Uthaug Livestock Inc., United States of America (Bureau of Land Management)

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FILED 02/16/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 40D-0031-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Nordlund, Julia 5.00 IN THE WATER COURT OF THE STATE OF MONTANA LOWER MISSOURI DIVISION BIG DRY CREEK - BASIN (40D) PRELIMINARY DECREE ******************************************************** CLAIMANTS: Uthaug Livestock Inc. OBJECTORS: United States of America (Bureau of Land Management) CASE 40D-0031-R-2023 40D 14160-00 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. MASTER’S REPORT The claim in this case is owned by Uthaug Livestock Inc. and appeared in the Preliminary Decree for Basin 40D with an issue remark and received an Objection from USA Bureau of Land Management. 1 FINDINGS OF FACT 1. On January 29, 2024, the Parties submitted a Stipulation (“Stipulation”). 2. Claim 40D 14160-00 is a water spreading irrigation claim from an unnamed tributary of Long Branch Creek. The parties agree that the legal land description of the place of use needs further refinement to match what has been historically irrigated. 3. The place of use 1 for Claim 40D 14160-00 should be clarified as follows: ID Acres Govt Lot .g ti Sec, Sec Twp li gt County 1 59.00 6244 W2SE 34 17N 38E GARFIELD 2 8.00 SWSWNE 34 17N 38E GARFIELD 3 4 3.00 SESENW 34 17N 38E GARFIELD 4.00 4-04* NWNE 1 16N 38E GARFIELD 6 6438 NENE-NW 4 46N 243E CARFIELD 7 Total:74.00 80,40 4. Historical aerial photographs attached to the Stipulation support the requested changes. 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 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. The Stipulation contains a different legal land description for POU ID 4, but the attached proposed abstracts show this version. The Water Master chose the proposed abstract version to make these corrections. 1 2 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. When resolving issue remarks, the Montana 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. 5. The evidence entered into the record is sufficient to make the changes to the claim’s place of use. 6. The remaining issue remark is for notice purposes only and can be removed. RECOMMENDATIONS Based upon the above Findings of Fact and Conclusions of Law, this Master recommends the Court make the changes specified above to correct the Preliminary Decree for this Basin. A Post Decree Abstract of Water Right Claim is served with this Report to confirm the recommended corrections have been made in the state’s centralized record system. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS mail: Uthaug Livestock Inc. PO Box 387 Jordan, MT 59337-0387 Service Via Electronic Mail: Mcdonald, Eve W. US Dept. of Justice -ENRD 999 18th St., So. Terrace, Ste. 370 Denver, CO 80202 (303) 844-1381 W Evelyn.Mcdonald@usdoj.gov \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\40D PD\40D Cases\40D-0031-R-2023\40D-31 MR stipulation POU change 2-13-24 jr.docx Electronically Signed By: 3 Hon. Judge Julia Nordlund Fri, Feb 16 2024 07:43:16 AM February 14, 2024 40D 14160-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BIG DRY CREEK BASIN 40D 40D 14160-00 Water Right Number: STATEMENT OF CLAIM 3 -- POST DECREE Version: ACTIVE Status: Owners: UTHAUG LIVESTOCK INC PO BOX 387 JORDAN, MT 59337-0387 Priority Date: JUNE 22, 1934 Type of Historical Right: FILED Purpose (Use): IRRIGATION WATER SPREADING Irrigation Type: Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED BECAUSE THIS USE CONSISTS OF DIRECT FLOW WATER SPREADING. Volume: 160.00 AC-FT 1 - HIGH Climatic Area: Maximum Acres: 74.00 Source Name: LONG BRANCH CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NWSE 34 17N 38E GARFIELD Qtr Sec W2SE Sec 34 Twp 17N Rge 38E County GARFIELD Period of Diversion: MARCH 1 TO AUGUST 31 Diversion Means: DIKE MARCH 1 TO AUGUST 31 Period of Use: Place of Use: ID 1 Acres 59.00 2 8.00 SWSWNE 34 17N 38E GARFIELD 3 3.00 SESENW 34 17N 38E GARFIELD 4 4.00 NWNE 1 16N 38E GARFIELD Total: 74.00 Govt Lot 7

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