East Gallatin LLC; Robert L. McIlhattan; Sharon R. McIlhattan; Valley View Veterinary Hospital LLC

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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: East Gallatin LLC; Robert L. McIlhattan; Sharon R. McIlhattan; Valley View Veterinary Hospital LLC CASE 41H-0589-R-2022 41H 9720-00 41H 139035-00 NOTICE OF INTENT TO APPEAR: Manley Meadows Homeowners Association Inc; Thelma Manley Trust 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 1 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 Water right claims 41H 9720-00 and 41H 139035-00 appeared in the Preliminary Decree for the Gallatin River (Basin 41H) with issue remarks resulting from pre-decree examination by the Department of Natural Resources and Conservation (DNRC). The claims did not receive objections or counter objections. Manley Meadows Homeowners Association, Inc., and the Thelma Manley Trust filed Notices of Intent to Appear (NOIA) to claim 41H 139035-00. To resolve the issue remarks and NOIAs, the Water Court consolidated the claims into case 41H-0589-R-2022. FINDINGS OF FACT 1. David H. Manley and Thelma J. Manley filed the Statement of Claim for claim 41H 139035-00 on April 19, 1982. The Manleys claimed a flow rate of 50 miner’s inches and a volume of 240 acre-feet/year for subirrigation of 60.00 acres. 2. Claim 41H 139035-00 appeared in the Basin 41H Preliminary Decree with the following issue remarks: THE CLAIMED PLACE OF USE AND ACRES IRRIGATED MAY BE QUESTIONABLE. REVIEW OF THE AVAILABLE DATA APPEARS TO INDICATE FEWER ACRES MAY HAVE BEEN IRRIGATED THAN HAS BEEN CLAIMED. FLOW RATE MAY REQUIRE MODIFICATION BASED ON RESOLUTION OF MAXIMUM ACRES ISSUE. VOLUME MAY REQUIRE MODIFICATION BASED ON RESOLUTION OF MAXIMUM ACRES ISSUE. 3. Pursuant to § 85-2-248(5), MCA, the Water Court ordered Claimants East Gallatin LLC, Robert L. McIlhattan, Sharon R. McIlhatten, and Valley View Veterinary Hospital LLC (collectively “Claimants”) to confer with the Bozeman Regional Office of the DNRC to resolve the foregoing issue remarks on claim 41H 139035-00. 2 4. Claimants conferred with the DNRC Bozeman Regional Office, and on July 20, 2022, East Gallatin LLC filed a Notice of Proposed Resolution with the Water Court. The Resolution proposed the following changes: a. Reduce the place of use from 60.00 acres to 46.40 acres. Claimants state that although 60 acres were originally claimed, 46.40 acres is the maximum number of acres historically and currently subirrigated, as quantified by aerial and ground-level imagery submitted with the Resolution. b. Remove the 240.00 acre-feet volume quantification, and replace it with an information remark stating that no volume has been decreed for use of natural subirrigation, pursuant to Sections VII.C and VII.C.3.C of the DNRC Claims Examination Manual. The foregoing DNRC guidelines provide that a volume will not be decreed for direct flow irrigation rights. c. Change the source name from “Waste & Seepage, Unnamed Tributary of East Gallatin River” to “Subirrigation, Unnamed Tributary of East Gallatin River.” Claimants state that DNRC incorrectly changed the source from subirrigation, as listed on the original Statement of Claim, to waste and seepage during claim examination in 1983. 5. On August 31, 2022, DNRC Water Resources Specialist Kara Huyser filed a Memorandum of Claimants’ conference with the department. The Memorandum supports the changes requested in East Gallatin LLC’s Proposed Resolution. 6. The Water Court accepts Claimant East Gallatin LLC’s Proposed Resolution and the following changes can be made to claim 41H 139035-00 a. Volume: NO VOLUME HAS BEEN DECREED FOR THIS USE OF NATURAL SUBIRRIGATION. b. Maximum Acres: 46.40 c. Source Name: SUBIRRIGATION, UNNAMED TRIBUTARY OF EAST GALLATIN RIVER d. Place of Use: i. POD ID No. 1 Acres: 46.40 3 ii. Total Acres: 46.40 7. On June 30, 2022, East Gallatin LLC filed a Notice of Claim Status withdrawing its interest in claim 41H 9720-00. This Notice was not served on the other parties, and was included in DNRC’s Memorandum. 8. Claim 41H 9720-00 appeared with an issue remark stating that DNRC modified the source name during pre-decree review. The purpose of this issue remark is to provide other water users notice of the modification. No objections, counterobjections, or NOIAs were filed. The issue remark served its purpose and can be removed. 