Eight Mile II LLC; Montana Land & Cattle Co.

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FILED 02/28/2023 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 43B-1005-R-2021 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov Block, Nathaniel 14.00 MONTANA WATER COURT, YELLOWSTONE DIVISION YELLOWSTONE RIVER ABOVE AND INCLUDING BRIDGER CREEK BASIN BASIN 43B PRELIMINARY DECREE ****************************** CLAIMANTS: Eight Mile II LLC; Montana Land & Cattle Co. CASE 43B-1005-R-2021 43B 190421-00 43B 190422-00 43B 190423-00 43B 190429-00 43B 190431-00 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 the Yellowstone River, Above and Including Bridger Creek Basin, (Basin 43B) with issue remarks. 2. On January 29, 2021, the above-captioned claims were consolidated into Water Court Case 43B-1005-R-2021. On December 15, 2021, this Court ordered the claimant to work with the DNRC to resolve the issue remarks on the claims. 3. On February 24, 2022, the DNRC filed a Memorandum detailing several modifications that would resolve the issue remarks. On July 28, 2022, Eightmile Creek PV Ranch, LLC (“Eightmile”) filed a Response to Order Setting Filing Deadline stating that Eightmile had purchased Claimant Eight Mile II, LLC’s ranch and attached a Warranty Deed showing the same and agreed with the DNRC’s proposed changes. On August 5, 2022, Montana Land & Cattle Co. filed a Response agreeing with the DNRC’s proposed changes. 4. Pursuant to the Memorandum, the means of diversion for claim 43B 190421-00 should be modified to ‘Dam’. The Memo further recommended the removal of the issue remarks on the claim. 5. The Memo recommended the removal of the issue remarks appearing on claim 190422-00. The Memo additionally recommended that the claim be modified as follows: Point of Diversion and Means of Diversion: Govt Lot 1 Period of Diversion: Diversion Means: (1, c\r‘Qtr Sec S NENENW- ec 5 D_pv 5S Egg 8E County PARK JANUARY 1 TO DECEMBER 31 -1NSTREAM- 0 AM Reservoir: ON STREAM •. ,„Q ,. Govt Lot ve''', ,r1,70tr Sec Sil-• NENENW Reservoir Name: es 5 5S Rge 8E Diversion to Reservoir: DIVERSION # 1 Period of Use: Add: owyo-lenwr is.° -We-4 JANUARY 1 to DECEMBER 31 De .14,,I0.0-ftLk Place of Use: Acres Govt Lot UPPER POND CoUt PARK , r\SxOtr Sec Sri/c3 NENENW- ec 5 5S Rge 8E SLAT-FA Ce Ptf'(6. 0.914tIcre.s Cva evv} jVI Cot 61C4.-t PARK 6. Pursuant to the Memorandum, the flow rate for claim 43B 190423-00 should be 2 modified to the originally claimed 10 gpm and the flow rate remark should be removed. 7. Pursuant to the Memorandum, the issue remark on claim 43B 190429-00 should be removed. Additionally, the Means of Diversion should be clarified as follows: Diversion Means: —DIKE l'i EADeATE wipTclit (5-Q. PzP E LiJ /FLooP AND D.1:14:6 8. Pursuant to the Memorandum, the issue remarks on claim 43B 190431-00 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. A claimant may move to amend their water right claim so that the claim more accurately represents historical use. Section 85-2-233, MCA; Rule 10, W.R.Adj.R. Notice to other water right owners may be required if the amendment would adversely affect other water rights. 85-2-233(6)(a)(i). Claimants wishing to amend their claim must overcome the prima facie status of the claim 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. CONCLUSION OF LAW 1. Pursuant to the recommendations in the Memorandum, the issue remarks should be removed from the claims. The claims should be modified as discussed in the Memorandum to reflect historical use. Modification of the claims does not appear to 3 adversely affect other water rights. 