Don L. Brown; Mildred Patterson

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FILED 03/27/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41G-0609-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Weisz, Madeleine 2.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION JEFFERSON RIVER BASIN (41G) PRELIMINARY DECREE ******************** CLAIMANTS: Don L. Brown; Mildred Patterson CASE 41G-0609-R-2023 41G 197124-00 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 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. 1 MASTER’S REPORT FINDINGS OF FACT 1. Claim 41G 197124-00 appeared in the Basin 41G Preliminary Decree with a DNRC issue remark concerning the means of diversion. No objections were filed to the claim. 2. Claim 41G 197124-00 is a 4.0 cfs water right from the Jefferson River for the purpose of mining. It received the following issue remark: THE MEANS OF DIVERSION APPEARS TO BE INCORRECT. SEE CLAIM FILE FOR ADDITIONAL INFORMATION. 3. The means of diversion for claim 41G 1997124-00 was decreed as “pump/headgate with ditch or pipeline,” which reflects the information on the Statement of Claim form: • • •101711.71 •I• R civ..)0.c. a al p M A DI Soo fs.) 6 ‘:.•• oi nt of Diversion: County 6 Os 11_1_ Afili ibv_taa 14 / __SC14 / . section .7 2 A VA Lot_ . Block . Subdivision gi . Joye re-CPaeans of Diversion: • D Well ...N'e..4,::; Capacity 0 u. X Pump 9Pm T I I X: Headgate with ditch or pipeline '.r.t.:1 ': e "AM 0 lnsiream use Explain O Other .1 tri .:4.11 Atif !NM t. i Ditch 0 instrearn.:3n": 1:1:1 Cialitnc 7. Moans of Conveyance: 133 r8) Pipeline ri Other o a ‘ k-/-,07/7/7-.7./...0SCW,V7.07•=-COCCLCCCOOCCOCOr 4. It is not clear why the DNRC noted that the means of diversion may be incorrect and no further information supporting the issue remark was provided. Water right claims are entitled to prima facie status. The evidence before the court does not overcome the prima facie status of the claim. The issue remark should be removed, and the means of diversion should remain unchanged. 2 CONCLUSIONS OF LAW 1. A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content. § 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. Rule 19, W.R.Adj.R. 2. Section 85-2-248(2), MCA requires the Water Court to resolve all issue remarks that are not resolved through the objection process. The Montana Water Court has the authority to resolve issue remarks when the claim file and information available to the Court provides a sufficient basis to do so. § 85-2-248(3), MCA. 3. The requirement to resolve issue remarks does not eliminate the prima facie status granted to water rights, nor does it change the burden of proof required to modify or invalidate a claim. 43Q 200996-00 et al., Order Establishing Volume and Order Closing Case, at 18, June 8, 2015. The factual evidence on which an issue remark is based must meet the preponderance of evidence standard before the prima facie status of a claim is overcome. If it meets this standard, then the burden of proof shifts to the claimant to prove his or her claim’s validity. An issue remark is weighed like any other evidence. When an issue remark is placed on a claim, “the information resulting in the issue remark and the issue remark must be weighed against the claimed water right.” § 85-2-247(2), MCA (emphasis added). The Water Court shall review an issue remark “to determine if information in the claim file or information obtained by the court provides a sufficient basis to resolve the identified issue remark or to determine if the issue remark can be corrected as a clerical error.” § 85-2-248(3), MCA. Determining whether the factual issues raised by an issue remark have been resolved requires the exercise of judicial discretion. Id. 4. There is no evidence before the court to overcome the prima facie status of claim 41G 197124-00. The means of diversion issue remark should be removed. 3 RECOMMENDATIONS 1. The issue remark should be removed from claim 41G 197124-00. A Post Decree Abstracts of Water Right Claim is served with the Report to confirm that the recommended modifications have been made in the state’s centralized record system. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail: Don L. Brown Scott Brown 68 Cloverview Drive Helena, MT 59601-0251 Mildred Patterson Don Brown 2801 Colonial Drive #321 Helena, MT 59601-8043 (Return mail received) \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41G PD\CASES\41G-R609\MW 41G-0609-R-2023 MR 3-20-2024 rr.docx 4 Electronically Signed By: Hon. Judge Madeleine Weisz Wed, Mar 27 2024 01:56:59 PM March 22, 2024 41G 197124-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM JEFFERSON RIVER BASIN 41G 41G 197124-00 Water Right Number: Version: STATEMENT OF CLAIM 4 -- POST DECREE ACTIVE Status: DON L BROWN C/O SCOTT BROWN 68 CLOVERVIEW DR HELENA, MT 59601-0251 Owners: MILDRED PATTERSON % DON BROWN, 2801 COLONIAL DR #321 HELENA, MT 59601-8043 Priority Date: SEPTEMBER 1, 1869 Type of Historical Right: FILED Purpose (Use): MINING 4.00 CFS *Flow Rate: Volume: THIS WATER RIGHT IS LIMITED TO THE VOLUME OF WATER HISTORICALLY USED FOR MINING PURPOSES. Source Name: JEFFERSON RIVER SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWNESE 1 2S 6W MADISON JUNE 1 TO OCTOBER 1 *Period of Diversion: PUMP/HEADGATE W/DITCH OR PIPELINE Diversion Means: JUNE 1 TO OCTOBER 1 *Period of Use: Place of Use: ID 1 Acres Govt Lot 2 Qtr Sec W2SE Sec 1 Twp 2S Rge 6W County MADISON NESE 1 2S 6W MADISON Remarks: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 197122-00 197123-00 197124-00

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