Veseth & Veseth Livestock Co., United States of America (Bureau of Land Management)

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FILED 12/19/2022 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 40E-0018-R-2022 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov Ostrem, Eyvind 9.00 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 ******************************* CLAIMANT: Veseth & Veseth Livestock Co. OBJECTOR: United States of America (Bureau of Land Management) CASE 40E-0018-R-2022 40E 22414-00 40E 30301-00 40E 31476-00 40E 31477-00 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 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 The above-captioned claims appeared in the Preliminary Decree for the Missouri River Between Musselshell River and Fort Peck Dam (Basin 40E) issued October 7, 2020. The United States Bureau of Land Management (United States) objected to claims 40E 22414-00, 40E 31476-00, and 40E 31477-00. Claims 40E 30301-00, 40E 31476-00, and 40E 31477-00 each also received one or more issue remarks from the Department of Natural Resources and Conservation (DNRC) indicating potential legal or factual issues with the claims. The Water Court consolidated the claims into Water Court Case 40E0018-R-2022 to address the objections and issue remarks. On September 1, 2022, the parties filed a Stipulation to Resolve Objections signed by Dale Veseth on behalf of Veseth & Veseth Livestock Co., and Eve McDonald on behalf of the United States. FINDINGS OF FACT Claim 40E 22414-00: 1. Pursuant to the Stipulation, the place of use for claim 40E 22414-00 should be refined as follows: ID Acres 1 Govt Lot Otr Sec W2NE NS Sec Twp 32 24N Qe Count}29E PHILLIPS Claim 40E 30301-00: 2. Claim 40E 30301-00 is a livestock claim to water from an unnamed tributary of Fourchette Creek, North Fork based on a May 23, 1934 Notice of Appropriation filed by Archie L. Carberry. It received the following issue remark raising legal or factual issues: THE CLAIMS LISTED FOLLOWING THIS STATEMENT MAY BE A MULTIPLE USE OF THE SAME RIGHT. THESE CLAIMS MAY NEED A MULTIPLE USE REMARK. 40E 31476-00, 40E 30301-00. 3. In response to the issue remark and pursuant to the Stipulation, the following multiple use informational remark should be added to the claim: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES FILED BY THE ORIGINAL CLAIMANT AND BASED ON 2 THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THIS RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 40E 30301-00, 40E 31476-00, 40E 31477-00. Claim 40E 31476-00: 4. Claim 40E 31476-00 is a flood irrigation claim to water from an unnamed tributary of Fourchette Creek, North Fork based on a May 23, 1934 Notice of Appropriation filed by Archie L. Carberry. It received the following issue remarks raising legal or factual issues: THE CLAIMS LISTED FOLLOWING THIS STATEMENT MAY BE A MULTIPLE USE OF THE SAME RIGHT. THESE CLAIMS MAY NEED A MULTIPLE USE REMARK. 40E 31476-00, 40E 30301-00. THE CLAIMED PRIORITY DATE MAY BE QUESTIONABLE. THE PRIORITY DATE ON THE SUBMITTED NOTICE OF APPROPRIATION ( PHILLIPS CO. BK 1 P 129) IS 5/23/1934. THE CLAIMED VOLUME APPEARS TO BE EXCESSIVE FOR THE CLAIMED PURPOSE. THE CLAIMED VOLUME EQUALS 3.97 TIMES THE CAPACITY OF THE RESERVOIR. 5. In response to the priority date and multiple use issue remarks and pursuant to the Stipulation, the following modifications should be made to the claim: Priority Date: May 29, 1934 May 23, 1934 Maximum Acres: 70.00 48.00 Place of Use: m Otr Sec Sec 24.00 47,00 SW W2 14 23N 29E PHILLIPS 1.00 SWSWNW 14 23N 29E PHILLIPS 3a 1620 N2NENW 23 23N 29E PHILLIPS 4 -3 6.80 NWNWNE 23 23N 29E PHILLIPS Total: Acres Govt CoSn 48.00 4,00 Add informational remark: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES FILED BY THE ORIGINAL CLAIMANT AND BASED ON THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES 3 DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THIS RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 40E 30301-00, 40E 31476-00, 40E 31477-00. 6. The Stipulation does not request a change to the claim’s volume. The volume issue remark was placed on this claim by the DNRC because, after the DNRC estimated the capacity of the reservoir, it determined the volume was 3.97 times that capacity estimate. In some situations, a volume significantly greater than what a reservoir can store signals that the claimed volume is too high. However, in this case, the Statement of Claim includes a calculation showing that the original claimant believed his claimed volume of 27.2 acre-feet was historically only two fills of his reservoir, which is within the DNRC’s standards. Additionally, the claimed volume is reasonable for the irrigated acreage. DNRC volume guidelines in Climatic Area 1 would deem a volume of up to 547.2 acre-feet reasonable for the acreage (11.4 acre-feet x 48.00 acres). 