Carla J. Brook; Rodney T. Brook, Tierney Land & Livestock Co.

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Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov IN THE WATER COURT OF THE STATE OF MONTANA LOWER MISSOURI DIVISION MUSSELSHELL RIVER ABOVE ROUNDUP BASIN (40A) PRELIMINARY DECREE ******************** CLAIMANTS: Carla J. Brook; Rodney T. Brook OBJECTOR: Tierney Land & Livestock Co. CASE 40A-0181-R-2022 40A 123679-00 40A 123680-00 40A 123690-00 NOTICE OF FILING OF MASTER’S REPORT This Master’s Report was filed with the Montana Water Court on the above stamped date. Please review this report carefully. You may file a written objection to this Master’s Report within 10 days of the stamped date if you disagree or find errors with the Master’s findings of fact, conclusions of law, or recommendations. Rule 23, W.R.Adj.R. If the Master’s Report was mailed to you, the Montana Rules of Civil Procedure allow an additional 3 days to be added to the 10-day objection period. Rule 6(d), M.R.Civ.P. If you file an objection, you must serve a copy of the objection to all parties on the service list found at the end of the Master’s Report. The original objection and a certificate of mailing to all parties on the service list must be filed with the Water Court. If you do not file a timely objection, the Water Court will conclude that you agree with the content of this Master’s Report. MASTER’S REPORT Water Right Claims 40A 123679-00, 40A 123680-00, and 40A 123690-00 appeared in the Preliminary Decree for the Musselshell River, above Roundup (Basin 40A). Each claim received objections filed by Tierney Land & Livestock Co. The Court consolidated this claim into Water Court Case 40A-0181-R-2022 on April 5, 2022. The consolidation order scheduled an initial status conference. Claimant 1 Rodney T. Brook appeared. Objector did not appear. Claimant agreed to a settlement deadline, and the Court issued an order setting a settlement period on May 10, 2022. Attorney Christopher Scoones filed an appearance for Claimants on June 14, 2022, and filed a response to the Court’s order setting a settlement deadline on June 27, 2022. FINDINGS OF FACT 1. Water Right Claim 40A 123680-00 appeared with the following issue remark: MEANS OF DIVERSION AND RESERVOIR RECORD WERE MODIFIED AS A RESULT OF DNRC REVIEW UNDER MONTANA WATER COURT REEXAMINATION ORDERS. IF NO OBJECTIONS ARE FILED TO THIS CLAIM. THESE ELEMENTS WILL REMAIN AS THEY APPEAR ON THIS ABSTRACT AND THE REMARK WILL BE REMOVED FROM THIS CLAIM. 2. Each above-captioned claim received an objection filed by Tierney Land & Livestock Co. 3. Tierney Land & Livestock Co. is a predecessor-in-interest to current Claimants Carla J. Brook and Rodney T. Brook. 4. Attorney Chris Scoones indicated during an initial status conference in Case 40A-0313-R-2022 that the Brooks should be substituted as Objectors in that case and the present case. Mr. Scoones also indicated he would file a notice of appearance as counsel for the Brooks in each case. The Court received such notice. 5. Claimants’ June 27, 2022 response indicates the objections were filed to request addition of an information remark indicating that undeveloped springs contribute to each claimed source. The response includes several motions to amend. 6. The motions to amend included with the June 27, 2022 response are signed by Rodney Brook. Each motion requests the Court add the following remark to the source of each above-captioned claim: SOURCE INCLUDES MULTIPLE SPRINGS 7. Claimants are the only water right owners on the claimed unnamed tributaries of the Musselshell River. The alleged locations of the undeveloped springs contributing to the claimed unnamed tributaries are on land owned by Claimants. 2 8. The requested information remark should be added to the source name of each above-captioned claim. 9. The issue remark should be removed from 40A 123680-00. APPLICABLE LAW 1. A properly filed statement of claim is prima facie proof of its content. Section 85-2-227, MCA. The prima facie status of a claim may be overcome by a preponderance of the evidence. Section 85-2-227, MCA; Rule 19, W.R.Adj.R. A preponderance of the evidence is evidence that shows a fact is “more probable than not.” Hohenlohe v. State, 2010 MT 203, ¶ 33, 357 Mont. 438, 240 P.3d 628. 2. The Water Court must weigh an issue remark, and the information resulting in that issue remark, against the claimed water right. Section 85-2-247(2), MCA. 3. The Water Court must resolve all issue remarks not resolved through the objection process. Section 85-2-248, MCA. The Court must review information in the claim file or obtained by the Court to determine if there is a sufficient basis to resolve the remarks. 