Ernest G. Elliott; Elliott E. Family Partnership LLP; Elliott Ranch LLC, Elliott Ranch LLC

Annotate this Case

Download PDF

FILED 01/16/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41I-0056-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: Ernest G. Elliott; Elliott E. Family Partnership LLP; Elliott Ranch LLC OBJECTOR: Elliott Ranch LLC CASE 41I-0056-R-2023 41I 11122-00 41I 11123-00 41I 11131-00 41I 11133-00 41I 23985-00 41I 23986-00 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. Claims 41I 11122-00 is co1 owned by Ernest G. Elliott, E Elliott Family Partnership LLP, and Elliot Ranch LLC. Claim 11123-00 is co-owned by Ernest G. Elliot and E Elliott Family Partnership LLP. The remaining claims are solely owned by Elliott Ranch LLC. The claims received issue 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 Priority Date Issue Remark 1. Claims 41I 11122-00, 41I 11123-00, 41I 11131-00, and 41I 11133-00 appeared in the Basin 41I Preliminary Decree as decreed rights with a priority date of May 23, 1869. The claims received the following issue remark: THE PRIORITY DATE IS QUESTIONABLE. CASE 921, BROADWATER COUNTY, DOES NOT SPECIFY A MONTH OR DAY BUT DECREED THE RIGHTS AS 'CONTEMPORANEOUS & WITHOUT PRIORITY AS BETWEEN SAID PARTIES'. THE CLAIMS FOLLOWING THIS STATEMENT ALL CLAIMED MAY 23, 1869. 411 11117-00, 411 11120-00, 41111121-00, 411 11222-00, 41111123-00, 41111124-00, 411 11125-00, 41111126-00, 411 11127-00, 411 11128-00, 41111129-00, 411 11130-00, 41111131-00, 411 11132-00, 41111133-00, 411 11134-00, 411 11135-00, 41111136-00, 411 11137-00, 41111138-00, 411 11139-00, 41111140-00, 411 11141-00, 411 11142-00. 2. Elliott Ranch objected to claims 41I 11122-00, 41I 11123-00, 41I 11131- 00, and 41I 11133-00, stating: Claimant objects to the Priority Date element of this water right claim in order to address the DNRC Issue Remark appearing on the claim and correct elements of this water right claim as additiona issues arise during field investigation, discovery, or otherwise. 3. All of the rights established by Case 921, Broadwater County claim the same priority date and no objections were filed to the priority date of claims 41I 1112200, 41I 11123-00, 41I 11131-00, and 41I 11133-00 other than the self-objection filed by Elliott Ranch. 4. The Court ordered Elliott Ranch to file a statement whether removal of the issue remark from the claim and maintaining the priority date as May 23, 1869, resolves their self-objections to claims 41I 11122-00, 41I 11123-00, 41I 11131-00, and 41I 1113300. 5. On December 14, 2023, Elliott Ranch filed a statement indicating that removal of the issue remark and maintaining the priority date as May 23, 1869, resolves their self-objection. (Doc.1 2.00). 41I 23985-00 and 41I 23986-00 “Doc.” numerical references correlate to case file docket numbers in the Water Court’s Full Court case management system. 1 2 6. Claims 41I 23985-00 and 41I 23986-00 appeared in the Basin 41I Preliminary Decree as claims for a well in the SWNESE of Section 15, T5N, R2E, Broadwater County. Claim 41I 23985-00 was decreed as a stock claim and claim 41I 23986-00 was decreed as a domestic claim. 7. Both claims received the following issue remark: TI-IE PLACE OF USE APPEARS TO BE INCORRECT. ME PLACE OF USE APPEARS TO BE SWNESE SEC 15 TWP 5N RGE 2E BROADWATER COUNTY. 8. Elliott Ranch objected to both claims, stating: Claimant objects to the Place of Use/Maximum Acres and Point of Diversion/Means of Diversion elements of this water right claim in order to address DN RC Issue Remarks appearing on the claim and correct elements of the water right claim as additional issues arise during field investigation, discovery. or otherwise. 