith with a steady effort, he should be held to have prosecuted with diligence. Intake, 171 Mont. at 434,558 P.2d 1110 at 1120. 10. Intake Water Company was claiming a June 8, 1972 priority date based on a Notice of Appropriation. Intake's project was complicated and required time to complete. It was subject to layers of regulation, both state and federal. The Court provided a long list of the various permits, studies, preliminary engineering work, cost estimates, and water use assessments conducted by Intake as part of its development _ - process. The Court found this work was sufficient to comply with the requirements of Montana's water appropriation statutes. Intake could proceed with development and finish its "uncompleted appropriation" so long as it continued to "prosecute its project with reasonable diligence." Intake, 171 Mont. at 440,558 P.2d at 1123. 11. The size and scope of the TCCC project must be viewed in the context of the era in which it was first appropriated and prosecuted to completion, 1890 to 1936. The economic ability of the appropriator is a valid consideration in any review of reasonable diligence. The Colorado River Water Conservation District v. Twin Lakes Reservoir and Canal Company, 468 P.2d 853, 856 (1970). While the TCCC project, particularly Eureka Reservoir, was ambitious for its era, it was not well funded. Funding I was the obvious reason for the delay in completion. The original investors overextended and lost their investment, or disappeared into thenight. The second investors struggled to recoup their money and left the area. The shareholders who eventually acquired the company had no ability or desire to speculate in development. They took a conservative approach and only proceeded when secure, affordable financing became available. TCCC maintained its permit for the Eureka Reservoir site. It responded to all GLO inquiries and asserted throughout this process that it intended to develop the reservoir. It pursued financing options and sought shareholder approval for an irrigation district. TCCC took advantage of a state financing program when it became available. It is apparent that bolh the GLO and state of Montana had no issue with TCCC's cautious approach. With financing secured, TCCC completed the reservoir. 12. TCCC's efforts were similar to both TCRC and Farmers. All three companies were faced with financing issues. All three companies took years to complete their projects. Under the circumstances found in this area of the state and the historical era in which these events took place, TCCC efforts were usual, ordinary, and reasonable. 13. Objector TCRC failed to provide sufficient evidence to show that Eureka Reservoir was not contemplated by the original appropriation or that TCCC failed to - -- proceed with reasonable diligence. Based on a preponderance of the evidence and - -- - A -- I- - controlling law, Eureka Reservoir, as completed in 1937, is properly administered as part of TCCC's April 18, 1890 water right claims. B. 1947 and 1957 additions to the Eureka Reservoir 14. Completion of the original Eureka Reservoir in 1937 was the culmination of a process that began in 1890. Expanding the reservoir in 1947 and 1957 presents a different situation. These expansions were not contemplated by the original Notice of Appropriation and are not covered by Section 89-803, RCM (1947) (repealed 1973), as a change to an existing water right. Adding to the size of the reservoir increased the ability for offstream storage. Increased storage capacity inevitably resulted in increased diversions. Increased diversions placed an additional burden on the source to the detriment of junior water users. Incremental development that serves to increase the burden on the source is properly placed in junior claims reflecting the date of that development. Rule 35, W.R.C.E.R. \ 15. InWhitcombv.HelenaWaterWorhCo.,151Mont.443,444P.2d301 i (1968), the Court addressed the addition of storage to direct flow irrigation rights. The Court found the addition of storage was dependent upon the lack of adverse impact on other water rights. Whitcomb, 151 Mont. at 449,444 P.2d at 304. In this case, the increase in storage capacity should be held to the same standard. The 1947 and 1957 additions to reservoir capacity clearly impacted other water users by increasing TCCC's total diverted volume. 