Tom Tollefson, United States of America (Department of Agriculture Forest Service), Tom Tollefson

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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: Tom Tollefson CASE 43B-1095-R-2021 43B 17166-00 43B 41828-00 OBJECTOR: United States of America (Department of Agriculture Forest Service) COUNTEROBJECTOR: Tom Tollefson 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 FINDINGS OF FACT 1. Tom Tollefson (Tollefson) is the current record owner of claims 43B 17166-00 and 43B 41828-00. 2. Claim 43B 17166-00 was decreed with DNRC issue remarks: 3. The United States of America (Forest Service) objected to claim 43B 41828-00. Tom Tollefson filed a Notice of Intent to Appear. 4. Claim 43B 17166-00 was previously involved in proceedings in Water Court Case 43B-170 to address a decree exceeded issue with other claims that did receive timely filed objections that were properly noticed. The late objection issue remark decreed on claim 43B 17166-00 references a Stipulation filed by the parties in Case 43B-170 on August 15, 1988 (1988 Stipulation). Proper notice was not provided that changes may be made to claim 43B 17166-00 during the Temporary Preliminary Decree, so an issue remark was placed on the claim that the changes would be made to the claim during the next decree – the “late objection” issue remark noted above.1 5. A Status Conference took place on February 9, 2022. Anika M. Stern presided; Tom Tollefson was present and Romney Philpott appeared for the Forest Service. During the Status Conference, the parties discussed the issue remark decreed on claim 43B 17166-00: Claim 43B 17166-00-00 was previously involved in proceedings in Water Court Case, 43B-170. A copy of the August 15, 1988 Stipulation in Case 43B-170 is in the claim file 1 The same issue remark was placed on claim 43B 36543-00 (Case 43B 1079-R-2021) and claim 43B 123895-00 (Case 43B-1069-R-2022). Claim 43B 44516-00 was also addressed in the Stipulation in Case 43B-170 and a Master’s Report was issued in that Case on June 3, 2022 and adopted on June 17, 2022. 2 and is referred to as the “late objection” in the issue remark. Pursuant to the agreement, changes should be to the flow rate, the priority date, the maximum acres, and place of use: Based on this Master’s understanding, it appears the following changes should be made to claim 43B 17166-00: The parties at the Status Conference also discussed the Objection to claim 43B 41828-00. Mr. Philpott indicated the place of use currently describes Forest Service property and it should be modified to exclude Forest Service property. An Order was issued setting a deadline for Mr. Tollefson to file a statement agreeing or disagreeing with the proposed changes for claim 43B 17166-00 and for Mr. Tollefson and the Forest Service to file settlement documents. 3 6. On August 12, 2022, counsel for Tom Tollefson filed a Statement Regarding the August 15, 1988 Stipulation involving claim 43B 17166-00: Claimant agrees with the Stipulation and requests its approval and adoption by the Water Court, so long as the changes called for in the Stipulation are made to all four claims in the Stipulation. 7. On August 15, 2022, a Stipulation was filed resolving the Forest Service Objection to claim 43B 41828-00 and addressing proposed changes to claim 43B 1716600. The parties agree the Objection to claim 43B 41828-00 will be resolved if the claim is modified as follows: Based on the August 15, 2022 Stipulation, the following remark should be added to claim 43B 17166-00: THE PLACE OF USE IS ENTIRELY ON PRIVATE LAND. 8. The August 15, 1988 Stipulation dictated that a remark be added to the involved claims. The following remark was added to claim 43B 44516-00, in the June 3, 2022 Master’s Report: ON AUGUST 15, 1988, THE OWNERS OF CLAIMS 43B 44516-00, 43B 17166-00, 43B 36543-00, AND 43B 12389500 (SPLIT CLAIM 43B 30069662) ENTERED INTO A ROTATIONAL USE AGREEMENT WHEN WATER SHORTAGE MANDATES. A COPY OF THE AGREEMENT IS IN THE CLAIM FILES. This Master proposes the above-listed remark be added to each of the claims involved in the August 15, 1988 Stipulation. 9. Another deadline was set for Mr. Tollefson to agree or disagree with the addition of the rotational use agreement remark to claim 43B 17166-00. On August 26, 2022, Mr. Tollefson filed a statement agreeing with the proposed remark. 