Montana State Board of Land Commissioners, Rose A. Stoneberg

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FILED 02/05/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 40E-0012-R-2022 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov Ostrem, Eyvind 29.00 IN THE WATER COURT OF THE STATE OF MONTANA LOWER MISSOURI DIVISION MISSOURI RIVER BASIN BETWEEN MUSSELSHELL RIVER AND FORT PECK DAM - BASIN (40E) PRELIMINARY DECREE ******************************* CLAIMANT: Montana State Board of Land Commissioners OBJECTOR: Rose A. Stoneberg CASE 40E-0012-R-2022 40E 112464-00 40E 112465-00 40E 112476-00 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 to be added to the 10-day 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 above-captioned water right claims appeared in the Preliminary Decree for the 1 Missouri River Between Musselshell River and Fort Peck Dam (Basin 40E) issued October 7, 2020. Rose A. Stoneberg objected to each claim. Each claim also received one or more issue remarks from the Department of Natural Resources and Conservation (“DNRC”) indicating potential legal or factual issues with the claims. The Water Court consolidated the claims into Water Court Case 40E-0012-R-2022 to address the objections and issue remarks. The parties attempted settlement and ultimately this case was placed on a hearing track. On May 30, 2023, Claimant Montana State Board of Land Commissioners (SBLC) filed a Motion for Summary Judgment and Brief in Support. The Motion was fully briefed, and on November 27, 2023, the Water Master issued an Order on Admissibility of Evidence and an Order Granting Motion for Summary Judgment (“Summary Judgment Order”). Doc. 27.00.1 Following the Summary Judgment Order, Rose Stoneberg filed a response, conditionally withdrawing any objections that were not addressed in the Summary Judgment Order and stating that “should the Order be reversed or modified through an objection to the Master’s Report or on appeal, Ms. Stoneberg reserves the right to request a hearing on the conditionally withdrawn objections if warranted.” Doc 28.00. FINDINGS OF FACT 1. The historically accurate point of diversion, place of use, and reservoir record of claim 40E 112476-00 is the SWSWNE of Section 36, T25N, R33E, as agreed by the parties and identified in the aerial photo provided by SBLC. See, Doc. 27.00 at 10. 2. The claims received the following issue remarks, which serve only to provide notice to water users in the Preliminary Decree (Notice Only Remarks). 40E 112464-00 THE CLAIMANT DID NOT IDENTIFY THE PERIOD OF DIVERSION FOR THIS RIGHT. A PERIOD OF DIVERSION HAS BEEN ADDED TO MATCH THE PERIOD OF USE. IF NO OBJECTIONS ARE RECEIVED TO THE PERIOD OF DIVERSION OR PERIOD OF USE, THOSE ELEMENTS WILL BE DECREED AS SHOWN ON THIS ABSTRACT AND THIS ISSUE REMARK WILL BE REMOVED FROM THIS CLAIM. RESERVOIR RECORD WAS MODIFIED AS A RESULT OF DNRC REVIEW UNDER MONTANA WATER COURT REEXAMINATION ORDERS. IF NO OBJECTIONS ARE “Doc.” refers to the docket number of the document in the Water Court’s Full Court Enterprise case management system. 1 2 FILED TO THIS CLAIM, THESE ELEMENTS WILL REMAIN AS THEY APPEAR ON THIS ABSTRACT AND THE REMARK WILL BE REMOVED FROM THE CLAIM. 40E 112465-00 THE CLAIMANT DID NOT IDENTIFY THE PERIOD OF DIVERSION FOR THIS RIGHT. A PERIOD OF DIVERSION HAS BEEN ADDED TO MATCH THE PERIOD OF USE. IF NO OBJECTIONS ARE RECEIVED TO THE PERIOD OF DIVERSION OR PERIOD OF USE, THOSE ELEMENTS WILL BE DECREED AS SHOWN ON THIS ABSTRACT AND THIS ISSUE REMARK WILL BE REMOVED FROM THIS CLAIM. RESERVOIR RECORD WAS MODIFIED AS A RESULT OF DNRC REVIEW UNDER MONTANA WATER COURT REEXAMINATION ORDERS. IF NO OBJECTIONS ARE FILED TO THIS CLAIM, THESE ELEMENTS WILL REMAIN AS THEY APPEAR ON THIS ABSTRACT AND THE REMARK WILL BE REMOVED FROM THE CLAIM. 40E 112476-00 SOURCE NAME WAS MODIFIED AS A RESULT OF DNRC REVIEW UNDER MONTANA WATER COURT REEXAMINATION ORDERS. IF NO OBJECTIONS ARE FILED TO THIS CLAIM, THESE ELEMENTS WILL REMAIN AS THEY APPEAR ON THIS ABSTRACT AND THE REMARK WILL BE REMOVED FROM THE CLAIM.\ PRINCIPLES OF LAW 1. The Montana Water Court has the authority to determine the extent of all water rights in the state as they existed prior to July 1, 1973. Fellows v. Saylor, 2016 MT 45, ¶ 25, 382 Mont. 298, 367 P.3d 732; §§ 85-2-233, -102(12), MCA. 2. A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content. § 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 the elements of the claim do not accurately reflect the beneficial use of the water right as it existed prior to July 1, 1973. This is the burden of proof for every assertion that a claim is incorrect. Rule 19, W.R.Adj.R. 3. Section 85-2-248(2), MCA, requires that the Water Court resolve all issue remarks that are not resolved through the objection process. See also, Rule 7, W.R.Adj.R. 