Elaine F. Atkins; John P. Atkins; June Family Trust; Karl J. Ottenstein Trust

Annotate this Case

Download PDF

Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION GALLATIN RIVER BASIN (41H) PRELIMINARY DECREE ******************* CLAIMANTS: Elaine F. Atkins; John P. Atkins; June Family Trust; Karl J. Ottenstein Trust CASE 41H-0424-R-2022 41H 101120-00 41H 30153502 41H 30153503 NOTICE OF FILING OF MASTER’S REPORT This Master’s Report was filed with the Clerk of the Montana Water Court. Please review this Report carefully. You may file a written objection to this Master’s Report if you disagree or find errors with the Master’s Findings of Fact, Conclusions of Law, or Recommendations. The above stamped date indicates the date this Master’s Report was filed and mailed. Pursuant to Water Right Adjudication Rule 23, written objections to a Master’s Report must be filed within 10 days of the date the Report was filed. If this Master’s Report was mailed to you, Rule 6(d) of the Montana Rules of Civil Procedure provides an additional 3 days to the 10-day objection period. If you file an objection, you must mail a copy of the objection to all parties on the Service List found at the end of this 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. 1 MASTER’S REPORT On September 20, 2018, Ben Davis of the Montana Department of Natural Resources and Conservation (“DNRC”) Bozeman Regional Office filed a memorandum with the Montana Water Court, which included a Form 641 DNRC Ownership Update Divided Interest (“641 Form”) for water right claim 41H 101120-00. The memorandum was received shortly before the issuance of the Preliminary Decree for the Gallatin River (Basin 41H), and the Court ordered the split request be held until after the decree was issued. Accordingly, an issue remark regarding the pending split request was placed on the claim. The memorandum, 641 Form, and attached documentation did not provide sufficient information for the Court to accurately split the claim. The 641 Form lacked required seller signatures, the claimants did not submit a deed proving ownership of the claimed place of use, and the June Family Trust’s interest in the claim was not accounted for. On March 8, 2022, the Court consolidated claim 41H 101120-00 into case 41H-0424R-2022 and set a filing deadline for Claimants to submit the missing documents. Elaine F. Atkins and John P. Atkins, the June Family Trust, and the Karl J. Ottenstein Trust filed their response on May 2, 2022, which included a revised 641 Form, property deeds and relevant certificates, and maps. FINDINGS OF FACT 1. Tract 13B of Certificate of Survey (“COS”) No. 621F is owned by Atkins. The parcel transferred from Ross Richardson, bankruptcy trustee for Robert Steinmann and Big West Land Company, to John P. Atkins and Elaine F. Atkins via a grant deed on June 13, 1991, with all appurtenances. On June 14, 1991, Nancy Steinmann transferred her interest in Tract 13B of COS 621F via quitclaim deed to Elaine F. Atkins and John P. Atkins. 2 2. Tract 12B of COS 621I is owned by the Karl J. Ottenstein Trust. The parcel transferred from the Robert K. Jaedicke and Bette H. Jaedicke Living Trust to the Karl J. Ottenstein Trust via a warranty deed on July 1, 2015, with all appurtenances. 3. Tract 9A-1 of COS 621F is owned by the June Family Trust. The parcel transferred from William B. Campbell to the June Family Trust via warranty deed on November 12, 2015, with all appurtenances. 