Marsha L. Barnard; Alanna M. Mahan; Kolin A. Mahan

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Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov IN THE WATER COURT OF THE STATE OF MONTANA LOWER MISSOURI DIVISION MISSOURI RIVER BASIN BETWEEN MUSSELSHELL RIVER AND FORT PECK DAM - BASIN (40E) PRELIMINARY DECREE ******************************* CLAIMANTS: Marsha L. Barnard; Alanna M. Mahan; Kolin A. Mahan CASE 40E-0015-R-2022 40E 49118-00 40E 49120-00 40E 49122-00 40E 49124-00 40E 169805-00 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 to 3 days 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. 1 MASTER’S REPORT The above-captioned water right claims appeared in the Preliminary Decree for the Missouri River Between Musselshell River and Fort Peck Dam (Basin 40E) issued October 7, 2020. Each claim received one or more issue remarks from the Department of Natural Resources and Conservation (DNRC) providing notice of potential legal and factual issues with the claims. The claims were consolidated into Case 40E-0015-R-2022 to resolve the issue remarks. FINDINGS OF FACT Claim 40E 49118-00: 1. Claim 40E 49118-00 is an irrigation claim to water from Second Creek. It appeared in the Preliminary Decree with the following issue remarks: IT APPEARS THAT WATER RIGHT NUMBER 40E 49122-00 SHOULD BE PART OF THE SUPPLEMENTAL RIGHTS REMARK AND THAT THE TOTAL SUPPLEMENTAL ACREAGE MAY BE INCORRECT. THE TYPE OF HISTORICAL RIGHT IS MISSING. THE TYPE OF HISTORICAL RIGHT MAY BE QUESTIONABLE. DOCUMENTATION SUBMITTED WITH THE CLAIM INDICATES A FILED AND A USE RIGHT. 2. The supplemental rights issue remark was placed on the claim based on an informational remark that is no longer on this claim. No correction to the current information remark is necessary to accurately describe the claim. 3. The type of historical right issue remarks suggest that the claim should be classified as a filed or a use right. Based on the notices of appropriation attached to this claim file and the Claimants’ May 20, 2022 status report, the following modification should be made to the claim: Type of Historical Right: Filed 40E 49120-00: 4. Claim 40E 49120-00 is a water spreading irrigation claim to water from an unnamed tributary of Telegraph Creek It appeared in the Preliminary Decree with the following issue remark: THE CLAIMED POINT OF DIVERSION IS IN QUESTION. THE LOCATION OF THE DIVERSION DAM CANNOT BE IDENTIFIED FROM AVAILABLE DATA. 2 5. Pursuant to information in the claim file and the Claimant’s June 6, 2022 Evidentiary Filing, no change is necessary to this right. A DNRC note in the claim file suggests that the DNRC employee examining the claim did not identify the source where claimed, and therefore questioned the claim’s point of diversion. However, this is a small water spreading claim for water running into a ditch. It is not uncommon for sources of this type of claim to be ephemeral and not visible on all aerial photographs. 40E 49122-00 6. Claim 40E 49122-00 is a flood irrigation claim to water from Telegraph Creek It appeared in the Preliminary Decree with the following issue remark: IT APPEARS THAT WATER RIGHT NUMBER 40E 49122-00 SHOULD BE PART OF THE SUPPLEMENTAL RIGHTS REMARK AND THAT THE TOTAL SUPPLEMENTAL ACREAGE MAY BE INCORRECT. 7. This remark was placed on the claim based on an informational remark that is no longer on this claim. No correction to the current information remark is necessary to accurately describe the claim. 