John Hillenbrand

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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 BIG DRY CREEK - BASIN (40D) PRELIMINARY DECREE ******************************************************** CASE 40D-0244-R-2022 40D 121899-00 40D 121936-00 40D 164349-00 40D 187607-00 CLAIMANT: John Hillenbrand 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 be added to the 10day 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. 1 MASTER’S REPORT Claims 40D 121899-00, 40D 121936-00, 40D 164349-00, and 40D 187607-00 are rights owned by John Hillenbrand. The claims were decreed DNRC issue remarks. No objections, counter objections, or NOIAs were filed. These claims are consolidated into Water Court Case 40D-0244-R-2022. FINDINGS OF FACT 1. Claims 40D 121936-00 and 40D 164349-received an issue remark stating the reservoir could not be located. 2. Upon inspection of the claim file for claim 40D 121936-00, the Statement of Claim states that the reservoir is based on snow melt and runoff. Given the lack of moisture in Garfield County in recent years, it is possible that the reservoir would not show in any aerial photographs. 3. Upon inspection of the claim file and aerial photographs of the place of use for claim 40D 164349-00, the Court disagrees with the issue remark and can clearly see the reservoir. 4. Claim 40D 187607-00 contains an issue remark regarding a typographical error in the legal land description for the place of use. Upon review of the claim file, the Court agrees that the place of use should be SESESE Sec. 26, Twp. 20N, Rge. 39E. 5. The remaining remarks on the claims in this case are notice-type remarks. The remarks serve to provide basin-wide notice of these potential issues. 6. The claims did not receive objections or notices of intent to appear. The remarks have served their purpose and can be removed from the claims. CONCLUSIONS OF LAW 1. A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content. Section 85-2-227, MCA. This prima facie proof may be contradicted and overcome by other evidence that proves, by a preponderance of the evidence, that an element of the prima facie claim is incorrect. This is the burden of proof for every assertion that a claim is incorrect. Rule 19, W.R.Adj.R. 2 2. The degree or weight of evidence needed to contradict or overcome the prima facie proof statute is a preponderance of the evidence. Burkhartsmeyer et al. v. Burkhartsmeyer et al., Case 40G-2, (MT 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 ¶ 33, 357 Mont. 438, 240 P.3d 628. 3. The Montana Water Court is permitted to use information submitted by the Department of Natural Resources and Conservation, the statement of claim, information from approved compacts, and any other data obtained by the Court to evaluate water right claims. Section 85-2-231(2), MCA. 4. The evidence entered into the record is sufficient to resolve the issue remarks on this claim and support making the corrections outlined above. RECOMMENDATIONS Based upon the above Findings of Fact and Conclusions of Law, this Master recommends the Court make the changes specified above to correct the Preliminary Decree for this Basin. Post Decree Abstracts of Water Right Claims are served with this Report to confirm the recommended corrections have been made in the state’s centralized record system. Digitally signed by Julia Nordlund Date: 2022.09.28 13:12:11 -06'00' _________________________ Julia J. Nordlund Senior Water Master Service via USPS Mail: John Hillenbrand 1369 Haxby Rd Jordan, MT 59337 \\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\40D PD\Cases\40D-0244-R-2022\40D-244 MR- reservoir IR resolved 09-28-22 ld.docx 3 September 28, 2022 40D 121899-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BIG DRY CREEK BASIN 40D 40D 121899-00 Water Right Number: STATEMENT OF CLAIM 3 -- POST DECREE Version: ACTIVE Status: JOHN HILLENBRAND Owners: 1369 HAXBY RD JORDAN, MT 59337 Priority Date: DECEMBER 31, 1944 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 STOCKWATERING 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: NORTH FORK WOODY CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec 1 Sec NESWNE Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec NESWNE Sec 19 Twp Rge County 21N 39E GARFIELD Twp 21N Rge 39E County GARFIELD Diversion to Reservoir: DIVERSION # 1 10.00 FEET Dam Height: Depth: 7.00 FEET Surface Area: 9.30 ACRES 26.04 ACRE-FEET Capacity: THE DAM EXTENDS INTO THE NWSENE , SEC 19 TWP 21N RGE 39E GARFIELD COUNTY. JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NESWNE Sec 19 Twp 21N Rge 39E County GARFIELD September 28, 2022 40D 121936-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BIG DRY CREEK BASIN 40D 40D 121936-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: JOHN HILLENBRAND Owners: 1369 HAXBY RD JORDAN, MT 59337 Priority Date: DECEMBER 31, 1944 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 STOCKWATERING 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 FRAZIER CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NWNENW 21 19N 39E GARFIELD Sec 21 Twp 19N Rge 39E County GARFIELD Sec 21 Twp 19N Rge 39E County GARFIELD Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec NWNENW Diversion to Reservoir: DIVERSION # 1 JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NWNENW September 28, 2022 40D 164349-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BIG DRY CREEK BASIN 40D 40D 164349-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: JOHN HILLENBRAND Owners: 1369 HAXBY RD JORDAN, MT 59337 Priority Date: DECEMBER 31, 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 STOCKWATERING 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 BIG DRY CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWSENW 4 18N 41E GARFIELD Sec 4 Twp 18N Rge 41E County GARFIELD Qtr Sec SWSENW Sec 4 Twp 18N Rge 41E County GARFIELD W2NESW 4 18N 41E GARFIELD Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec SWSENW Diversion to Reservoir: DIVERSION # 1 JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 2 Acres Govt Lot September 28, 2022 40D 187607-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BIG DRY CREEK BASIN 40D 40D 187607-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: JOHN HILLENBRAND Owners: 1369 HAXBY RD JORDAN, MT 59337 Priority Date: DECEMBER 31, 1945 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 STOCKWATERING 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: MABAN COULEE SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SESESE 26 20N 39E GARFIELD Sec 26 Twp 20N Rge 39E County GARFIELD Sec 26 Twp 20N Rge 39E County GARFIELD Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec SESESE Diversion to Reservoir: DIVERSION # 1 JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec SESESE

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