9. On September 16, 2022, Thelma Manley Trust and Manley Meadows Homeowners Association, Inc. filed withdrawals of the parties’ NOIAs, conditional upon the above changes to claim 41H 139035-00. 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 Statement 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. 3. The Water Court promotes the resolution of objections and issue remarks through settlement. Rule 16(a), W.R.Adj.R. However, the Court is not bound by settlement agreements. Any settlement reached by the parties is subject to review and approval by the Court. Rule 17(a), W.R.Adj.R. 4. The claimant of a water right may waive the advantage of § 85-2-227, MCA. If a claimant agrees to reduce or limit an element of a claim, the Water Court does not need to determine whether the burden of proof has been met and may accept the 4 reduction or limitation without further presentation of evidence, unless there is an unresolved issue remark on the claim. Rule 17(c), W.R.Adj.R. 5. East Gallatin LLC’s interest in claim 41H 9720-00 is withdrawn. 6. Claimants the advantage of § 85-2-227, MCA, by agreeing to reduce the maximum number of subirrigated acres of claim 41H 139035-00. There are no unresolved issue remarks on the claim, the NOIAs are withdrawn, and the Water Court accepts the reduction without the presentation of further evidence. 7. Information in the record, East Gallatin LLC’s Proposed Resolution, and DNRC’s Memorandum is sufficient to resolve the issue remarks on claims 41H 9720-00 and 41H 139035-00. RECOMMENDATIONS Based on the foregoing Findings of Fact and Conclusions of Law, this Master recommends the Water Court make the above-specified changes to claims 41H 9720-00 and 41H 139035-00. Post decree abstracts of the claims accompany this Report to confirm the changes have been made in the State’s centralized water right record system. Digitally signed by Julia Nordlund Date: 2022.10.04 08:10:39 -06'00' ________________________ Julia J. Nordlund Senior Water Master 5 Service via USPS Mail: East Gallatin LLC 1320 Manley Rd Bozeman, MT 59715-8779 Robert L. McIlhattan Sharon R. McIlhattan 1700 Manley Rd Bozeman, MT 59715-9383 Valley View Veterinary Hospital LLC 2717 McIlhattan Road Bozeman, MT 59715 Service Via Electronic Mail: Michael JL Cusick Jeremy A. Michael Cusick, Farve, Mattick & Refling, P.C. PO Box 1288 Bozeman, MT 59771-1288 (406) 587-5511 office@cmrlawmt.com \\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\41H PD\41H Cases\41H-R589\41H-589-R-2022 MR (ac irr, fr, vol) 09-29-22 ld.docx 6 October 4, 2022 41H 9720-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM GALLATIN RIVER BASIN 41H 41H 9720-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: ROBERT L MCILHATTAN Owners: 1700 MANLEY RD BOZEMAN, MT 59715 9383 VALLEY VIEW VETERINARY HOSPITAL LLC 2717 MCILHATTAN ROAD BOZEMAN, MT 59715 SHARON R MCILHATTAN 1700 MANLEY RD BOZEMAN, MT 59715 9383 Priority Date: JANUARY 1, 1900 Type of Historical Right: USE Purpose (use): DOMESTIC Flow Rate: 5.00 GPM Volume: 2.00 AC-FT 1 Households: Maximum Acres: 1.00 Source Name: SPRING, UNNAMED TRIBUTARY OF CHURN CREEK GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Period of Diversion: Qtr Sec Sec Twp Rge County SWNWSE 30 1S 6E GALLATIN Sec 30 Twp 1S Rge 6E County GALLATIN JANUARY 1 TO DECEMBER 31 PIPELINE Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres 1.00 Total: 1.00 Govt Lot Qtr Sec SWNESW October 4, 2022 41H 139035-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM GALLATIN RIVER BASIN 41H 41H 139035-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: EAST GALLATIN LLC Owners: 1320 MANLEY RD BOZEMAN, MT 59715 8779 Priority Date: DECEMBER 31, 1930 Type of Historical Right: USE Purpose (use): IRRIGATION NATURAL SUBIRRIGATION Irrigation Type: NO FLOW RATE HAS BEEN DECREED FOR THIS USE OF NATURAL SUBIRRIGATION. Flow Rate: Volume: NO VOLUME HAS BEEN DECREED FOR THIS USE OF NATURAL SUBIRRIGATION. 4 - MODERATELY LOW Climatic Area: Maximum Acres: 46.60 Source Name: SUBIRRIGATION, UNNAMED TRIBUTARY OF EAST GALLATIN RIVER GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Period of Diversion: Qtr Sec Sec Twp Rge County E2NE 36 1S 5E GALLATIN Sec 36 Twp 1S Rge 5E County GALLATIN MAY 1 TO OCTOBER 31 SUBIRRIGATION Diversion Means: MAY 1 TO OCTOBER 31 Period of Use: Place of Use: ID 1 Acres 46.60 Total: Govt Lot Qtr Sec E2NE 46.60 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. 139032-00 139035-00

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