Donna M. Schmidt Trust; Gail M. Schmidt-Compton

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FILED 01/16/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 40D-0291-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Nordlund, Julia 1.00 IN THE WATER COURT OF THE STATE OF MONTANA LOWER MISSOURI DIVISION BIG DRY CREEK - BASIN (40D) PRELIMINARY DECREE ******************************************************** CLAIMANTS: Donna M. Schmidt Trust; Gail M. Schmidt-Compton CASE 40D-0291-R-2023 40D 164235-00 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 164235-00 is owned by the Donna M Schmidt Trust and Gail SchmidtCompton. The claim was decreed with a Department of Natural Resources and Conservation (“DNRC”) issue remark. No objections, counter objections, or NOIAs were filed. This claim is consolidated into Water Court Case 40D-0291-R-2023. FINDINGS OF FACT 1. Claim 40D 164235-00 contains an issue remark stating the following: THE PLACE OF USE IS INCORRECT. THE PLACE OF USE SHOULD BE THE W2SE SECTION 27 TWP 17N RGE 40E GARFIELD COUNTY, MONTANA. 2. The claim file contains a letter dated May 31, 2019 from Letty Miller at the DNRC stating the following: Enclosed is your Abstract with a new comment placed on the claim. I have removcd the ownership issue remark and replaced it with a notice to our Water Court to change the place of use to the W2SE of Section 27 as per our phone conversation. This is a formality we go through to change the place of use and there should be no need for you to provide any further documentation or take any further actions. This also does not affect the water right in any other way other than to simply make sure your place of use is contained to your property and is not on Federal lands. Should you have a Federal Lease of some kind, that lease should address the watcr issues and not involve this water right. 3. DNRC did not correctly address this issue. It appears the reservoir for this claim is partially on federal lands, but not exclusively. Therefore, the claim can remain as-is and the issue remark can be removed. CONCLUSIONS OF LAW 1. The Montana Water Court has the authority to resolve issue remarks when the claim file and information available to the Court provide a sufficient basis to do so. Section 85-2-248(3), MCA. 2. 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. 3. 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. 2 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. 4. 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. RECOMMENDATIONS The changes recommended above should be adopted. A Post Decree Abstract of Water Rights Claim is served with the Report to confirm that the recommendations have been made in the state’s centralized water right record system. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS mail: Donna M. Schmidt Trust % Donna M. Schmidt, Trustee 904 N 60th St Milwaukee, WI 53213-3212 Gail M. Schmidt-Compton 13066 Kimwood Lolo, MT 59847 3 Electronically Signed By: Hon. Judge Julia Nordlund Tue, Jan 16 2024 11:03:18 AM January 16, 2024 40D 164235-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BIG DRY CREEK BASIN 40D 40D 164235-00 Water Right Number: STATEMENT OF CLAIM 3 -- POST DECREE Version: ACTIVE Status: GAIL M SCHMIDT-COMPTON 13066 KIMWOOD LOLO, MT 59847 Owners: SCHMIDT, DONNA M TRUST % DONNA M SCHMIDT, TRUSTEE 904 N 60TH ST MILWAUKEE, WI 53213-3212 Priority Date: DECEMBER 31, 1957 Type of Historical Right: USE Purpose (Use): STOCK Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED FOR THIS USE FROM THIS ONSTREAM RESERVOIR. THE FLOW RATE IS LIMITED TO THE MINIMUM AMOUNT HISTORICALLY NECESSARY TO SUSTAIN THIS PURPOSE. Volume: THIS RIGHT INCLUDES THE AMOUNT OF WATER CONSUMPTIVELY USED FOR STOCKWATERING 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: UNNAMED TRIBUTARY OF LANGS FORK CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec Sec Twp Rge County S2SE 27 17N 40E GARFIELD Sec 27 Twp 17N Rge 40E County GARFIELD Sec 27 Twp 17N Rge 40E County GARFIELD 1 Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec S2SE Diversion to Reservoir: DIVERSION # 1 Dam Height: 9.00 FEET Depth: 6.00 FEET Surface Area: 3.12 ACRES Capacity: 7.49 ACRE-FEET JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec S2SE

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