16. The LTJO-TCCC Stipulation acknowledges TCCC has increased the burden it places on the Teton River through an overall increase in annual diverted volume. TCCC agrees it has only been able to divert this extra volume in high water years. The stipulation contemplates separate, junior water right claims, either implied or through amendments to existing claims, for the volume increase. The Court agrees, and frnds the evidence supports two junior water rights reflecting the two increases in storage capacity. 17. Claims 410 192868-00 and 410 192872-00 will be amended to reflect a December 3 1, 1947 water right. Claims 4 1 0 192869-00 and 410 192873-00 will be amended to reflect a December 3 1, 1957 water right. Since the evidence gave only the year of first use, the priority date is the last day of that period. Vidal v. Kensler, 100. Mont. 592,598,561 P.2d 235,238 (1935). I I Volume I. 18. Quantified volumes are appropriate when a water judge has determined both a quantified flow rate and volume are necessary for administration of the water right claims involved. Section 85-2-234(6)(b)(iii), MCA; Wales Brothers, Case 76F- 1 at p. 11-12 (Mont. Water Court Marshaling Order Oct. 15,2010, at p. 12). TCCC has , agreed to quantified volumes for its Teton River water right claims. The evidence before the Court shows that the total volume found in the LTJO-TCCC Stipulation is within historical use. The Stipulations places 12,000.00 a/f of that total volume in TCCC7s1890 water right claims and contemplates a junior priority date for the remaining 2,000.00 a/f. 19. A preponderance of the evidence supports the 14,000.00 a/f total annual 33 volume found in the Stipulation. However, that volume should be apportioned between the original appropriation and the two increases in TCCC3soffstream storage capacity: Priority Date Volume April 18, 1890 12,000.00 Acre Feet 410 192867-00 & 410 192871-00 December 3 1,1947 1,000.00 Acre Feet 410 192868-00 & 410 192872-00 December 3 1, 1957 1,000.00 Acre Feet 410 192869-00 & 410 192873-00 Total Claims 14,000.00 Acre Feet IV. Period of DiversionIPeriod of Use All Claims 20. The law governing appropriations of water in this state has always contemplated that such amount of water that by pattern of use and means of use has been put to beneficial use dictates the extent of that water right. McDonald v. State, 220 Mont. 519,529,722 P. 2d 598,604 (1986). This applies to the period of diversion and period of use. It is the historical pattern of use that dictates what TCCC can claim for these two elements. Rights that involve storage can have periods of diversion and of us6 that are nit the same. That is the situation for TCCC'S water right claims. A. Period of ~iversion 2 1. TCCC has historically diverted water throughout the year. While there are no fr dates when TCCC began offstream storage, corporate minutes indicate it did so im as soon as it had that capability. It has continued to divert year round to this day. While records before 1963 cannot address the extent of that use, coHlmissioner records from 1963 to 1973 show that diversions historically occurred every month of the year. These diversions did not take place every year, but were sufficiently common to support a year round period of diversion. 22. A preponderance of the evidence shows that TCCC has historically diverted water throughout the year when water was available and is therefore entitled to a January 1 to December 3 1 period of diversion. The period of diversion for all TCCC claims shall remain as it appeared in the Temporary Preliminary Decree. B. Period of Use 23. All TCCC claims appeared in the Temporary Preliminary Decree with the same April 20 to October 14 period of use. While TCCC asserts the period of use should be amended to April 1 to November 1, it presented no credible evidence to support this increase to period of use and therefore failed to cany its burden of proof. In fact, the evidence supports .the current period of use. The period of use for all TCCC claims shall remain as it appeared in the Temporary Preliminary Decree. V. Place of UseIAcres Irrigated AH Claims 24. Section 85-2-234(6), MCA, states .that a water right claim appearing in a fmal decree include: "(e) the place of use and a description of the land, if any, to which the right is appurtenant." Therefore, a reasonably well-defmed place of use is a requirement for all claims. The Water Right Claim Examination Rules, as adopted by the Montana Supreme Court on March 