Zachariah E. Thompson

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FILED 02/14/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 39G-0010-I-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov Ostrem, Eyvind 4.00 IN THE WATER COURT OF THE STATE OF MONTANA YELLOWSTONE DIVISION BEAVER CREEK, TRIBUTARY TO LITTLE MISSOURI RIVER-BASIN 39G INTERLOCUTORY DECREE ******************** CASE 39G-0010-I-2023 39G 30131812 CLAIMANT: Zachariah E. Thompson 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 39G 30131812 appeared in the Interlocutory Decree for Beaver Creek (Basin 39G) issued November 2, 2022. The claim received issue remarks from the Department of Natural Resources and Conservation (DNRC) identifying potential legal or factual issues with the claim. The claim was consolidated into Case 39G-0010-I-2023 to address the issue remarks. 1 The Water Court ordered Claimant Zachariah Thompson to attend a Status Conference on September 20, 2023, to discuss the issue remarks. Mr. Thompson failed to appear at the conference. Doc. 1.00. 1 The Court reviewed the issue remarks and proposed modifications to the claim to resolve the issue remarks. The Court ordered Mr. Thompson to inform the Court if he disagreed with those modifications, and informed Mr. Thompson that if nothing were filed, the Court would conclude he agreed with those modifications. Doc. 3.00. Nothing was filed by the deadline. FINDINGS OF FACT 1. Claim 39G 30131812 is a stock water claim to a well. It received the following substantive issue remarks: THE CLAIMED PLACE OF USE COULD NOT BE IDENTIFIED FROM DATA SUBMITTED WITH THE CLAIM. THE CLAIMED POINT OF DIVERSION IS IN QUESTION. THE LOCATION OF THE WELL CANNOT BE IDENTIFIED FROM AVAILABLE DATA. THE TYPE OF HISTORICAL RIGHT MAY BE QUESTIONABLE. DOCUMENTATION TO SUPPORT THE TYPE OF HISTORICAL RIGHT WAS NOT SUBMITTED WITH THIS CLAIM. NO PRIORITY DATE WAS CLAIMED. 2. While the well itself may not be visible from aerial photos, an aerial in the claim file shows outbuildings and livestock pens at the claimed location. The place of use and points of diversion are sufficiently supported, and no change is necessary to those elements. 3. The type of historical right for this claim is incorrect. The Statement of Claim indicates it is a “decreed” right, however no decree was attached to the Statement of Claim. Accordingly, this appears to be a use-based right. 4. The priority date is missing from this claim. When the Claimant filed the Statement of Claim, the box for priority date was left blank. However, DNRC notes in the claim file indicate that an “exempt notice” was attached to the Statement of Claim. Exempt Notice 39G 63214-00 appears to reflect the same water right claimed by Claim 39G 30131812 and included a priority date of 1942. “Doc.” refers to the docket number of a document filed in the Water Court’s Full Court Enterprise Case Management system. 1 2 5. The following corrections should be made to the claim; the Court concludes the Claimant agrees with these corrections: Priority Date: December 31, 1942 Type of Historical Right: Decreed Use 6. The claim also received the following remark that served only to provide notice to the Claimant and other water users in the Interlocutory Decree (“Notice Only Remark”): THIS CLAIM NUMBER WAS NOT INCLUDED IN THE BASIN 39G DECREE ISSUED 12/19/2018. PRINCIPLES OF LAW 1. A properly filed claim of an existing right or an amended claim of existing 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. 2. Section 85-2-248(2), MCA, requires that the Water Court resolve all issue remarks that are not resolved through the objection process. See also, Rule 7, W.R.Adj.R. When resolving issue remarks, the Water Court must weigh the information resulting in the issue remark and the issue remark against the claimed water right. § 85-2-247(2), MCA. CONCLUSIONS OF LAW 1. The Findings of Fact above are supported by a preponderance of the evidence. The claim should be modified as described above. 2. The place of use and point of diversion issue remarks fail to overcome the prima facie status of the claim. The remaining substantive remarks are resolved by the modifications. The Notice Only Remark has served its notice purpose. The issue remarks should be removed from the claim. RECOMMENDATIONS Based on the foregoing Findings of Fact and Conclusions of Law, this Master recommends the claim be modified as described above. 3 A Post Decree Abstract of Water Right Claim is attached to this Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail Zachariah E. Thompson 5010 SW Slavin Rd #1 Portland, OR 97239 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\39G ILT\Cases\10\EO 39G-10 MR (Remarks, Mod, No part.) 2.8.24 VH.docx 4 Electronically Signed By: Hon. Judge Eyvind Ostrem Wed, Feb 14 2024 01:34:33 PM February 7, 2024 39G 30131812 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BEAVER CREEK, TRIBUTARY TO LITTLE MISSOURI RIVER BASIN 39G 39G 30131812 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: Owners: ZACHARIAH E THOMPSON 5010 SW SLAVIN ROAD #1 PORTLAND, OR 97239 Priority Date: DECEMBER 31, 1942 Type of Historical Right: USE Purpose (Use): STOCK Flow Rate: 10.00 GPM THIS 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. *Volume: GROUNDWATER Source Name: GROUNDWATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWSESE 34 15N 59E WIBAUX Sec 34 Twp 15N Rge 59E County WIBAUX Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: WELL JANUARY 1 TO DECEMBER 31 Period of Use: *Place of Use: ID 1 Acres Govt Lot Qtr Sec SWSESE

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