Seven Blackfoot Co. LLC; State of Montana Board of Land Commissioners

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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: Seven Blackfoot Co. LLC; State of Montana Board of Land Commissioners CASE 40E-0023-R-2022 40E 30131744 40E 30131778 40E 30131806 40E 30155717 40E 30155718 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. 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 1 October 7, 2020. The claims received 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-0023-R-2022 to resolve the issue remarks. FINDINGS OF FACT 1. Claims 40E 30131744, 40E 30131778, and 40E 30131806 are livestock claims that each appeared in the Preliminary Decree with the following issue remark: ACCORDING TO CADASTRAL PROPERTY OWNERSHIP RECORDS, AS OF 09/27/2019 , A PORTION OF THE PROPERTY ON WHICH THIS WATER RIGHT IS USED APPEARS TO BE OWNED BY MONTANA, STATE DEPT OF LAND COMMISSIONERS, TRUST LAND MANAGEMENT DIVISION, PO BOX 201601, HELENA, MT, 59620-1601. 2. On April 15, 2022, Claimant Seven Blackfoot Co. LLC and Potential Owner Montana State Board of Land Commissioners, Trust Land Management Division (TLMD) filed a Stipulation signed by Aislinn Brown for TLMD and Betsy Story for Seven Blackfoot. The Stipulation seeks to resolve the issue remarks on the claims. 3. TLMD and the Claimant agree that portions of the points of diversion and places of use of claims 40E 30131744 and 40E 30131778 should be removed from those claims and used to generate implied claims in the name of TLMD. 4. The parties agree that portions of the points of diversion and places of use of claim 40E 30131806 should be removed from the claim because they consist of state land, but that no right need be implied for TLMD because TLMD already has a use-based livestock claim covering the place of use/point of diversion of that claim. 5. The Stipulation is supported with evidence showing that title for the points of diversion and places of use vested in the State via the Enabling Act of February 22, 1889. The Government Land Office (GLO) survey of parcels covered by claims 40E 30131744 and 40E 30131778 were accepted on May 17, 1893 and November 23, 1916, respectively. These dates predate the priority dates of the claims, and there is no evidence that the state was compensated for these water rights. 6. The claims should be modified, and implied claims created as follows: 40E 30131744 The SENE of Section 36, T21N, R34E should be removed as a point of diversion and place of use for this claim (leaving the SWNE of Section 36 in addition to the other points of diversion and places of use). 2 40E 30155717 (child claim to 40E 30131744) Claim 40E 30155717 should be implied in the name of TLMD, with the same elements as claim 40E 30131744, except that its place of use and point of diversion should be: SENE of Section 36, T21 N, R34 E. 40E 30131778 The NWNWSW of Section 36, T21N, R33E should be removed as a point of diversion and place of use for this claim. 40E 30155718 (child claim to 40E 30131778) Claim 40E 30155718 should be implied, in the name of TLMD, with the same elements as claim 40E 30131778, except that its place of use and point of diversion should be: NWNWSW of Section 36, T21N, R33E 40E 30131806 Section 36, T21N, R33E should be removed as a point of diversion and place of use for this claim. 7. Each claim also received an issue remark providing notice that the claim number was not included in the Basin 40E decree issued 03/07/1985 (Notice-Only Remark). APPLICABLE LAW 1. 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. 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. 2. Pursuant to the Montana Supreme Court’s decision in Department of State Lands v. Pettibone, a person who makes an appropriation of water on school trust land does so on behalf of the State. Dep’t of State Lands v. Pettibone, 216 Mont. 361, 368, 702 P.2d 948, 952 (1985). The title to a water right appropriated on school trust land vests in the State. Id., at 957. 