Virginia R. Shane

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FILED 12/22/2022 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: Julie __________________ Cristiani 43B-0907-R-2022 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov Lambert, Kathryn 1.00 MONTANA WATER COURT, YELLOWSTONE DIVISION YELLOWSTONE RIVER ABOVE AND INCLUDING BRIDGER CREEK BASIN BASIN 43B PRELIMINARY DECREE ****************************** CLAIMANT: Virginia R. Shane CASE 43B-0907-R-2022 43B 194474-00 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, 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 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 Claim 43B 194474-00 appeared in the Preliminary Decree with the following remarks: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE FILED ON THE SAME FORMERLY DECREED WATER RIGHT. THE SUM OF THE CLAIMED FLOW RATES EXCEEDS THE 200 MINER'S −1− INCHES DECREED IN CASE NO. 11616 , PARK COUNTY. 43B 125014-00, 43B 194342-00, 43B 194390-00, 43B 194341-00, 43B 194474-00. 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 decree exceeded issue remark was not addressed through the objection process. Water Court is required to resolve the issues raised by each issue remark. MCA. The Section 85-2-248, 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. A review of all the claims listed in the decree exceeded issue remark revealed that the five claims identified in the remark are for two different water rights and that there is no overclaiming of either right. The issue remark is erroneous and does not require additional proceedings. 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. Each of the claims identified in the decree exceeded issue remark is based on one of two rights decreed to Fred Peake in Cause No. 11616, Petrich et al. v. Allen et al., Sixth Judicial District, Park County. 1963. Each right is for 200 miner’s inches with priority date June 4, However, one right is decreed for diversion into Carter Ditch and the other is decreed for diversion into Mill Creek Flat Ditch. Claims 43B 125014-00, 43B 194342-00, 43B 194390- 00, and 43B 194474-00 are for the Carter Ditch water right. −2− Claim 43B 194341-00 is for the Mill Creek Flat Ditch water right. The claims were erroneously identified and the flow rates erroneously totaled as for a single right. The total flow rate claimed for each Peake right does not exceed the decreed flow rate for each Peake right. The remark is erroneous and should not have been added to any of the claims listed in the remark. The remark should be removed with no additional proceedings. 2. The other remark provides notice of a change made prior to issuance of the Preliminary Decree and does not raise an unresolved issue which needs to be addressed. This remark should be removed as having served its notice purpose. CONCLUSION OF LAW The information contained in the claim files for this claim and the other four claims identified in the decree exceeded issue remark is sufficient to resolve the decree exceeded issue remark 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 is served with this Report to confirm the recommended changes have been made in the state's centralized record system. ELECTRONICALLY SIGNED AND DATED BELOW Service via USPS Mail: Virginia R. Shane PO Box 33 Pray, MT 59065 \\JUDGALH2OSRV\DATAVOL\SHARE\WC-BASIN FOLDERS\43B PD\CASES\907R\907R MR 12-9-22 JBC.DOCX −3− Electronically Signed By: Hon. Judge Kathryn Lambert Thu, Dec 22 2022 10:23:13 AM December 13, 2022 43B 194474-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, ABOVE & INCLUDING BRIDGER CREEK BASIN 43B 43B 194474-00 Water Right Number: Version: STATEMENT OF CLAIM 4 -- POST DECREE ACTIVE Status: VIRGINIA R SHANE Owners: PO BOX 33 PRAY, MT 59065 0033 Priority Date: JUNE 4, 1963 Type of Historical Right: DECREED Purpose (use): IRRIGATION FLOOD Irrigation Type: Flow Rate: 139.20 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: 23.80 Source Name: MILL CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NWSWNE 33 5S 9E PARK Qtr Sec NESWNE Sec 18 Twp 5S Rge 9E County PARK Period of Diversion: APRIL 15 TO JULY 15 Diversion Means: HEADGATE Ditch Name: CARTER DITCH APRIL 15 TO JULY 15 Period of Use: Place of Use: ID 1 Acres 1.00 2 4.50 NWSWNE 18 5S 9E PARK 3 9.60 SWSWNE 18 5S 9E PARK 4 6.90 SESWNE 18 5S 9E PARK 5 1.80 SESENW 18 5S 9E PARK Total: Govt Lot 23.80 THE PLACE OF USE INCLUDES TRACT 12, PARCEL B OF CERTIFICATE OF SURVEY NO. 834 , PARK COUNTY. Remarks: AUTHORIZATION FOR CHANGE ISSUED 07/13/1989 FOR CHANGE IN POINT OF DIVERSION COMPLETED 11/01/1991. FILE REFLECTS RIGHT AS IT EXISTED PRIOR TO JULY 1973. APPROVED CHANGES WILL BE RECORDED AFTER FINAL DECREE SEE 43B 194469-00

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