Amber Ranch, LLC, Roger A. Enrico; Rosemary Enrico

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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 YELLOWSTONE DIVISION SHIELDS RIVER BASIN 43A PRELIMINARY DECREE ******************** CLAIMANT: Amber Ranch, LLC CASE 43A-0603-R-2022 43A 107171-00 OBJECTORS: Roger A. Enrico; Rosemary Enrico 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. 1 MASTER’S REPORT The above-captioned claim appeared in the Preliminary Decree for Basin 43A. Claim 43A 107171-00 received an objection from Roger A. and Rosemary Enrico and a counterobjection from T&P Ranch, LLC and also received issue remarks from the DNRC. The claim was consolidated into Case 43A-0603-R-2022 to resolve the Objection, Counterobjection, and issue remarks. FINDINGS OF FACT 1. A Status Conference for Case 43A-0603-R-2022 took place on March 2, 2022, by telephone conference call. Water Master Eugene C. White presided; Abby Brown appeared on behalf of Counterobjector T&P Ranch, LLC; Suzanne Nellen and Darrel Shehan were present on behalf of Objectors Roger and Rosemary Enrico; and Ross Keough was present on behalf of Claimant Miles Creek Ranch, LLC. 2. During the conference, Ms. Brown alerted the Court that T&P Ranch, LLC had previously withdrawn their counterobjection on March 1, 2022. Based on the withdrawal of the counterobjection, T&P Ranch, LLC was removed from the case and service list. Mr. Keough and Ms. Nellen discussed the Enrico’s remaining objection and the fact that settlement in this case could hinge upon settlement of objections in case 43A 0546-R-2020. The parties agreed to a 90-day filing deadline to file settlement documents or a status report. 3. Claim 43A 107171-00 received substantive issue remarks from the DNRC stating: THE PARK COUNTY WATER RESOURCES SURVEY (1951) APPEARS TO INDICATE 30.00 ACRES IRRIGATED. A DESCRIPTION OF THESE ACRES IS IN THE CLAIM FILE. FLOW RATE MAY REQUIRE MODIFICATION BASED ON RESOLUTION OF MAXIMUM ACRES ISSUE. 4. On April 8, 2022, claimant Miles Creek Ranch, LLC filed a Notice of Resolution and Motion to Amend to Resolve Issue Remarks. The Resolution states that 2 reducing the place of use element for claim 43A 107171-00 from 72 to 30 acres would resolve the issue remarks present on the claim. Further, the Resolution denotes that the Enricos are obligated to withdraw their objections in the instant case in order to resolve objections to certain claims in Case 43A-0546-R-2020. Finally, the Resolution states that the motion is unopposed by the Objectors. 5. Claim 43A 107171-00 also received a notice-type issue remark denoting a modification made to the point of diversion during the DNRC’s reexamination of claims. No objections to the point of diversion were filed. 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. 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 3 overcome. 43Q 200996-00 et al., Order Establishing Volume and Order Closing Case, at 18, June 8, 2015. 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. CONCLUSIONS OF LAW 1. Pursuant to Rule 17(c), W.R.Adj.R., the proposed modification to the acres place of use constitutes a reduction of the element such that the Court may accept the modification to resolve the issue remarks without further review. Based on the parties’ previous agreement in Case 43A-0546-R-2020, the Enrico’s Objection should be considered withdrawn and resolved. 2. The notice-type issue remark appearing on claim 43A 107171-00 served its notice purpose and should be removed from the claim. RECOMMENDATIONS Based on the foregoing Findings of Fact and Conclusions of Law, this Master recommends that the Court adopt the changes as outlined above. A post decree abstract of the water right claim reflecting the recommended changes is attached to this Report. Digitally signed by Eugene White Date: 2022.09.01 13:03:08 -06'00' _________________________________ Eugene C. White Water Master 4 Service Via Electronic Mail: Ross P. Keogh Abigail R. Brown PARSONS BEHLE & LATIMER 127 East Main Street, Suite 301 Missoula, MT 59802 (406) 317-7220 rkeogh@parsonsbehle.com AbbyBrown@parsonsbehle.com docket@parsonsbehle.com ecf@parsonsbehle.com AFortney@parsonsbehle.com AOlson@parsonsbehle.com A. Suzanne Nellen Attorney at Law, PLLC PO Box 668 Sheridan, MT (406) 587-4427 nellen@nellenlaw.com kthomas@nellenlaw.com AOlson@parsonsbehle.com \\judgalh2osrv\Datavol\Share\WC-BASIN FOLDERS\43A PD\Cases\43A-R603\43A-0603-R-2022 MR 7.20.22 rc.docx 5 July 15, 2022 43A 107171-00 Page 1 of 1 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM SHIELDS RIVER BASIN 43A 43A 107171-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE MILES CREEK RANCH, LLC Owners: %FIDUCIARY COUNSELLING INC 30 SEVENTH ST E STE 2000 SAINT PAUL, MN 55101 Priority Date: JUNE 6, 1901 Type of Historical Right: DECREED Purpose (use): IRRIGATION FLOOD Irrigation Type: Flow Rate: 1.88 CFS 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: 30.00 Source Name MILES CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWNWNE 7 1N 8E PARK Sec 6 Twp 1N Rge 8E County PARK Period of Diversion: APRIL 15 TO SEPTEMBER 30 Diversion Means: HEADGATE APRIL 15 TO SEPTEMBER 30 Period of Use: Place of Use: ID 1 Acres 30.00 Total: 30.00 Govt Lot Qtr Sec SE

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