3. Implied claims are authorized in situations where a single statement of claim contains more than one separate water right. Rule 2(33), W.R.C.E.R. An implied claim is warranted if it is justified by some evidence in the claim form, evidence of actual 3 historic use corroborates the implied claim, and the creation of the implied claim does not result in a change to historic water use or increase the historic burden to other water users. Case 76HF-580, OAA, January 31, 2013 at 20. CONCLUSIONS OF LAW 1. TLMD and Seven Blackfoot have established by a preponderance of the evidence that title to certain land originally claimed by claims 40E 30131744, 40E 30131778, and 40E 30131806 vested in the State as school trust land prior to the priority date of those claims. The Stipulation is sufficient to remove those lands from Seven Blackfoot’s claims and warrant generation of implied claims to represent TLMD’s ownership as described in Finding of Fact No. 6, above. These modifications resolve the ownership issue remarks on the claims. 2. The Notice Only Remarks do not raise legal or factual issues for the Water Court to address. They have served their notice purpose and can be removed from the claims. RECOMMENDATIONS Based on the foregoing Findings of Fact and Conclusions of Law, this Master recommends the claims be modified, and implied claims be generated, as described in Finding of Fact No. 6, above, and the issue remarks be removed from the claims. A map of the implied claims’ places of use and a post-decree abstract of the water right claims reflecting the recommended changes is attached to this Report. Digitally signed by Eyvind Ostrem Date: 2022.09.15 11:31:30 -06'00' _________________________________ Eyvind Ostrem Water Master 4 Service via Electronic Mail John E. Bloomquist Betsy R Story Bloomquist Law Firm PC 3355 Colton Dr Ste A Helena, MT 59602-0252 (406) 502-1244 blf@helenalaw.com (represents Seven Blackfoot) Aislinn Brown Assistant Attorney General Agency Legal Services Bureau PO Box 201440 Helena, MT 59620-1440 (406) 444-5857 blcwatercourt@mt.gov Aislinn.brown@mt.gov (represents MT BLC, TLMD) Notice: Caption & Service List Updated 9.14.22 \\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\40E PD\40E CASES\23\40E-23 MR (Pettibone Stip; Implied) vh 8.9.22.docx 5 September 6, 2022 40E 30131744 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 Water Right Number: 40E 30131744 Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: Owners: SEVEN BLACKFOOT CO LLC PO BOX 50790 BILLINGS, MT 59105 Priority Date: MARCH 10, 1925 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 SNOW CREEK, SOUTH FORK Source Type: SURFACE WATER Point of Diversion and Means of Diversion: ID 1 Govt Lot Qtr Sec Sec Twp Rge County NENE 35 21N 34E GARFIELD 21N 34E GARFIELD 21N 34E GARFIELD 21N 34E GARFIELD 21N 34E GARFIELD Period of Diversion: MAY 1 TO NOVEMBER 30 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 2 Period of Diversion: Diversion Means: 3 SWNE 36 MAY 1 TO NOVEMBER 30 LIVESTOCK DIRECT FROM SOURCE N2NW 36 Period of Diversion: MAY 1 TO NOVEMBER 30 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 4 Period of Diversion: Diversion Means: 5 NESENW 36 MAY 1 TO NOVEMBER 30 LIVESTOCK DIRECT FROM SOURCE NENESE 36 Period of Diversion: MAY 1 TO NOVEMBER 30 Diversion Means: LIVESTOCK DIRECT FROM SOURCE Period of Use: MAY 1 TO NOVEMBER 30 September 6, 2022 40E 30131744 Page 2 of 2 Water Court Abstract Place of Use: ID 1 Qtr Sec NENE Sec 35 Twp 21N Rge 34E County GARFIELD SWNE 36 21N 34E GARFIELD 3 N2NW 36 21N 34E GARFIELD 4 NESENW 36 21N 34E GARFIELD 5 NENESE 36 21N 34E GARFIELD 2 Acres Govt Lot September 6, 2022 40E 30131778 Page 1 of 3 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, BETWEEN MUSSELSHELL RIVER AND FORT PECK DAM BASIN 40E Water Right Number: 40E 30131778 STATEMENT OF CLAIM 2 -- POST DECREE Version: Status: Owners: ACTIVE SEVEN BLACKFOOT CO LLC PO BOX 50790 BILLINGS, MT 59105 Priority Date: NOVEMBER 7, 1922 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 SOUTH SAWMILL CREEK Source Type: Source Name Source Type: SURFACE WATER UNNAMED TRIBUTARY OF SOUTH SAWMILL CREEK SURFACE WATER Point of Diversion and Means of Diversion: ID 1 Govt Lot Qtr Sec Sec Twp Rge County 1 NENE 1 20N 33E GARFIELD 20N 33E GARFIELD 20N 33E GARFIELD 20N 33E GARFIELD Source Name: SOUTH SAWMILL CREEK Period of Diversion: MAY 1 TO NOVEMBER 30 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 2 Source Name: S2NE 1 SOUTH SAWMILL CREEK Period of Diversion: MAY 1 TO NOVEMBER 30 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 3 S2NW 1 Source Name: SOUTH SAWMILL CREEK Period of Diversion: MAY 1 TO NOVEMBER 30 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 4 Source Name: S2NE 2 SOUTH SAWMILL CREEK Period of Diversion: MAY 1 TO NOVEMBER 30 Diversion Means: LIVESTOCK DIRECT FROM SOURCE September 6, 2022 40E 30131778 Page 2 of 3 Water Court Abstract 5 Source Name: S2NW 