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-0714-R-2022 40K 73496-00 40K 73497-00 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. MASTER’S REPORT The above-captioned claims appeared in the Preliminary Decree for the Lower Missouri River Division, Whitewater Creek. The claims received issue remarks during the DNRC’s claims examination. 1 The claims were consolidated into Case 40K-0714-R-2022 to resolve the issue remarks. FINDINGS OF FACT 1. Claims 40K 73496-00 and 40K 73497-00 received the following issue remark: THE PLACE OF USE APPEARS TO NEED MODIFICATION BASED ON THE DNRC CORRECTION TO THE POINT OF DIVERSION. THE CORRECT PLACE OF USE LEGAL LAND DESCRIPTION APPEARS TO BE THE N2NENW SEC 19, TWP 37N, RGE 31E, PHILLIPS COUNTY. 2. On June 9, 2022, the Court ordered Claimant to provide information or evidence if the proposed modifications to the place of use for claims 40K 73496-00 and 40K 73497-00 was not historically accurate. Nothing was filed by the ordered deadline. 3. Each claim also received a notice-type issue remark during the DNRC’s claim reexamination. 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. 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. 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. 6. 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. 2 7. When resolving issue remarks, the Water Court must weigh the information resulting in the issue remark and the issue remark against the claimed water right. Section 85-2-247(2), MCA. The factual evidence on which an issue remark is based must meet the preponderance of evidence standard before the prima facie status of a claim is overcome. 43Q 200996-00 et al., Order Establishing Volume and Order Closing Case, at 18, June 8, 2015. 8. 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. CONCLUSIONS OF LAW 1. The issue remarks regarding the modifications to the place of use for the above-captioned claims remark overcome the prima facie status of the claims. Taken together, the issue remarks, coupled with Claimant’s non-response to the filing deadline indicate that the proposed modifications to the place of use for each claim are historically accurate and show by a preponderance of the evidence that the place of use for each claim should be modified as described in Finding of Fact No. 1. This modification resolves the issue remarks, and the issue remarks should be removed from the claims. 2. The notice-type issue remarks appearing on each of the claims served their notice purpose and should be removed from the claims. RECOMMENDATIONS Based on the foregoing Findings of Fact and Conclusions of Law, this Master recommends that the Court adopt the changes as outlined above. Post decree abstracts of the water right claims reflecting the recommended changes are attached to this Report. Digitally signed by Eugene White Date: 2022.08.31 16:27:07 -06'00' _________________________________ Eugene C. White Water Master 3 Service Via Electronic Mail: USA (Dept. of Interior Bureau of Land Mgmt.) 5001 Southgate Dr. Billings, MT 59101-4669 mnorris@blm.gov MontanaBasins.ENRD@USDOJ.GOV \\judgalh2osrv\Datavol\Share\WC-BASIN FOLDERS\40K PD\CASES\40K-R714\40K-0714-R-2022 MR 8.22.22 rc.docx 4 August 19, 2022 40K 73496-00 Page 1 of 1 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM WHITEWATER CREEK BASIN 40K 40K 73496-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: USA (DEPT OF INTERIOR BUREAU OF LAND MGMT) Owners: 5001 SOUTHGATE DR BILLINGS, MT 59101 4669 Priority Date: NOVEMBER 26, 1935 Type of Historical Right: USE Purpose (use): WILDLIFE Flow Rate: Volume: 0.90 AC-FT Source Name UNNAMED TRIBUTARY OF INTERIOR DRAINAGE 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 N2NENW 19 37N 31E PHILLIPS Twp 37N Rge 31E 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 N2NENW Sec 19 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. 73496-00 73497-00 August 19, 2022 40K 73497-00 Page 1 of 1 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM WHITEWATER CREEK BASIN 40K 40K 73497-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: USA (DEPT OF INTERIOR BUREAU OF LAND MGMT) Owners: 5001 SOUTHGATE DR BILLINGS, MT 59101 4669 Priority Date: NOVEMBER 26, 1935 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 INTERIOR DRAINAGE SURFACE WATER Source Type: POTHOLE LAKE Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County N2NENW 19 37N 31E PHILLIPS Twp 37N Rge 31E 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 N2NENW Sec 19 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. 73496-00 73497-00

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