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. Post Decree Abstracts of Water Right Claims are attached to this Master’s Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. Service via Electronic Mail: Renee L. Coppock Crowley Fleck PLLP PO Box 2529 Billings, MT 59103-2529 (406) 252-3441 rcoppock@crowleyfleck.com acowen@crowleyfleck.com Ryan K. Mattick Cusick, Farve, Mattick & Michael, P.C. PO Box 1288 Bozeman, MT 59771-1288 (406) 587-5511 office@cmrlawmt.com Note: Service List Updated 2-23-2023 \\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\43B PD\43B Cases\1005R\NB 43B-1005-R-2021 MR - Resolution of IRs 248 (multiple claims, means of diversion, POD) 2-232023 bw.docx 4 Electronically Signed By: Hon. Judge Nathaniel Block Tue, Feb 28 2023 10:09:15 AM July 13, 2022 43B 190421-00 Page 1 of 1 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, ABOVE & INCLUDING BRIDGER CREEK BASIN 43B 43B 190421-00 Water Right Number: STATEMENT OF CLAIM 3 -- POST DECREE Version: ACTIVE Status: EIGHTMILE CREEK PV RANCH LLC Owners: 8111 WESTCHESTER DR STE 900 DALLAS, TX 75225 6146 Priority Date: DECEMBER 21, 1971 Type of Historical Right: USE STOCK *Purpose (use): THIS WATER RIGHT IS INCIDENTALLY USED FOR FISH AND WILDLIFE Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED FOR THIS USE FROM THIS ONSTREAM RESERVOIR. 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. EIGHTMILE CREEK *Source Name SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SESESE 32 4S 8E PARK Rge 8E County PARK Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: INSTREAM Reservoir: ONSTREAM Govt Lot Reservoir Name: LOWER POND Qtr Sec SESESE Sec 32 Twp 4S Diversion to Reservoir: DIVERSION # 1 Dam Height: 13.00 FEET Depth: 10.00 FEET Surface Area: 0.88 ACRES Capacity: 3.52 ACRE-FEET THE CAPACITY, DAM HEIGHT, MAXIMUM DEPTH AND SURFACE AREA HAVE BEEN ESTIMATED BY DNRC. JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec SESESE Sec 32 Twp 4S Rge 8E County PARK July 13, 2022 43B 190422-00 Page 1 of 1 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, ABOVE & INCLUDING BRIDGER CREEK BASIN 43B 43B 190422-00 Water Right Number: STATEMENT OF CLAIM 3 -- POST DECREE Version: ACTIVE Status: EIGHTMILE CREEK PV RANCH LLC Owners: 8111 WESTCHESTER DR STE 900 DALLAS, TX 75225 6146 Priority Date: DECEMBER 31, 1971 Type of Historical Right: USE STOCK *Purpose (use): THIS WATER RIGHT IS INCIDENTALLY USED FOR FISH AND WILDLIFE Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED FOR THIS USE FROM THIS ONSTREAM RESERVOIR. 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. EIGHTMILE CREEK *Source Name SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County S2SWSE 5 5S 8E PARK Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Reservoir Name: UPPER POND Qtr Sec S2SWSE Sec 5 Twp 5S Rge 8E County PARK Sec 5 Twp 5S Rge 8E County PARK Diversion to Reservoir: DIVERSION # 1 Dam Height: 13.00 FEET Depth: 10.00 FEET Surface Area: 0.44 ACRES Capacity: 1.76 ACRE-FEET JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec S2SWSE July 13, 2022 43B 190423-00 Page 1 of 1 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, ABOVE & INCLUDING BRIDGER CREEK BASIN 43B 43B 190423-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: EIGHTMILE CREEK PV RANCH LLC Owners: 8111 WESTCHESTER DR STE 900 DALLAS, TX 75225 6146 Priority Date: OCTOBER 8, 1904 Type of Historical Right: DECREED Purpose (use): STOCK Flow