40E 49124-00 8. Claim 40E 49124-00 is a water spreading irrigation claim to water from Telegraph Creek. It appeared in the Preliminary Decree with the following issue remarks: THE TYPE OF HISTORICAL RIGHT IS MISSING. THE TYPE OF HISTORICAL RIGHT MAY BE QUESTIONABLE. DOCUMENTATION SUBMITTED WITH THE CLAIM INDICATES A FILED AND A USE RIGHT. 9. These remarks suggest that the claim should be classified as a filed or a use right. Based on the notices of appropriation attached to this claim file and the Claimants’ May 20, 2022 status report, the following modification should be made to the claim: Type of Historical Right: Filed 40E 169805-00 10. Claim 40E 169805-00 is a fish and wildlife claim to a reservoir with water from an unnamed tributary of Kill Woman Creek. It appeared in the Preliminary Decree with the following issue remark: EXISTENCE OF THE CLAIMED RESERVOIR CANNOT BE CONFIRMED WITH AVAILABLE DATA 3 11. Consistent with the Claimants’ June 6, 2022 Evidentiary Filing and supporting aerial photographs, the following modifications should be made to correctly identify the location of this reservoir: Point of Diversion, Reservoir, ID 1 Acres Govt Lot Qtr Sec NWSENE NWNESE Sec 33 Twp 23N Rge 32E County Phillips Govt Lot Qtr Sec N2SENE NWNESE Sec 33 Twp 23N Rge 32E County Phillips Place of Use: ID 1 Acres PRINCIPLES OF LAW 1. Section 85-2-248(2), MCA, requires that the Water Court resolve all issue remarks that are not resolved through the objection process. See also Rule 7, W.R.Adj.R. 2. A properly filed claim of an existing right or an amended claim of existing right is prima facie proof of its content. § 85-2-227, MCA. 3. This prima facie proof may be contradicted and overcome by other evidence that proves, by a preponderance of the evidence, that the elements of the claim do not accurately reflect the beneficial use of the water right as it existed prior to July 1, 1973. This is the burden of proof for every assertion that a claim is incorrect. Rule 19, W.R.Adj.R. 4. Section 85-2-248(2), MCA requires the Water Court to resolve all issue remarks that are not resolved through the objection process. The Montana Water Court has the authority to resolve issue remarks when the claim file and information available to the Court provide a sufficient basis to do so. § 85-2-248(3), MCA. CONCLUSIONS OF LAW 1. Each of the findings of fact above are supported by a preponderance of the evidence. 4 2. The type of historical right remarks on claims 40E 49118-00 and 40E 49124-00 are resolved by classifying each of the claims as a filed right. 3. The point of diversion remark on claim 40E 49120-00 fails to overcome the prima facie status of the claim and can be removed from the claim. 4. The supplemental rights remarks on claims 40E 49118-00 and 40E 49122- 00 fail to overcome the prima facie status of the claims and should be removed from the claims. 5. The Claimant’s proposed modifications to the point of diversion, place of use, and reservoir of claim 40E 169805-000 overcome the prima facie status of the claim and should be made. This modification resolves the reservoir issue remark on the claim. RECOMMENDATIONS Based on the foregoing Findings of Fact and Conclusions of Law, this Master recommends that the Court modify the claims as described above and remove the issue remarks from the above-captioned claims. An aerial photo of the place of use of claim 40E 169805-00 and a post-decree abstract of each water right claim reflecting the recommended changes is attached to this Report. Digitally