Bruce Properties LLC; Bruce Rentals LLC

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FILED 01/16/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41I-0024-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov Lockman, Melissa 3.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION MISSOURI RIVER ABOVE HOLTER DAM BASIN (41I) PRELIMINARY DECREE ******************** CLAIMANTS: Bruce Properties LLC; Bruce Rentals LLC CASE 41I-0024-R-2023 41I 10742-00 41I 210914-00 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. MASTER’S REPORT The above-captioned claims appeared in the Preliminary Decree for the Missouri River above Holter Dam (Basin 41I) issued on June 24, 2022. The claims received issue 1 remarks. Issue remarks are notations identifying potential legal or factual issues with water rights and the Water Court is required to resolve these potential issues. FINDINGS OF FACT 1. Claim 41I 10742-00 appeared in the Basin 41I Preliminary Decree as a sprinkler irrigation claim that diverts 3.57 CFS from a well. The claim received the following issue remark: THE TYPE OF HISTORICAL RIGHT, PRIORITY DATE, AND FLOW RATE MAY BE QUESTIONABLE. THE CLAIMS FOLLOWING THIS STATEMENT USE THE SAME FILED APPROPRIATION TO DOCUMENT THE RIGHT. THE COMBINED FLOW RATE FOR THIS GROUP OF CLAIMS EXCEEDS THE TOTAL OF THE ORIGINAL APPROPRIATION. 41110742-00. 2. The well log attached to the Statement of Claim says the well pumps 900 gallons per minute, however the flow rate was claimed as 1,600 GPM. 3.57 CFS is equivalent to 1602.22 GPM. A DNRC note in the claim file states: `k" g° "IS-)& . \ taA:S\•13 •Q- • '5 1- •-•J a_so - ko ,s•S3 3. On December 14, 2023, Andy Bruce of Bruce Properties LLC and Bruce Rentals LLC filed a statement with the Court. (Doc.1 2.00) According to Mr. Bruce: The well in question has a 75 HP turbine pump set at 85 feet capable of producing in excess of 1600gpm. There are three pivots served by this well and are capable of being run simultaneously. the flow rates for the individual pivots are: 160 gpm, 540 gpm and 900 gpm which totals to 1600 gpm. 4. The information provided by Mr. Bruce is consistent with the information in the DNRC note and in the claim file. 5. Claim 41I 210914-00 received the following notice-type issue remark: CLAIM FILED LATE 06/20/83 . IN ADDITION TO BEING SUBORDINATE TO ALL INDIAN AND FEDERAL RESERVED WATER RIGHTS AND ALL VALID TIMELY FILED CLAIMS BASED ON STATE LAW, THIS RIGHT MAY ALSO BE SUBORDINATE TO CERTAIN PERMITS AND RESERVATIONS OF WATER. SEE SECTION 85-2-221 MCA. 6. This remark provided its intended notice. The claim will still be identified as a late claim with an information remark that appears below the priority date on the claim abstract. No proceedings are required. “Doc.” numerical references correlate to case file docket numbers in the Water Court’s Full Court case management system. 1 2 PRINCIPLES OF LAW 1. A properly filed Statement of Claim for an existing water right is prima facie proof of its content. Section 85-2-227, MCA; Rule 10, W.R.Adj.R. 2. Prima facie proof may be contradicted and overcome by a preponderance of the evidence. Rule 19, W.R.Adj.R. 3. A preponderance of the evidence is evidence that shows a fact is “more probable than not.” Hohenlohe v. State, 2010 MT 203, ¶ 33, 357 Mont. 438, 240 P.3d 628. 4. If prima facie status is overcome, the burden shifts back to the claimant to demonstrate historical use. 79 Ranch v. Pitsch, 204 Mont. 426, 432-33, 666 P.2d 215, 218 (1983). 5. Section 85-2-248(2), MCA, requires that the Water Court resolve all issue remarks that are not resolved through the objection process. See also Rule 7, W.R.Adj.R. 6. The Water Court may use information submitted by the DNRC, the Statement of Claim, and any other data obtained by the Court to evaluate a water right. Sections 85-2-227, -231(2), MCA. 7. When resolving issue remarks, the Water Court must weigh the information resulting in the issue remark and the issue remark against the claimed water right. Section 85-2-247(2), MCA. 