Rate: 10.00 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. SPRING, WILLS SPRING *Source Name GROUNDWATER Source Type: THIS IS A CLOSED BASIN. THE FIRST DOWN GRADIENT SOURCE IS EIGHT MILE CREEK *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NENENW 3 5S 8E PARK Qtr Sec NWSENE Sec 34 Twp 4S Rge 8E County PARK NENWNE 35 4S 8E PARK Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: PIPELINE JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 2 Acres Govt Lot July 13, 2022 43B 190429-00 Page 1 of 2 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, ABOVE & INCLUDING BRIDGER CREEK BASIN 43B 43B 190429-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: EIGHTMILE CREEK PV RANCH LLC Owners: 8111 WESTCHESTER DR STE 900 DALLAS, TX 75225 6146 Priority Date: JULY 1, 1875 Type of Historical Right: DECREED Purpose (use): IRRIGATION FLOOD Irrigation Type: 269.00 GPM Flow Rate: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. *Volume: 3 - MODERATE Climatic Area: 505.00 *Maximum Acres: EIGHTMILE CREEK Source Name SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SESESE 33 4S 8E PARK APRIL 15 TO OCTOBER 15 *Period of Diversion: Diversion Means: HEADGATE W/DITCH OR PIPELINE/FLOOD AND DIKE Ditch Name: DARROCH DITCH APRIL 15 TO OCTOBER 15 *Period of Use: *Place of Use: ID 1 Acres 30.00 2 Govt Lot Qtr Sec SENW Sec 34 Twp 4S Rge 8E County PARK 40.00 S2NE 34 4S 8E PARK 3 30.00 NESW 34 4S 8E PARK 4 30.00 NWSE 34 4S 8E PARK 5 45.00 E2SE 34 4S 8E PARK 6 160.00 SW 35 4S 8E PARK 7 40.00 S2NW 35 4S 8E PARK 8 20.00 W2W2SE 35 4S 8E PARK 9 20.00 N2N2NW 2 5S 8E PARK 10 15.00 SESE 26 4S 8E PARK 11 60.00 NE 34 4S 8E PARK July 13, 2022 43B 190429-00 12 Page 2 of 2 Water Court Abstract 15.00 Total: W2NESE 34 4S 8E PARK 505.00 Remarks: THIS WATER RIGHT IS SUBJECT TO A PRIVATE AGREEMENT FILED ON 08/22/1990 AND AN ADDENDUM FILED ON 08/07/1991 DESCRIBED IN THE MASTER'S REPORT LOCATED IN THE CLAIM July 13, 2022 43B 190431-00 Page 1 of 2 Water Court Abstract WATER COURT ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, ABOVE & INCLUDING BRIDGER CREEK BASIN 43B 43B 190431-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: MONTANA LAND & CATTLE CO Owners: 3896 OLD YELLOWSTONE TRAIL N LIVINGSTON, MT 59047 8806 EIGHTMILE CREEK PV RANCH LLC 8111 WESTCHESTER DR STE 900 DALLAS, TX 75225 6146 Priority Date: JULY 1, 1875 Type of Historical Right: DECREED Purpose (use): IRRIGATION SPRINKLER Irrigation Type: 6.25 CFS Flow Rate: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. *Volume: 3 - MODERATE Climatic Area: 505.00 *Maximum Acres: EIGHTMILE CREEK Source Name SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SESESE 33 4S 8E PARK APRIL 15 TO OCTOBER 15 *Period of Diversion: Diversion Means: HEADGATE W/DITCH OR PIPELINE/FLOOD AND DIKE Ditch Name: DARROCH DITCH APRIL 15 TO OCTOBER 15 *Period of Use: *Place of Use: ID 1 Acres 30.00 2 Govt Lot Qtr Sec SENW Sec 34 Twp 4S Rge 8E County PARK 40.00 S2NE 34 4S 8E PARK 3 30.00 NESW 34 4S 8E PARK 4 30.00 NWSE 34 4S 8E PARK 5 45.00 E2SE 34 4S 8E PARK 6 160.00 SW 35 4S 8E PARK 7 40.00 S2NW 35 4S 8E PARK 8 20.00 W2W2SE 35 5S 8E PARK 9 20.00 N2N2NW 2 5S 8E PARK July 13, 2022 43B 190431-00 Page 2 of 2 Water Court Abstract 10 15.00 11 12 Total: SESE 26 4S 8E PARK 60.00 NE 34 4S 8E PARK 15.00 W2NESE 34 4S 8E PARK 505.00 Remarks: THIS WATER RIGHT IS SUBJECT TO A PRIVATE AGREEMENT FILE ON 08/22/1990 AND AN ADDENDUM FILED ON 08/07/1991 LOCATED IN THE MASTER'S REPORT IN THE CLAIM FILE.

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