James J. Conner; Teresa C. Conner, City of Townsend

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FILED 01/17/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41I-0047-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov Lockman, Melissa 5.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION MISSOURI RIVER ABOVE HOLTER DAM BASIN (41I) PRELIMINARY DECREE ******************** CLAIMANTS: James J. Conner; Teresa C. Conner CASE 41I-0047-R-2023 41I 30110698 OBJECTOR: City of Townsend 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 Claim 41I 30110698 appeared in the Preliminary Decree for the Missouri River above Holter Dam (Basin 41I) issued on June 24, 2022. The claim received an objection from the City of Townsend. 1 FINDINGS OF FACT 1. Claim 41I 30110698 was decreed as a flood irrigation claim from Deep 2. The City of Townsend objected to the claim, stating: Creek. This water right may be implicated in an exchange of water between Deep Creek and the Broadwater-Missouri Water Users Association. The operation of BMWUA's exchange is unclear. The nature and extent of this right's involvement in the BMWUA's exchange needs to be determined. All substantive DNRC issue Remarks should be resolved Objector reserves the right to modify this objection pending further research and/ or the discovery of additional evidence. 3. On January 4, 2024, the Court held a status conference in this matter. James Conner appeared on his own behalf and on behalf of Teresa Conner. Breeann Johnson appeared on behalf of the City of Townsend. During the status conference, Ms. Johnson and Mr. Conner discussed the objection. Mr. Conner confirmed that claim 41I 30110698 is not involved in the Broadwater-Missouri Water Users Association exchange. 4. Based on the information provided by Mr. Conner, on January 4, 2024, the City of Townsend filed an unconditional withdrawal of their objection to claim 41I 30110698. (Doc.1 4.00). 5. Claim 41I 30110698 received the following notice-type issue remark: DITCH NAME WAS MODIFIED AS A RESULT OF ONRC REVIEW UNDER MONTANA WATER COURT REEXAMEA.110NORDERS IF NOOBJECTIONS ARE FIL ED TO THIS CLAIM. THESE ELEIAENTS WILL REMAIN AS 11-IEM APPEAR ON DNS AFISTRACT AN D1HE REMARK WN.L BE REMOVED FROM THE CLAIM. 6. The issue remark states the ditch name was modified as a result of DNRC review pursuant to Montana Water Court reexamination orders. The remark indicates that if no objections are filed, the elements of the claim will remain as they appear on the abstract and the remarks will be removed. Although claim 41I 30110698 received an objection, it has been withdrawn. 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. 1 “Doc.” numerical references correlate to case file docket numbers in the Water Court’s Full Court case management system. 2 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 City of Townsend’s objection to claim 41I 30110698 should be dismissed. 2. The notice-type issue remark provided its intended notice. RECOMMENDATIONS 1. The elements of claim 41I 30110698 should remain as they appeared in the Basin 41I Preliminary Decree. 2. The issue remark should be removed from claim 41I 30110698. A post decree abstract of the water right claim reflecting these recommendations is attached to this Report. ELECTRONICALLY SIGNED AND DATED BELOW. 3 Electronically Signed By: Hon. Judge Melissa Lockman Wed, Jan 17 2024 01:05:13 PM Service via USPS Mail James J Conner Teresa C Conner 472 Lower Deep Creek Rd Townsend, MT 59644 Service via Electronic Mail Breeann M Johnson Western Roots Law PLLC PO Box 7004 Bozeman, MT 59771 (406) 600-9389 johnson@westernrootslaw.com (atty City of Townsend) \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41I PD\Cases\47\41I-47 MR 1-8-24 jbc for vh.docx 4 January 8, 2024 41I 30110698 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, ABOVE HOLTER DAM BASIN 41I Water Right Number: 41I 30110698 Version: STATEMENT OF CLAIM 4 -- POST DECREE Status: Owners: ACTIVE JAMES J CONNER 472 LOWER DEEP CREEK RD TOWNSEND, MT 59644-9738 TERESA C CONNER 472 LOWER DEEP CREEK RD TOWNSEND, MT 59644-9738 *Priority Date: APRIL 1, 1870 *Type of Historical Right: DECREED *Purpose (Use): IRRIGATION Irrigation Type: FLOOD *Flow Rate: 72.63 GPM *Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. Climatic Area: 3 - MODERATE *Maximum Acres: 23.63 *Source Name: DEEP CREEK Source Type: SURFACE WATER *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge NENESW 2 6N 2E BROADWATER 2 6N 2E BROADWATER 2 6N 2E BROADWATER Period of Diversion: APRIL 1 TO OCTOBER 15 Diversion Means: HEADGATE Ditch Name: HEUER-RIDGEWAY-PROSSER DITCH 2 NWNESW Period of Diversion: APRIL 1 TO OCTOBER 15 Diversion Means: HEADGATE Ditch Name: RIDGEWAY DITCH 3 Period of Diversion: SENWSW APRIL 1 TO OCTOBER 15 Diversion Means: HEADGATE Ditch Name: RIDGEWAY-PROSSER DITCH *Period of Use: APRIL 1 TO OCTOBER 15 County January 8, 2024 41I 30110698 Page 2 of 2 Post Decree Abstract *Place of Use: ID 1 Acres 23.63 Total: Govt Lot Qtr Sec SW Sec 2 Twp 6N Rge 2E County BROADWATER 23.63 THE PLACE OF USE IS TRACTS E-1 AND E-2A OF COS NO. 170504. 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. 30109808 30109817 30110698

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