American Prairie Foundation

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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 ******************************* CASE 40E-0076-R-2022 40E 166593-00 40E 187208-00 40E 187212-00 CLAIMANT: American Prairie Foundation 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. MASTER’S REPORT The above-captioned water rights appeared in the Preliminary Decree for the Missouri River Between Musselshell River and Fort Peck Dam (Basin 40E) issued 1 October 7, 2020. Each claim received one or more issue remarks from the Department of Natural Resources and Conservation (DNRC) identifying potential legal and factual issues with the claim. The claims were consolidated into Case 40E-0076-R-2022 to resolve the issue remarks. FINDINGS OF FACT 1. Claims 40E 166593-00 and 40E 187212-00 are water spreading irrigation claims that each appeared in the Preliminary Decree with the following issue remark: THE CLAIMED POINT OF DIVERSION IS IN QUESTION. THE LOCATION OF THE DIKE CANNOT BE IDENTIFIED FROM AVAILABLE DATA. 2. DNRC notes in the claim files indicate that these issue remarks were placed on the claims because the original maps provided by claimants were poor copies and the DNRC therefore could not locate the dikes on available aerial photographs. The DNRC did not indicate which aerial photographs it reviewed in attempting to locate the dikes. This information is particularly useful where, as here, the water right is for water spreading, which may occur sporadically and not be visible in all aerial photographs. 3. On August 30, 2022, the Claimant filed aerial photographs depicting the places of use and points of diversion. The Claimants do not request any change to the points of diversion for these claims. 4. Claims 40E 166593-00 and 40E 187208-00 also received the following issue remarks, respectively, which serve only to provide notice to water users in the Preliminary Decree (Notice Only Remarks): THE TIMELY FILED OBJECTION OF THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION WAS AMENDED BY THE CLAIMANT TO INCLUDE THE PLACE OF USE BECAUSE THESE ELEMENTS WERE NOT INCLUDED ON THE OBJECTION LIST, ANY WATER USER WHOSE RIGHTS MAY BE ADVERSELY AFFECTED BY ENFORCEMENT OF THESE CHANGES MAY PETITION THE APPROPRIATE COURT FOR RELIEF OR MAY FILE AN OBJECTION AT THE PRELIMINARY DECREE. THE TIMELY FILED OBJECTION OF THE WATER COURT WAS AMENDED BY CONSENT OF THE CLAIMANT N THIS MATTER TO INCLUDE PLACE OF USE. BECAUSE THESE ELEMENTS WERE NOT INCLUDED ON THE OBJECTION LIST, ANY WATER USER WHOSE RIGHTS MAY BE ADVERSELY AFFECTED BY ENFORCEMENT OF THESE CHANGES MAY PETITION THE APPROPRIATE COURT FOR RELIEF OR MAY FILE AN OBJECTION AT THE PRELIMINARY DECREE. 2 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. 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. CONCLUSIONS OF LAW 1. The point of diversion issue remarks fail to overcome the prima facie status of claims 40E 166593-00 and 40E 187212-00 and should be removed from the claims. 2. The Notice Only Remarks do not raise legal or factual issues for the Water Court to resolve. 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 that the Court remove the issue remarks from the above-captioned claims. A post-decree abstract of each water right claim reflecting the recommended changes is attached to this Report. Digitally signed by Eyvind Ostrem Date: 2022.11.02 14:39:17 -06'00' _________________________________ Eyvind Ostrem Senior Water Master Service via Electronic Mail W John Tietz Browning, Kaleczyc, Berry & Hoven PC PO Box 1697 Helena, MT 59624 (406) 443-6820 john@bkbh.com bethany@bkbh.com kathys@bkbh.com 3 \\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\40E PD\40E CASES\76\40E-76 MR; POD in question, Water Spreading; No PF vh 10.27.22.docx 4 October 25, 2022 40E 166593-00 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 166593-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: AMERICAN PRAIRIE FOUNDATION Owners: PO BOX 908 BOZEMAN, MT 59771 0908 Priority Date: APRIL 14, 1908 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: 13.50 AC-FT *Volume: 1 - HIGH Climatic Area: 9.00 *Maximum Acres: JOHNSTON COULEE Source Name: SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County S2NWSE 8 23N 33E PHILLIPS Qtr Sec SENW Sec 8 Twp 23N Rge 33E 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 1.50 2 2.50 NESW 8 23N 33E PHILLIPS 3 5.00 NWSE 8 23N 33E PHILLIPS Total: Govt Lot 9.00 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. 166593-00 187212-00 October 25, 2022 40E 187208-00 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 187208-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE AMERICAN PRAIRIE FOUNDATION Owners: PO BOX 908 BOZEMAN, MT 59771 0908 Priority Date: DECEMBER 31, 1908 Type of Historical Right: USE 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: 87.00 AC-FT *Volume: 1 - HIGH Climatic Area: 58.00 *Maximum Acres: ALFALFA COULEE Source Name: SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NWSWNW 26 24N 32E PHILLIPS Qtr Sec SWNW Sec 26 Twp 24N Rge 32E 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 23.00 2 33.00 W2SW 26 24N 32E PHILLIPS 3 2.00 NWNWNW 35 24N 32E PHILLIPS Total: 58.00 Govt Lot October 25, 2022 40E 187212-00 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 187212-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: AMERICAN PRAIRIE FOUNDATION Owners: PO BOX 908 BOZEMAN, MT 59771 0908 Priority Date: DECEMBER 31, 1900 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: 10.12 AC-FT 1 - HIGH Climatic Area: Maximum Acres: 7.00 Source Name: SPRING, UNNAMED TRIBUTARY OF JOHNSTON COULEE GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWNWSE 8 23N 33E PHILLIPS Qtr Sec NWSE Sec 8 Twp 23N Rge 33E County PHILLIPS NENESW 8 23N 33E PHILLIPS Period of Diversion: APRIL 15 TO DECEMBER 15 Diversion Means: DIKE APRIL 15 TO DECEMBER 15 Period of Use: Place of Use: ID 1 Acres 5.00 2 2.00 Total: Govt Lot 7.00 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. 166593-00 187212-00

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