Joshua M. Van Dyke
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FILED 02/23/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41E-0271-R-2024 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Lambert, Kathryn 4.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION BOULDER RIVER—TRIBUTARY OF THE JEFFERSON RIVER (BASIN 41E) PRELIMINARY DECREE ************************* CLAIMANT: Joshua M. Van Dyke CASE 41E-0271-R-2024 41E 143114-00 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 finding 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 This claim appeared in the Preliminary Decree with the following issue remark: THE MEANS OF DIVERSION APPEARS TO BE INCORRECT. THE MEANS OF DIVERSION APPEARS TO BE A PIPELINE. The issue remark was not addressed through the objection process. The Water Court is required to resolve the issues raised by each issue remark. Section 85-2-248, MCA. 1 Under Section 85-2-248(3), MCA, information in the claim file or other information obtained by the Court can be reviewed to determine if it provides a sufficient basis to resolve the issue raised by a remark and the Court can provide the claimant an opportunity to file additional information or evidence. The February 15, 2024 Court Minutes state: The scheduling conference was held before Senior Water Master Kathryn L. W. Lambert on February 15, 2024 at 1:00 pm by telephone conference call conducted through the Montana Water Court. Joshua M. Van Dyke appeared. Mr. Van Dyke agreed with the Court stating in these Court Minutes that he agrees the means of diversion should be pipeline. The Court Minutes are viewable in the Court’s FullCourt Enterprise case management system. APPLICABLE LAW “All issue remarks to claims that are not resolved through the filing of an objection as provided in 85-2-233 must be resolved as provided in this section.” Section 85-2-248(2), 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 for claimants objecting to their own claims. Rule 19, W.R.Adj.R. FINDING OF FACT The Preliminary Decree states that the means of diversion is FLOWING. The means of diversion should be PIPELINE. The issue remark should be removed as addressed and resolved. CONCLUSION OF LAW The information provided by the claimant is sufficient to resolve the issue remark without evidentiary hearing. Sections 85-2-248(3) and (11), MCA. RECOMMENDATIONS Based upon the above Finding of Fact and Conclusion of Law, this Master recommends that the Court make the changes specified in the Finding of Fact to correct the Preliminary 2 Decree for this Basin. A Post Decree Abstract of Water Right 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 USPS Mail: Joshua M. Van Dyke 797 Insulator Ave Helena, MT 59602 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41E PD\41E CASES\271R\271R mr 2-21-24 jbc.docx 3 Electronically Signed By: Hon. Judge Kathryn Lambert Fri, Feb 23 2024 08:06:50 AM February 22, 2024 41E 143114-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BOULDER RIVER, TRIBUTARY TO JEFFERSON RIVER BASIN 41E 41E 143114-00 Water Right Number: Version: STATEMENT OF CLAIM 4 -- POST DECREE ACTIVE Status: Owners: JOSHUA M VAN DYKE 797 INSULATOR AVE HELENA, MT 59602-7834 Priority Date: JUNE 30, 1933 Type of Historical Right: FILED Purpose (Use): DOMESTIC Flow Rate: 27.00 GPM Volume: 5.00 AC-FT 1 Households: Maximum Acres: 2.00 Source Name: SPRING, UNNAMED TRIBUTARY OF ELKHORN CREEK GROUNDWATER Source Type: ALSO KNOWN AS SHADY NOOK SPRING *Point of Diversion and Means of Diversion: ID Govt Lot 1 Period of Diversion: Qtr Sec Sec Twp Rge County NWNENE 33 6N 3W JEFFERSON Sec 33 Twp 6N Rge 3W County JEFFERSON JANUARY 1 TO DECEMBER 31 PIPELINE Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: *Place of Use: ID 1 Acres 2.00 Total: 2.00 Govt Lot Qtr Sec NWNENE
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