4. Tract 12C of 621K is owned by the Karl J. Ottenstein trust. The parcel transferred from the June Family Trust to the Karl J. Ottenstein Trust via a warranty deed on November 17, 2016, with all appurtenances. 5. Tract 9A-2 of 621K is owned by Jaime L. June and Ronald K. June II. The parcel transferred from the June Family Trust to Jaime L. June and Ronald K. June II, individuals, via a quitclaim deed on May 17, 2021, with all appurtenances. 6. The parties agree that claim 41H 101120-00 should be split proportionally according to ownership of the claimed place of use. Based on the above chains of title, revised 641 Form, and supporting documentation, two new claims should be created from parent claim 41H 101120-00. 7. From parent claim 41H 101120-00, claims 41H 30153502 and 41H 30153503 should be created. Claim 41H 101120-00 shall remain Elaine F. Atkins and John P. Atkins’ portion of the original claim. Claim 41H 30153502 shall be Jaime L. June, Ronald K. June II, and the June Family Trust’s portion of the original claim. Claim 41H 30153503 shall be the Karl J. Ottenstein Trust’s portion of the original claim. 8. The elements of parent claim 41H 101120-00 that change with the split are: OWNER: Elaine F. Atkins and John P. Atkins FLOW RATE: 112 GPM MAX AC: 27.8 acres PLACE OF USE: SESE, Sec. 33, Twp. 2 S, Rge. 5 E 9. The elements of claim 41H 30153502 are identical to parent claim 41H 101120- 00, except for the following: OWNER: Jaime L. June, Ronald K. June II, June Family Trust 3 FLOW RATE: 35 GPM MAX AC: 8.6 acres PLACE OF USE: 1. N2NESE, Sec. 33, Twp. 2 S, Rge. 5 E (3.9 acres) 2. S2NESE, Sec. 33, Twp. 2 S, Rge. 5 E (4.7 acres) 10. The elements of claim 41H 30153503 are identical to parent claim 41H 101120- 00, except for the following: OWNER: Karl J. Ottenstein Trust FLOW RATE: 112 GPM MAX AC: 27.8 acres PLACE OF USE: 1. N2NESE, Sec. 33, Twp. 2 S, Rge. 5 E (5.3 acres) 2. S2NESE, Sec. 33, Twp. 2 S, Rge. 5 E (13.1 acres) 3. SESE, Sec. 33, Twp. 2 S, Rge. 5 E (6.4 acres) 4. NESWSE, Sec. 33, Twp. 2 S, Rge. 5 E (3 acres) 11. The following information remark should be placed on claims 41H 30153502 and 41H 30153503: THIS SPLIT CLAIM WAS AUTHORIZED BY THE WATER COURT BASED ON INFORMATION IN CLAIM NO. 41H 101120-00. CONCLUSIONS OF LAW 1. The Water Court has exclusive jurisdiction to determine the extent of all water rights in Montana as they existed prior to July 1, 1973. In re Deadman’s Basin Water Users Ass’n, 2002 MT 15, ¶ 15; Section 3-7-501, MCA. 2. A properly filed State of Claim for Existing Water Right is prima facie proof of its content. Section 85-2-227, MCA. This prima facie status may be overcome by a preponderance of the evidence showing that an element of the claim is incorrect. 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. 4 3. Montana law allows water rights claimants to amend their statements of claim after the objection period in a basin closes. Motions to amend a claim are governed by Mont. Code Ann. § 85-2-233(6), which states: (6) After the issuance of a temporary preliminary decree or preliminary decree, notice of any motion to amend a statement of claim or a timely filed objection that may adversely affect other water rights must be published for 3 consecutive weeks in two newspapers of general circulation in the basin where the statement of claim or objection was filed. The notice must specify that any response or objection to the proposed amendment must be filed within 45 days of the date of the last notice. The water judge may order any additional notice of the motion as the water judge considers necessary. The cost of notice required pursuant to this subsection must be borne by the moving party. 