Wagner Revocable Trust

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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, YELLOWSTONE DIVISION YELLOWSTONE RIVER ABOVE AND INCLUDING BRIDGER CREEK BASIN BASIN 43B PRELIMINARY DECREE ****************************** CLAIMANT: Wagner Revocable Trust CASE 43B-0518-R-2022 43B 195178-00 43B 195180-00 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, conclusion 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 mail 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 Each of these claims appeared in the Preliminary Decree with the following remarks: 1 THE CLAIMED FLOW RATE EXCEEDS THE 17 GPM PER ACRE GUIDELINE AND CANNOT BE CONFIRMED DUE TO LACK OF DATA. THE FLOW RATE EQUALS 97.00 GPM PER ACRE. DITCH NAME WAS MODIFIED AS A RESULT OF DNRC REVIEW UNDER MONTANA WATER COURT REEXAMINATION ORDERS. IF NO OBJECTIONS ARE FILED TO THIS CLAIM, THESE ELEMENTS WILL REMAIN AS THEY APPEAR ON THIS ABSTRACT AND THE REMARK WILL BE REMOVED FROM THE CLAIM. The flow rate issue remarks were not addressed through the objection process. Court is required to resolve the issues raised by each issue remark. The Water Section 85-2-248, MCA. Under Section 85-2-248(3), MCA, information in the claim file or other information obtained by the Court can be reviewed to determine if it provides a sufficient basis to resolve the issue raised by a remark and the Court can provide the claimant an opportunity to file additional information or evidence. On August 16, 2022 the claimant filed their response. The response is viewable in the Court’s FullCourt Enterprise case management system. APPLICABLE LAW “All issue remarks to claims that are not resolved through the filing of an objection as provided in 85-2-233 must be resolved as provided in this section.” Section 85-2-248(2), MCA. A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content pursuant to section 85-2-227, MCA. This prima facie proof may be contradicted and overcome by other evidence that proves, by a preponderance of the evidence, that the elements of the claim do not accurately reflect the beneficial use of the water right as it existed prior to July 1, 1973. This is the burden of proof for every assertion that a claim is incorrect including for claimants objecting to their own claims. Rule 19, W.R.Adj.R. FINDINGS OF FACT 1. For both claims, the response states: The flow rates should not be changed. The flow rate issue remarks should be removed as addressed and resolved. 2. The ditch name remarks provide notice of these changes made prior to issuance of 2 the Preliminary Decree and do not raise unresolved issues which need to be addressed. These remarks should be removed as having served their notice purposes. CONCLUSION OF LAW The information provided by the claimant is sufficient to resolve the issue remarks without evidentiary hearing. Sections 85-2-248(3) and (11), MCA. RECOMMENDATIONS Based upon the above Findings of Fact and Conclusion 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 for each claim is served with this Report to confirm the recommended changes have been made in the state's centralized record system. Digitally signed by Kathryn Lambert Date: 2022.09.29 11:21:55 -06'00' ________________________________ Kathryn L. W. Lambert Senior Water Master Service Via USPS Mail: Wagner Revocable Trust 1047 US Highway 89 S Gardiner, MT 59030 \\JUDGALH2OSRV\DATAVOL\SHARE\WC-BASIN FOLDERS\43B PD\CASES\518R\518R MR 9-26-22 NR.DOCX 3 September 27, 2022 43B 195178-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, ABOVE & INCLUDING BRIDGER CREEK BASIN 43B 43B 195178-00 Water Right Number: Version: STATEMENT OF CLAIM 4 -- POST DECREE Status: ACTIVE WAGNER REVOCABLE TRUST Owners: 1047 US HIGHWAY 89 S GARDINER, MT 59030 JUNE 1, 1903 *Priority Date: Type of Historical Right: DECREED Purpose (use): IRRIGATION FLOOD Irrigation Type: 224.00 GPM Flow Rate: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. *Volume: 5 - LOW Climatic Area: 2.31 *Maximum Acres: CEDAR CREEK Source Name: SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NENWNE 13 8S 7E PARK Sec 12 Twp 8S Rge 7E County PARK Period of Diversion: MARCH 15 TO NOVEMBER 15 Diversion Means: HEADGATE Subdivision: ELK PARK Ditch Name: SIMONSON DITCH MARCH 15 TO NOVEMBER 15 Period of Use: *Place of Use: ID 1 Acres 2.31 Qtr Sec SWSW ELK PARK TRACT/LOT: 003 Subdivision: Total: Govt Lot 2.31 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. 195178-00 195179-00 195180-00 September 27, 2022 43B 195178-00 Page 2 of 2 Post Decree Abstract 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. 195178-00 195181-00 September 27, 2022 43B 195180-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, ABOVE & INCLUDING BRIDGER CREEK BASIN 43B 43B 195180-00 Water Right Number: Version: STATEMENT OF CLAIM 4 -- POST DECREE ACTIVE Status: WAGNER REVOCABLE TRUST Owners: 1047 US HIGHWAY 89 S GARDINER, MT 59030 Priority Date: APRIL 7, 1972 Type of Historical Right: DECREED Purpose (use): IRRIGATION FLOOD Irrigation Type: Flow Rate: 225.00 GPM Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 5 - LOW Climatic Area: 2.31 *Maximum Acres: CEDAR CREEK Source Name: SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NENWNE 13 8S 7E PARK Sec 12 Twp 8S Rge 7E County PARK Period of Diversion: MARCH 15 TO JULY 1 Diversion Means: HEADGATE Subdivision: ELK PARK Ditch Name: SIMONSON DITCH MARCH 15 TO JULY 1 Period of Use: *Place of Use: ID 1 Acres 2.31 Qtr Sec SWSW ELK PARK TRACT/LOT: 003 Subdivision: Total: Govt Lot 2.31 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. 195178-00 195179-00 195180-00

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