Phillip A. Ulrich & Beth V. Caplan Living Trust

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FILED 02/20/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41G-0620-R-2024 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Weisz, Madeleine 1.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION JEFFERSON RIVER BASIN (41G) PRELIMINARY DECREE ******************** CLAIMANT: Phillip A. Ulrich & Beth V. Caplan CASE 41G-0620-R-2024 Living Trust 41G 199235-00 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 199235-00 appeared in the Basin 41G Preliminary Decree with a DNRC issue remark. It did not receive any objections or notices of intent to appear. The Water Court is required by statute to resolve all issue remarks appearing on claims. 2. Claim 41G 199235-00 received the following issue remark: THIS CLAIM PRESENTS ISSUES OF FACT AND LAW THAT MAY BE ADDRESSED AT THE OBJECTION STAGE. IT APPEARS THAT 27.00 ACRES ARE ACTUALLY IRRIGATED AND PROBLEMS COULD EXIST WITH FLOW RATE AND VOLUME. Claim 41G 199235-00 appeared in the 41G Preliminary Decree with a 40-acre place of use. The information found in the issue remark and the claim file does not overcome the prima facie status of claim 41G 199235-00. It appears that DNRC added the place of use issue remark based on only one data point: a September 9, 1979 aerial photo. AIR FortOTU VtR IF ICAT ION OF OEVELIPMGHT: _ PHOTO atm PHOTO I./A IE ___O-'14 One PHOTO PHOTO PHOTU PHOTO OATt The single data point from an aerial photo taken in September, which falls outside the water right’s period of use (May 1 – August 15), does not overcome the prima facie status of the claim. The acres irrigated should remain as claimed. No modification to the flow rate or volume is required. The issue remark should be removes and considered resolved. 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 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 provide 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. The issue remark concerning the place of use, flow rate, and volume of claim 41G 199235-00 does not overcome the prima facie status of the claim. The evidence in the claim file does not show by a preponderance of the evidence that the place of use, the flow rate, or the volume are incorrect. Accordingly, the issue remarks should be removed. RECOMMENDATIONS 1. The issue remark should be removed from claim 41G 199235-00. A Post Decree Abstract 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. 3 Electronically Signed By: Hon. Judge Madeleine Weisz Tue, Feb 20 2024 01:02:38 PM Service via USPS Mail: Phillip A. Ulrich & Beth V. Caplan Living Trust 33 Sky Light Ct Bozeman, MT 59715 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41G PD\CASES\41G-R620\MW 41G-0620-R-2024 MR 2-12-2024 rr.docx 4 February 14, 2024 41G 199235-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM JEFFERSON RIVER BASIN 41G 41G 199235-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: Owners: ULRICH, PHILLIP A & BETH V CAPLAN LIVING TRUST 33 SKY LIGHT CT BOZEMAN, MT 59715 Priority Date: AUGUST 8, 1917 Type of Historical Right: FILED Purpose (Use): IRRIGATION Flow Rate: 1.25 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: 40.00 Source Name: SPRING, UNNAMED TRIBUTARY OF CHARCOAL CREEK GROUNDWATER Source Type: ALSO KNOWN AS CHARCOAL SPRING Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NESWSE 11 2S 3W MADISON Sec 11 Twp 2S Rge 3W County MADISON Period of Diversion: MAY 1 TO AUGUST 15 Diversion Means: HEADGATE MAY 1 TO AUGUST 15 Period of Use: Place of Use: ID 1 Acres 40.00 Total: Govt Lot Qtr Sec SESE 40.00 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. 199235-00 199243-00

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