Anita L. McCauley; Edward K. McCauley

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FILED 01/03/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41E-0222-R-2024 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Lambert, Kathryn 1.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION BOULDER RIVER—TRIBUTARY OF THE JEFFERSON RIVER (BASIN 41E) PRELIMINARY DECREE ************************* CLAIMANTS: Anita L. McCauley; Edward K. McCauley CASE 41E-0222-R-2024 41E 93865-00 41E 93868-00 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, conclusion 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 mail 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 Prior to issuance of the Preliminary Decree, Anita L. McCauley and Edward K. McCauley filed Amendments To Statement Of Claim for each of these claims. These amendments were included on the Objection List for the Preliminary Decree. 1 APPLICABLE LAW A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content pursuant to section 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 including for claimants amending their own claims. Rule 19, W.R.Adj.R. FINDINGS OF FACT 1. For claim 41E 93865-00, the Preliminary Decree states that the place of use is the SW section 35, T6N, R4W, JEFFERSON. As requested in the August 22, 2022 Amendment To Statement Of Claim, the place of use should be E2 section 35, T6N, R4W, JEFFERSON. The Preliminary Decree also includes the following notice remarks: AN AMENDMENT WAS SUBMITTED ON 08/22/2022 REQUESTING TO AMEND THE PLACE OF USE. THE AMENDMENT WAS NOT PROCESSED. THE AMENDMENT WILL BE REVIEWED BY THE COURT AFTER THE ISSUANCE OF THE PRELIMINARY DECREE. POINT OF DIVERSION 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. These remarks provide notice that the amendment was filed and that the point of diversion was modified prior to issuance of the Preliminary Decree. The amendment has been addressed. There is no objection filed to the point of diversion. The remarks should be removed as having served their notice purposes. 2. For claim 41E 93868-00, the Preliminary Decree states that the place of use is: ACRES 60.00 20.00 80.00 160.00 QTRSEC N2SE S2S2NE N2SW SEC 33 33 34 TWP 6N 6N 6N RGE 4W 4W 4W COUNTY JEFFERSON JEFFERSON JEFFERSON As requested in the August 22, 2022 Amendment To Statement Of Claim, the place of use should be: ACRES 45.00 23.00 QTRSEC N2SE S2NE SEC 33 33 TWP 6N 6N 2 RGE 4W 4W COUNTY JEFFERSON JEFFERSON 80.00 12.00 160.00 N2SW S2SW 34 34 6N 6N 4W 4W JEFFERSON JEFFERSON The Preliminary Decree also includes the following notice remarks: AN AMENDMENT WAS SUBMITTED ON REQUESTING TO AMEND THE PLACE OF USE. THE AMENDMENT WAS NOT PROCESSED. THE AMENDMENT WILL BE REVIEWED BY THE COURT AFTER THE ISSUANCE OF THE PRELIMINARY DECREE. POINT OF DIVERSION AND DITCH NAME 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. These remarks provide notice that the amendment was filed and that the point of diversion and ditch name were modified prior to issuance of the Preliminary Decree. The amendment has been addressed. There is no objection filed to the point of diversion or ditch name. The remarks should be removed as having served their notice purposes. CONCLUSION OF LAW The amendments filed by the claimants are sufficient to contradict and overcome the prima facie claims. RECOMMENDATIONS Based upon the above Findings of Fact and Conclusion of Law, this Master recommends that the Court make the changes specified in the Findings of Fact to correct the Preliminary Decree for this Basin. A Post Decree Abstract of Water Right Claim for each is served with this Report to confirm the recommended changes have been made in the state's centralized record system. ELECTRONICALLY SIGNED AND DATED BELOW Service via USPS Mail: Anita L. McCauley Edward K. McCauley PO Box 393 Boulder, MT 59632 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41E PD\41E CASES\222R\222R mr 11-30-24 jbc.docx Electronically 3 Signed By: Hon. Judge Kathryn Lambert Wed, Jan 03 2024 11:21:50 AM December 1, 2023 41E 93865-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BOULDER RIVER, TRIBUTARY TO JEFFERSON RIVER BASIN 41E 41E 93865-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE EDWARD K MCCAULEY Owners: PO BOX 393 BOULDER, MT 59632 ANITA L MCCAULEY PO BOX 393 BOULDER, MT 59632 Priority Date: JANUARY 1, 1882 Type of Historical Right: USE Purpose (use): STOCK *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. MCCARTY CREEK Source Name: SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NE 35 6N 4W JEFFERSON 6N 4W JEFFERSON Twp 6N Rge 4W County JEFFERSON Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 2 Period of Diversion: NWNWSE 35 LIVESTOCK DIRECT FROM SOURCE Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec E2 Sec 35 December 1, 2023 41E 93868-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BOULDER RIVER, TRIBUTARY TO JEFFERSON RIVER BASIN 41E 41E 93868-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE EDWARD K MCCAULEY Owners: PO BOX 393 BOULDER, MT 59632 ANITA L MCCAULEY PO BOX 393 BOULDER, MT 59632 Priority Date: MAY 10, 1897 Type of Historical Right: FILED Purpose (use): IRRIGATION FLOOD Irrigation Type: *Flow Rate: 9.00 CFS *Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 4 - MODERATELY LOW Climatic Area: Maximum Acres: 160.00 Source Name: BOULDER RIVER SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWSENW 33 6N 4W JEFFERSON Qtr Sec N2SE Sec 33 Twp 6N Rge 4W County JEFFERSON Period of Diversion: APRIL 1 TO NOVEMBER 1 Diversion Means: HEADGATE Ditch Name: SHOPE DITCH APRIL 1 TO NOVEMBER 1 Period of Use: *Place of Use: ID 1 Acres 45.00 2 23.00 S2NE 33 6N 4W JEFFERSON 3 80.00 N2SW 34 6N 4W JEFFERSON 4 12.00 S2SW 34 6N 4W JEFFERSON Total: Remarks: 160.00 Govt Lot December 1, 2023 41E 93868-00 Page 2 of 2 Post Decree Abstract THE WATER RIGHTS FOLLOWING THIS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS. EACH RIGHT IS LIMITED TO THE FLOW RATE AND PLACE OF USE OF THAT INDIVIDUAL RIGHT. THE SUM TOTAL VOLUME OF THESE WATER RIGHTS SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 93859-00 93860-00 93861-00 93862-00 93864-00 93867-00 93868-00 93870-00 93871-00 93872-00 93873-00 93874-00 93875-00 93876-00

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