21,2008, state: "The claimed POU will be identified and described by the nearest reasonable and concise legal land description and the associated irrigated acreage." Rule 12(a), W.R.C.E.R. TCCC complied with this requirement. Its place of use for all claims currently consists of 45 parcels ranging in size from 640.00 acres (entire Section) to 17.00 acres. These 45 parcels total 17,322.00 acres. This is consistent with both statute and rule. 25. In addition to this total place of use, TCCC has agreed to a 7,650.00 acre cap on annual irrigation. These 7,650.00 acres are not specifically identified within the 17,322.00 acre place of use. Nonetheless, the place of use legal land description is suaciently accurate for administration of this claim. 26. TCRC argues TCCC is no different from any private water user and must be decreed a place of use that reflects the lands upon which its water rights are beneficially used. TCRC advocates a place of use limited to the 7,650.00 acres. 27. A liberally defined place of use or service area is appropriate for irrigation companies such as TCCC. In Bailey v. Tintinger, 45 Mont. 154, 122 P. 575 (1912), the Montana Supreme Court referred to companies organized for the purpose of providing water to end users as public service corporations. While the Court gave no specific definition for a public service corporation, under the facts in Bailey, TCCC meets the criteria. As a result, TCCC's place of use can reflect the area it intended to service, has historically serviced, and continues to service. Bailey 45 Mont. at 177-78, 122 P.2d at 583. TCRC provided no credible evidence to refute historical irrigation on 17,322.00 acres or authority to support limiting TCCC's place of use to less than 17,322.00 acres. 28. The latitude provided by TCCC's current 17,322.00 acre place of use reflects historical flexibility given to shareholders. TCCC shareholders have historically had the ability to irrigate different parcels within their property. They can continue to follow this practice so long as the changes are within the 17,322.00 acre place of use and do not result in an expansion of the 7,650.00 acre annual limit. VI. TCCC Stock Claims 29. TCCC shareholders historically used a portion of their water for stock. This use did not expand the amount of water diverted from the source or increase the total volume. Stock use only occurred when TCCC was diverting water for irrigation.TCRC has provided no evidence or authority supporting its assertion that TCCC is not entitled to separate stock claims. 30. At the same time, TCCC's stock use is tied to its irrigation use. TCCC has never diverted water just for stock use. Therefore, a remark noting that TCCC cannot call for stockwater independent fiom its irrigation water right claims will be added to all stock claims. With this remark, TCCC's stock claims are a valid reflection of historical use. VII. Issue Remarks 3 1. All six TCCC claims appeared in the Temporary Preliminary Decree with multiple :issue remarks. All of these remarks have been addressed and resolved through this process and will be removed from these claims. VIII.. TCCC's Equitable Arguments 32. TCCC elicited evidence at hearing to show TCRC has voluntarily received its Teton River water through the water commissioner for several decades. The commissioner administered the TCRC right as junior to the TCCC rights. Based on this record, TCCC asserts TCRC is barred by the equitable doctrines of Laches, Waiver, Judicial Estoppel, and Collateral Estoppel from asserting any right to receive water as senior to TCCC. 33. At the commencement of the hearing phase of the upper Teton River cases, (410-84, -1 18, -129, and -132) this Court ruled that these arguments are properly addressed in TCRC Case 410-84. TCCC is a party to Case 410-84 and made the same equitable arguments in that case. The Court will continue to follow this policy. TCCC7s equitable arguments will be addressed in Case 410-84. ORDER The following changes shall be applied to the water right claims in this case. These changes are supported by a preponderance of the evidence before-&-Courtand- ---are required to accurately reflect the historical'use of the claims. All elements of each claim that are not changed by this Order shall remain as they appeared in the Temporary Preliminary Decree for this Basin. All issue remarks are removed from all claims. Water Right claim abstracts for each claim, showing all claim elements and information remarks, are attached to this Order. 