4. The Water Court may split a claim into separate claims at any time prior to the final decree upon request of the claimants, or on its initiative. Rule 26, W.R.Adj.R. 5. The splitting of claim 41H 101120-00 does not constitute an increase to any of the claim’s elements. The split only serves to accurately reflect the current proportional ownership of the claimed place of use. As a result, the Mont. Code Ann. § 85-2-233(6) notice requirements do not apply. 6. The evidence entered into the record regarding current ownership of the claimed place of use is sufficient to accurately split parent claim 41H 101120-00 based on proportional ownership as stated in the Findings of Fact. RECOMMENDATIONS Based on the above Findings of Fact and Conclusions of Law, this Master recommends that the Court make the changes specified above to split claim 41H 10112000 and correct the Preliminary Decree for Basin 41H. Post-decree abstracts of claims 41H 101120-00, 41H 30153502, and 41H 30153503 are served with this report to confirm the recommended changes have been made in the State’s centralized record system. Digitally signed by Julia Nordlund Date: 2022.07.06 09:58:20 -06'00' ________________________ Julia J. Nordlund Senior Water Master 5 Service via USPS Mail: John P. Atkins Elaine F. Atkins 4265 Johnson Rd Bozeman, MT 59715 June Family Trust Ronald K. II & Jaime L. June Trustees 8751 Cottonwood Rd Bozeman, MT 59718-7810 Karl J. Trust Ottenstein Karl J. Trustee Ottenstein PO Box 3084 Bozeman, MT 59772-3084 \\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\41H PD\41H Cases\41H-R424\41H-424-R-2022 MR 06-27-22 ld.docx 6 June 29, 2022 41H 101120-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM GALLATIN RIVER BASIN 41H 41H 101120-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: ELAINE F ATKINS Owners: 4265 JOHNSON RD BOZEMAN, MT 59715 JOHN P ATKINS 4265 JOHNSON RD BOZEMAN, MT 59715 Priority Date: OCTOBER 31, 1869 Type of Historical Right: DECREED Purpose (use): IRRIGATION FLOOD Irrigation Type: 112.00 GPM Flow Rate: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. *Volume: 4 - MODERATELY LOW Climatic Area: Maximum Acres: 27.80 Source Name: HYALITE CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge NESENE 4 3S 5E GALLATIN Sec 33 Twp 2S Rge 5E County GALLATIN Period of Diversion: APRIL 10 TO NOVEMBER 10 Diversion Means: HEADGATE Ditch Name: PLUMB DITCH County APRIL 10 TO NOVEMBER 10 Period of Use: Place of Use: ID 1 Acres 27.80 Total: Govt Lot Qtr Sec SESE 27.80 Remarks: THE SPLIT CLAIMS LISTED FOLLOWING THIS STATEMENT WERE AUTHORIZED AND GENERATED BASED ON INFORMATION IN THIS CLAIM. 41H 30153502, 41H 30153503. June 29, 2022 41H 30153502 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM GALLATIN RIVER BASIN 41H 41H 30153502 Water Right Number: Version: STATEMENT OF CLAIM 1 -- ORIGINAL RIGHT Status: ACTIVE JAIME L JUNE Owners: 8751 COTTONWOOD RD BOZEMAN, MT 59718 7810 RONALD K JUNE II 8751 COTTONWOOD RD BOZEMAN, MT 59718 7810 JUNE FAMILY TRUST %JUNE RONALD K II & JAIME L TRUSTEES 8751 COTTONWOOD RD BOZEMAN, MT 59718 7810 Priority Date: OCTOBER 31, 1869 Type of Historical Right: DECREED Purpose (use): IRRIGATION FLOOD Irrigation Type: Flow Rate: 35.00 