USA (Dept. of Interior Bureau of Land Mgmt.)

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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 WHITEWATER CREEK - BASIN (40K) PRELIMINARY DECREE ***************************************************** CLAIMANT: USA (Dept. of Interior Bureau of Land Mgmt.) CASE 40K-0200-R-2022 40K 73174-00 40K 73175-00 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, conclusion 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 claims appeared in the Preliminary Decree for Whitewater Creek (Basin 40K) issued on March 7, 2019. The claims are owned by the United States Department of Interior, Bureau of Land Management (BLM). The claims did not receive 1 objections, counterobjections, or notices of intent to appear but did receive issue remarks during the DNRC’s claims reexamination. FINDINGS OF FACT 1. Claims 40K 73174-00 and 40K 73175-00 received the following issue remark: THE CLAIMS LISTED FOLLOWING THIS STATEMENT MAY BE MULTIPLE USE OF THE SAME RIGHT. THESE CLAIMS MAY NEED A MULTIPLE USE REMARK. 40K 73174-00, 40K 73175-00. 2. Claim 40K 73174-00 also received the following issue remark: THE CLAIMED PRIORITY DATE MAY BE QUESTIONABLE. THE PRIORITY DATE ON THE SUBMITTED STATEMENT OF CLAIM FORM IS 01/26/1938. 3. On April 25, 2022, the Court consolidated the claims into Water Court Case 40K-0200-R-2022 and set a filing deadline for Claimant United States of America Bureau of Land Management (“BLM”) to file information or evidence resolving the multiple use issue remark on each claim and addressing the priority date for claim 40K 73174-00. 4. On May 26, 2022, Claimant BLM filed a Response in which it states that BLM agrees that the claims are multiple uses and should each have a multiple use information remark added, and that the priority date for claim 40K 73174-00 should be modified as discussed in the above-listed issue remark. PRINCIPLES OF LAW 1. A properly filed Statement of Claim for an existing water right is prima facie proof of its content. Section 85-2-227, MCA; Rule 10, W.R.Adj.R. 2. Prima facie proof may be contradicted and overcome by a preponderance of the evidence. Rule 19, W.R.Adj.R. 3. A preponderance of the evidence is evidence that shows a fact is “more probable than not.” Hohenlohe v. State, 2010 MT 203, ¶ 33, 357 Mont. 438, 240 P.3d 628. 2 4. If prima facie status is overcome, the burden shifts back to the claimant to demonstrate historical use. 79 Ranch v. Pitsch, 204 Mont. 426, 432-33, 666 P.2d 215, 218 (1983). 5. The Water Court may use information submitted by the DNRC, the Statement of Claim, and any other data obtained by the Court to evaluate a water right. Sections 85-2-227, -231(2), MCA. 6. If a claimant fails to comply with an order issued by the Water Court, the Court may issue orders of sanction that are just. Rule 22, W.R.Adj.R. 7. Sanctions applied against a claimant may include modification of a claim to conform with data provided by the DNRC, information obtained by the Court, or information included in an objection, or the entry of default and termination of a water right claim. Rule 11, W.R.Adj.R. 8. If a claimant agrees to reduce or limit a claim, the Water Court may accept the reduction or limitation without reviewing further evidence, unless an unresolved issue remark remains. Rule 17(c), W.R.Adj.R. 9. The Water Court is not bound by parties’ settlement agreements. Any settlement reached by the parties is subject to review and approval by the Water Court. Rule 17(a), W.R.Adj.R. CONCLUSIONS OF LAW 1. The evidence in the record is sufficient to resolve the issue remarks placed on the above-captioned claims. 2. Based on the information filed in BLM’s Response, the claims should each receive a multiple use remark and the priority date for claim 40K 73174 should be modified as discussed in Finding of Fact No. 2. The issue remarks should be removed. RECOMMENDATIONS Based on the foregoing Findings of Fact and Conclusions of Law, this Master recommends that the Court adopt the changes as outlined above. 3 Post decree abstracts of the water right claims reflecting the recommended changes are attached to this Report. Digitally signed by Eugene White Date: 2022.08.01 14:37:50 -06'00' _________________________________ Eugene C. White Water Master Service via USPS Mail: USA (Dept. of Interior Bureau of Land Mgmt.) 5001 Southgate Dr. Billings, MT 59101-4669 (Last Order) Service Via Electronic Mail: Mark Widerschein, NRS-ENRD US DOJ PO Box 7611 Washington, DC 20044-7611 202-532-5803 Mark.Widerschein@Usdoj.Gov Montanabasins.ENRD@USDOJ.GOV Service List Updated: 7/20/2022 \\judgalh2osrv\Datavol\Share\WC-BASIN FOLDERS\40K PD\CASES\40K-R200\40K-0200-R-2022 MR 7.20.22 rc.docx 4 July 14, 2022 40K 73174-00 Page 1 of 1 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM WHITEWATER CREEK BASIN 40K 40K 73174-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE USA (DEPT OF INTERIOR BUREAU OF LAND MGMT) Owners: 5001 SOUTHGATE DR BILLINGS, MT 59101 4669 Priority Date: JANUARY 26, 1938 Type of Historical Right: USE Purpose (use): WILDLIFE Flow Rate: Volume: 0.90 AC-FT Source Name UNNAMED TRIBUTARY OF WHITEWATER CREEK SURFACE WATER Source Type: POTHOLE LAKE Point of Diversion and Means of Diversion: ID Govt Lot 1 Period of Diversion: Qtr Sec Sec Twp Rge County NWSWNE 8 37N 30E PHILLIPS Twp 37N Rge 30E County PHILLIPS JANUARY 1 TO DECEMBER 31 WILDLIFE DIRECT FROM SOURCE Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NWSWNE Sec 8 Remarks: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 73174-00 73175-00 July 14, 2022 40K 73175-00 Page 1 of 1 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM WHITEWATER CREEK BASIN 40K 40K 73175-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE USA (DEPT OF INTERIOR BUREAU OF LAND MGMT) Owners: 5001 SOUTHGATE DR BILLINGS, MT 59101 4669 Priority Date: JANUARY 26, 1938 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: 0.62 AC-FT Source Name UNNAMED TRIBUTARY OF WHITEWATER CREEK SURFACE WATER Source Type: POTHOLE LAKE Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NWSWNE 8 37N 30E PHILLIPS Twp 37N Rge 30E County PHILLIPS Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NWSWNE Sec 8 Remarks: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 73174-00 73175-00

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