signed by Eyvind Ostrem Date: 2022.08.24 12:04:40 -06'00' _________________________________ Eyvind Ostrem Water Master 5 Service via Electronic Mail Ryan K. Mattick Cusick, Farve, Mattick & Refling, P.C. PO Box 1288 Bozeman, MT 59771-1288 (406) 587-5511 (406) 587-9079 FAX office@cmrlawmt.com (represents Marsha Barnard) Service via USPS Mail Edward A Amestoy Cole, Amestoy, & O’Brien PLLP PO Box 1280 Malta, MT 59538 Phone: 406-654-2541 (represents Mahan) Last Order: Alanna M Mahan Kolin A Mahan PO Box 1703 Malta, MT 59538 Notice: Service List Updated 8.9.22 \\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\40E PD\40E CASES\15\40E-15 MR (Existence of Res.; Type of Right; Supplemental Rmk) vh 8.9.22.docx 6 August 22, 2022 40E 49118-00 Page 1 of 2 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, BETWEEN MUSSELSHELL RIVER AND FORT PECK DAM BASIN 40E 40E 49118-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: MARSHA L BARNARD Owners: 39154 REGINA RD MALTA, MT 59538 9530 KOLIN A MAHAN PO BOX 1703 MALTA, MT 59538 ALANNA M MAHAN PO BOX 1703 MALTA, MT 59538 Priority Date: OCTOBER 6, 1930 Type of Historical Right: FILED Purpose (use): IRRIGATION WATER SPREADING Irrigation Type: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED BECAUSE THIS USE CONSISTS OF DIRECT FLOW WATER SPREADING. Flow Rate: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. *Volume: 1 - HIGH Climatic Area: 568.75 *Maximum Acres: SECOND CREEK Source Name SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWSESW 30 24N 31E PHILLIPS Qtr Sec NE Sec 28 Twp 24N Rge 31E County PHILLIPS Period of Diversion: MARCH 15 TO NOVEMBER 15 Diversion Means: DIVERSION DAM MARCH 15 TO NOVEMBER 15 Period of Use: *Place of Use: ID 1 Acres 120.00 Govt Lot 2 80.00 E2NW 28 24N 31E PHILLIPS 3 140.00 SW 28 24N 31E PHILLIPS 4 12.50 NWNW 33 24N 31E PHILLIPS 5 1.25 NWNENW 33 24N 31E PHILLIPS 6 86.50 SE 29 24N 31E PHILLIPS 7 2.50 N2NWNE 32 24N 31E PHILLIPS August 22, 2022 40E 49118-00 Page 2 of 2 Water Court Abstract 8 104.00 SE 32 24N 31E PHILLIPS 9 2.50 N2NESW 32 24N 31E PHILLIPS 10 2.00 SENENW 32 24N 31E PHILLIPS 11 17.50 SENW 32 24N 31E PHILLIPS Total: 568.75 Remarks: THE WATER RIGHTS FOLLOWING THIS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS. 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. 49118-00 49119-00 49122-00 August 22, 2022 40E 49120-00 Page 1 of 1 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, BETWEEN MUSSELSHELL RIVER AND FORT PECK DAM BASIN 40E 40E 49120-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: MARSHA L BARNARD Owners: 39154 REGINA RD MALTA, MT 59538 9530 Priority Date: DECEMBER 31, 1965 Type of Historical Right: USE Purpose (use): IRRIGATION WATER SPREADING Irrigation Type: Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED BECAUSE THIS USE CONSISTS OF DIRECT FLOW WATER SPREADING. Volume: 0.40 AC-FT 1 - HIGH Climatic Area: Maximum Acres: 10.00 Source Name UNNAMED TRIBUTARY OF TELEGRAPH CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NWNENW 28 24N 31E PHILLIPS Sec 28 Twp 24N Rge 31E County PHILLIPS Period of Diversion: MARCH 20 TO JUNE 20 Diversion Means: DIVERSION DAM MARCH 20 TO JUNE 20 Period of Use: Place of Use: ID 1 Acres 10.00 Total: 10.00 Govt Lot Qtr Sec W2NENW August 22, 2022 40E 49122-00 Page 1 of 2 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, BETWEEN MUSSELSHELL RIVER AND FORT PECK DAM BASIN 40E 40E 49122-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: MARSHA L BARNARD Owners: 39154 REGINA RD MALTA, MT 