Eleanor L. Grande; Judy L. Johnson; Vickie L. Zikmund, United States of America Department of Agriculture Forest Service

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FILED 01/12/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 40A-0424-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov Lockman, Melissa 3.00 IN THE WATER COURT OF THE STATE OF MONTANA LOWER MISSOURI DIVISION MUSSELSHELL RIVER ABOVE ROUNDUP (BASIN 40A) PRELIMINARY DECREE ***************************************************** CLAIMANTS: Eleanor L. Grande; Judy L. Johnson; Vickie L. Zikmund CASE 40A-0424-R-2023 40A 199401-00 OBJECTOR: United States of America Department of Agriculture Forest Service 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 Claim 40A 199410-00 appeared in the Preliminary Decree for the Musselshell River above Roundup (Basin 40A) issued on June 7, 2017. The claim is owned by Eleanor Grande, Judy Johnson, and Vickie Zikmund. The claim received an objection from the United States Department of Agriculture, Forest Service based on abandonment/non-perfection. FINDINGS OF FACT 1. On August 15, 2023, the Court held a status conference in this matter. Jennifer Najjar appeared on behalf of Objector United States Department of Agriculture (Forest Service). None of the Claimants appeared. 2. Claim 40A 199401-00 appeared in the Basin 40A Preliminary Decree as a May 9, 1889 claim for flood irrigation that diverts water from Boulder Creek via a headgate in the NWSWNW of Section 23, T8N, R8E, Meagher County. 3. The claim was decreed with a 29.00-acre place of use as follows: ID 2 Total: 4. Acres 18.70 10.30 Govt Lot tr Sec S2NW Sec 24 8N ft g BE Cotql MEAGHER N2SWSW 24 8N 8E MEAGHER 29.00 The Forest Service objected to the claim, stating: Based on infomiation in the ONRG claim file, the c a m appears to have been abandoned or was never perfected 5. The claim also received the following issue remarks: THIS WATER RIGHT MAY NOW BE OWNED BY ROGER C ZIKMUND, VICKIE L ZIKMUND, AND JUDY G JOHNSON. THE PLACE OF USE CANNOT BE DETERMINED WITH AVAILABLE DATA. THE PLACE OF USE CANNOT BE DETERMINED WITH AVAILABLE DATA. AS DESCRIBED, THE PLACE OF USE INCLUDES MANY PARCELS WITHIN THE CASTLE TOWNSITE. THE OWNERSHIP OF THIS WATER RIGHT MAY BE INCOMPLETE. THE CLAIMED POINT OF DIVERSION IS IN QUESTION. THE LOCATION OF THE HEADGATE AND DITCH CANNOT BE IDENTIFIED FROM AVAILABLE DATA. 6. During verification of the claim in 1983, the DNRC was unable to see any evidence of irrigation using aerial photographs from 1950. Additionally, a 1979 USDA aerial photograph does not show evidence of irrigation on the claimed place of use. 7. During adjudication of the Basin 40A Temporary Preliminary Decree, Claimants reduced the place of use from the originally claimed 80.00 acres to the 29.00 acres described above. 2 8. Other than the agreement filed to reduce the place of use down to 29.00 acres, there is no evidence in the claim file supporting the irrigated acreage. The Order setting the status conference stated that: Failure to comply with the terms of this Order may result in sanctions, including entry of default and termination of a water right claim, modification of the claim to conform with information before the Court, or dismissal of objections. Rule 22, W.R.Adj.R. Any request for a continuance must be made before the filing deadline, in accordance with Rules 2 and 3, U.D.C.R., and must include a showing of good cause. 9. Based on Claimants’ failure to appear at the status conference, the Court set a deadline for Claimants to show cause why claim 40A 199401-00 should not be dismissed. Nothing was filed by the deadline. PRINCIPLES OF LAW 1. A properly filed Statement of Claim for an existing water right is prima facie proof of its content. Section 85-2-227, MCA; Rule 10, W.R.Adj.R. 2. Prima facie proof may be contradicted and overcome by a preponderance of the evidence. Rule 19, W.R.Adj.R. 3. 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. 4. If prima facie status is overcome, the burden shifts back to the claimant to demonstrate historical use. 79 Ranch v. Pitsch, 204 Mont. 426, 432-33, 666 P.2d 215, 218 (1983). 5. 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. 6. The Water Court may use information submitted by the DNRC, the Statement of Claim, and any other data obtained by the Court to evaluate a water right. Sections 85-2-227, -231(2), MCA. 7. 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. Section 85-2-247(2), MCA. The factual evidence on which an issue remark is based must meet the preponderance of evidence standard before the prima facie status of a claim is 3 overcome. 43Q 200996-00 et al., Order Establishing Volume and Order Closing Case, at 18, June 8, 2015. 8. If a claimant fails to comply with an order issued by the Water Court, the Court may issue orders of sanction that are just. Rule 22, W.R.Adj.R. 9. Sanctions applied against a claimant may include modification of a claim to conform with data provided by the DNRC, information obtained by the Court, or information included in an objection, or the entry of default and termination of a water right claim. Rule 11, W.R.Adj.R. CONCLUSION OF LAW 1. The objection and issue remarks overcome the prima facie status of the claim. Because there is no evidence supporting the irrigated acreage and based on Rule 22, W.R.Adj.R., claim 40A 199401-00 should be dismissed. RECOMMENDATION 1. Claim 40A 199401-00 should be dismissed. A post decree abstract of the water right claim reflecting the recommended dismissal is attached to this Report. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail Eleanor L Grande HC 83 Box 544 Martinsdale, MT 59053 Service via Electronic Mail Joseph T Mathews US Dept of Justice PO Box 7611 Washington, DC 20044-7611 202-305-0432 W Joseph.Mathews@Usdoj.Gov Judy L Johnson Vickie Zikmund Vickie Zikmund 552 Castle Town Rd Martinsdale, MT 59053 Jennifer A. Najjar, Trial Attorney USDOJ-ENRD-NRS PO Box 7611 Washington, D.C. 20044-7611 (202) 305-0476 (Najjar) jennifer.najjar@usdoj.gov montanabasins.enrd@usdoj.gov \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\40A PD\40A Cases\40A-R424\ML 40A-424 MR 1.4.24 VH.docx 4 Electronically Signed By: Hon. Judge Melissa Lockman Fri, Jan 12 2024 09:01:05 AM January 4, 2024 40A 199401-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MUSSELSHELL RIVER, ABOVE ROUNDUP BASIN 40A Water Right Number: 40A 199401-00 Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: Owners: DISMISSED ELEANOR L GRANDE HC 83 BOX 544 MARTINSDALE, MT 59053 JUDY L JOHNSON % VICKIE ZIKMUND 552 CASTLE TOWN RD MARTINSDALE, MT 59053-8734 VICKIE L ZIKMUND 552 CASTLE TOWN RD MARTINSDALE, MT 59053 Priority Date: Type of Historical Right: Purpose (Use): IRRIGATION Flow Rate: Volume: Source Name: Source Type: BOULDER CREEK SURFACE WATER Point of Diversion and Means of Diversion: Period of Use: Place of Use: Remarks: THIS CLAIM WAS DISMISSED BY ORDER OF THE WATER COURT.

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