7. The claim also received the following issue remarks that serve only to provide notice to water users (Notice Only Remarks): THE CLAIMANT DID NOT IDENTIFY THE PERIOD OF DIVERSION FOR THIS RIGHT. A PERIOD OF DIVERSION HAS BEEN ADDED TO MATCH THE PERIOD OF USE. IF NO OBJECTIONS ARE RECEIVED TO THE PERIOD OF DIVERSION OR PERIOD OF USE, THOSE ELEMENTS WILL BE DECREED AS SHOWN ON THIS ABSTRACT AND THIS ISSUE REMARK WILL BE REMOVED FROM THIS CLAIM. RESERVOIR RECORD AND SOURCE NAME 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 THE CLAIM. Claim 40E 31477-00: 8. Claim 40E 31477-00 is a water spreading irrigation to Fourchette Creek, North Fork, based on a May 23 1934 Notice of Appropriation filed by Archie L. Carberry. It received the following issue remark raising legal or factual issues: THE CLAIMED POINT OF DIVERSION IS IN QUESTION. THE LOCATION OF THE DIKE CANNOT BE IDENTIFIED FROM AVAILABLE DATA. 4 9. Pursuant to the Stipulation, the following modifications should be made to the claim: Maximum Acres: 70.00 48.00 Place of Use: ID Acres Govt Otr Sec Sec T~vn Rye Con 1 24.00 4740 SW W.a. 14 23N 29E PHILLIPS 2 1.00 SVVSWNW 14 23N 29E PHILLIPS 34 1620 N2NENW 23 23N 29E PHILLIPS 44 6.80 NWNWNE 23 23N 29E PHILLIPS Total: 48.00 70.00 Add informational remark: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES FILED BY THE ORIGINAL CLAIMANT AND BASED ON THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THIS RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 40E 30301-00, 40E 31476-00, 40E 31477-00. 10. The parties do not request a change to the claim’s point of diversion. The DNRC did not indicate what it reviewed before placing the point of diversion issue remark on the claim, and during its initial verification of the claim, a DNRC employee checked a box indicating that the claimed point of diversion appeared correct based on an office photo. It appears no modification of the claim’s point of diversion is necessary. PRINCIPLES OF LAW 1. The Montana Water Court has the authority to determine the extent of all water rights in the state as they existed prior to July 1, 1973. Fellows v. Saylor, 2016 MT 45, ¶ 25, 382 Mont. 298, 367 P.3d 732; §§ 85-2-233, -102(12), MCA. 2. A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content. § 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 the elements of the claim do not accurately reflect the beneficial use of the water right as it 5 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. 3. The claimant of a water right claim may waive the advantage of § 85-2- 227, MCA. If a claimant agrees to reduce or limit an element of a claim, the water court does not need to determine whether the burden of proof has been met. The water court may accept a claimant’s requested reduction or limitation without further presentation of evidence, unless there is an unresolved issue remark on the claim, in which case § 85-2248, MCA, must be applied. Rule 17 (c), W.R.Adj.R.2. 4. 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. 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. Section 85-2248(3), MCA. CONCLUSIONS OF LAW 1. The Findings of Fact above are supported by a preponderance of the evidence. The claims should be modified as described in Findings of Fact 1, 3, 5, and 9, above. The United States’ objections are resolved upon implementing these changes. 2. These modifications resolve the multiple use issue remarks on claims 40E 30301-00 and 40E 31476-00, and the priority date issue remark on claim 40E 31476-00. The volume issue remark on claim 40E 31476-00 and point of diversion remark on claim 40E 31477-00 fail to overcome the prima facie status of those claims. The Notice Only Remarks do not raise legal or factual issues with the claims for the Water Court to resolve and have served their notice purpose. The issue remarks should be removed from the above-captioned claims. 6 RECOMMENDATIONS Based on the foregoing Findings of Fact and Conclusions of Law, this Master recommends the changes described above. A post-decree abstract of each water right claim is attached to this Master’s Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. Service via Electronic Mail Benjamin S Sudduth SUDDUTH LAW PLLC PO Box 507 Bozeman, MT 59771-0507 406-272-2390 benjamin@sudduthlaw.com (represents Veseth & Veseth) Mark Widerschein, Trial Attorney NRS-ENRD US DOJ PO Box 7611 Ben Franklin Station Washington, DC 20044-7611 (202) 532-5803 mark.widerschein@usdoj.gov MontanaBasins.ENRD@USDOJ.GOV Eve W McDonald, Trial Atty US DOJ-ENRD 999 18th St, So Terrace, Ste 370 Denver CO 80202 (303) 844-1381(Eve) Evelyn.mcDonald@usdoj.gov