4 1 0 192871-00 (April 18,1890, Irrigation) Volume: l!k%xsk 12,000.00 AFNear I Acres Irrigated: Place of Use: 17,322.00 acres 1 77bVL.3n3 Add Parcel #44 40.00 acres SWSW Sec. 28, T25N7R5W Parcel #M5 80.00 acres S2SE Sec. 29, T25N7R5W See attached claim abstract for the full parcel legal description. \ Remarks: BY STIPULATION, THIS CLAIM IS LIMITED TO NO MORE THAN 7,650.00ACRES,IRRIGATED DURING ANY IRRIGATION SEASON. - MULTIPLE USE: 410 192867-00 and 4 1 0 192871-00 THE COMBINED FLOW RATE FOR CLAIMS 410 192867-00,410 19286800,410 192869-00,410 192871-00,410 192872-00, AND 410 192873-00 SHALL NOT EXCEED 75.00 CFS. 418 192867-00 (April 18,1890, Stock) Volume: ~%~EIM& 12,000.00 AFtYear XZNXWNW Sec. 8, T24N, R3W Parcel #7 N W W N2N2SW Place of Use: Sec. 8, T24N, R3W Parcel #6 Add Parcel #44 ( Parcel #45 SWSW Sec. 28, T25N, R5W S2SE Sec. 29, T25N, R5W See attached claim abstract for the fidl parcel legal description. Remarks: MULTIPLE USE: 410 192867-00 and 410 192871-00 THE COMBINED FLOW RATE FOR CLAIMS 410 192867-00,410 19286800,410 192869-00,410 192871-00,410 192872-00, AND 4 1 0 192873-00 SHALL NOT EXCEED 75.00 CFS. .. + , .. -. - , ~ USE OF THIS CLAIM IS RESIIUCTED TO TIMES WHEN CLAIM 4 1 0 N .--. . - -:~. .. -' - 192871-00 IS I .USE. ~ 4 1 0 192872-00 (Irrigation) Priority Date: December 3 1, 1947 Flow Rate: 75.00 cfs Volume: zte~~a& 1,000.00 AFNear Acres Irrigated: 1 77 303 rVb. 17,322.00 acres Place of Use: Add Parcel #44 40.00 acres SWSW Sec. 28, T25N, R5W Parcel #45 80.00 acres S2SE Sec. 29, T25N, R5W See attached claim abstract for the full parcel legal description. Remarks: BY STIPULATION, THIS CLAIM IS LIMITED TO NO MORE THAN 7,650.00 ACRES IRRIGATED DLIFUNG ANY IRRIGATION SEASON. h4ULTIPLE USE: 410 192868-00 and 4 1 0 192872-00 THE COMBINED FLOW RATE FORCLAIMS 410 192867-00,410 19286800,410 192869-00,410 192871-00,410 192872-00, AND 4 1 0 192873-00 SHALL NOT EXCEED 75.00 CFS. 4 1 8 192868-00 (Stock) Priority Date: IQ Volume: , &g)o December 3 1, 1947 1,000.00 AFrYear l%ema& Place of Use: Add Parcel #44 SWSW Sec. 28, T25N, R5W S2SE Sec. 29, T25N, R5W Parcel #45 See attached claim abstract for the full parcel legal description. Remarks: ' MULTIPLE USE: 4 1 0 192868-00 and 4 1 0 192872-00 THE COMBINED FLOW RATE FOR CLAIMS 4 1 0 192867-00,410 19286800,410 192869-00,410 192871-00,410 192872-00, AND 4 1 0 192873-00 SHALL NOT EXCEED 75.00 CFS. USE OF THIS CLAIM IS RESTRICTED TO TIMES WHEN CLAIM 4 1 0 192872-00 IS IN USE. Priority Date: Flow Rate: --. . . . December 3 1, 1957 75.00 cfs Volume:-.,. . . _.: < Acres Irrigated: Place of Use: . l?cmxde ... .-. l73n3 7L.VL.- . . . -- 1 000.00 .AF/Year .. -.-. . . . . . ' - . - - ' ~ . -~ . 17,322.00 acres Add Parcel #44 40.00 acres SWSW Sec. 28, T25N, R5W Parcel #45 80.00 acres S2SE Sec. 29, T25N, R5W See attached claim abstract for the 111parcel legal description. Remarks: BY STIPULATION, THIS CLAIM IS LIMITED TO'NO MORE THAN 7,650.00 ACRES IRRIGATED DURING ANY IRRIGATION SEASON. MULTIPLE USE: 410 192869-00 and 410 192873-00 THE COMBINED FLOW RATE FOR CLAIMS 4 1 0 192867-00,410 19286800,410 192869-00,410 192871-00,410 192872-00, AND 410 192873-00 SHALL NOT EXCEED 75.00 CFS. 4 1 0 192869-00 (Stock) December 3 1, 1957 Priority Date: Volume: Place of Use: l%ex~k 1,000.00 A m e a r Add Parcel #44 SWSW Sec. 28, T25N, R5W Parcel #45 S2SE Sec. 29, T25N, R5W . .. See attached claim abstract for the full parcel legal description. Remarks: MULTIPLE USE: 410 192869-00 and 410 192873-00 THE COMBINED FLOW RATE FOR CLAIMS 410 192867-00,410 19286800,410 192869-00,410 192871-00,410 192872-00,AND 4 1 0 192873-00 SHALL NOT EXCEED 75.00 CFS. USE OF THIS CLAIM IS RESTRICTED TO TIMES WHEN CLAIM 410 N 192873-00 IS I USE. DATED this 3 day of ~ & . Y I L ) ! ~ 15. o Associate Water Judge Holly Franz Ada C. Montague Franz & Driscob PLLP PO Box 1155 Helena MT 59624-1155 - -- (406) 442-0805 hollyjo@fra~driscoll.com ada@faanzdriscoll.com Stephen R. Brown Garlington, Lohn & Robinson, PLLP P.O. Box 7909 Missoula, MT 59807-7909 (406) 523-2500 erbrc~m@garh@o~~a_pearn . . Michael J.L. Cusick Ryan K. Mattick Moore, O'Connell & Refling, P.C. P.O. Box 1288 Bozeman, MT 59771-1288 (406) 587-5511 morl;aw@qwestoffice.net .. - John E. Bloomquist BLOOMQUIIST LAW FIRM[, P.C. Diamond Block Building 44 W 6thAvenue, Suite 100 PO Box 799 Helena MT 59624-0799 (406) 502-1244 jbloomquist@helenalaw.com Senice List updated 1/2a/15 S:\Share\WC-BASIN FOLDERS\410WIO Caras\410-132'410-132FINAL ORDER RE TCCC WATER RIGHT CLAIMS 1-8-15.