Jennifer L. O'Connor

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FILED 01/08/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: Julia __________________ Romero 40D-0274-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 ******************************************************** CASE 40D-0274-R-2023 40D 30127443 40D 30127447 40D 30127450 CLAIMANT: Jennifer L. O’Connor 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. MASTER’S REPORT Claims 40D 30127443, 40D 30127447, and 40D 30127450 appeared in the Preliminary Decree for the Big Dry Creek (Basin 40D) with Montana Department of 1 Natural Resources and Conservation (“DNRC”) issue remarks. Jennifer L. O’Connor is owner of the claims. On August 16, 2023, the claims were consolidated into Water Court Case 40D-0274-R-2023 to resolve the issue remarks. FINDINGS OF FACT 1. Claim 40D 30127443 is a filed domestic groundwater claim. It was decreed with the following substantive issue remarks: ONLY 2.70 ACRES OF THE CLAIMED PLACE OF USE APPEAR IRRIGATED FOR DOMESTIC PURPOSES. THE CLAIMED PRIORITY DATE MAY BE QUESTIONABLE. THE PRIORITY DATE ON THE SUBMITTED DECLARATION OF VESTED GROUNDWATER RIGHT IS MAY 1956. VOLUME MAY REQUIRE MODIFICATION BASED ON RESOLUTION OF MAXIMUM ACRES ISSUE. THE CLAIMED VOLUME EXCEEDS THE MAXIMUM FEASIBLE VOLUME. BASED ON THE FLOW RATE AND PERIOD OF USE, THE MAXIMUM VOLUME POSSIBLE IS 12.90 ACRE-FEET PER YEAR. 2. Claims 40D 30127443 and 40D 30127450 received the following issue remark: THE CLAIMS LISTED FOLLOWING THIS STATEMENT MAY BE A MULTIPLE USE OF THE SAME RIGHT. IT APPEARS THE PRIORITY DATE IS 5/31/1956 AND THE TYPE OF HISTORICAL RIGHT IS FILED. 30127443, 30127450. In the consolidation order issued in this case, it was noted that no further information is needed regarding this issue remark, and it can be removed from both claims. 3. Claims 40D 30127443, 40D 30127447, and 40D 30127450 also received the following notice-type issue remarks: THIS CLAIM NUMBER WAS NOT INCLUDED IN THE BASIN 40D DECREE ISSUED 09/28/1984. FILING FEE INSUFFICIENT TO COVER CLAIMS. TOTAL AMOUNT DUE $390.00 FOR CLAIM NOS. 30127443, 30127447, 30127450. 4. On August 16, 2023, the Court referred the Claimant to the DNRC to resolve the issue remarks that needed further information. 2 5. On October 6, 2023, the DNRC filed a memorandum with the Water Court. 1 The memorandum indicated that the Claimant did not contact the DNRC, and the filing fee remained unpaid. The DNRC analyzed each issue remark in the memorandum but ultimately recommended dismissal of the claims because of the unpaid filing fee. 6. On October 20, 2023, the Court set a deadline for the Claimant to show cause why the claims should not be dismissed in accordance with the DNRC’s memorandum by paying the filing fee. 7. On November 8, 2023, the DNRC filed another memorandum apprising that the Claimant paid the filing fee. Accordingly, it recommended that the Court adopt the modifications to the claims discussed in its first memorandum and remove the issue remarks appearing on the claims. 8. For claim 40D 30127443, the DNRC recommends reducing the acres irrigated to 2.7 acres in accordance with aerial photograph A20-8JJ-153, dated 8/2/1968, and the volume reduced to 8.25 acre-feet in accordance with the DNRC’s general volume guideline for domestic groundwater claims (2.7 acres multiplied by 2.5 acre-feet multiple of 1.5 acre-feet per household). 9. The Claimant did not respond to this recommendation. 10. The DNRC also recommends removing the issue remark questioning the priority date, finding that it was added to the claim in error. 11. For the remaining issue remarks appearing on all three claims, the DNRC recommends their removal. 12. The claims should be modified accordingly, and the issue remarks removed. 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 DNRC’s memorandum and other documents part of this case are viewable in the Water Court’s FullCourt Enterprise case management system. 1 3 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. 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 in the record supports the modifications outlined above and resolves the issue remarks. RECOMMENDATIONS Based upon the above Findings of Fact and Conclusions of Law, this Master recommends the Court make the modifications specified above. Post Decree Abstracts of Water Right Claim is served with this Master’s Report to confirm the recommended corrections have been made in the state’s centralized record system. ELECTRONICALLY SIGNED AND DATED BELOW. 4 Electronically Signed By: Hon. Judge Julia Nordlund Mon, Jan 08 2024 10:01:25 AM Service via USPS Mail: Jennifer L. O’Connor 13 Old Crow Rd. Columbus, MT 59019-0268 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\40D PD\40D Cases\40D-0274-R-2023\40D-274 MR no response dnrc memo 12-29-23 jr.docx 5 December 29, 2023 40D 30127443 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BIG DRY CREEK BASIN 40D 40D 30127443 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: Owners: JENNIFER L OCONNOR 13 OLD CROW RD COLUMBUS, MT 59019-7331 Priority Date: DECEMBER 31, 1917 Type of Historical Right: FILED Purpose (Use): DOMESTIC Flow Rate: 8.00 GPM Volume: 8.25 AC-FT Maximum Acres: 2.70 Source Name: GROUNDWATER GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Period of Diversion: Qtr Sec Sec Twp Rge County SWSWNW 9 18N 38E GARFIELD Sec 9 Twp 18N Rge 38E County GARFIELD JANUARY 1 TO DECEMBER 31 WELL Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres 2.70 Total: 2.70 Govt Lot Qtr Sec SWSWNW December 29, 2023 40D 30127447 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BIG DRY CREEK BASIN 40D 40D 30127447 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: Owners: JENNIFER L OCONNOR 13 OLD CROW RD COLUMBUS, MT 59019-7331 Priority Date: AUGUST 31, 1957 Type of Historical Right: FILED Purpose (Use): STOCK Flow Rate: 10.00 GPM Volume: THIS RIGHT INCLUDES THE AMOUNT OF WATER CONSUMPTIVELY USED FOR STOCK WATERING 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. Source Name: GROUNDWATER GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NESESE 4 18N 38E GARFIELD Sec 4 Twp 18N Rge 38E County GARFIELD Period of Diversion: JULY 1 TO OCTOBER 31 Diversion Means: WELL JULY 1 TO OCTOBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NESESE December 29, 2023 40D 30127450 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BIG DRY CREEK BASIN 40D 40D 30127450 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: Owners: JENNIFER L OCONNOR 13 OLD CROW RD COLUMBUS, MT 59019-7331 Priority Date: MAY 31, 1956 Type of Historical Right: FILED Purpose (Use): STOCK Flow Rate: 8.00 GPM Volume: THIS RIGHT INCLUDES THE AMOUNT OF WATER CONSUMPTIVELY USED FOR STOCK WATERING 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. Source Name: GROUNDWATER GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWSWNW 9 18N 38E GARFIELD Sec 9 Twp 18N Rge 38E County GARFIELD 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 SWSWNW

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