Baobab Properties LLC; Canadian Rose LLC

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FILED 02/28/2023 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 43B-6004-A-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: Baobab Properties LLC; Canadian Rose LLC CASE 43B-6004-A-2022 43B 185653 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 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 On November 16, 2022, Baobab Properties LLC and Canadian Rose LLC filed a Verified Motion to Amend Claim 43B 185653-00 pursuant to section 85-2-233(6), MCA. Motion is viewable in the Court’s FullCourt Enterprise case management system. 1 The Verified APPLICABLE LAW The Montana Water Court has jurisdiction to review a motion to amend pursuant to section 85-2-233(6), MCA. Rule 15 M.R.Civ.P. restricts the scope of the amendments to the conduct, transaction, or occurrence set forth in the original pleading or, in other words, the "same set of operative facts as contained in the original pleading." 423 (1985). Sooy v. Petrolane Steel Gas, Inc., 218 Mont. 418, 422- The requested amendment "merely makes more specific that which has already been alleged." Prentice Lumber Company v. Hukill, 161 Mont. 8, 15 (1972). Notice must be published by newspaper if the requested amendments “may adversely affect other water rights.” Section 85-2-233(6)(a)(i), 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 claimants amending their own claims. Rule 19, W.R.Adj.R. FINDINGS OF FACT 1. The change requested in the Verified Motion to Amend arises out of the same conduct, transaction, or occurrence specified on the original Statement of Claim, is based on the same operative facts specified in the Statement of Claim, and merely makes more specific that which was already claimed on the original Statement of Claim. 2. The Preliminary Decree states that place of use parcel number 4 is in the NENWNW - section 34, T2S, R10E, PARK. The legal description for this parcel should be the NENWNW section 4, T2S, R10E, PARK. CONCLUSIONS OF LAW 1. The requested amendment does not adversely affect other water rights as it is a correction to the abstract which does not make any change to the actual historical use of the claimed right on the ground. Notice by publication of this amendment is not required. Section 85-2-233(6), MCA. 2 2. The requested amendment “merely makes more specific that which has already been alleged.” 3. Prentice Lumber Company v. Hukill, 161 Mont. 8, 15 (1972). The Verified Motion to Amend is sufficient to contradict and overcome the prima facie claim as it appeared in the Preliminary Decree. RECOMMENDATIONS Based upon the above, this Master recommends that the Court grant the Verified Motion to Amend this claim and make the change specified in the Findings of Fact to correct the Preliminary Decree for this Basin. A Post Decree Abstract of the 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: Jean Bergeson Jacy Suenram Suenram & Bergeson, PLLC P.O. Box 1366 Dillon, MT 59725 (406) 683-2391 \\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\43B PD\43B Cases\6004A\6004A mr 2-17-23 jbc.docx. 3 Electronically Signed By: Hon. Judge Kathryn Lambert Tue, Feb 28 2023 01:46:40 PM February 23, 2023 43B 185653-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, ABOVE & INCLUDING BRIDGER CREEK BASIN 43B 43B 185653-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: BAOBAB PROPERTIES LLC Owners: 320 39TH AVENUE EAST SEATTLE, WA 98112 CANADIAN ROSE LLC 320 39TH AVENUE EAST SEATTLE, WA 98112 Priority Date: DECEMBER 31, 1912 Type of Historical Right: USE Purpose (use): STOCK Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED BECAUSE THIS USE CONSISTS OF STOCK DRINKING DIRECTLY FROM THE SOURCE, OR FROM A DITCH SYSTEM. THE FLOW RATE IS LIMITED TO THE MINIMUM AMOUNT HISTORICALLY NECESSARY TO SUSTAIN THIS PURPOSE. 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: WASTE & SEEPAGE, UNNAMED TRIBUTARY OF YELLOWSTONE RIVER SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NENENW 3 2S 10E PARK Period of Diversion: MAY 1 TO NOVEMBER 1 Diversion Means: LIVESTOCK DIRECT FROM SOURCE MAY 1 TO NOVEMBER 1 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NWNENW Sec 3 Twp 2S Rge 10E County PARK SESESW 34 1S 10E PARK 3 SWSESW 34 1S 10E PARK 4 NENWNW 4 2S 10E PARK 2 Remarks: 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. 185653-00 185654-00

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