Heartland Recreation Corp, Mike L. Lang

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FILED 02/16/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 40E-0121-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov Ostrem, Eyvind 5.00 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 ******************************* CASE 40E-0121-R-2023 40E 164950-00 40E 164951-00 40E 164952-00 CLAIMANT: Heartland Recreation Corp OBJECTOR: Mike L. Lang 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 above-captioned water right claims appeared in the Preliminary Decree for the Missouri River Between Musselshell River and Fort Peck Dam (Basin 40E) issued 1 October 7, 2020. The claims received objections from Mike (the president of Heartland Recreation Corp) and issue remarks from the Department of Natural Resources and Conservation (DNRC) raising potential legal or factual issues with the claims. The claims were consolidated into case 40E-121-R-2023 to address the objections and issue remarks. The Court requested that Mike Lang support his objections. Mr. Lang did not provide any information or evidence supporting his objections. Instead, on December 5, 2023, Mr. Lang filed a statement withdrawing his objections to claims 40E 164950-00 and 40E 164952-00. Doc. 4.00. 1 The withdrawal did not specifically reference claim 40E 164591-00. However, based on phone conversations with Mr. Lang, the Court concludes that the omission was a clerical error, and Mr. Lang also intends to withdraw his objection to claim 40E 164591-00. If this conclusion is incorrect, Mr. Lang should object to this Master’s Report. FINDINGS OF FACT Claim 40E 164950-00 1. Mike Lang’s objection to claim 40E 164950-00 is withdrawn. This claim also received the following issue remark from the DNRC: EXISTENCE OF THE CLAIMED RESERVOIR CANNOT BE CONFIRMED WITH AVAILABLE DATA. A DNRC note in the claim file explains that the DNRC employee examining the claim could not find a dam or reservoir by looking aerial photos. The Statement of Claim for this right indicates this is a small (3.4 acre-feet per year) livestock reservoir on an unnamed tributary of Plum Creek. The original claimant, Hart Land and Cattle, described the flow rate for the reservoir as “runoff.” Small stock reservoirs are common in Basin 40E. Water in the reservoirs is often ephemeral and dams can be difficult to identify on aerial photos. The existence of the reservoir is supported by a March 28, 1982 affidavit of John J. Smith attached to the Statement of Claim. The fact that DNRC could not find this small reservoir on aerial photos does not indicate the reservoir does not exist. “Doc.” refers to the docket number of the document filed in the Water Court’s Full Court Enterprise case management system. 1 2 Claim 40E 164951-00 2. Mike Lang’s objection to claim 40E 164951-00 is deemed withdrawn. The claim also received the following issue remark that serves only to provide notice to the claimant and other water users (Notice Only Remark): POINT OF DIVERSION AND RESERVOIR RECORD WERE 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. Claim 40E 164952-00 Mike Lang’s objection to claim 40E 164952-00 is withdrawn. The claim also received the following Notice Only Remark: POINT OF DIVERSION AND RESERVOIR RECORD WERE 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. A properly filed claim of an existing right or an amended claim of existing 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. 2. 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. When resolving issue remarks, the Water Court must weigh the information resulting in the issue remark and the issue remark against the claimed water right. § 85-2-247(2), MCA. CONCLUSIONS OF LAW 1. The Findings of Fact above are supported by a preponderance of the evidence. The issue remark on claim 40E 164950-00 fails to overcome the prima facie 3 status of the claim and the Notice Only Remarks have served their notice purpose. The issue remarks should be removed from the claims. 2. Mike Lang’s objections are withdrawn. RECOMMENDATIONS Based on the foregoing Findings of Fact and Conclusions of Law, this Master recommends that the issue remarks be removed from the claims. A post-decree abstract of each water right claim reflecting the recommended changes is attached to this Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail Heartland Recreation Corp PO Box 1307 Malta, MT 59538 Mike L Lang PO Box 104 Malta, MT 59538 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\40E PD\40E CASES\121\EO 40E-121 MR (Objections Withdrawn)2.12.24 vh.docx 4 Electronically Signed By: Hon. Judge Eyvind Ostrem Fri, Feb 16 2024 12:51:42 PM February 12, 2024 40E 164950-00 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 164950-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: Owners: HEARTLAND RECREATION CORP PO BOX 1307 MALTA, MT 59538 Priority Date: MAY 5, 1955 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 PLUM COULEE SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NESENE 34 24N 33E PHILLIPS Sec 34 Twp 24N Rge 33E County PHILLIPS Sec 34 Twp 24N Rge 33E County PHILLIPS Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec NESENE Diversion to Reservoir: DIVERSION # 1 JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NESENE February 12, 2024 40E 164951-00 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 164951-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: Owners: HEARTLAND RECREATION CORP PO BOX 1307 MALTA, MT 59538 Priority Date: MAY 10, 1958 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: PLUM COULEE SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NENESE 28 24N 33E PHILLIPS Sec 28 Twp 24N Rge 33E County PHILLIPS Sec 27 Twp 24N Rge 33E County PHILLIPS Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec NENESE Diversion to Reservoir: DIVERSION # 1 JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NWNWSW February 12, 2024 40E 164952-00 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 164952-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE Owners: HEARTLAND RECREATION CORP PO BOX 1307 MALTA, MT 59538 Priority Date: MAY 10, 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 PLUM COULEE SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NENWNW 28 24N 33E PHILLIPS Sec 28 Twp 24N Rge 33E County PHILLIPS Sec 28 Twp 24N Rge 33E County PHILLIPS Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec NENWNW Diversion to Reservoir: DIVERSION # 1 JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec SENWNW

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