Perry J. & Lynnda K. Langston Trust

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FILED 02/27/2023 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: Julie __________________ Cristiani 40A-0311-R-2022 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Lauer, Colton 6.00 IN THE WATER COURT OF THE STATE OF MONTANA LOWER MISSOURI DIVISION MUSSELSHELL RIVER ABOVE ROUNDUP BASIN (40A) PRELIMINARY DECREE ******************** CLAIMANT: Perry J. & Lynnda K. Langston Trust I CASE 40A-0311-R-2022 40A 210843-00 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 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. MASTER’S REPORT Water Right Claim 40A 210843-00 appeared in the Preliminary Decree for the Musselshell River, above Roundup (Basin 40A). The claim received issue remarks. Issue remarks result from Department of Natural Resources and Conservation (“DNRC”) claims examination or by Water Court order. Claims examination confirms the historical 1 use of water right claims and identifies issues with claims. If claims examination cannot confirm some aspect of a claim, an issue remark is added to the claim. The claim did not receive any objections or notices of intent to appear. The Court consolidated this claim into Water Court Case 40A-0311-R-2022 on June 29, 2022. The consolidation order set a filing deadline by which Claimant was to file information resolving the issue remarks. The Court reset the filing deadline on October 17, 2022. Perry Langston, representative of Claimant, filed responses on November 14, and 15, 2022. FINDINGS OF FACT 1. Claim 40A 210843-00 appeared with the following issue remarks: FEE INSUFFICIENT TO COVER CLAIM. RESERVOIR RECORD 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 CLAIMED VOLUME APPEARS TO BE EXCESSIVE FOR THE CLAIMED PURPOSE. THE CLAIMED VOLUME EQUALS 32 TIMES THE CAPACITY OF THE RESERVOIR. 2. Perry Langston states the following in the November 14, 2022 response: After reading your letter I must agree that the volume indicated is excessive for the purpose intended. I remeasured the reservoir, and the following are the findings. It is 471 feet across the bottom of the dam and is 486 from the dam to the intake. This gives a total area of 114,453 sq. ft. or 2.63 acre feet of surface. In my discussion with the Lewistown office it is widely accepted that the surface times the 16 feet of depth at the dam produces a volume of 16.8 acre feet of total capacity. The reservoir is used annually for irrigation by pump and line and for watering cattle. It is difficult to cakulate exactly how many times the pond is cycled when we are pumping, because it continues to fill even though we are taking water out of the dam. An educated guess would be that the pond is recycled about 7 times each season and would require approximately 120 acre feet of water. 3. The volume of Claim 40A 210843-00 should be described as 120.00 acre- feet. The surface area and capacity of the claimed reservoir should be described as 2.63 acres and 16.80 acre-feet, respectively. 2 4. The November 15, 2022 filing is a receipt for payment of a fee to the DNRC. An email from Mike Melin of the DNRC indicates the fee is sufficient and resolves the associated issue remark. 5. The issue remarks on Claim 40A 210843-00 should be removed. APPLICABLE LAW 1. A properly filed statement of claim is prima facie proof of its content. Section 85-2-227, MCA. The prima facie status of a claim may be overcome by a preponderance of the evidence. 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, 357 Mont. 438, 240 P.3d 628. 2. The Water Court must weigh an issue remark, and the information resulting in that issue remark, against the claimed water right. Section 85-2-247(2), MCA. 3. The Water Court must resolve all issue remarks not resolved through the objection process. Section 85-2-248, MCA. The Court must review information in the claim file or obtained by the Court to determine if there is a sufficient basis to resolve the remarks. 85-2-248(3), MCA. 4. If a Claimant agrees to reduce an element of their claim, the Court does not need to make a determination as to whether the burden of proof has been met. Rule 17(c), W.R.Adj.R. CONCLUSIONS OF LAW 1. Claimant’s statement proposing a reduction in the claimed volume is sufficient to make the changes described in the Findings of Fact. 2. The evidence in the record and the proposed changes provide the Court with a sufficient basis to resolve and remove each issue remark from the above-captioned claim. RECOMMENDATIONS Based upon the above Findings of Fact and Conclusions 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 3 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: Perry J. & Lynnda K. Langston Trust 14411 235th St SE Snohomish, WA 98296 \\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\40A PD\40A Cases\40A-R311\40A-0311-R-2022 -- MR 2-24-23 jbc.docx 4 Electronically Signed By: Hon. Judge Colton Lauer Mon, Feb 27 2023 01:54:06 PM February 15, 2023 40A 210843-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MUSSELSHELL RIVER, ABOVE ROUNDUP BASIN 40A 40A 210843-00 Water Right Number: STATEMENT OF CLAIM 3 -- POST DECREE Version: ACTIVE Status: LANGSTON, PERRY J & LYNNDA K TRUST Owners: 14411 235TH ST SE SNOHOMISH, WA 98296 Priority Date: MAY 2, 1954 Type of Historical Right: USE Purpose (use): IRRIGATION SPRINKLER Irrigation Type: Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED FOR THIS USE FROM THIS ONSTREAM RESERVOIR. Volume: 120.00 AC-FT 4 - MODERATELY LOW Climatic Area: Maximum Acres: 80.00 Source Name: UNNAMED TRIBUTARY OF AMERICAN FORK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWNWSE 14 6N 14E WHEATLAND Sec 14 Twp 6N Rge 14E County WHEATLAND Sec 14 Twp 6N Rge 14E County WHEATLAND Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec SWNWSE Diversion to Reservoir: DIVERSION # 1 Dam Height: 16.00 FEET Depth: 14.00 FEET 2.63 ACRES Surface Area: 16.80 ACRE-FEET Capacity: MAY 1 TO OCTOBER 1 Period of Use: Place of Use: ID 1 Acres 80.00 Total: Remarks: 80.00 Govt Lot Qtr Sec W2NE February 15, 2023 40A 210843-00 Page 2 of 2 Post Decree Abstract 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. 204372-00 210843-00 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. 201948-00 210843-00

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