Janet M Hensleigh; Jerome L Hensleigh; Patrick F Hensleigh; Robert J Hensleigh; Ryan M Hensleigh; Shane W Hensleigh

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FILED 02/02/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 40D-0242-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 ******************************************************** CLAIMANTS: Janet M Hensleigh; Jerome L Hensleigh; Patrick F Hensleigh; Robert J Hensleigh; Ryan M Hensleigh; Shane W Hensleigh CASE 40D-0242-R-2023 40D 164892-00 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. 1 MASTER’S REPORT Claim 40D 164892-00 is an irrigation claim owned by Janet, Jerome, Patrick, Robert, Ryan, and Shane Hensleigh. The claim appeared in the Preliminary Decree for Basin 40D with DNRC issue remarks and was consolidated into Water Court Case 40D0242-R-2023. FINDINGS OF FACT 1. Claim 40D 164892-00 received the following DNRC issue remark: THE CLAIMED POINT OF DIVERSION IS IN QUESTION. THE LOCATION OF THE PUMP CANNOT BE IDENTIFIED FROM AVAILABLE DATA. 2. On December 28, 2023, DNRC Water Resource Specialist Ryan Hartwell filed a Memorandum including his review of the issue remark. Mr. Hartwell indicated that Jerry Hensleigh contacted him to discuss resolution of the issue remark. 3. Mr. Hensleigh submitted maps to describe the location of the pump. These are attached to the DNRC Memorandum. 4. Mr. Hensleigh states the pump has been in one location and used since 1957. The pump is located in the SWSESW Sec. 10, Twp. 18N, Rge. 38E. 5. Mr. Hartwell states he reviewed a WRS aerial photograph dated 8/2/1968 which confirms the pump was in that location and being used prior to 1973. 6. The information provided resolves the issue remark in this case. 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. 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. The evidence entered into the record is sufficient to resolve the issue remark on this claim and support making the correction to the point of diversion as outlined above. 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. 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: Hensleigh, Janet M Hensleigh, Patrick F Hensleigh, Robert J Hensleigh, Ryan M Hensleigh, Shane W PO Box 243 Jordan, MT 59337 Hensleigh, Jerome L PO Box 209 Jordan, MT 59337 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\40D PD\40D Cases\40D-0242-R-2023\40D-242 MR- DNRC memo- IR resolved POD 1-30-24 ld for jr.docx 3 Electronically Signed By: Hon. Judge Julia Nordlund Fri, Feb 02 2024 09:39:10 AM January 30, 2024 40D 164892-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BIG DRY CREEK BASIN 40D Water Right Number: 40D 164892-00 Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: Owners: JANET M HENSLEIGH PO BOX 243 JORDAN, MT 59337 JEROME L HENSLEIGH PO BOX 209 JORDAN, MT 59337 PATRICK F HENSLEIGH PO BOX 243 JORDAN, MT 59337 ROBERT J HENSLEIGH PO BOX 243 JORDAN, MT 59337 RYAN M HENSLEIGH PO BOX 243 JORDAN, MT 59337 SHANE W HENSLEIGH PO BOX 243 JORDAN, MT 59337 Priority Date: DECEMBER 31, 1957 Type of Historical Right: USE Purpose (Use): IRRIGATION Irrigation Type: SPRINKLER Flow Rate: 1.23 CFS Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. Climatic Area: 1 - HIGH Maximum Acres: 45.00 Source Name: VAIL CREEK Source Type: SURFACE WATER Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWSESW 10 18N 38E GARFIELD Period of Diversion: MARCH 1 TO SEPTEMBER 30 Diversion Means: PUMP January 30, 2024 40D 164892-00 Page 2 of 2 Post Decree Abstract MARCH 1 TO SEPTEMBER 30 Period of Use: Place of Use: ID 1 Acres 12.00 2 Qtr Sec E2SESW Sec 10 Twp 18N Rge 38E County GARFIELD 17.00 W2SWSE 10 18N 38E GARFIELD 3 6.00 W2SESW 10 18N 38E GARFIELD 4 8.00 S2NESW 10 18N 38E GARFIELD 2.00 SWNWSE 10 18N 38E GARFIELD 5 Total: 45.00 Govt Lot

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