Laas Farms Inc., Eagle Creek Colony; United States of America (Bureau of Reclamation)
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FILED 02/28/2023 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41N-0006-R-2019 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Block, Nathaniel 50.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION WILLOW CREEK BASIN (41N) PRELIMINARY DECREE ******************* CLAIMANT: Laas Farms Inc. OBJECTORS: Eagle Creek Colony; United States of America (Bureau of Reclamation) CASE 41N-0006-R-2019 41N 153278-00 41N 153282-00 41N 153283-00 41N 153284-00 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 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. The above-captioned claims appeared in the Preliminary Decree for Willow Creek (Basin 41N) with issue remarks. Eagle Creek Colony and the United States (Bureau of Reclamation) filed Objections to the claims. 2. On August 15, 2019, the above-captioned claims were consolidated into Water Court Case 41N-0006-R-2019. 3. On January 31, 2023, a Stipulation was filed. The Stipulation proposes the modification of claims 41N 153278-00, 41N 153282-00 and 41N 153284-00. The Maps included with the Stipulation are attached to this Report. 4. Pursuant to the Stipulation, the parties propose that claim 41N 153278-00 be modified as follows: Maximum Volume: 3.02 AF THIS WATER RIGHT INCLUDES THE AMOUNT OF WATER CONSUMPTIVELY USED FOR STOCKWATERING PURPOSES AT THE RATE OF 30 GALLONS PER DAY PER ANIMAL UNIT. ANIMAL UNITS SHALL BE BASED ON REASONABLE CARRYING CAPACITY AND HISTORICAL USE OF THE AREA SERVICED BY THIS WATER SOURCE. 5. Pursuant to the Stipulation, the parties propose that claim 41N 153282-00 be modified as follows: Maximum Flow Rate: 102.3 GPM NO FLOW RATE HAS BEEN DECREED FOR THIS USE FROM THIS ONSTREAM RESERVOIR. Maximum Acres: 12.00 6.00 Place of Use: ID Acres Govt Lot 12.00 6.00 1 Total: 12.00 6.00 Qtr Sec SESW Sec 14 Two 33N 11g± County 4E LIBERTY 6. Pursuant to the Stipulation, the parties propose that claim 41N 153282-00 be modified as follows: Irrigation Type: WATER SPREADING 2 Maximum Volume: Maximum Acres: 222.00 AC-FT 1'.1 00 Place of Use: 1 2 3 4 12 75 SWNW 31 50 SW 36 25 SENE NENW 30.5 14 14 14 14 33N 33N 33N 33N 4E 4E 4E 4E LIBERTY LIBERTY LIBERTY LIBERTY TOTAL: 111 ACRES 7. The issue remarks appearing on the claims have served their purpose and should be removed. PRINCIPLES OF LAW 1. The Montana Water Court has the authority to determine the extent of all water rights in the state as they existed prior to July 1, 1973. Fellows v. Saylor, 2016 MT 45, ¶ 25, 382 Mont. 298, 367 P.3d 732; §§ 85-2-233, -102(13), MCA. 2. A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content. § 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. Rule 19, W.R.Adj.R. 3. Where a claimant agrees to reduce or limit an element of a claim, “the water court does not need to determine whether the burden of proof has been met.” Rule 17(c), W.R.Adj.R. The Court may accept the requested reduction or limitation “without further presentation of evidence.” Rule 17(c), W.R.Adj.R. 4. Under Section 3-7-224, MCA the Water Court is directed to conduct hearings in the same manner as for other civil actions. The Water Court applies the Montana Rules of Civil Procedure (M.R.Civ.P.), the Montana Rules of Evidence (M.R.Evid.) and the Montana Uniform District Court Rules. This Master