John H. Bailey; Katharine E. Wikstrom

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FILED 02/16/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41E-0003-R-2024 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Lambert, Kathryn 3.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION BOULDER RIVER—TRIBUTARY OF THE JEFFERSON RIVER (BASIN 41E) PRELIMINARY DECREE ************************* CLAIMANTS: John H. Bailey; Katharine E. Wikstrom CASE 41E-0003-R-2024 41E 179242-00 NOTICE OF FILING OF MASTER'S REPORT This Master’s Report was led with the Montana Water Court on the above stamped date. Please review this report carefully. You may le a writen objec on to this Master’s Report within 10 days of the stamped date if you disagree or nd errors with the Master’s ndings of fact, conclusion of law, or recommenda ons. Rule 23, W.R.Adj.R. If the Master’s Report was mailed to you, the Montana Rules of Civil Procedure allow an addi onal 3 days to be added to the 10-day objec on period. Rule 6(d), M.R.Civ.P. If you le an objec on, you must mail a copy of the objec on to all par es on the service list found at the end of the Master’s Report. The original objec on and a cer cate of mailing to all par es on the service list must be led with the Water Court. If you do not le a mely objec on, the Water Court will conclude that you agree with the content of this Master’s Report. MASTER’S REPORT John H. Bailey and Katharine E. Wikstrom claim 41E 179242-00 appeared in the Preliminary Decree with the following issue remark: NO TYPE OF HISTORICAL RIGHT WAS CLAIMED. DOCUMENTATION TO SUPPORT THE TYPE OF HISTORICAL RIGHT WAS NOT SUBMITTED WITH THIS CLAIM. The issue remark was not addressed through the objec on process. The Water Court is required to resolve the issues raised by each issue remark. Sec on 85-2-248, MCA. 1 Under Sec on 85-2-248(3), MCA, informa on in the claim le or other informa on obtained by the Court can be reviewed to determine if it provides a su cient basis to resolve the issue raised by a remark and the Court can provide the claimants an opportunity to le addi onal informa on or evidence. The January 3, 2024 Order Consolida ng Case And Se ng Filing Deadline states: The Statement of Claim does not state whether the type of historical right is Decreed, Filed, or Use. No copy of a Decree or No ce of Appropria on was included, so it appears the type of historical right is Use. If the claimants agree that Use is correct, nothing needs to be led. If the claimants do not agree that Use is correct, a copy of the Decree or led No ce of Appropria on is needed to document that the right claimed is a Decreed right or a Filed right. Therefore, pursuant to 85-2-248(3), MCA, it is ORDERED that the deadline for the claimants to le a copy of the Decree or led No ce of Appropria on is February 5, 2024. If not led by the deadline, the Court will conclude the claimants agree the type of historical right is Use. (Emphasis in original.) Nothing was led concerning the type of historical right. On January 19, 2024 Paul Wikstrom, Executor, Estate of Katharine E. Wikstrom, sent the Court an email sta ng that he sold the property in 2022. Informa on about upda ng the ownership of a claim is available at htp://dnrc.mt.gov/divisions/water/adjudica on, or by contac ng the Helena DNRC Regional O ce at (406) 444-6999. APPLICABLE LAW “All issue remarks to claims that are not resolved through the ling of an objec on as provided in 85-2-233 must be resolved as provided in this sec on.” Sec on 85-2-248(2), MCA. A properly led Statement of Claim for Exis ng Water Right is prima facie proof of its content pursuant to sec on 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 re ect the bene cial use of the water right as it existed prior to July 1, 1973. This is the burden of proof for every asser on that a claim is incorrect including for claimants objec ng to their own claims. Rule 19, W.R.Adj.R. FINDINGS OF FACT 1. The Preliminary Decree does not include the type of historical right. The type of historical right should be USE. The issue remark should be removed as addressed and resolved. 2. The Preliminary Decree also includes the following no ce remark: 2 POINT OF DIVERSION AND MEANS OF DIVERSION 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. This remark provides no ce of changes made prior to issuance of the Preliminary Decree and does not raise unresolved issues which need to be addressed. The remark should be removed as having served its no ce purpose. CONCLUSION OF LAW The informa on contained in the claim le is su cient to resolve the issue remark without eviden ary hearing. Sec ons 85-2-248(3) and (11), MCA. RECOMMENDATIONS Based upon the above Findings of Fact and Conclusion of Law, this Master recommends that the Court make the changes speci ed in the Findings of Fact to correct the Preliminary Decree for this Basin. A Post Decree Abstract of Water Right Claim is served with this Report to con rm the recommended changes have been made in the state's centralized record system. ELECTRONICALLY SIGNED AND DATED BELOW Service via USPS Mail: John H. Bailey PO Box 1424 Boulder, MT 59632 Katharine E. Wikstrom 200 Bridge St Saint Paul, MN 55126 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41E PD\41E CASES\3R\3R mr 2-14-24 jbc.docx 3 Electronically Signed By: Hon. Judge Kathryn Lambert Fri, Feb 16 2024 07:27:30 AM February 14, 2024 41E 179242-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BOULDER RIVER, TRIBUTARY TO JEFFERSON RIVER BASIN 41E 41E 179242-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE JOHN H BAILEY PO BOX 1424 BOULDER, MT 59632-1424 Owners: KATHARINE E WIKSTROM 200 BRIDGE ST SAINT PAUL, MN 55126-2152 Priority Date: SEPTEMBER 4, 1900 Type of Historical Right: USE Purpose (Use): MINING Flow Rate: 55.00 GPM THIS RIGHT IS LIMITED TO THE VOLUME OF WATER HISTORICALLY USED FOR MINING PURPOSES. *Volume: ROCKER CREEK Source Name: SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NWSWNE 17 7N 5W JEFFERSON Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: HEADGATE MEANS OF DIVERSION INCLUDES A DITCH AND A PIPELINE. JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec N2 Sec 17 Twp 7N Rge 5W County JEFFERSON

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