Dorothy M. Hathaway; William J. Hathaway

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FILED 02/29/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: Julia __________________ Romero 41H-0834-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Nordlund, Julia 2.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION GALLATIN RIVER BASIN (41H) PRELIMINARY DECREE ******************* CLAIMANTS: Dorothy M. Hathaway; William J. Hathaway NOTICE OF INTENT TO APPEAR: Four Corners County Water & Sewer District CASE 41H-0834-R-2023 41H 134009-00 41H 134010-00 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. 1 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 FINDINGS OF FACT 1. Claims 41H 134009-00 and 41H 134010-00 appeared in the Preliminary Decree for Basin 41H with Montana Department of Natural Resources and Conservation (DNRC) issue remarks. The claims received late objections and a notice of intent to appear from Four Corners County Water & Sewer District. 2. On October 14, 1987, Claimants Dorothy and William Hathaway filed an Objection to these claims to the point of diversion and means of diversion. The Objection was too late to be processed for the Basin 41H Temporary Preliminary Decree. 3. On December 4, 2023, the Court Consolidated the claims into this case and set a filing deadline for the Claimants and NOIA to file documents resolving the late objection. The Court stated if nothing was filed, it would dismiss the objections. 4. No response was filed by any party. 5. The issue remarks on these claims can be removed and the Objections dismissed. 6. No other issue remarks or Objections remain on the claims. CONCLUSIONS OF LAW 1. 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. Section 85-2-248(3), MCA. 2. A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content. 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 an element of the prima facie claim is incorrect. This is the burden of 2 proof for every assertion that a claim is incorrect. Rule 19, W.R.Adj.R. 3. The degree or weight of evidence needed to contradict or overcome the prima facie proof statute is a preponderance of the evidence. Burkhartsmeyer et al. v. Burkhartsmeyer et al., Case 40G-2, (MT Water Court Memorandum Opinion and Order Adopting Master’s Report, Mar. 11, 1997). The Montana Supreme Court has defined preponderance as “a relatively modest standard that the statutory criteria are ‘more probable than not’ to have been met.” Hohenlohe v. State, 2010 MT 203 ¶ 33, 357 Mont. 438, 240 P.3d 628. 4. The Montana Water Court is permitted to use information submitted by the Department of Natural Resources and Conservation, the statement of claim, information from approved compacts, and any other data obtained by the Court to evaluate water right claims. Section 85-2-231(2), MCA. 5. The issues raised by issue remarks must be resolved as part of the adjudication process pursuant to Section 85-2-248, MCA. 6. If a claimant fails to comply with an order issued by the Water Court, the Court may, upon motion or its own initiative, issue such orders of sanction with regard thereto as are just. Rule 22, W.R.Adj.R. RECOMMENDATIONS Based upon the above Findings of Fact and Conclusions of Law, this Master recommends that the Court make the changes specified above to correct the Preliminary Decree for this Basin. Post Decree Abstracts of Water Right Claims are served with this Report to confirm that the recommended changes have been made in the state’s centralized record system. ELECTRONICALLY SIGNED AND DATED BELOW. 3 Electronically Signed By: Hon. Judge Julia Nordlund Thu, Feb 29 2024 09:55:21 AM Service via USPS mail: Hathaway, Dorothy M. 2471 Magenta Rd Bozeman, MT 59718-9427 Service Via Electronic Mail: Pepper, Dana E River And Range Law, PLLC PO Box 477 Bozeman, MT 59771-0477 (406) 451-3418 W dana@riverandrangelaw.com bina@riverandrangelaw.com Swimley, Susan B. Attorney and Counselor at Law 1807 W Dickerson Unit B Bozeman, MT 59715 swimley@swimleylaw.com \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41H PD\41H Cases\41H-R834\41H-834 MR no resp late obj 2-15-24 jr.docx 4 July 18, 2023 41H 134009-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM GALLATIN RIVER BASIN 41H 41H 134009-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE DOROTHY M HATHAWAY Owners: 2471 MAGENTA RD BOZEMAN, MT 59718 9427 WILLIAM J HATHAWAY 2471 MAGENTA RD BOZEMAN, MT 59718 9427 Priority Date: MAY 1, 1867 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 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. Source Name: WEST GALLATIN RIVER SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge SWNWSE 14 2S 4E GALLATIN Sec 14 Twp 2S Rge 4E County GALLATIN 2S 4E GALLATIN 2S 4E GALLATIN 2S 4E GALLATIN Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: HEADGATE County JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Subdivision: 2 Govt Lot Qtr Sec SWNWSE RAINBOW SUBD TRACT/LOT: 246 SWNWSE 14 Subdivision: RAINBOW SUBD TRACT/LOT: 247 Subdivision: RAINBOW SUBD TRACT/LOT: 237 3 SWNWSE 4 SWNWSE Subdivision: Remarks: 14 14 RAINBOW SUBD TRACT/LOT: 236 July 18, 2023 41H 134009-00 Page 2 of 2 Post Decree Abstract 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. 134009-00 134010-00 July 18, 2023 41H 134010-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM GALLATIN RIVER BASIN 41H 41H 134010-00 Water Right Number: Version: STATEMENT OF CLAIM 4 -- POST DECREE Status: ACTIVE DOROTHY M HATHAWAY Owners: 2471 MAGENTA RD BOZEMAN, MT 59718 9427 WILLIAM J HATHAWAY 2471 MAGENTA RD BOZEMAN, MT 59718 9427 Priority Date: MAY 1, 1867 Type of Historical Right: DECREED Purpose (use): IRRIGATION FLOOD Irrigation Type: *Flow Rate: 27.20 GPM *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: 6.50 Source Name: WEST GALLATIN RIVER SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge SWNWSE 14 2S 4E GALLATIN Sec 14 Twp 2S Rge 4E County GALLATIN 14 2S 4E GALLATIN 14 2S 4E GALLATIN 14 2S 4E GALLATIN Period of Diversion: APRIL 15 TO OCTOBER 15 Diversion Means: HEADGATE Ditch Name: HATHAWAY PUMP SITE County APRIL 15 TO OCTOBER 15 Period of Use: Place of Use: ID 1 Acres 1.00 1.00 2.50 SWNWSE RAINBOW SUB TRACT/LOT: 237 Subdivision: 4 SWNWSE RAINBOW SUB TRACT/LOT: 247 Subdivision: 3 Qtr Sec SWNWSE RAINBOW SUB TRACT/LOT: 246 Subdivision: 2 Govt Lot 2.00 SWNWSE July 18, 2023 41H 134010-00 Page 2 of 2 Post Decree Abstract RAINBOW SUB TRACT/LOT: 236 Subdivision: Total: 6.50 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. 134009-00 134010-00 FILE REFLECTS AUTHORIZATION TO CHANGE POINT OF DIVERSION. COMPLETED 03/16/1983. SEE 41H 13401000. THE ABOVE FLOW RATE AND VOLUME DEPICT THE HISTORIC USE. COMPLETED AUTHORIZATION TO CHANGE REFLECTS PRESENT USE OF 73 GPM UP TO 15.5 ACRE-FEET.

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