GPM Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 4 - MODERATELY LOW Climatic Area: Maximum Acres: 8.60 Source Name: HYALITE CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge NESENE 4 3S 5E GALLATIN Qtr Sec N2NESE Sec 33 Twp 2S Rge 5E County GALLATIN S2NESE 33 2S 5E GALLATIN Period of Diversion: APRIL 10 TO NOVEMBER 10 Diversion Means: HEADGATE Ditch Name: PLUMB DITCH County APRIL 10 TO NOVEMBER 10 Period of Use: Place of Use: ID 1 Acres 3.90 2 4.70 Total: Remarks: 8.60 Govt Lot June 29, 2022 41H 30153502 Page 2 of 2 Post Decree Abstract THIS SPLIT CLAIM WAS AUTHORIZED BY THE WATER COURT BASED ON INFORMATION IN CLAIM NO. 41H 101120-00. June 29, 2022 41H 30153503 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM GALLATIN RIVER BASIN 41H 41H 30153503 Water Right Number: Version: STATEMENT OF CLAIM 1 -- ORIGINAL RIGHT ACTIVE Status: OTTENSTEIN, KARL J TRUST Owners: %OTTENSTEIN KARL J TRUSTEE PO BOX 3084 BOZEMAN, MT 59772 3084 Priority Date: OCTOBER 31, 1869 Type of Historical Right: DECREED Purpose (use): IRRIGATION FLOOD Irrigation Type: Flow Rate: 112.00 GPM Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 4 - MODERATELY LOW Climatic Area: Maximum Acres: 27.80 Source Name: HYALITE CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge NESENE 4 3S 5E GALLATIN Qtr Sec N2NESE Sec 33 Twp 2S Rge 5E County GALLATIN Period of Diversion: APRIL 10 TO NOVEMBER 10 Diversion Means: HEADGATE Ditch Name: PLUMB DITCH County APRIL 10 TO NOVEMBER 10 Period of Use: Place of Use: ID 1 Acres 5.30 2 13.10 S2NESE 33 2S 5E GALLATIN 3 6.40 SESE 33 2S 5E GALLATIN 4 3.00 NESWSE 33 2S 5E GALLATIN Total: Govt Lot 27.80 Remarks: THIS SPLIT CLAIM WAS AUTHORIZED BY THE WATER COURT BASED ON INFORMATION IN CLAIM NO. 41H 101120-00. Exhibit 2: Current Property Ownership Identification RED BORDER = SE Sec 33 Twp 2S R 5E June/Ottenstein Tracts 9A-2 and 12C per COS 621K June Ottenstein Atkins Exhibit 5: COS 621K with Non-Road Acreage Calculated Acreages here exclude roads which are otherwise part of Tract boundaries 43,560 s.f. to an acre E 1/4 COR SEC 33 S01°01'31"W 76.83' POINT OF BEGINNING CT TRA 5B- 2 S 621 CO H R.M. FND REBAR 60' WID 1 H 4' T E °45'28" W.C. 31.5' (M) CT TRA N40°48'44"E a distance of 56.07' From Reference Monument to Corner Postion MEN ASE ITYE 1388.0 N72 95' 573. UTIL S 621 CO S& CES 5B- EAC CT TRA 60' WIDECOUNTY ROAD(COTTONWOOD ROAD) 6A S 621 CO E FND YPC (GASTON) 30' 09' 814. 30' W.C. 32' FND YPC TEL W.C. 31' 1 421,020 sq ft =9.6653 acres without road FND YPC (GASTON) 392,480.25 sq ft = 9.01 acres without roads 706.78' G 60' WIDEACCESS & UTILITYEASEMENT (GASTON) N01°00'51"E 7A- S 621 CO 103.79' CT TRA FND YPC TRACT 9A-2 10.22 acres PREVIOUS N01°14'35"E G W.C. 3' S88°25'48"E 774.93' (M) PREVIOUS LOT LINE (M) W.C. 34.75' FND YPC 348.71' 450,089.5 sq ft =10.3326 acres this portion without road FND YPC (M) (GASTON) S88°28'44"E 626.04' FND REBAR BENT 411,263.5 sq ft =9.4413 acres this portion without road TRACT 12C (M) 46.86 acres PREVIOUS TRACT 12B N06°00'32"W FND YPC (M) N88°25'18"W 1322.37' W.C. 30' 663.82' 11A 1000.27' I (M) S01°13'27"W 75' WIDECOUNTY ROAD(COTTONWOOD ROAD) 1,252,643 sq ft =28.7567 acres without roads N03°36'19"W 45' 664.31' 30' W.C. 24' W.C. 30' FND AL. CAP FND YPC (M) N88°38'21"W 486.43' 60' WIDECOUNTY ROAD(JOHNSON ROAD) S 621 CO (M) CT TRA SE COR SEC 33 (R) 10A S 621 CO S01°01'31"W CT TRA S00°10'11"E 792.94' 1558.91' 340.44' TRACT 9A-1

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.