4 PRINCIPLES AND CONCLUSIONS OF LAW 1. The Water Court is required to address all issue remarks decreed on claims. Sections 85-2-247, and 85-2-248, MCA. 2. A properly filed Statement of Claim for an existing water right is prima facie proof of its content. Section 85-2-227, MCA. This prima facie validity may be overcome by evidence showing that one or more elements of the claim are incorrect. This standard of proof applies to objectors or claimants objecting to their own water right claims. Rule 19, W.R.Adj.R., Nelson v. Brooks, 2014 MT 120; 375 Mont.86, 95; 329 P.3d 558, 564. 3. The August 15, 1988 Stipulation was signed by Terrill S. and Lois D. Tollefson, the then-record-owners of claim 43B 17166-00. The 1988 Stipulation included the following language regarding successors-in-interest, heirs, and assigns: The terms of the 1988 Stipulation are plain and unambiguous. 4. A properly drafted stipulation is a form of contract to be interpreted according to contract principles. Jensen v. Department of Labor & Indus., Job Serv. Div., 221 Mont. 42, 47, 718 P.2d 1335, 1338 (1986). As applied to Water Court proceedings, a stipulation serves as the terms under which the parties agree to resolve objections, and may include a claimant’s legally binding commitment to modify claims to resolve objections and issue remarks, and an objector’s agreement to withdraw objections conditioned upon the Court’s acceptance of the claim modifications. E.g., In re Pondera Cty. Canal & Reservoir Co., Case 41M-202, 2020 Mont. Water LEXIS 19 (Jan. 9, 2020). 5. The point of diversion and ditch name issue remark decreed on claim 43B 17166-00 is a notice-type issue remark. As no objections were filed, no further proceedings are required. 5 RECOMMENDATIONS 1. Claim 43B 17166-00 should be modified as shown in Finding of Fact No. 4 and the following remarks should be added to the claim: ON AUGUST 15, 1988, THE OWNERS OF CLAIMS 43B 44516-00, 43B 17166-00, 43B 36543-00, AND 43B 12389500 (SPLIT CLAIM 43B 30069662) ENTERED INTO A ROTATIONAL USE AGREEMENT WHEN WATER SHORTAGE MANDATES. A COPY OF THE AGREEMENT IS IN THE CLAIM FILES. THE PLACE OF USE IS ENTIRELY ON PRIVATE LAND. 2. Claim 43B 41828-00 should be modified as shown in Finding of Face No. 6, resolving the Forest Service Objection. 3. The issue remarks should be removed from claims 43B 17166-00 and 43B 41828-00. Post Decree Abstracts of Water Right Claims are served with the Report for review. Digitally signed by Anika Date: 2022.12.01 14:08:29 -07'00' _________________________ Anika M. Stern Senior Water Master Service Via Electronic Mail: Romney S. Philpott, Trial Attorney US Department of Justice ENRD, Natural Resources Section 999 18th Street, South Terrace Suite 370 Denver, CO 80202 (303) 844-1810 romney.philpott@usdoj.gov Montanabasins.enrd@usdoj.gov Christopher Scoones Lund Law PLLC 662 S. Ferguson Ave. Unit 2 Bozeman, MT 59718 scoones@lund-law.com \\judgalh2osrv\Datavol\Share\WC-BASIN FOLDERS\43B PD\CASES\1095R\43B-1095-R-2021 MR 11.29.22 rc.docx 6 TODD KIM, Assistant Attorney General Environment & Natural Resources Division JESSE LASLOVICH, United States Attorney District of Montana ROMNEY S. PHILPOTT, Senior Attorney United States Department of Justice Environment and Natural Resources Division Natural Resources Section 999 18th Street, South Terrace – Suite 370 Denver, CO 80202 (303) 844-1810 ATTORNEYS FOR UNITED STATES OF AMERICA, USDA Forest Service IN THE WATER COURT OF THE STATE OF MONTANA YELLOWSTONE DIVISION YELLOWSTONE RIVER ABOVE AND INCLUDING BRIDGER CREEK – BASIN 43B PRELIMINARY DECREE ******************************* CLAIMANT: Tom Tollefson OBJECTOR: United States of America (Department of Agriculture Forest Service) CASE 43B-1095-R-2021 43B 17166-00 43B 41828-00 COUNTEROBJECTOR: Tom Tollefson STIPULATION TO RESOLVE OBJECTIONS This Stipulation, entered into by the United States of America, Department of Agriculture Forest Service (the “United States”) and Tom Tollefson (“Claimant”), is for the purpose of resolving the United States’ objection to Water Right Claim No. 43B 41828-00 and addressing a proposed modification of the place of use for Water Right Claim No. 43B 17166-00. RECITALS A. Pursuant to Mont. Code Ann. § 85-2-221, Claimant’s predecessor in interest timely filed a Statement of Claim for Claim 43B 17166-00 and 43B 41828-00 (the “Claims”) with the Department of Natural Resources and Conservation (“DNRC”). B. Pursuant to Mont. Code Ann. § 85-2-233, the United States timely filed a Notice of Objection to claim 43B 41828-00 as it appeared on the Preliminary Decree for Basin 43B. Claimant subsequently filed a response to the United States’ objection to claim 43B 41828-00 on a Notice of Counterobjection and Request for Hearing form. C. Claim 43B 41828-00 asserts a filed right for domestic use of water from a spring, which is an unnamed tributary of Big Timber Creek. On the Preliminary Decree, the point of diversion and place of use for the claim are inaccurately described as the SESESE of Section 35, Township 2 North, Range 14 East (“Section 35”), in Sweet Grass County. The claimed use occurs on private land in the NESESE of Section 35. D. Claim 43B-17166-00 asserts a decreed right for irrigation from Big Timber Creek. As described in the Preliminary Decree, the place of use includes 11 acres in the SESE of Section 35 and 5 acres in the NESE of Section 35. The place of use (and other elements) of claim 43B 17166-00 were addressed in a stipulation between Claimant’s predecessor in interest and other parties, executed on July 20, 1988 (“July 20, 1988 Stipulation”), during the Temporary Preliminary Decree proceedings in Water Court Case No. 43B-170. In the instant proceeding on the Preliminary Decree, the Court attached proposed that changes be made to claim 43B 1716600 to make it consistent with the July 20, 1988 Stipulation, including that the place of use be modified such that it is described as including 14.30 acres in the E2E2SE of Section 35. See Court Minutes and Order Setting Filing Deadline (Feb. 11, 2022). This proposed description of the place of use is overbroad and could be construed as including federal land in the SESESE of Section 35. E. In the interest of resolving this case without the need for further litigation, STIPULATION 43B-1095-R-2022 2 Claimants and the United States stipulate to the modification below. STIPULATION 1. The point of diversion and place of use for Claim 43B 41828-00 should be amended to the following (with changes in BOLD): ID 1 Govt Lot Qtr Sec NESESE Sec 35 Twp 2N Rg 14E County SWEET GRASS The proposed abstract attached as Exhibit A to this Stipulation accurately reflects the modification stipulated above. 2. The following information remark should be added to the abstract for Claim 43B 17166-00: THE PLACE OF USE IS ENTIRELY ON PRIVATE LAND. 3. Upon entry of a ruling and final order in this case reflecting the amendments specified above for the Claim, the United States’ objection to claim 43B 41828-00, and the issues raised by Claimant on the Notice of Counterobjection form, shall be deemed resolved, provided that such order(s) do not expand or change other substantive elements of the claim. 4. This Stipulation is the compromise of disputed water claims and is not to be construed as an admission against the interests of any party. 5. The terms of this Stipulation are binding on the parties, their successors, and assignees. Nothing in this Stipulation shall create any right, claim, cause of action, objection, defense, or other remedy in any person not a party to the Stipulation. 6. Each party will bear its own costs and attorney fees arising from the negotiation and execution of the Stipulation and in proceedings before the Montana Water Court regarding this case. 7. Each undersigned party entered into and executed this Stipulation voluntarily, in STIPULATION 43B-1095-R-2022 3 DocuSign Envelope lD: 780D2FD2-256E-49D1 -9C0F-8F8CFCC03EF6 good faith, and without any fraud, misunderstanding, misrepresentation, overreaching, duress, or undue influence, whatsoever. 8. The parties hereto represent and affirm that the signatories to this Stipulation are legally authorized to bind the party to this matter. 9. This Stipulation may be executed by the parties in counterparts, each of which when executed and filed with the Montana Water Court shall be an original, but all of which together shall constitute one instrument. 