Skierka & Sons Co., Blackfeet Tribe; United States of America (Bureau of Indian Affairs)

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FILED 01/09/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 40F-0003-I-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov Stradley, Anna 8.00 IN THE WATER COURT OF THE STATE OF MONTANA LOWER MISSOURI DIVISION MILK RIVER ABOVE FRESNO RESERVOIR (BASIN 40F) INTERLOCUTORY DECREE ******************** CLAIMANT: Skierka & Sons Co. OBJECTORS: Blackfeet Tribe; United States of America (Bureau of Indian Affairs) 40F-0003-I-2023 40F 30129411 40F 30129413 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 Statement of the case The Blackfeet Tribe and the United States of America (Bureau of Indian Affairs) filed an objection to all elements of stock claims 40F 30129411 and 40F 30129413. Both claims appeared in the Interlocutory Decree with a notice issue remark concerning the lack of their inclusion in the previous 40F decree. Issue remarks result from Department of Natural Resources and Conservation (“DNRC”) claims examination. On November 29, 2023, the parties filed a Stipulation for the Resolution of Objections. Montana law requires the Water Court to resolve objections and issue remarks. Issues 1. Should the court accept the stipulated terms? 2. Is the notice issue remark on both claims resolved? Findings of fact 1. The historically accurate point of diversion and place of use for stock claim 40F 30129411 is Government Lots 3 and 4 of the W2SW, Section 18, Township 34 North, Range 12 West, Glacier County. 2. The historically accurate point of diversion and place of use for stock claim 40F 30129413 is Government Lot 2 of the NWNE, Section 7, Township 34 North, Range 12 West, Glacier County. 3. The historically accurate priority date for stock claim 40F 30129413 is February 26, 1951. Principles 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. Prima facie proof may be overcome by other evidence that proves, by a preponderance of the evidence, that an element of the 2 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. A preponderance of the evidence is a “modest standard” and is evidence that demonstrates the fact to be proved is “more probable than not.” Hohenlohe v. State, 2010 MT 203, ¶ 33, 357 Mont. 348, 240 P.3d 628. 2. 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. 3. Settlement, including the documents filed by a claimant where the claimant is the only party, is subject to review and approval by the Water Court. Rule 17(a), W.R.Adj.R. 4. The Water Court may accept a settlement agreement that reduces or limits an element of a claim and need not determine whether the burden of proof is met unless there is an unresolved issue remark on the claim. Rule 17(c), W.R.Adj.R. 5. 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. 6. 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. Analysis Issue 1 – acceptance of stipulated terms The parties stipulated to refined legal land descriptions for the point of diversion and place of use identified by each claim and a reduced priority date for claim 40F 30129413. Conclusions of law The evidence entered into the record is a reduction within the parameters of statements of claim 40F 30129411 and 40F 30129413, justifies the modifications to the 3 claims, and resolves the objections to the claims. The stipulated terms should be accepted by the court. Issue 2 – notice issue remark resolution Claims 40F 30129411 and 40F 30129413 appeared in the Interlocutory Decree with the following issue remark: THIS CLAIM NUMBER WAS NOT INCLUDED IN THE BASIN 40F DECREE ISSUED 12/12/2013. Water users were given the opportunity to review the claims and file an objection. The deadline to file objections expired. These proceedings resolve the only objections filed to the claims. Conclusion of law The referenced issue remark served its notice purpose. Recommendations Stock claim 40F 30129411 should be modified as follows to accurately reflect historical use. POINT OF DIVERSION AND PLACE OF USE: GOVT LOT 3 4 QTR SEC W2SW W2SW SEC 18 18 TWP 34N 34N RGE 12W 12W COUNTY GLACIER GLACIER Stock claim 40F 30129413 should be modified as follows to accurately reflect historical use. PRIORITY DATE: FEBRUARY 26, 1951 JULY 1, 1930 POINT OF DIVERSION AND PLACE OF USE: GOVT LOT 2 QTR SEC NWNE SEC 7 TWP 34N RGE 12W COUNTY GLACIER The notice issue remark should be removed from the claim abstracts. Post Decree Abstracts of Water Right Claim accompany this report to confirm 4 implementation of the recommendations in the state’s centralized water right record system. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail Service via Electronic Mail Skierka & Sons Co 162 Brown Rd Browning, MT 59417-8218 Derek E. Kline Blackfeet Legal Department PO Box 849 Browning, MT 59417 (406) 338-7777 derekekline@gmail.com tgilham@blackfeetnation.com Rebecca M. Ross U.S. Department of Justice Indian Resources Section, ENRD P.O. Box 7611, Ben Franklin Station Washington, DC 20044 (202) 616-3148 Rebecca.Ross@usdoj.gov irsmontanawater.enrd@usdoj.gov \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\40F ILT\Cases\3I\MR--40F-3I sjs.docx 1/5/24 5 Electronically Signed By: Hon. Judge Anna Stradley Tue, Jan 09 2024 12:10:37 PM December 22, 2023 40F 30129411 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MILK RIVER, ABOVE FRESNO RESERVOIR BASIN 40F 40F 30129411 Water Right Number: STATEMENT OF CLAIM 2 -- POST DECREE Version: ACTIVE Status: SKIERKA & SONS CO Owners: 162 BROWN RD BROWNING, MT 59417 8218 JULY 1, 1930 Priority Date: *Type of Historical Right: USE STOCK Purpose (use): *Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED BECAUSE THIS USE CONSISTS OF STOCK DRINKING DIRECTLY FROM THE SOURCE, OR FROM A DITCH SYSTEM. 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. MILK RIVER, SOUTH FORK Source Name: SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID 1 Govt Lot Qtr Sec Sec Twp Rge 3 W2SW 18 34N 12W GLACIER 34N 12W GLACIER Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 2 Period of Diversion: 4 W2SW 18 County JANUARY 1 TO DECEMBER 31 LIVESTOCK DIRECT FROM SOURCE Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: *Place of Use: ID 1 2 Acres Govt Lot 3 Qtr Sec W2SW Sec 18 Twp 34N Rge 12W County GLACIER 4 W2SW 18 34N 12W GLACIER Remarks: THIS WATER RIGHT IS LOCATED, IN WHOLE OR IN PART, WITHIN THE BOUNDARY OF THE BLACKFEET INDIAN RESERVATION. December 22, 2023 40F 30129413 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MILK RIVER, ABOVE FRESNO RESERVOIR BASIN 40F 40F 30129413 Water Right Number: STATEMENT OF CLAIM 2 -- POST DECREE Version: ACTIVE Status: SKIERKA & SONS CO Owners: 162 BROWN RD BROWNING, MT 59417 8218 FEBRUARY 26, 1951 Priority Date: *Type of Historical Right: USE STOCK Purpose (use): *Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED BECAUSE THIS USE CONSISTS OF STOCK DRINKING DIRECTLY FROM THE SOURCE, OR FROM A DITCH SYSTEM. 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. HORSE LAKE Source Name: SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID 1 Govt Lot Qtr Sec Sec Twp Rge County 2 NWNE 7 34N 12W GLACIER Twp 34N Rge 12W County GLACIER MARCH 1 TO DECEMBER 31 *Period of Diversion: LIVESTOCK DIRECT FROM SOURCE Diversion Means: MARCH 1 TO DECEMBER 31 *Period of Use: Place of Use: ID 1 Acres Govt Lot 2 Qtr Sec NWNE Sec 7 Remarks: THIS WATER RIGHT IS LOCATED, IN WHOLE OR IN PART, WITHIN THE BOUNDARY OF THE BLACKFEET INDIAN RESERVATION.

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