59538 9530 KOLIN A MAHAN PO BOX 1703 MALTA, MT 59538 ALANNA M MAHAN PO BOX 1703 MALTA, MT 59538 Priority Date: FEBRUARY 26, 1931 Type of Historical Right: FILED Purpose (use): IRRIGATION FLOOD Irrigation Type: *Flow Rate: 106.00 CFS *Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 1 - HIGH Climatic Area: 568.85 *Maximum Acres: TELEGRAPH CREEK Source Name SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SESENW 27 24N 31E PHILLIPS Qtr Sec NE Sec 28 Twp 24N Rge 31E County PHILLIPS Period of Diversion: JANUARY 15 TO MAY 15 Diversion Means: HEADGATE JANUARY 15 TO MAY 15 Period of Use: *Place of Use: ID 1 Acres 120.00 Govt Lot 2 80.00 E2NW 28 24N 31E PHILLIPS 3 140.00 SW 28 24N 31E PHILLIPS 4 86.50 SE 29 24N 31E PHILLIPS 5 2.50 N2NWNE 32 24N 31E PHILLIPS 6 2.00 SENENW 32 24N 31E PHILLIPS 7 17.50 SENW 32 24N 31E PHILLIPS August 22, 2022 40E 49122-00 Page 2 of 2 Water Court Abstract 8 104.00 SE 32 24N 31E PHILLIPS 9 2.50 N2NESW 32 24N 31E PHILLIPS 10 1.25 NWNENW 33 24N 31E PHILLIPS 11 12.50 NWNW 33 24N 31E PHILLIPS Total: 568.75 Remarks: THE WATER RIGHTS FOLLOWING THIS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS. 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. 49118-00 49119-00 49122-00 August 22, 2022 40E 49124-00 Page 1 of 1 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, BETWEEN MUSSELSHELL RIVER AND FORT PECK DAM BASIN 40E 40E 49124-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: MARSHA L BARNARD Owners: 39154 REGINA RD MALTA, MT 59538 9530 Priority Date: DECEMBER 15, 1934 Type of Historical Right: FILED Purpose (use): IRRIGATION WATER SPREADING Irrigation Type: Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED BECAUSE THIS USE CONSISTS OF DIRECT FLOW WATER SPREADING. Volume: 104.00 AC-FT 1 - HIGH Climatic Area: Maximum Acres: 76.00 Source Name TELEGRAPH CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SESWSE 28 24N 31E PHILLIPS 33 24N 31E PHILLIPS 33 24N 31E PHILLIPS Qtr Sec SWSE Sec 28 Twp 24N Rge 31E County PHILLIPS Period of Diversion: MARCH 15 TO NOVEMBER 15 Diversion Means: DIVERSION DAM 2 NWNWNE Period of Diversion: MARCH 15 TO NOVEMBER 15 Diversion Means: DIVERSION DAM 3 Period of Diversion: SENENW MARCH 15 TO NOVEMBER 15 DIVERSION DAM Diversion Means: MARCH 15 TO NOVEMBER 15 Period of Use: Place of Use: ID 1 Acres 27.00 2 6.00 SESW 28 24N 31E PHILLIPS 3 33.00 NENW 33 24N 31E PHILLIPS 10.00 E2NW 33 24N 31E PHILLIPS 4 Total: 76.00 Govt Lot August 22, 2022 40E 169805-00 Page 1 of 1 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, BETWEEN MUSSELSHELL RIVER AND FORT PECK DAM BASIN 40E 40E 169805-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: MARSHA L BARNARD Owners: 39154 REGINA RD MALTA, MT 59538 9530 Priority Date: DECEMBER 31, 1950 Type of Historical Right: USE Purpose (use): FISH AND WILDLIFE Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED FOR THIS USE FROM THIS ONSTREAM RESERVOIR. Volume: THE FLOW RATE AND VOLUME ARE LIMITED TO THE MINIMUM AMOUNT NECESSARY TO SUSTAIN THIS PURPOSE. THIS RIGHT SHALL CONTINUE TO BE UTILIZED IN ACCORDANCE WITH HISTORICAL PRACTICES. Source Name UNNAMED TRIBUTARY OF KILL WOMAN CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NWNESE 33 23N 32E PHILLIPS Sec 33 Twp 23N Rge 32E County PHILLIPS Sec 33 Twp 23N Rge 32E County PHILLIPS Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec NWNESE Diversion to Reservoir: DIVERSION # 1 JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NWNESE

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