10. This document (flfl 1-10) embodies the entire Stipulation of the parties. IT IS SO STIPULATED on the date last entered below: TODD KIM, Assistant Afforney General Environment & Natural Resources Division LASLOVICH, United States AfforNEY District of Montana JESSE Dated IILPZ 2022 ROMNE S. , Senior Attorney Romney.Philpott@usdoj.gov | (303) 844-1 810 United States Department of Justice Environment & Natural Resources Division Natural Resources Section 999 18th St. #370 Denver, CO 80202 Electronic Service : MontanaBasins. ENRD@usdoj gov . ATTORNEYS FOR I.INITED STATES OF AMERICA, USDA Forest Service Dated:8/11/2022 2022 (1'w Tom 49 Otter Creek Rd. Big Timber, MT 59011-7754 STIPULATION 43B-1095-R-2022 4 Exhibit A Decree Report - Page 2614 MAY 9, 2019 EXHIBIT A 438 41828-00 Page 1 of 2 PRELIMINARY DECREE YELLOWSTONE RIVER, ABOVE & INCLUDING BRIDGER CREEK BASIN 43I} ABSTITACT OF WATER RIGHT CLAIM IMPORTANT NOTICE YOUR WATER RIGHT AS SHOWN ON THIS ABSTRACT MAY HAVE CHANGES FROM YOUR WATER RIGHT AS CLAIMED OR AMENDED. AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM CHANGBD BY THE MONTANA WATER COURT AFTER ISSUANCE OF THE TEMPORARY PRELIMINARY DECREE OR BY THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION (DNRC) DURING THE PREPARATION OF THIS PRBLIMINARY DECREE. THESE CHANCES ARE AUTHORIZE,D I}Y THE MONTANA SUPREME COURT WATER RIGHT CLAIMS EXAMINATION RULES OR BY ORDER OF THE WATER COURT. OBJECTIONS MAY BE FILED ACCORDING TO THE PROCEDURES OUTLINED IN THE DOCUMENT ENTITLED ''NOTICE OF ENTRY OP PRELIMINARY DECREE AND NOTICE OF AVAILABILITY.'' Water Right Number: 438 41828-00 Vcrsion: Owners: Priority STATEMENT OF CLAIM 2 -- REEXAMINED Status: ACTIVE TOM TOLLEFSON 49 OTTER CREEK RD BIG TIMBER, MT 590117754 Date: FEBRUARY 1, 1970 Type of Historical Right: USE Purpose(use); Flow Rate: Volume: Households: Acres: Source Nante: Sourcc Typc: Maximum DOMESTIC 5.00 GPM 2.00 AC-FT 1 0.50 SPRING, UNNAMED TRIBUTARY OF BIG TIMBER CREEK GROUNDWATER Point of Diversion and Means of Diversion: lD Covt 1 Lot Qtr Sec Sec Twn @ f{€€sESE 35 2N CountY 14E SWEET GRASS Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DEVELOPED SPRING Periocl of Ljse: JANUARY 1 TO DECEMBER Place of Use: lD 1 Total: Remarks: Acres 0.50 0.50 Covt Lot 31 Sec Sec i/E SESESE 35 Qtr Twp 2N Rge Countv 14E SWEET GRASS CERTIFICATE OF SERVICE I hereby certify that on August 15, 2022, I sent a true and correct copy of the foregoing document to the following parties: Service via Electronic Mail: Christopher Scoones Lund Law PLLC 662 S. Ferguson Ave. Unit 2 Bozeman, MT 59718 scoones@lund-law.com /s/ Emily Rabun Emily Rabun, Law Clerk U.S. NOT. OF FILING OF STIP. 43B-1095-R-2021 November 25, 2022 43B 17166-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, ABOVE & INCLUDING BRIDGER CREEK BASIN 43B 43B 17166-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: TOM TOLLEFSON Owners: 49 OTTER CREEK RD BIG TIMBER, MT 59011 7754 Priority Date: JUNE 30, 1897 Type of Historical Right: DECREED Purpose (use): IRRIGATION SPRINKLER/FLOOD Irrigation Type: Flow Rate: 112.20 GPM Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 2 - MODERATELY HIGH Climatic Area: Maximum Acres: 14.30 Source Name: BIG TIMBER CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SESESE 27 2N 14E SWEET GRASS Sec 35 Twp 2N Rge 14E County SWEET GRASS Period of Diversion: APRIL 1 TO OCTOBER 15 Diversion Means: HEADGATE Ditch Name: RUDD DITCH APRIL 1 TO OCTOBER 15 Period of Use: Place of Use: ID 1 Acres 14.30 Total: Govt Lot Qtr Sec E2E2SE 14.30 THE PLACE OF USE IS ENTIRELY ON PRIVATE LAND. Remarks: ON AUGUST 15, 1988, THE OWNERS OF CLAIMS 43B 44516-00, 43B 17166-00, 43B 36543-00, AND 43B 123895-00 (SPLIT CLAIM 43B 30069662) ENTERED INTO A ROTATIONAL USE AGREEMENT WHEN WATER SHORTAGE MANDATES. A COPY OF THE AGREEMENT IS IN THE CLAIM FILES. November 25, 2022 43B 41828-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, ABOVE & INCLUDING BRIDGER CREEK BASIN 43B 43B 41828-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: TOM TOLLEFSON Owners: 49 OTTER CREEK RD BIG TIMBER, MT 59011 7754 Priority Date: FEBRUARY 1, 1970 Type of Historical Right: USE Purpose (use): DOMESTIC Flow Rate: 5.00 GPM Volume: 2.00 AC-FT 1 Households: Maximum Acres: 0.50 Source Name: SPRING, UNNAMED TRIBUTARY OF BIG TIMBER CREEK GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Period of Diversion: Qtr Sec Sec Twp Rge County NESESE 35 2N 14E SWEET GRASS Sec 35 Twp 2N Rge 14E County SWEET GRASS JANUARY 1 TO DECEMBER 31 DEVELOPED SPRING Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres 0.50 Total: 0.50 Govt Lot Qtr Sec NESESE

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