85-2-248(3), MCA. 4. The Water Court has the authority to hear all objections to the elements of any claim included in a Court issued Temporary Preliminary Decree or Preliminary Decree. Section 85-2-233, MCA. CONCLUSIONS OF LAW 1. The Court may add the requested information remarks because it is more likely than not that undeveloped springs contribute to the claimed source of each abovecaptioned claim as described by Claimant and asserted by the predecessor-in-interest Tierney Land & Livestock Co. 2. The Court may remove the issue remark from Claim 40A 123680-00 because it has served its notice purpose and does not raise any unresolved issues. RECOMMENDATIONS Based upon the above Findings of Fact and Conclusions of Law, this Master recommends that the Court make the changes specified in the Findings of Fact to correct the Preliminary Decree for this Basin. Post-decree Abstracts of Water Right Claims are 3 served with this Report to confirm the recommended changes have been made in the Digitally signed by Colton J. Lauer Date: 2022.10.12 15:42:05 -06'00' state’s centralized record system. _________________________________ Colton J. Lauer Water Master Service via USPS Mail: Last Order: Carla J. Brook Rodney T. Brook PO Box 242 Judith Gap, MT 59453 Service Via Electronic Mail: Christopher T. Scoones Lund Law PLLC 662 S. Ferguson Ave., Unit 2 Bozeman, MT 59718 (406) 586-6254 Scoones@Lund-Law.com Note: Service List Updated 9-27-22 \\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\40A PD\40A Cases\40A-R181\40A-0181-R-2022 -- MR 9-27-22 jbc.docx 4 September 13, 2022 40A 123679-00 Page 1 of 1 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM MUSSELSHELL RIVER, ABOVE ROUNDUP BASIN 40A 40A 123679-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE RODNEY T BROOK Owners: PO BOX 242 JUDITH GAP, MT 59453 0242 CARLA J BROOK PO BOX 242 JUDITH GAP, MT 59453 0242 Priority Date: JANUARY 15, 1896 Type of Historical Right: USE Purpose (use): STOCK Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED BECAUSE THIS USE CONSISTS OF STOCK DRINKING DIRECTLY FROM THE SOURCE, OR FROM A DITCH SYSTEM. THE FLOW RATE IS LIMITED TO THE MINIMUM AMOUNT HISTORICALLY NECESSARY TO SUSTAIN THIS PURPOSE. Volume: THIS RIGHT INCLUDES THE AMOUNT OF WATER CONSUMPTIVELY USED FOR STOCK WATERING PURPOSES AT THE RATE OF 30 GALLONS PER DAY PER ANIMAL UNIT. ANIMAL UNITS SHALL BE BASED ON REASONABLE CARRYING CAPACITY AND HISTORICAL USE OF THE AREA SERVICED BY THIS WATER SOURCE. Source Name UNNAMED TRIBUTARY OF MUSSELSHELL RIVER SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County S2 25 8N 15E WHEATLAND Twp 8N Rge 15E County WHEATLAND Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec S2 Sec 25 September 13, 2022 40A 123680-00 Page 1 of 1 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM MUSSELSHELL RIVER, ABOVE ROUNDUP BASIN 40A 40A 123680-00 Water Right Number: STATEMENT OF CLAIM 3 -- POST DECREE Version: ACTIVE Status: RODNEY T BROOK Owners: PO BOX 242 JUDITH GAP, MT 59453 0242 CARLA J BROOK PO BOX 242 JUDITH GAP, MT 59453 0242 Priority Date: APRIL 30, 1950 Type of Historical Right: USE Purpose (use): STOCK Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED FOR THIS USE FROM THIS ONSTREAM RESERVOIR. THE FLOW RATE IS LIMITED TO THE MINIMUM AMOUNT HISTORICALLY NECESSARY TO SUSTAIN THIS PURPOSE. Volume: THIS RIGHT INCLUDES THE AMOUNT OF WATER CONSUMPTIVELY USED FOR STOCK WATERING PURPOSES AT THE RATE OF 30 GALLONS PER DAY PER ANIMAL UNIT. ANIMAL UNITS SHALL BE BASED ON REASONABLE CARRYING CAPACITY AND HISTORICAL USE OF THE AREA SERVICED BY THIS WATER SOURCE. Source Name UNNAMED TRIBUTARY OF MUSSELSHELL RIVER SURFACE WATER Source Type: SOURCE INCLUDES MULTIPLE SPRINGS Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SENESW 25 8N 15E WHEATLAND Sec 25 Twp 8N Rge 15E County WHEATLAND Sec 25 Twp 8N Rge 15E County WHEATLAND Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec SENESW Diversion to Reservoir: DIVERSION # 1 Dam Height: 6.00 FEET Depth: 3.00 FEET Surface Area: 1.00 ACRES Capacity: 1.20 ACRE-FEET JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NESW September 13, 2022 40A 123690-00 Page 1 of 1 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM MUSSELSHELL RIVER, ABOVE ROUNDUP BASIN 40A 40A 123690-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE RODNEY T BROOK Owners: PO BOX 242 JUDITH GAP, MT 59453 0242 CARLA J BROOK PO BOX 242 JUDITH GAP, MT 59453 0242 Priority Date: DECEMBER 20, 1895 Type of Historical Right: USE Purpose (use): STOCK Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED BECAUSE THIS USE CONSISTS OF STOCK DRINKING DIRECTLY FROM THE SOURCE, OR FROM A DITCH SYSTEM. THE FLOW RATE IS LIMITED TO THE MINIMUM AMOUNT HISTORICALLY NECESSARY TO SUSTAIN THIS PURPOSE. Volume: THIS RIGHT INCLUDES THE AMOUNT OF WATER CONSUMPTIVELY USED FOR STOCK WATERING PURPOSES AT THE RATE OF 30 GALLONS PER DAY PER ANIMAL UNIT. ANIMAL UNITS SHALL BE BASED ON REASONABLE CARRYING CAPACITY AND HISTORICAL USE OF THE AREA SERVICED BY THIS WATER SOURCE. Source Name UNNAMED TRIBUTARY OF MUSSELSHELL RIVER SURFACE WATER Source Type: SOURCE INCLUDES MULTIPLE SPRINGS Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWNE 24 8N 15E WHEATLAND Twp 8N Rge 15E County WHEATLAND Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec SWNE Sec 24

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