2 20N 33E GARFIELD 20N 33E GARFIELD SOUTH SAWMILL CREEK Period of Diversion: MAY 1 TO NOVEMBER 30 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 6 W2SW 2 Source Name: UNNAMED TRIBUTARY OF SOUTH SAWMILL CREEK Period of Diversion: MAY 1 TO NOVEMBER 30 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 7 Source Name: 2 SWNWNE 3 20N 33E GARFIELD 20N 33E GARFIELD 20N 33E GARFIELD 20N 33E GARFIELD SOUTH SAWMILL CREEK Period of Diversion: MAY 1 TO NOVEMBER 30 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 8 S2NE 3 Source Name: SOUTH SAWMILL CREEK Period of Diversion: MAY 1 TO NOVEMBER 30 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 9 3 S2NENW 3 Source Name: SOUTH SAWMILL CREEK Period of Diversion: MAY 1 TO NOVEMBER 30 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 10 Source Name: NENWNW 11 UNNAMED TRIBUTARY OF SOUTH SAWMILL CREEK Period of Diversion: MAY 1 TO NOVEMBER 30 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 11 SWSE 32 Source Name: SOUTH SAWMILL CREEK Period of Diversion: MAY 1 TO NOVEMBER 30 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 12 Source Name: SW 32 21N 33E GARFIELD 21N 33E GARFIELD 21N 33E GARFIELD SOUTH SAWMILL CREEK Period of Diversion: MAY 1 TO NOVEMBER 30 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 13 E2SE 35 Source Name: SOUTH SAWMILL CREEK Period of Diversion: MAY 1 TO NOVEMBER 30 Diversion Means: LIVESTOCK DIRECT FROM SOURCE MAY 1 TO NOVEMBER 30 Period of Use: Place of Use: ID 1 Acres Govt Lot 1 Qtr Sec NENE Sec 1 Twp 20N Rge 33E County GARFIELD 2 S2NE 1 20N 33E GARFIELD 3 S2NW 1 20N 33E GARFIELD September 6, 2022 40E 30131778 Page 3 of 3 Water Court Abstract 4 S2NE 2 20N 33E GARFIELD 5 S2NW 2 20N 33E GARFIELD 6 W2SW 2 20N 33E GARFIELD SWNWNE 3 20N 33E GARFIELD S2NE 3 20N 33E GARFIELD S2NENW 3 20N 33E GARFIELD 10 NENWNW 11 20N 33E GARFIELD 11 SWSE 32 21N 33E GARFIELD 12 SW 32 21N 33E GARFIELD 13 E2SE 35 21N 33E GARFIELD 7 2 8 9 3 ALL OR A PART OF THE PLACE OF USE CONSISTS OF FEDERAL PUBLIC LANDS. THE WATER RIGHT USED ON THE PUBLIC LANDS IS APPURTENANT TO THE FOLLOWING PRIVATE LANDS: SEC 22 T21N, R33E GARFIELD COUNTY. September 6, 2022 40E 30131806 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 30131806 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: ACTIVE SEVEN BLACKFOOT CO LLC Owners: PO BOX 50790 BILLINGS, MT 59105 Priority Date: APRIL 23, 1929 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 SAWMILL CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County W2NE 31 21N 34E GARFIELD 21N 34E GARFIELD Period of Diversion: MAY 1 TO NOVEMBER 30 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 2 Period of Diversion: NW 31 MAY 1 TO NOVEMBER 30 LIVESTOCK DIRECT FROM SOURCE Diversion Means: MAY 1 TO NOVEMBER 30 Period of Use: Place of Use: ID 1 2 Acres Govt Lot Qtr Sec W2NE Sec 31 Twp 21N Rge 34E County GARFIELD NW 31 21N 34E GARFIELD ALL OR A PART OF THE PLACE OF USE CONSISTS OF FEDERAL PUBLIC LANDS. THE WATER RIGHT USED ON THE PUBLIC LANDS IS APPURTENANT TO THE FOLLOWING PRIVATE LANDS: SEC 22 T21N, R33E GARFIELD COUNTY. September 6, 2022 40E 30155717 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 30155717 Water Right Number: Version: STATEMENT OF CLAIM 1 -- ORIGINAL RIGHT Status: ACTIVE MONTANA STATE BOARD OF LAND COMMISSIONERS Owners: TRUST LAND MANAGEMENT DIVISION PO BOX 201601 HELENA, MT 59620 1601 Priority Date: MARCH 10, 1925 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 SNOW CREEK, SOUTH FORK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SENE 36 21N 34E GARFIELD Twp 21N Rge 34E County GARFIELD Period of Diversion: MAY 1 TO NOVEMBER 1 Diversion Means: LIVESTOCK DIRECT FROM SOURCE MAY 1 TO NOVEMBER 1 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec SENE Sec 36 September 6, 2022 40E 30155718 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 30155718 Water Right Number: Version: STATEMENT OF CLAIM 1 -- ORIGINAL RIGHT Status: ACTIVE MONTANA STATE BOARD OF LAND COMMISSIONERS Owners: TRUST LAND MANAGEMENT DIVISION PO BOX 201601 HELENA, MT 59620 1601 Priority Date: NOVEMBER 7, 1922 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 SOUTH SAWMILL CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NWNWSW 36 21N 33E GARFIELD Twp 21N Rge 33E County GARFIELD Period of Diversion: MAY 1 TO NOVEMBER 1 Diversion Means: LIVESTOCK DIRECT FROM SOURCE MAY 1 TO NOVEMBER 1 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NWNWSW Sec 36

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