&n cb 40 - -- - - -- - -. January 23,2015 Page 1 of 3 410 192867-00 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM TETON RIVER BASIN 4 1 0 INIPORTANT NOTICE AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM CHANGED BY ORDER OF THE MONTANA WATER COURT AFTER ISSUANCE OF THE PREVIOUS DECREE. I Water Right Number: 410 192867-00 STATEMENT OF CLAIM 2 -- POST DECREE Status: ACTIVE Version: Owners: TETON CO-OP CANAL CO % CHARLES CRANE 1903 8TH LN NW CHO'TEAU, MT 59422 Priority Date: APRIL 18, 1890 Type of Historical Right: DECREED Purpose (use): STOCK Flow Rate: 75.00 CFS THE COMBINED FLOW RATE FOR CLAIMS 410 192867-00,410 192868-00,410192869-00,410 192871-00,410 192872-00, AND 4 1 0 192873-00 SHALL NOT EXCEED 75.00 CFS. 12,000.00 AC-FT THE WATER COURT HAS DETERMINED THAT A VOLUME QUANTIFICA-TION IS REQUIRED TO ADEQUATELY ADMINISTER THIS RIGHT. TETON RIVER SURFACE WATER Source Name: Source Type: Point of Diversion and Means of Diversion: ID - Govt Lot Qtr Sec Twp County 1 NENWNE 35 25N 6W TETON Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DIVERSION DAM Ditch Name: BURTON DITCH I Reservoir: OFFSTREAM Govt Lot Depth; Surface Area: Capacity: Reservoir Name: EUREKA RESERVOIR Qtr Sec @ S2SWNE 36 31.00 FEET Twp 251V County 6W TETON 390.00 ACRES 5,500.00 ACRE-FEET SEE THE RESERVOIR WORKSHEET IN THE CLAIM FILE FOR ADDITIONAL RESERVOIR DATA. THE DAM EXTENDS INTO THE SENW, NWNW SEC 36 TWP 25N RGE 06W TETON COUNTY. January 23,201 5 Page 2 of 3 410 192867-00 Post Decree Abstract Period of Use: 1i I II 1 APRIL 20 TO OCTOBER 14 USE OF THIS CLAIM IS RESTRICTED TO TIMES WHEN CLAIM 4 1 0 192871-00 IS IN USE. *Place of Use: ID - Acres Govt Lot 1 4 2 3 Qtr Sec W2NW NWSW S2SW 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1 NW N2N2SW E2NW N2NE SWSE W2 S2 S2S2SE . S2 S2SE SW S2 S2 E2SE NE SE SWSW S2SE Sec - Twp & 5 5 5 6 7 8 8 18 1 2 3 4 5 6 7 8 9 10 11 12 13 13 13 14 28 30 31 32 33 34 35 36 25 25 26 27 28 32 32 33 34 35 36 28 29 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 251V 25N 25N 25N 251V 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 2511 25N 3W 3W 3W 3W 3W 3W 3W 3W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 5W 5W 5W 5W 5W 5W 5W 5W 5W 5W 5W 5W 5W County TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON January 23,2015 Page 3 of 3 410 192867-00 Post Decree Abstract Remarks: i THE WATER RIGHTS LISTED FOLLOWING THlS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PLIRPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 192867-00 192871-00 PARENT FILE FOR THlS RIGHT IS 192866-00. January 22,2015 Page 1 of 3 410 192868-00 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM TETON RIVER BASIN 4 1 0 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. 4 1 0 192868-00 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: ACTIVE TETON CO-OP CANAL CO % CHARLES CRANE 1903 8TH LN NW CHOTEAU, MT 59422 Owners: DECEMBER 31, 1947 *Priority Date: *Type of Historical Right: USE Purpose (use): , . STOCK 75.00 CFS *Flow Rate: THE COMBINED FLOW RATE FOR CLAIMS 41 0 192867-00,410 192868-00,410 192869-00,410 192871-00,410 192872-00, AND 4 1 0 192873-00 SHALL NOT EXCEED 75.00 CFS. 1,000.00 AC-FT *Volume: THE WATER COURT HAS DETERMINED THAT A VOLUME QUANTIFICATION IS REQUIRED TO ADEQUATELY ADMINISTER THIS RIGHT. TETON RIVER SURFACE WATER Source Name: Source Type: Point of Diversion and Means of Diversion: w ID Govt Lot Qtr Sec & Twp County 1 NENWNE 35 25N 6W TETON Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DIVERSION DAM Ditch Name: BURTON DITCH Reservoir: OFFSTREAM Govt Lot Depth: Surface Area: Capacity: . Reservoir Name: EUREKA RESERVOIR Qtr Sec & Twp S2SWNE 36 25N 31.00 FEET 390.00 ACRES 5,500.00 ACRE-FEET & County 6W TETON SEE THE RESERVOIR WORKSHEET IN THE CLAIM FILE FOR ADDl1-IONAL RESERVOIR DATA. THE DAM EXTENDS INTO THE SENW, NWNW SEC 36 TWP 25N RGE 06W TETON COUNTY. January 22,201 5 Page 2 of 3 410 192868-00 Post Decree Abstract Period of Use: APRIL 20 TO OCTOBER 14 USE OF THIS CLAIM IS RESTRICTED TO TIMES WHEN CLAIM 4 1 0 192871-00 IS IN USE. *Place of Use: ID - Acres Govt Lot 1 4 2 3 4 5 6 7 8 1 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 - Qtr Sec W2NW NWSW S2SW N2NE SWSE W2 SWSW S2SE Sec 5 5 5 6 7 8 8 18. 