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 85-2248(3), MCA. 3 CONCLUSIONS OF LAW 1. The Findings of Fact above are supported by a preponderance of the evidence. Claim 40E 112476-00 should be modified as described above. 2. For the reasons set out in the Summary Judgment Order, SBLC should remain the owner of claims 40E 112464-00, 40E 112465-00, and 40E 112476-00. Doc. 27.00 at 10. 3. Stoneberg’s objections have been addressed or withdrawn contingent upon the Summary Judgment Order not being modified or overturned through an objection to this Master’s Report or on appeal. 4. The Notice Only Remarks have served their notice purpose and should be removed from the claims. RECOMMENDATIONS Based on the foregoing Findings of Fact and Conclusions of Law, this Master recommends the Court modify the claims as described above. A Post Decree Abstract of Water Right for each water right claim is attached to this Master’s Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. Service via Electronic Mail Jack G. Connors Doney Crowley PC PO Box 1185 Helena, MT 59624-1185 (406) 443-2211 jconnors@doneylaw.com legalsec@doneylaw.com (represents Rose Stoneberg) Aislinn W Brown Bureau Chief Agency Legal Services Bureau PO Box 201440 Helena MT 59620-1440 (406) 444-0296 blcwatercourt@mt.gov Aislinn.brown@mt.gov \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\40E PD\40E CASES\12\EO 40E-12 MR (prior MSJ Order) 1.29.24 VH.docx 4 Electronically Signed By: Hon. Judge Eyvind Ostrem Mon, Feb 05 2024 01:13:48 PM January 29, 2024 40E 112464-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, BETWEEN MUSSELSHELL RIVER AND FORT PECK DAM BASIN 40E 40E 112464-00 Water Right Number: STATEMENT OF CLAIM 3 -- POST DECREE Version: ACTIVE Status: Owners: MONTANA STATE BOARD OF LAND COMMISSIONERS TRUST LAND MANAGEMENT DIVISION PO BOX 201601 HELENA, MT 59620-1601 Priority Date: JULY 17, 1960 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 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: UNNAMED TRIBUTARY OF TIMBER CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NWSWSW 16 25N 34E VALLEY Sec 16 Twp 25N Rge 34E County VALLEY Sec 16 Twp 25N Rge 34E County VALLEY Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec NWSWSW Diversion to Reservoir: DIVERSION # 1 Dam Height: 8.00 FEET Depth: 5.00 FEET Surface Area: 1.33 ACRES Capacity: 2.66 ACRE-FEET JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NWSWSW January 29, 2024 40E 112465-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, BETWEEN MUSSELSHELL RIVER AND FORT PECK DAM BASIN 40E 40E 112465-00 Water Right Number: STATEMENT OF CLAIM 3 -- POST DECREE Version: ACTIVE Status: Owners: MONTANA STATE BOARD OF LAND COMMISSIONERS TRUST LAND MANAGEMENT DIVISION PO BOX 201601 HELENA, MT 59620-1601 Priority Date: JULY 17, 1960 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 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: UNNAMED TRIBUTARY OF TIMBER CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NENENW 16 25N 34E VALLEY Sec 16 Twp 25N Rge 34E County VALLEY Sec 16 Twp 25N Rge 34E County VALLEY Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec NENENW Diversion to Reservoir: DIVERSION # 1 Dam Height: 8.00 FEET Depth: 5.00 FEET Surface Area: 1.00 ACRES Capacity: 2.00 ACRE-FEET JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NENENW January 29, 2024 40E 112476-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, BETWEEN MUSSELSHELL RIVER AND FORT PECK DAM BASIN 40E 40E 112476-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE Owners: MONTANA STATE BOARD OF LAND COMMISSIONERS TRUST LAND MANAGEMENT DIVISION PO BOX 201601 HELENA, MT 59620-1601 Priority Date: AUGUST 3, 1960 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 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: UNNAMED TRIBUTARY OF LONE TREE COULEE SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWSWNE 36 25N 33E PHILLIPS Sec 36 Twp 25N Rge 33E County PHILLIPS Sec 36 Twp 25N Rge 33E County PHILLIPS Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec SWSWNE Diversion to Reservoir: DIVERSION # 1 JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec SWSWNE

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