Skierka & Sons Co., Blackfeet Tribe

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FILED 03/11/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 40F-0004-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. OBJECTOR: Blackfeet Tribe 40F-0004-I-2023 40F 30129414 40F 30129416 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 Statement of the case The Blackfeet Tribe filed an objection to all elements of stock claims 40F 30129414 and 40F 30129416. The 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 February 7, 2024, the parties filed a Stipulation for the Resolution of Objections. Montana law requires the Water Court to resolve objections and issue remarks. Issues 1. Are the objections resolved? 2. Is the notice issue remark on each claim resolved? Findings of fact 1. The Preliminary Decree abstracts for stock claims 40F 30129414 and 40F 30129416 identify their historically accurate elements. 2. The parties stipulated that “Claimant agrees to access the water source at issue in this case from only their own fee patent property, and not the Blackfeet Tribe’s property.” 3. Based upon the parties’ agreement, the following information remark should appear at the end of each abstract, “Claimant agrees to access the water source from their own fee patent property, and not the Blackfeet Tribe’s property.” Principles of law 1. A properly filed Statement of Claim for an exempt claim is prima facie proof of its content. Section 85-2-222(3), 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. A preponderance of the evidence is evidence that demonstrates the fact to be proved is "more probable than not." 2 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 is subject to review and approval by the Water Court. Rule 17(a), W.R.Adj.R. 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 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. 6. The Water Court may add clear and unambiguous information remarks to a claim abstract that describe historical use and reduce the possibility of future conflict. See Clark Fork Coalition v. Hirsch, 2014 Mont. Water LEXIS 15 at **10-14 (Oct. 29, 2014). Analysis Issues 1 and 2 – resolution of objections and issue remark The parties stipulated that no changes should be made to the claims. The addition of the information remark is supported by the parties’ agreement. The stipulation may be viewed on the court’s case management system, FullCourt Enterprise, at document sequence 7.00. The claims 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 objection filed to the claims. 3 Conclusions of law The information remark reflects the stipulated agreement of the parties; concerning access to the source, describes historical use, and reduces the possibility of future conflict. The information remark should be added to each claim abstract. The Stipulation should be accepted by the court thereby resolving the Blackfeet Tribe objections. The referenced issue remark served its notice purpose. Recommendations Stock claims 40F 30129414 and 40F 30129416 accurately reflect historical use. No changes to the elements of the claims should be made. The following information remark should be added to each abstract. CLAIMANT AGREES TO ACCESS THE WATER SOURCE FROM THEIR OWN FEE PATENT PROPERTY, AND NOT THE BLACKFEET TRIBE’S PROPERTY. The notice issue remark should be removed from the claim abstracts. Post Decree Abstracts of Water Right Claim accompany this report to confirm 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 (603) 707-1721 derekekline@gmail.com tgilham@blackfeetnation.com \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\40F ILT\Cases\4I\MR--40F-4I sjs.docx 4 Electronically Signed By: Hon. Judge Anna Stradley Mon, Mar 11 2024 10:51:07 AM March 5, 2024 40F 30129414 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MILK RIVER, ABOVE FRESNO RESERVOIR BASIN 40F 40F 30129414 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: ACTIVE Owners: SKIERKA & SONS CO 162 BROWN RD BROWNING, MT 59417-8218 Priority Date: JULY 1, 1930 *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. *Source Name: TOAD LAKE SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWSW 32 35N 12W GLACIER Twp 35N Rge 12W County GLACIER APRIL 1 TO NOVEMBER 30 *Period of Diversion: LIVESTOCK DIRECT FROM SOURCE Diversion Means: APRIL 1 TO NOVEMBER 30 *Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec SWSW Sec 32 Remarks: CLAIMANT AGREES TO ACCESS THE WATER SOURCE FROM THEIR OWN FEE PATENT PROPERTY, AND NOT THE BLACKFEET TRIBE'S PROPERTY. THIS WATER RIGHT IS LOCATED, IN WHOLE OR IN PART, WITHIN THE BOUNDARY OF THE BLACKFEET INDIAN RESERVATION. March 5, 2024 40F 30129416 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MILK RIVER, ABOVE FRESNO RESERVOIR BASIN 40F 40F 30129416 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: ACTIVE Owners: SKIERKA & SONS CO 162 BROWN RD BROWNING, MT 59417-8218 Priority Date: JULY 1, 1930 *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. *Source Name: SPRING, UNNAMED TRIBUTARY OF MILK RIVER, SOUTH FORK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge NWSE 18 34N 12W GLACIER Twp 34N Rge 12W County GLACIER Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE County JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NWSE Sec 18 Remarks: CLAIMANT AGREES TO ACCESS THE WATER SOURCE FROM THEIR OWN FEE PATENT PROPERTY, AND NOT THE BLACKFEET TRIBE'S PROPERTY. THIS WATER RIGHT IS LOCATED, IN WHOLE OR IN PART, WITHIN THE BOUNDARY OF THE BLACKFEET INDIAN RESERVATION.

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