1 2 3 4 5 6 7 8 9 10 I1 12 13 13 13 14 28 30 31 32 33 34 35 36 25 25 26 27 28 32 32 33 34 35 36 28 29 Twp County 24N 3W TETON 24N 3W TETON 24N 3W TETON 24N 3W TETON 24N 3W TETON 241V 3W TETON 24N 3W TETON 24N 3W TETON 24N 4W TETON 24N 4W TETON 24N 4W TETON 24N 4W TETON 24N 4W TETON 24N 4WTETON 24N 4W TETON ~ 24N ' 4 TETON 24N 4W TETON 24N 4W TETON 24N 4W TETON 24N 4W TETON 24N 4W TETON 24N 4W TETON 24N 4W TETON 24N 4WTETON 25N 4W TETON 25N 4W TETON 25N 4W TETON 25N 4W TETON 25N 4W TETON 25N 4W TETON 25N 4W TETON 25N 4W TETON 25W 5W TETON 25N 5W TETON 25N 5W TETON 25N 5W TETON 25N 5W TETON 25N 5W TETON 25N 5W TETON 25N 5W TETON 25N 5WTETON 25N"- SW:.'TETON 25N 5W TETON 25N 5W TETON 25N 5W TETON - i I1 Page 3 of 3 January 22,2015 Post Decree Abstract Remarks: '. THE WATER RIGHTS LISTED FOLLOW~IVG THIS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THlS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 192868-00 192872-00 STARTING IN 2008, PERIOD OF DIVERSION WAS ADDED TO MOST CLAIM ABSTRACTS, INCLUDING THlS ONE. PARENT FILE FOR THIS RIGHT IS 192866-00. January 22,2015 Page 1 of 3 4 1 0 192869-00 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM TETON RIVER BASIN 4 1 0 IMPORTANT NOTICE AN ASTERISK (*) MAS BEEN PLACED NEXT TO EACH ITEM CHANGED BY ORDER OF THE MONTANA WATER COURT AFTER ISSUANCE OF THE PREVIOUS DECKEE. Water Right Number: 416 192869-00 Version: Owners: STATEMENT OF CLAIM 2 -- POST DECREE Status: ACTIVE TETON CO-OP CANAL CO % CHARLES CRANE 1903 8TH LN NW CHOTEAU, MT 59422 DECEMBER 31, 1957 *Priority Date: *Type of Historical Right: USE STOCK Purpose (use): 75.00 CFS *Flow Rate: THE COMBINED FLOW RATE FOR CLAIMS 410 192867-00,410 192868-00,410 192869-00,410 192871-00,410 192872-00, AND 4 1 0 192873-00 SHALL NOT EXCEED 75.00 CFS. 1,000.00 AC-FT *Volume: THE WATER COURT HAS DETERMINED THAT A VOLUME QUANTIFICATION IS REQUIRED TO ADEQUATELY ADMINIS'TER THIS RIGHT. TETON RIVER SURFACE WATER Source Name: Source Type: Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec Set Twp & County ' l NENWNE 35 25N 6W TETON Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DIVERSION DAM BURTON DITCH Ditch Name: Reservoir: OFFSTREAM Govt Lot Depth: Surface Area: Capacity: Reservoir Name: EUREKA RESERVOIR QtrSec Set S2SWNE 36 31.00 FEET Twp 25N County 6W TETOlV 390.00 ACRES 5,500.00 ACRE-FEET SEE THE RESERVOIR WORKSHEET IN THE CLAIM FILE FOR ADDITIONAL RESERVOIR DATA. THE DAM EXTENDS INTO THE SENW, NWNW SEC 36 TWP 25N RGE 06E TETON COUNTY. January 22, 2015 Page 2 of 3 410 192869-00 Post Decree Abstract Feriod'of Use: *Place of Use: @ Acres Govt Lot 1 4 2 3 4 APRIL 20 TO OCTOBER 14 USE OF THIS CLAIM IS RESTRICTED TO TIMES WHEM CLAIM 410 192871-00 IS IN USE. Qtr Sec W21VW NWSW S2SW Set Twp & County 5 5 5 6 7 8 8 18 1 2 24N 241V 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 25N 251V 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 3W TETON 3W TETON 3WTETON 3W TETON 3W TETON 3W TETON 3W TETON 3W TETON 4W TETON 4W TETON 4W TETON 4W TETON 4W TETON 4W TETON 4W TETON 4W TETON 4W TETON 4W TETON 4W TETON 4W TETON 4W TETON 4W TETON 4WTETON 4W TETON 4W TETON 4W TETON 4W TETON 4W TETON 4W TETON 4W TETON 4WTETON 4W TETON 5W TETON 5W TETON 5W TETON 5W TETON 5W TETON 5W TETON 5W TETON 5W TETON 5W TETON 5W TETON 5W TETON 5W TETON 5W TETON 3 N2NE SWSE W2 SWSW S2SE 4 5 6 7 8 9 10 11 12 13 13 13 14 28 30 31 32 33 34 35 36 25 25 26 27 28 32 32 33 34 35 36 28 29 January 22, 2015 Page 3 of 3 410 192869-00 Post Decree Abstract Remarks: THE WATER RIGHTS LISTED FOLLOWING THlS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THlS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IIV ACCORD WITH HISTORICAL PRACTICES. 29286%00. 192873-00 PARENT FILE FOR THIS RIGHT IS 192866-00. 0 January 22,2015 410 192871-00 Page 1 of 3 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAUM TETON RIVER BASIN 4 1 0 . . AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM CHANGED BY ORDER OF THE MONTANA WATER COURT AFTER ISSUANCE OF THE PREVIOUS DECREE. 