Laura A. Bray; Margaret A. Bray; Robert O. Bray
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FILED 02/28/2023 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 43B-0736-R-2022 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov Lambert, Kathryn 2.00 MONTANA WATER COURT, YELLOWSTONE DIVISION YELLOWSTONE RIVER ABOVE AND INCLUDING BRIDGER CREEK BASIN BASIN 43B PRELIMINARY DECREE ****************************** CLAIMANTS: Laura A. Bray; Margaret A. Bray; Robert O. Bray CASE 43B-0736-R-2022 43B 158527-00 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 finding 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 Laura A. Bray, Margaret A. Bray, and Robert O. Bray claim 43B 158527-00 appeared in the Preliminary Decree with the following remark: THE FLOW RATE IS MISSING. −1− The issue remark was not addressed through the objection process. required to resolve the issues raised by each issue remark. The Water Court is 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 November 3, 2022 the Order Consolidating Case And Setting Filing Deadline was issued which includes the following: The Statement of Claim states that the flow rate is 5.00 gpm. It is unclear why this flow rate is missing. The flow rate has been restored. A DRAFT abstract is attached for the claimants to review. To determine if the claimants agree this is the correct action to take, it is ORDERED that the deadline for the claimants to file a written response concerning the flow rate is December 5, 2022. If no additional information is filed by the deadline, the Court will conclude the claimants agree the flow rate should be 5.00 gpm. Nothing was filed. 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. FINDING OF FACT The Preliminary Decree does not include a flow rate. GPM. The flow rate should be 5.00 The issue remark should be removed as addressed and resolved. CONCLUSION OF LAW The Statement of Claim is sufficient to resolve the issue remark without evidentiary −2− hearing. Sections 85-2-248(3) and (11), MCA. RECOMMENDATIONS Based upon the above Finding 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: Laura A. Bray Margaret A. Bray Robert O. Bray PO Box 714 Culbertson, MT 59218 \\JUDGALH2OSRV\DATAVOL\SHARE\WC-BASIN FOLDERS\43B PD\43B CASES\736R\736R MR 2-22-23 JBC.DOCX −3− Electronically Signed By: Hon. Judge Kathryn Lambert Tue, Feb 28 2023 01:02:16 PM November 2, 2022 43B 158527-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, ABOVE & INCLUDING BRIDGER CREEK BASIN 43B 43B 158527-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: ROBERT O BRAY Owners: PO BOX 714 CULBERTSON, MT 59218 LAURA A BRAY PO BOX 714 CULBERTSON, MT 59218 MARGARET A BRAY PO BOX 714 CULBERTSON, MT 59218 Priority Date: DECEMBER 31, 1965 Type of Historical Right: FILED Purpose (use): STOCK Flow Rate: 5.00 GPM Volume: THIS RIGHT INCLUDES THE AMOUNT OF WATER CONSUMPTIVELY USED FOR STOCK WATERING 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. Source Name: SPRING, UNNAMED TRIBUTARY OF NORTH FORK SEVENMILE CREEK GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NENESE 10 2N 14E SWEET GRASS Sec 10 Twp 2N Rge 14E County SWEET GRASS Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: PIPELINE JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NENESE
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