Beaverhead 7 Up Ranch Inc.

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Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov MONTANA WATER COURT, UPPER MISSOURI DIVISION BEAVERHEAD RIVER - BASIN 41B ********************************* CASE 41B-0500-A-2022 41B 88015-00 CLAIMANT: Beaverhead 7 Up Ranch Inc. 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 to 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 On May 27, 2022, Claimant Beaverhead 7 Up Ranch, Inc. filed a motion to amend Water Right Claim 41B 88015-00. Claimant attached various maps and other evidence. 1 Upon review, the Court may grant Claimant’s motion without further proceedings. For organizational purposes, this claim is consolidated into Water Court Case 41B-0500A-2022. FINDINGS OF FACT 1. Claim 41B 88015-00 is for an irrigation water right in Beaverhead County. 2. Claimant requests the Court modify the abstract of this claim by amending the source from Stodden Slough to Beaverhead River and the ditch name of the point of diversion from Johnson Ditch to Lower River Ditch. 3. Claimant’s Motion to Amend includes an affidavit from Kimberly Laden who states that she and her parents have owned and lived on the subject property since 1939 and that historically this water was delivered from the Beaverhead River through what is known as the Lower River Ditch. Ms. Laden states that the change to the Johnson Ditch out of Stodden Slough was made in error and should be corrected to ensure historical accuracy. 4. Additionally, Claimant’s Motion to Amend includes a statement made by current Beaverhead River Water Commissioner Ted Crampton who echoes the statements made by Ms. Laden stating, “during my time as water commissioner on the Beaverhead River, I have historically delivered 41B 88015-00 water through the Lower River Ditch.” APPLICABLE LAW 1. A properly filed statement of claim is prima facie proof of its content. Section 85-2-227, MCA. The prima facie status of a claim may be overcome by a preponderance of the evidence. Section 85-2-227, MCA; Rule 19, W.R.Adj.R. 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. A claimant may move to amend their water right claim so that the claim more accurately represents historical use. Section 85-2-233, MCA; Rule 10, W.R.Adj.R. Notice to other water right owners may be required if the amendment would adversely affect other water rights. 85-2-233(6)(a)(i). Claimants wishing to amend their claim must overcome the prima facie status of the claim by a preponderance of the evidence. Section 85-2-227, MCA; Rule 19, W.R.Adj.R. 2 CONCLUSIONS OF LAW 1. Basin-wide notice pursuant to Section 85-2-233(6), MCA is not necessary because the requested modification is not likely to adversely affect other water rights in the basin. There is no request to enlarge the amount of water used or make the priority date of either right more senior. Rather, this is a correction to bring the claim back into conformity with historical use. 2. The requested amendment to the source and point of diversion ditch name claim overcomes the prima facie status of the claim by a preponderance of the evidence in the record. RECOMMENDATIONS Based upon the above Findings of Fact and Conclusions of Law, this Master recommends that the Court make the changes specified in the Findings of Fact to correct the Preliminary Decree for this Basin. A post-decree abstract of water right claim is served with this Report to confirm the recommended changes have been made in the state’s centralized record system. Digitally signed by Eugene White Date: 2022.11.01 15:37:49 -06'00' _________________________________ Eugene C. White Water Master Service via USPS Mail: Beaverhead 7 Up Ranch Inc. 6875 MT Hwy 41 Dillon, MT 59725-7303 \\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\41B\Cases\41B-500\41B-0500-A-2022 MR (single claim, MTA filed, change pod back to lower river ditch) vh 10.20.22.docx 3 October 20, 2022 41B 88015-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BEAVERHEAD RIVER BASIN 41B Water Right Number: 41B 88015-00 Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: Owners: BEAVERHEAD 7 UP RANCH INC 6875 MT HWY 41 DILLON, MT 59725 7303 Priority Date: JUNE 15, 1884 Type of Historical Right: DECREED Purpose (use): IRRIGATION Irrigation Type: *Flow Rate: SPRINKLER/FLOOD 9.00 CFS WATER RIGHTS 41B 88015-00 AND 41B 143046-00 ARE BASED ON THE JUNE 15, 1884 WATER RIGHT DECREED TO JOHN BISHOP IN MORGAN V. NYHART, CASE NO. 1053, MONTANA FIFTH JUDICIAL DISTRICT COURT (FEBRUARY 8, 1904). CASE NO. 1053 DECREED 9.0 CFS FOR THIS JUNE 15, 1884 WATER RIGHT. HISTORICALLY, THIS 9.0 CFS HAS IRRIGATED THE ENTIRE PLACE OF USE INDICATED ON BOTH OF THESE CLAIMS. HOWEVER, ONLY A TOTAL FLOW RATE OF 9.0 CFS SHALL BE DIVERTED PURSUANT TO 41B 88015-00 AND 41B 143046-00 AT ANY TIME; THIS SHALL NOT LIMIT THE AMOUNT OF WATER DIVERTED BY THE CLAIM OWNERS PURSUANT TO OTHER WATER RIGHTS. THE OWNERS OF THESE WATER RIGHTS ARE RESPONSIBLE FOR AGREEING AMONGST THEMSELVES IN EACH IRRIGATION SEASON AS TO HOW THE FLOW RATE IS ALLOCATED BETWEEN THE WATER RIGHTS, INCLUDING BUT NOT LIMITED TO ALLOCATION ON A TIME-ROTATION BASIS. IF THE OWNERS CANNOT AGREE, THEN THE FLOW RATE SHALL BE ALLOCATED 1/3 OF THE 9.0 CFS (3.0 CFS) TO WATER RIGHT 41B 88015-00 AND 2/3 OF THE 9.0 CFS (6.0 CFS) TO WATER RIGHT 41B 143046-00 FOR THAT IRRIGATION SEASON OR UNTIL SUCH TIME AS THE OWNERS AGREE TO OTHERWISE ALLOCATE THE 9.0 CFS FLOW RATE BETWEEN THEMSELVES. Volume: Climatic Area: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 3 - MODERATE *Maximum Acres: 236.00 *Source Name: BEAVERHEAD RIVER Source Type: SURFACE WATER *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SESWSE 22 6S 8W BEAVERHEAD Period of Diversion: APRIL 1 TO OCTOBER 1 Diversion Means: HEADGATE Ditch Name: LOWER RIVER DITCH Period of Use: APRIL 1 TO OCTOBER 1 October 20, 2022 41B 88015-00 Page 2 of 2 Post Decree Abstract *Place of Use: ID 1 Acres 69.00 2 Qtr Sec NE Sec 22 Twp 6S Rge 8W County BEAVERHEAD 6.00 NESE 22 6S 8W BEAVERHEAD 3 4.00 NWSE 22 6S 8W BEAVERHEAD 4 29.00 NESW 22 6S 8W BEAVERHEAD 5 0.50 N2SESW 22 6S 8W BEAVERHEAD 6 17.00 W2NE 23 6S 8W BEAVERHEAD 7 106.00 NW 23 6S 8W BEAVERHEAD 4.50 N2NWSW 23 6S 8W BEAVERHEAD 8 Total: Govt Lot 236.00 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. 88011-00 88012-00 88013-00 88014-00 88015-00 88016-00

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