4 1 0 192871-00 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: ACTIVE i . Owners: Priority Date: . TETON CO-OP CANAL CO % CHARLES CRANE 1903 8TH LN NW CHOTEAU, MT 59422 APRIL 18, 1890 Type of Historical Right: DECREED IRRIGATION Purpose (use): Irrigation Type: SPRINKLEWFLOOD 75.00 CFS PRIMARILY A DIRECT FLOW SYSTEM; FLOW RATE RETAINED. Flow Rate: THE COMBINED FLOW RATE FOR CLAIMS 410 192867-00,410 192868-00,410 192869-00,410 192871-00,410 192872-00, AND 4 1 0 192873-00 SHALL NOT EXCEED 75.00 CFS. 12,000.00 AC-FT THE WATER COURT HAS DETERMINED THAT A VOLUME QUANTIFICATION IS REQUIRED TO ADEQUATELY ADlVllN ISTER THIS RIGHT. *VoIume: Climatic Area: 4 - MODERATELY LOW 17,322.00 *Maximum Acres: Source Name: Source ~ y p k : - TETON RiVER SURFACE WATER Point of Diversion and Means of Diversion: Qtr Sec Set Twp County 1 NENWNE 35 25N 6W TETON Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DIVERSION DAM ID Govt Lot Ditch Name: BURTON DITCH Page 2 of 3 Post Decree Abstract January 22,2015 4 1 0 192871-00 Reservoir: OFFSTREAM Govt Lot Depth: Surface Area: Capacity: Reservoir Name: EUREKA RESERVOIR Qtr Sec & Twp S2SWNE 36 25N 31.00 FEET 390.00 ACRES 5,500.00 ACRE-FEET County 6W TETON SEE THE RESERVOIR WORKSHEET IN THE CLAIM FILE FOR ADDITIONAL RESERVOIR DATA. THE DAM EXTENDS INTO THE SENW, NWlVW SEC 36 TWP 25N RGE 6W TETON COUNTY. Period of Use: APRIL 20 TO OCTOBER 14 *Place of Use: Acres Govt Lot 52:OO . 4 40.00 80.00 433.00 O 531. O 160.00 40.00 1 17.00 546.00 547.00 550.00 553.00 554.00 552.00 630.00 640.00 640.00 640.00 640.00 640.00 80.00 40.00 320.00 640.00 320.00 40.00 640.00 640.00 640.00 640.00 600.00 320.00 80.00 ... 160.00 320.00 320:OO Qtr Sec W2NW NWSW S2SW N2NE SWSE W2 Sec - F Twp & 5 5 5 6 7 8 8 18 1 2 3 4 5 6 7 8 9 10 11 12 13 13 13 14 28 30 31 32 33 34 35 36 25 25 26 27 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 25N 3W 3W 3W 3W 3W 3W 3W 3W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 5W 5W 5W 5W County TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETOIV TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON 0 January 22,201 5 410 192871-00 *Place of Use: Acres Govt Lot 80.00 130 .OO 147.00 640.00 640.00 640.00 640.00 40.00 80.00 Qtr Sec E2SE NE SE SWSW S2SE 28 32 32 33 34 35 36 28 29 5W 5W 5W 5W 5W 5W 5W 5W 5W Page 3 of 3 Post Decree Abstract County TETON TETON TETON TETON TETON TETON TETON TETON TETON Total: 17,322.00 BY STIPULA-TION, THlS CLAIM IS LIMITED TO NO MORE THAN 7,650.00 ACRES IRRIGATED DURING ANY IRRIGATION SEASON. Remarks: THE WATER RIGHTS FOLLOWING THlS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS. EACH RIGHT IS LIMITED TO THE FLOW RATE AND PLACE OF USE OF THAT INDIVIDUAL RIGHT. THE SUlM TOTAL VOLUME OF THESE WATER RIGHTS SHALL NOT EXCEED THE AMOUIVT PUT TO HISTORICAL AND BENEFICIAL USE. THE WATER RIGHTS LISTED FOLLOWING THlS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THlS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. PARENT FILE FOR THlS RIGHT IS 192870-00. i . . . January 22.2015 Page 1 of 3 post Decree Abstract..-.-- 410 192872-00 POST DECREE ABSTRACT OF WATER RIGHT CLAIM TETON RIVER BASIN 4 1 0 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: 410 192872-00 Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: ACTIVE TETOIV CO-OP CANAL CO % CHARLES CRANE -. 1903 8TH LN NW CHOTEAU, MT 59422 Owners: *Priority Date: DECEMBER 31, 1947 *Type of Historical Right: USE Purpose (use): IRRIGATION Irrigation Type: SPRINKLERIFLOOD *Flow Rate: 75.00 CFS PRIMARILY A DIRECT FLOW SYSTEM; FLOW RATE RETAINED. THE COMBINED FLOW RATE FOR CLAIMS 410 192867-00,410 192868-00,410 192869-00,410 192871-00,410 192872-00, AND 410 192873-00 SHALL NOT EXCEED 75.00 CFS. 1,000.00 AC-FT THE WATER COURT HAS DETERMINED THAT A VOLUME QUANTIFICATION IS REQUIRED TO ADEQUATELY ADMINISTER THIS RIGHT. - Climatic Area: 4 MODERATELY LOW *Maximum Acres: Source Name: Source Type: 17,322.00 TETON RIVER SURFACE WATER Point of Diversion and Means of Diversion: Govt Lot Qtr Sec Set @ County 1 NENWNE 35 25N 6W TETON Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DIVERSION DAM rr, Ditch Name: BURTON DITCH January 22, 2015 Page 2 of 3 410 192872-00 Post Decree Abstract Reservoir: OFFSTREAM Govt Lot Depth: Surface Area: Capacity: Reservoir Name: EUREKA RESERVOIR Qtr Sec & S2SWNE 36 25N 31.00 FEET 390.00 ACRES 5,500.00 ACRE-FEET @ County 6W TETON SEE THE RESERVOIR WORKSHEET IN THE CLAIM FILE FOR ADDITIONAL RESERVOIR DATA. THE DAM EXTENDS INTO THE SENW, NWNW SEC 36 TWP 25N RGE 06W TETON COUNTY. APRIL 20 TO OCTOBER 14 Period of Use: "Place of Use: ID - Acres Govt Lot .. - I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 52.00 40.00 80.00 433.00 531.00 160.00 40.00 17.00 546.00 547.00 550.00 553.00 554.00 552.00 630.00 640.00 640.00 640.00 640.00 640.00 80.00 40.00 320.00 640.00 320.00 40.00 640.00 640.00 640.00 640.00 600.00 320.00 80.00 160.00 320.00 320.00 4 Qtr- Sec Set W2NW NWSW