State of Montana Board of Land Commissioners

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FILED 02/05/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41E-0269-R-2024 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Lambert, Kathryn 5.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION BOULDER RIVER—TRIBUTARY OF THE JEFFERSON RIVER (BASIN 41E) PRELIMINARY DECREE ************************* CLAIMANT: State of Montana Board of Land Commissioners CASE 41E-0269-R-2024 41E 214095-00 41E 214137-00 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, 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 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. 1 MASTER'S REPORT On January 26, 2024 State of Montana Board of Land Commissioners filed a Verified Motion To Amend Water Right Claim for each of the claims in this Case. The filing for claim 41E 214137-00 is not a motion to amend filed pursuant to section 85-2-233(6), MCA; it is settlement of elements already at issue. The Motions To Amend are viewable in the Court’s FullCourt Enterprise case management system. APPLICABLE LAW The Montana Water Court has jurisdiction to review a motion to amend pursuant to section 85-2-233(6), MCA. Rule 15 M.R.Civ.P. restricts the scope of the amendments to the conduct, transaction, or occurrence set forth in the original pleading or, in other words, the “same set of operative facts as contained in the original pleading.” Sooy v. Petrolane Steel Gas, Inc., 218 Mont. 418, 422-423 (1985). The requested amendment “merely makes more specific that which has already been alleged.” Prentice Lumber Company v. Hukill, 161 Mont. 8, 15 (1972). Notice must be published by newspaper if the requested amendments “may adversely affect other water rights.” Section 85-2-233(6)(a)(i), MCA. 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 claimants amending their own claims. Rule 19, W.R.Adj.R. FINDINGS OF FACT 1. For claim 41E 214095-00, the changes to point of diversion and place of use requested in the Motion To Amend arise out of the same conduct, transaction, or occurrence specified on the original Statement of Claim, are based on the same operative facts specified in the Statement of Claim, and merely make more specific that which was already claimed on the original Statement of Claim. 2 2. Claim 41E 214095-00 appeared in the Preliminary Decree with the following issue remarks: THE MEANS OF DIVERSION APPEARS TO BE INCORRECT. THE MEANS OF DIVERSION APPEARS TO BE A GRAVITY FLOW/DIRECT. THE FLOW RATE HAS NOT BEEN EXAMINED AS NO QUANTIFIED FLOW RATE WAS CLAIMED. The Preliminary Decree states that the means of diversion is OTHER with the following clarification remark: STOCK TANK IS SECONDARY MEANS OF DIVERSION. The means of diversion should be LIVESTOCK DIRECT FROM SOURCE and the clarification remark should be removed. The means of diversion issue remark should be removed as addressed and resolved. The flow rate should be the standard remark for livestock direct from source claims: 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. The flow rate issue remark should be removed as addressed and resolved. The Preliminary Decree states that the point of diversion legal description is the NWNE section 16, T2N, R3W, JEFFERSON and the place of use legal description is section 16, T2N, R3W, JEFFERSON. The legal description for both should be E2 section 16, T2N, R3W, JEFFERSON. 3. Claim 41E 214137-00 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 type of historical right should be DECREED, just like the parent claim for this implied claim. The type of historical right issue remark should be removed as addressed and resolved. CONCLUSIONS OF LAW 1. For the Motion To Amend claim 41E 214095, the requested amendments do not adversely affect other water rights as they are corrections to the abstract which do not make any change to the actual historical use of the claimed right on the ground. Notice by publication of these amendments is not required. Section 85-2-233(6), MCA. 2. The requested amendment “merely makes more specific that which has already been alleged.” Prentice Lumber Company v. Hukill, 161 Mont. 8, 15 (1972). 3 3. The Motions To Amend are sufficient to contradict and overcome the prima facie claims as they appeared in the Preliminary Decree. RECOMMENDATIONS Based upon the above, this Master recommends that the Court grant the Motions To Amend and 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 claim 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 Electronic Mail: Ben Eckstein Aislinn Brown Terisa Oomens Agency Legal Services Bureau PO Box 201440 Helena MT 59620-1440 (406) 444-7375 blcwatercourt@mt.gov Aislinn.brown@mt.gov Terisa.oomens@mt.gov Kayla.churchill@mt.gov Note: Service List Updated 1-29-24 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41E PD\41E CASES\269R\269R mr 1-29-24 jbc.docx 4 Electronically Signed By: Hon. Judge Kathryn Lambert Mon, Feb 05 2024 07:36:46 AM February 2, 2024 41E 214095-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BOULDER RIVER, TRIBUTARY TO JEFFERSON RIVER BASIN 41E 41E 214095-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE MONTANA STATE BOARD OF LAND COMMISSIONERS TRUST LAND MANAGEMENT DIVISION PO BOX 201601 HELENA, MT 59620-1601 Owners: *Priority Date: APRIL 5, 1886 *Type of Historical Right: FILED *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 STOCKWATERING 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: CONROW CREEK SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County E2 16 2N 3W JEFFERSON Twp 2N Rge 3W County JEFFERSON Period of Diversion: APRIL 15 TO NOVEMBER 15 Diversion Means: LIVESTOCK DIRECT FROM SOURCE APRIL 15 TO NOVEMBER 15 *Period of Use: *Place of Use: ID 1 Acres Govt Lot Qtr Sec E2 Sec 16 February 2, 2024 41E 214137-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BOULDER RIVER, TRIBUTARY TO JEFFERSON RIVER BASIN 41E 41E 214137-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE MONTANA STATE BOARD OF LAND COMMISSIONERS TRUST LAND MANAGEMENT DIVISION PO BOX 201601 HELENA, MT 59620-1601 Owners: *Priority Date: MARCH 31, 1872 *Type of Historical Right: DECREED *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 STOCKWATERING 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: COTTONWOOD CREEK SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County N2 36 3N 3W JEFFERSON Twp 3N Rge 3W County JEFFERSON Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE JANUARY 1 TO DECEMBER 31 *Period of Use: *Place of Use: ID 1 Acres Govt Lot Qtr Sec N2 Sec 36

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