considers stipulations filed with the Court as “other paper” under M.R.Civ.P. Rule 11(b)(3) which certifies that to the best of the parties knowledge the factual contentions contained within the stipulation are 3 supported by evidence. Add to this rule the recognition that “the heart of a judicial process is the development of the truth through conflict between parties with adverse interests.” United States of America (USDI) –Bureau of Indian Affairs)-General Objection to Basin 42B and 42C Preliminary Decrees, Case 42B-1, ¶ 3 at p. 14, (Order Denying Motion June 27, 2014). Considering these tenets, significant weight is given to the stipulation itself to establish the accurate historical use of the claim. CONCLUSIONS OF LAW 1. The claims should be modified as discussed above. Modification of the claims resolves the Objections. 2. The remaining issue remarks have served their purpose and should be removed from the claims. RECOMMENDATION 1. Upon review the record in this case, the above-captioned claims should be modified as discussed above. The issue remarks should be removed from the claims. The Objections should be resolved. Post Decree Abstracts of Water Right Claims are attached to this Master’s Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. 4 Electronically Signed By: Hon. Judge Nathaniel Block Tue, Feb 28 2023 09:41:21 AM Service via USPS Mail: Patrick R. Watt Heather M. Starnes Jardine, Stephenson, Blewett & Weaver, P.C. 300 Central Ave. Suite 700 PO Box 2269 Great Falls, MT 59403-2269 (406) 727-5000 pwatt@jardinelaw.com hstarnes@jardinelaw.com Service via Electronic Mail: Eve McDonald, Attorney US Dept of Justice-ENRD 999 18th Street, South Terrace Suite 370 Denver, CO 80202 (303) 844-1381 Evelyn.mcDonald@usdoj.gov MontanaBasins.ENRD@USDOJ.GOV Nicholas J. Lofing Garlington, Lohn & Robinson, PLLP PO Box 7909 Missoula, MT 59807-7909 (406) 523-2500 njlofing@garlington.com kavangilder@garlington.com kjpeterson@garlington.com \\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\41N PD\41N Cases\6\NB 41N-0006-R-2019 - MR - Stipulation (multiple claims, Volume, POU, MOD) 2-23-2023 bw.docx 5 February 13, 2023 41N 153278-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM WILLOW CREEK BASIN 41N 41N 153278-00 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: ACTIVE LAAS FARMS INC Owners: PO BOX 774 SHELBY, MT 59474 0774 Priority Date: AUGUST 17, 1903 Type of Historical Right: FILED Purpose (use): STOCK Flow Rate: 3.02 AC-FT Volume: THIS WATER RIGHT INCLUDES THE AMOUNT OF WATER CONSUMPTIVELY USED FOR STOCKWATERING PURPOSES AT THE RATE OF 30 GALLONS PER DAY PER ANIMAL UNIT. ANIMAL UNITS SHALL BE BASED ON REASONABLE CARRYING CAPACITY AND HISTORICAL USE OF THE AREA SERVICED BY THIS WATER SOURCE. EAGLE CREEK Source Name: SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge SWSWNW 14 33N 4E LIBERTY Sec 14 Twp 33N Rge 4E County LIBERTY Qtr Sec SENE Sec 15 Twp 33N Rge 4E County LIBERTY W2SWNW 14 33N 4E LIBERTY Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec SWSWNW County Diversion to Reservoir: DIVERSION # 1 JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 2 Acres Govt Lot Remarks: DAM EXTENDS INTO THE SESENE SEC 15 TWP 33N RGE 04E LIBERTY CNTY. February 13, 2023 41N 153282-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM WILLOW CREEK BASIN 41N Water Right Number: 41N 153282-00 Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: LAAS FARMS INC Owners: PO BOX 774 SHELBY, MT 59474 0774 Priority Date: AUGUST 17, 1903 Type of Historical Right: FILED Purpose (use): IRRIGATION Irrigation Type: FLOOD *Flow Rate: 102.30 GPM Volume: 24.00 AC-FT Climatic Area: 3 - MODERATE Maximum Acres: 6.00 Source Name: EAGLE CREEK Source Type: SURFACE WATER Point of Diversion and Means of Diversion: ID Govt Lot 1 Period of Diversion: Diversion Means: Qtr Sec Sec Twp Rge County SWSWNW 14 33N 4E LIBERTY 14 33N 4E LIBERTY 14 33N 4E LIBERTY Sec 14 Twp 33N Rge 4E County LIBERTY Sec 14 Twp 33N Rge 4E County LIBERTY MAY 15 TO AUGUST 4 DAM 2 SWNESW Period of Diversion: MAY 15 TO AUGUST 4 Diversion Means: DAM 3 NWNWSW Period of Diversion: MAY 15 TO AUGUST 4 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec SWSWNW Diversion to Reservoir: DIVERSION # 1 Reservoir: ONSTREAM Govt Lot Qtr Sec SWNESW Diversion to Reservoir: DIVERSION # 2 February 13, 2023 41N 153282-00 Page 2 of 2 Post Decree Abstract ONSTREAM Reservoir: Govt Lot Qtr Sec NWNWSW Sec 14 Twp 33N Rge 4E County LIBERTY Diversion to Reservoir: DIVERSION # 3 DIVERSION TO RESERVOIR #1 IS A DAM THAT EXTENDS INTO THE SESENE OF SEC 15 T33N R4E LIBERTY COUNTY MAY 15 TO AUGUST 4 Period of Use: Place of Use: ID 1 Acres 6.00 Total: Govt Lot Qtr Sec SESW Sec 14 Twp 33N Rge 4E County LIBERTY 6.00 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. 153282-00 153283-00 153284-00 February 13, 2023 41N 153283-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM WILLOW CREEK BASIN 41N Water Right Number: 41N 153283-00 Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE LAAS FARMS INC Owners: PO BOX 774 SHELBY, MT 59474 0774 Priority Date: JUNE 1, 1929 Type of Historical Right: FILED Purpose (use): IRRIGATION Irrigation Type: FLOOD *Flow Rate: NO FLOW RATE HAS BEEN DECREED FOR THIS USE FROM THIS ONSTREAM RESERVOIR. 100.00 AC-FT Volume: Climatic Area: 3 - MODERATE Maximum Acres: 33.00 Source Name: EAGLE CREEK Source Type: SURFACE WATER Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge SWSWNW 14 33N 4E LIBERTY 14 33N 4E LIBERTY 14 33N 4E LIBERTY Sec 14 Twp 33N Rge 4E County LIBERTY Sec 14 Twp 33N Rge 4E County LIBERTY Period of Diversion: MAY 15 TO JULY 24 Diversion Means: DAM 2 SWNESW Period of Diversion: MAY 15 TO JULY 24 Diversion Means: DAM 3 Period of Diversion: NWNWSW County MAY 15 TO JULY 24 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec SWSWNW Diversion to Reservoir: DIVERSION # 1 Reservoir: ONSTREAM Govt Lot Qtr Sec SWNESW Diversion to Reservoir: DIVERSION # 2 February 13, 2023 41N 153283-00 Page 2 of 2 Post Decree Abstract ONSTREAM Reservoir: Govt Lot Qtr Sec NWNWSW Sec 14 Twp 33N Rge 4E County LIBERTY Diversion to Reservoir: DIVERSION # 3 DIVERSION TO RESERVOIR #1 IS A DAM THAT EXTENDS INTO THE SESENE SEC 15 T33N R4E LIBERTY COUNTY MAY 15 TO JULY 24 Period of Use: Place of Use: ID 1 Acres 10.00 2 3 Total: Govt Lot Qtr Sec W2SESW Sec 14 Twp 33N Rge 4E County LIBERTY 16.00 W2NENW 23 33N 4E LIBERTY 7.00 S2NWSW 14 33N 4E LIBERTY 33.00 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. 