S2SW 5 5 5 6 7 8 8 18 1 2 3 4 5 6 7 8 9 10 I1 12 13 13 13 14 28 30 31 32 33 34 35 36 25 25 26 27 1 N2NE SWSE w2 Twp 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 24N 21 5V 25N 25N 25N 21 5V 25N 25N 25N 2511 25N 25N 25N & 3W 3W 3W 3W 3W 3W 3W 3W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 5W 5W 5W 5W County TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON i Page 3 of 3 January 22,2015 Post Decree Abstract *Place of Use: &Q Acres Govt Lot I 37 38 39 40 41 42 43 44 45 80.00 130.00 147.00 640.00 640.00 640.00 640.00 40.00 80.00 Qtr Sec E2SE NE SE SWSW S2SE Set Twp & I 28 32 32 33 34 35 36 28 29 25N 25N 25N 25N 25N 25N 25N 25N 25N 5W 5W 5W 5W 5W 5W 5W 5W 5W Couniy TETON TETON TETON TETON TETON TETON TETON TETON TETON Total: 17,322.00 BY, STIPULATION, THlS CLAIM IS LIMITED TO NO MORE THAN 7,650 ACRES IRRIGATED DURING ANY IRRIGATION SEASON. Remarks: THE WATER RIGHTS FOLLOWING THlS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. 'THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS. 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. 192871-00 192872-00 192873-00 THE WATER RIGHTS LISTED FOLLOWING THlS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THlS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNA-rE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 192868-00 192872-00 PARENT FILE FOR THlS RIGHT IS 192870-00. January 22,2015 Page 1 of 3 410 192873-00 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM TETON RIVER BASIN 410 IMPORTANT NOTICE AN ASTENSK (*) HAS BEEN PLACED NEXT TO EACH ITEM CHANGED BY ORDER OF THE MONTANA WATER COURT AFTER ISSUANCE OF THE PREVIOUS DECREE. Water Right Number: 4 1 0 192873-00 Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: ACTIVE TETON CO-OP CANAL CO % CHARLES CRANE 1903 8TH LN NW CHOTEAU, MT 59422 Owners: DECEMBER 31,1957 *Priority Date: Type of Historical Right: FILED IRRIGATION Purpose (use): Irrigation Type: SPRINKLERIFLOOD 75.00 CFS *Plow Rate: THE COIMBINED FLOW RATE FOR CLAIMS 410 192867-00,410 192868-00,410 192869-00,410 192871-00,410 192872-00, AND 4 1 0 192873-00 SHALL NOT EXCEED 75.00 CFS. 1,000.00 AC-FT "Volume: Climatic Area: 4 - MODERATELY LOW 17,322.00 *Maximum Acres: TETON RIVER SURFACE WATER Source Name: Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 QtrSec NENWNE Set Twp 35 25N County 6W TETON Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DIVERSION DAM Ditch Name: BURTON DITCH . , .. . Reservoir: OFFSTREAM Govt Lot Depth: Surface Area: Capacity: Reservoir Name: EUREKA RESERVOIR Qtr Sec Set S2SWNE 36 31.00 FEET Twp & County 25N 6W TETON 390.00 ACRES 5,500.00 ACRE-FEET SEE THE RESERVOIR WORKSHEET IN THE CLAIM FILE FOR ADDITIONAL RESERVOIR DATA. . Q January 22,2015 410 192873-00 . . Page 2 of 3 Post Decree Abstract THE DAM EXTENDS'1NTO.THESENW, NWNW SEC 36 TWP 25N RGE 6W TETON COUNTY. Period of Use: APRIL 20 TO OCTOBER 14 *Place of Use: ID Acres -Govt Lot 1 52.00 4 2 40.00 3 80.00 4 433.00 5 531.00 6 160.00 7 40.00 8 17.00 1 9 546.00 10 547.00 11 550.00 12 553.00 13 554.00 14 552.00 15 630.00 16 640.00 17 640.00 18 640.00 19 640.00 20 640.00 21 80.00 22 40.00 23 320.00 24 640.00 25 320.00 26 40.00 27 640.00 28 640.00 29 640.00 30 640.00 31 600.00 32 320.00 33 80.00 34 160.00 35 320.00 36 320.00 37 80.00 38 130.00 39 147.00 40 640.00 i 41 640.00 42 640.00 43 640.00 44 40.00 45 80.00 - Qtr Sec W2NW NWSW S2SW N2NE SWSE W2 SWSW S2SE Sec - & 5 5 5 6 7 8 8 18 1 2 3 4 5 6 7 8 9 10 11 12 13 13 13 14 28 30 31 32 33 34 35 36 25 25 26 27 28 32 32 33 34 35 36 28 29 3W 3W 3W 3W 3W 3W 3W 3W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 4W 5W 5W 5W 5W 5W 5W 5W 5W 5W 5W 5W 5W 5W County TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON TETON % 4 January 22,2015 Page 3 of 3 Post Decree Abstract 410 192873-00 *Place of Use: ID - Acres Govt Lot Qtr Sec Set Twp &e Countv Total: 17,322.00 BY STIPULATION, THlS CLAIM IS LIMITED TO NO MORE THAN 7,650.00 ACRES IRRIGATED DURING ANY IRRIGATION SEASON. Remarks: THE WATER RIGHTS FOLLOWING THlS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS. EACH RIGHT IS I-IMITED 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. 192871-00 - 192872-00 192873-00 THE WATER RIGHTS LISTED FOLLOWING THlS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THlS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 192869-00 192873-00 I PARENT FILE FOR THlS RIGHT IS 192870-00.

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