MontanaBasins.ENRD@USDOJ.GOV \\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\40E PD\40E CASES\18\40E-18 MR (Stip Reducing; Addressed IRs)vh 12.2.22.docx 7 Electronically Signed By: Hon. Judge Eyvind Ostrem Mon, Dec 19 2022 09:50:17 AM December 8, 2022 40E 22414-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, BETWEEN MUSSELSHELL RIVER AND FORT PECK DAM BASIN 40E 40E 22414-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE VESETH & VESETH LIVESTOCK CO Owners: 22787 MIDALE RD MALTA, MT 59538 Priority Date: DECEMBER 31, 1956 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 THIRD CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWNWNE 32 24N 29E PHILLIPS Sec 32 Twp 24N Rge 29E County PHILLIPS Sec 32 Twp 24N Rge 29E County PHILLIPS Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec SWNWNE Diversion to Reservoir: DIVERSION # 1 JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec W2NE December 8, 2022 40E 30301-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, BETWEEN MUSSELSHELL RIVER AND FORT PECK DAM BASIN 40E 40E 30301-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE VESETH & VESETH LIVESTOCK CO Owners: 22787 MIDALE RD MALTA, MT 59538 Priority Date: MAY 23, 1934 Type of Historical Right: FILED 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 NORTH FORK FOURCHETTE CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NWSWSW 14 23N 29E PHILLIPS Sec 14 Twp 23N Rge 29E County PHILLIPS Sec 14 Twp 23N Rge 29E County PHILLIPS Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec NWSWSW Diversion to Reservoir: DIVERSION # 1 JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NWSWSW Remarks: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES FILED BY THE ORIGINAL CLAIMANT AND BASED ON THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THIS RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 40E 30301-00, 40E 31476-00, 40E 31477-00. December 8, 2022 40E 31476-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, BETWEEN MUSSELSHELL RIVER AND FORT PECK DAM BASIN 40E 40E 31476-00 Water Right Number: STATEMENT OF CLAIM 3 -- POST DECREE Version: ACTIVE Status: VESETH & VESETH LIVESTOCK CO Owners: 22787 MIDALE RD MALTA, MT 59538 Priority Date: MAY 23, 1934 Type of Historical Right: FILED Purpose (use): IRRIGATION FLOOD Irrigation Type: Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED FOR THIS USE FROM THIS ONSTREAM RESERVOIR. Volume: 27.20 AC-FT 1 - HIGH Climatic Area: Maximum Acres: 48.00 Source Name: UNNAMED TRIBUTARY OF NORTH FORK FOURCHETTE CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NWSWSW 14 23N 29E PHILLIPS Sec 14 Twp 23N Rge 29E County PHILLIPS Qtr Sec SW Sec 14 Twp 23N Rge 29E County PHILLIPS SWSWNW 14 23N 29E PHILLIPS Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec NWSWSW Diversion to Reservoir: DIVERSION # 1 12.00 FEET Dam Height: Depth: 9.00 FEET Surface Area: 1.90 ACRES Capacity: 6.84 ACRE-FEET JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres 24.00 2 1.00 3 16.20 N2NENW 23 23N 29E PHILLIPS 4 6.80 NWNWNE 23 23N 29E PHILLIPS Total: 48.00 Govt Lot December 8, 2022 40E 31476-00 Page 2 of 2 Post Decree Abstract 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. 31476-00 31477-00 THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES FILED BY THE ORIGINAL CLAIMANT AND BASED ON THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THIS RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 40E 30301-00, 40E 31476-00, 40E 31477-00. December 8, 2022 40E 31477-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, BETWEEN MUSSELSHELL RIVER AND FORT PECK DAM BASIN 40E 40E 31477-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: VESETH & VESETH LIVESTOCK CO Owners: 22787 MIDALE RD MALTA, MT 59538 Priority Date: MAY 23, 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: 140.00 AC-FT 1 - HIGH Climatic Area: Maximum Acres: 48.00 Source Name: NORTH FORK FOURCHETTE CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWSWNW 14 23N 29E PHILLIPS Qtr Sec SW Sec 14 Twp 23N Rge 29E County PHILLIPS Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DIKE JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres 24.00 2 1.00 SWSWNW 14 23N 29E PHILLIPS 3 16.20 N2NENW 23 23N 29E PHILLIPS 4 6.80 NWNWNE 23 23N 29E PHILLIPS Total: Govt Lot 48.00 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. 31476-00 31477-00 December 8, 2022 40E 31477-00 Page 2 of 2 Post Decree Abstract THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES FILED BY THE ORIGINAL CLAIMANT AND BASED ON THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THIS RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 40E 30301-00, 40E 31476-00, 40E 31477-00.

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