153282-00 153283-00 153284-00 February 13, 2023 41N 153284-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM WILLOW CREEK BASIN 41N Water Right Number: 41N 153284-00 Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: ACTIVE LAAS FARMS INC Owners: PO BOX 774 SHELBY, MT 59474 0774 Priority Date: OCTOBER 3, 1956 Type of Historical Right: USE Purpose (use): IRRIGATION Irrigation Type: WATER SPREADING Flow Rate: 222.00 AC-FT Volume: Climatic Area: 3 - MODERATE Maximum Acres: 111.00 Source Name: EAGLE CREEK Source Type: SURFACE WATER Point of Diversion and Means of Diversion: ID Govt Lot 1 Period of Diversion: Diversion Means: Qtr Sec Sec Twp Rge County SWSWNW 14 33N 4E LIBERTY 14 33N 4E LIBERTY 14 33N 4E LIBERTY Sec 14 Twp 33N Rge 4E County LIBERTY Sec 14 Twp 33N Rge 4E County LIBERTY JANUARY 1 TO DECEMBER 31 DAM 2 NWNWSW Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM 3 SWNESW Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec SWSWNW Diversion to Reservoir: DIVERSION # 1 Reservoir: ONSTREAM Govt Lot Qtr Sec SWNESW Diversion to Reservoir: DIVERSION # 1 February 13, 2023 41N 153284-00 Page 2 of 2 Post Decree Abstract ONSTREAM Reservoir: Govt Lot Qtr Sec NWNWSW Sec 14 Twp 33N Rge 4E County LIBERTY Qtr Sec SWNW Sec 14 Twp 33N Rge 4E County LIBERTY Diversion to Reservoir: DIVERSION # 1 JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres 12.75 2 31.50 SW 14 33N 4E LIBERTY 3 36.25 SENE 14 33N 4E LIBERTY 4 30.50 NENW 14 33N 4E LIBERTY Total: Govt Lot 111.00 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. 153282-00 153283-00 153284-00 DAM EXTENDS INTO THE SESENE SEC 15 TWP 33N RGE 04E LIBERTY CNTY. 10 Case 41N-R6 41N 153282 00 Stipulation Map 11 FILED 01/31/2023 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: Sara __________________ Calkins 41N-0006-R-2019 Block, Nathaniel 47.00 15 [ ! 14 [ ! 33N 4E [ ! Legend 22 Eagle Creek [ ! 0 41N 153282 00 PODs 41N 153282 00 Stipulated POU (6.00 acres) 41N 153282 00 Claimed POU (12 Acres) Laas Farms Inc 2019 NAIP Aerials MT State Plane NAD 1983 Liberty County, MT 0.125 23 0.25 0.5 Miles EXHIBIT C CERTIFICATE OF SERVICE I, Heather M. Starnes, hereby certify that I have served true and accurate copies of the foregoing Report to the Court - Status Report to the following on 01-31-2023: Nicholas J. Lofing (Attorney) Garlington Lohn & Robinson PLLP PO Box 7909 Missoula MT 59807 Representing: Laas Farms Inc. Service Method: eService Patrick Watt (Attorney) Box 2269 GREAT FALLS MT 59403-2269 Representing: Eagle Creek Colony Service Method: eService Electronically signed by Sarah Olson on behalf of Heather M. Starnes Dated: 01-31-2023 10 FILED 11 01/31/2023 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: Sara __________________ Calkins 41N-0006-R-2019 Block, Nathaniel 48.00 15 ! H 14 ! H 33N 4E ! H 22 23 Legend ! H Claimed POD __, / Claimed POU Case 41N-0006-R-2019 Claim 41N 153284-00 111 acres Proposed POU 2011 Aerial photo 3205 NAD 1983, Montana State Plane For illustrative purposes only. All depictions are approximate. 4 United States R6-1, 0005 -BUREAU OF - 0 660 1,320 RECLAMATION 2,640 Feet Attachment A EXHIBIT D October 19, 2020 CERTIFICATE OF SERVICE I, Heather M. Starnes, hereby certify that I have served true and accurate copies of the foregoing Report to the Court - Status Report to the following on 01-31-2023: Nicholas J. Lofing (Attorney) Garlington Lohn & Robinson PLLP PO Box 7909 Missoula MT 59807 Representing: Laas Farms Inc. Service Method: eService Patrick Watt (Attorney) Box 2269 GREAT FALLS MT 59403-2269 Representing: Eagle Creek Colony Service Method: eService Electronically signed by Sarah Olson on behalf of Heather M. Starnes Dated: 01-31-2023
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