Tyler M. Murnion, USA (Dept of Interior Bureau of Land Mgmt)

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FILED 01/05/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 40D-0019-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Nordlund, Julia 3.00 IN THE WATER COURT OF THE STATE OF MONTANA LOWER MISSOURI DIVISION BIG DRY CREEK - BASIN (40D) PRELIMINARY DECREE ******************************************************** CLAIMANT: Tyler M. Murnion OBJECTOR: USA (Dept of Interior Bureau of Land Mgmt) CASE 40D-0019-R-2023 40D 152731-00 NOTICE OF FILING OF MASTER’S REPORT This Master’s Report was filed with the Montana Water Court on the abovestamped 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 40D 152731-00 appeared in the Preliminary Decree for Big Dry Creek (Basin 40D). The claim received an issue remark from the Montana Department of Natural Resources and Conservation and an objection from the United States of America (Dept. of Interior Bureau of Land Management). Tyler M. Murnion owns the claim. On October 30, 2023, the claim was consolidated into Water Court Case 40D-0019-R-2023 to address the objection. FINDINGS OF FACT 1. Claim 40D 152731-00 is a water spreading irrigation claim from Vail 2. The United States filed an objection to the place of use/maximum acres. Creek. The objection states that Place of Use No. 1 contains federal lands managed by the BLM and should be refined. 3. On December 12, 2023, the United States filed a Stipulation to Resolve Objection (“Stipulation”). 1 The United States and Claimant agree that the place of use of claim 40D 152731-00 should be amended as follows: ID Acres Govt Lot 1 12.00 Qtr Sec Sec N2SW 8-W 32 Twp Rge County 19N 38E GARFIELD Total: 12.00 4. The issue remark appearing on the claim is to notify water users of the DNRC’s modification to the point of diversion. The modification did not receive any objections. CONCLUSIONS OF LAW 1. A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content. Section 85-2-227, MCA. This prima facie proof may be contradicted and overcome by other evidence that proves, by a preponderance of the The Stipulation and all other case documents are viewable in the Water Court’s FullCourt Enterprise case management system. 1 2 evidence, that an element of the prima facie claim is incorrect. This is the burden of proof for every assertion that a claim is incorrect. Rule 19, W.R.Adj.R. 2. The degree or weight of evidence needed to contradict or overcome the prima facie proof statute is a preponderance of the evidence. Burkhartsmeyer et al. v. Burkhartsmeyer et al., Case 40G-2, (MT Water Court Memorandum Opinion and Order Adopting Master’s Report, Mar. 11, 1997). The Montana Supreme Court has defined preponderance as “a relatively modest standard that the statutory criteria are ‘more probable than not’ to have been met.” Hohenlohe v. State, 2010 MT 203 ¶ 33, 357 Mont. 438, 240 P.3d 628. 3. The Montana Water Court is permitted to use information submitted by the Department of Natural Resources and Conservation, the statement of claim, information from approved compacts, and any other data obtained by the Court to evaluate water right claims. Section 85-2-231(2), MCA. 4. Settlement agreements are subject to review and approval of the Water Court. Rule 17(a), W.R.Adj.R. If a claimant agrees to reduce or limit an element of a claim, the water court may accept the claimant’s requested reduction or limitation without further presentation of evidence, unless there is an unresolved issue remark on the claim, in which case § 85-2-248, MCA must be applied. Rule 17(c), W.R.Adj.R. 5. The Stipulation supports making the correction outlined above and should be accepted by the Court. 6. The notice-type issue remark appearing on the claim has served its purpose and should be removed. RECOMMENDATIONS Based upon the above Findings of Fact and Conclusions of Law, this Master recommends the Court make the changes specified above. A Post Decree Abstract of Water Right Claim is served with this Master’s Report to confirm the recommended correction has been made in the state’s centralized record system. ELECTRONICALLY SIGNED AND DATED BELOW. 3 Electronically Signed By: Hon. Judge Julia Nordlund Fri, Jan 05 2024 02:17:16 PM Service via USPS Mail: Tyler M. Murnion PO Box 65 Jordan, MT 59337 Service via USPS Mail: Eve McDonald, Attorney US Dept of Justice-ENRD 999 18th Street, South Terrace Suite 370 Denver, CO 80202 (303) 844-1381 evelyn.mcdonald@usdoj.gov MontanaBasins.ENRD@USDOJ.GOV \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\40D PD\40D Cases\40D-0019-R-2023\40D-19 MR 1-3-24 jr.docx 4 January 3, 2024 40D 152731-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BIG DRY CREEK BASIN 40D 40D 152731-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: Owners: TYLER M MURNION PO BOX 65 JORDAN, MT 59337 Priority Date: DECEMBER 31, 1957 Type of Historical Right: USE Purpose (Use): IRRIGATION ACTIVE WATER SPREADING Irrigation Type: Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED BECAUSE THIS USE CONSISTS OF DIRECT FLOW WATER SPREADING. Volume: 18.00 AC-FT 1 - HIGH Climatic Area: Maximum Acres: 12.00 Source Name: VAIL CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NWSESW 32 19N 38E GARFIELD Sec 32 Twp 19N Rge 38E County GARFIELD Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DIKE JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres 12.00 Total: 12.00 Govt Lot Qtr Sec N2SW

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