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. 43Q 200996-00 et al., Order Establishing Volume and Order Closing Case, at 18, June 8, 2015. CONCLUSIONS OF LAW 1. The flow rate issue remark does not overcome the prima facie status of claim 41I 10742-00. The 900 GPM that appeared on the well log was related to testing of the pump. Claimants historically diverted a flow rate of 1,600 GPM. 2. The notice-type issue remark on claim 41I 210914-00 served its notice purpose. RECOMMENDATIONS 3 1. The issue remarks should be removed from claims 41I 10742-00 and 41I 210914-00. 2. The elements of claims 41I 10742-00 and 41I 210914-00 should remain as they appeared in the Basin 41I Preliminary Decree. A post decree abstract of each water right claim reflecting the recommended changes is attached to this Report. ELECTRONICALLY SIGNED AND DATED BELOW. Service via Electronic Mail Bruce Properties LLC 91 Lower Deep Creek Rd Townsend, MT 59644-9772 Bruce Rentals LLC 13436 Tuscalee Way Draper, UT 84020-8868 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41I PD\Cases\24\ML 41I-24 MR 12.20.23 VH.docx 4 Electronically Signed By: Hon. Judge Melissa Lockman Tue, Jan 16 2024 08:39:37 AM December 18, 2023 41I 10742-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, ABOVE HOLTER DAM BASIN 41I 41I 10742-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: BRUCE PROPERTIES LLC Owners: 91 LOWER DEEP CREEK RD TOWNSEND, MT 59644 9772 Priority Date: AUGUST 17, 1956 Type of Historical Right: FILED Purpose (use): IRRIGATION SPRINKLER Irrigation Type: 3.57 CFS Flow Rate: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. *Volume: 3 - MODERATE Climatic Area: Maximum Acres: 115.00 Source Name: GROUNDWATER GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge NENWSW 34 7N 2E BROADWATER Qtr Sec NW Sec 34 Twp 7N Rge 2E County BROADWATER SW 34 7N 2E BROADWATER Period of Diversion: MARCH 15 TO OCTOBER 31 Diversion Means: WELL County MARCH 15 TO OCTOBER 31 Period of Use: Place of Use: ID 1 Acres 45.00 2 70.00 Total: 115.00 Govt Lot December 18, 2023 41I 210914-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, ABOVE HOLTER DAM BASIN 41I 41I 210914-00 Water Right Number: Version: STATEMENT OF CLAIM 4 -- POST DECREE ACTIVE Status: Late Claim: B BRUCE PROPERTIES LLC Owners: 91 LOWER DEEP CREEK RD TOWNSEND, MT 59644 9772 BRUCE RENTALS LLC 13436 TUSCALEE WAY DRAPER, UT 84020 8868 AUGUST 24, 1963 Priority Date: JUNE 30, 1973 Enforceable Priority Date: CLAIM FILED LATE 06/20/83 . AS MANDATED BY SECTION 85-2-221(3), MCA, THIS CLAIM IS SUBORDINATE, AND THEREFORE JUNIOR, TO ALL INDIAN AND FEDERAL RESERVED WATER RIGHTS AND ALL VALID TIMELY FILED CLAIMS BASED ON STATE LAW. Type of Historical Right: USE Purpose (use): IRRIGATION SPRINKLER Irrigation Type: 6.25 CFS Flow Rate: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. *Volume: 3 - MODERATE Climatic Area: Maximum Acres: 310.00 Source Name: WASTE & SEEPAGE, UNNAMED TRIBUTARY OF MISSOURI RIVER SURFACE WATER Source Type: THE SOURCE IS WATER COLLECTED IN A DRAIN DITCH. Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge NENESW 4 6N 2E BROADWATER Qtr Sec S2NE Sec 4 Twp 6N Rge 2E County BROADWATER Period of Diversion: APRIL 15 TO NOVEMBER 1 Diversion Means: PUMP County APRIL 15 TO NOVEMBER 1 Period of Use: Place of Use: ID 1 Acres 76.00 Govt Lot 2 78.00 S2NW 4 6N 2E BROADWATER 3 76.00 N2SE 4 6N 2E BROADWATER December 18, 2023 41I 210914-00 4 Page 2 of 2 Post Decree Abstract 80.00 Total: N2SW 4 6N 2E BROADWATER 310.00 Remarks: THE WATER RIGHTS FOLLOWING THIS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS. EACH RIGHT IS LIMITED TO THE FLOW RATE AND PLACE OF USE OF THAT INDIVIDUAL RIGHT. THE SUM TOTAL VOLUME OF THESE WATER RIGHTS SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 89010-00 89011-00 210914-00

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