9. The place of use for both claims was decreed as the SWNESE of Section 15, T5N, R5E, Broadwater County. Elliott Ranch’s statement indicates the place of use for each claim should be modified to the SWNESE of Section 15, T5N, R2E, Broadwater County, to match the point of diversion legal land descriptions. (Doc. 2.00). Notice-Type Issue Remarks 10. The claims received notice-type issue remarks as follows: 41I 11122-00, 41I 11123-00, 41I 11131-00 SOURCE NAME WAS MODIFIED AS A RESULT OF DNRC REVIEW UNDER MONTANA WATER COURT REEXAMINATION ORDERS. IF NO OBJECTIONS ARE FILED TO THIS CLAIM, THESE ELEMENTS WILL REMAIN AS THEY APPEAR ON THIS ABSTRACT AND THE REMARK WILL BE REMOVED FROM THE CLAIM. 41I 23985-00, 41I 23986-00 POINT OF DIVERSION WAS MODIFIED AS A RESULT OF DNRC REVIEW UNDER MONTANA WATER COURT REEXAMINATION ORDERS. IF NO OBJECTIONS ARE FILED TO THIS CLAIM, THESE ELEMENTS WILL REMAIN AS THEY APPEAR ON THIS ABSTRACT AND THE REMARK WILL BE REMOVED FROM THE CLAIM. 11. The issue remarks identify elements modified as a result of DNRC review pursuant to Montana Water Court reexamination orders. The remarks indicate 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. None of the claims received objections. 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 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 priority date issue remark does not overcome the prima facie status of claims 41I 11122-00, 41I 11123-00, 41I 11131-00, and 41I 11133-00. All of the rights established by Case 921, Broadwater County claim the same priority date and no objections were filed to the priority date of claims 41I 11122-00, 41I 11123-00, 41I 11131-00, and 41I 11133-00 other than the self-objection filed by Elliott Ranch. Removal of the issue remark from the claims resolves Elliott Ranch’s self-objections to claims 41I 11122-00, 41I 11123-00, 41I 11131-00, and 41I 11133-00. 2. The place of use issue remark overcomes the prima facie status of claims 41I 23985-00 and 41I 23986-00. The evidence shows the historically accurate place of use is in the SWNESE of Section 15, T5N, R2E, Broadwater County. Modifying the place of use for each claim resolves Elliott Ranch’s self-objections to the claims and the place of use issue remark. 4 3. Each remark in Finding of Fact No. 10 provides notice of the changes made after completion of the Temporary Preliminary Decree proceedings and prior to issuance of the Preliminary Decree. The remarks do not raise unresolved issues that need to be addressed. No proceedings are required to resolve the remarks; the remarks should be removed from the abstracts. RECOMMENDATIONS 1. The place of use for claims 41I 23985-00 and 41I 23986-00 should be modified to the SWNESE of Section 15, T5N, R2E, Broadwater County. 2. The issue remarks should be removed from the claim abstracts. 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 Betsy R Story Parsons Behle & Latimer PO Box 104 Helena, MT 59624 (406) 410-5050 bstory@parsonsbehle.com ecf@parsonsbehle.com (atty Elliott Ranch LLC) Service via USPS Mail Ernest G Elliott Elliott E Family Partnership LLP PO Box 476 Dawsonville, GA 30534 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41I PD\Cases\56\ML 41I-56 MR 12.20.23 VH.docx 5 Electronically Signed By: Hon. Judge Melissa Lockman Tue, Jan 16 2024 08:41:02 AM December 18, 2023 41I 11122-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, ABOVE HOLTER DAM BASIN 41I 41I 11122-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: ELLIOTT RANCH LLC Owners: PO BOX 476 DAWSONVILLE, GA 30534 ELLIOTT E FAMILY PARTNERSHIP LLLP PO BOX 476 DAWSONVILLE, GA 30534 0009 ERNEST G ELLIOTT PO BOX 476 DAWSONVILLE, GA 30534 0009 Priority Date: MAY 23, 1869 Type of Historical Right: DECREED Purpose (use): IRRIGATION SPRINKLER/FLOOD Irrigation Type: 7.43 CFS Flow Rate: THIS RIGHT IS FOR 1/7 THE FLOW OF BIG SPRINGS AS DESCRIBED IN CASE NO. 921 , BROADWATER COUNTY. 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: 234.00 *Source Name: SPRING, BIG SPRINGS GROUNDWATER Source Type: CONTRACT WATER FROM THE BROADWATER MISSOURI WATER USERS ASSOCIATION IS USED TO SUPPLEMENT THIS WATER RIGHT. Point of Diversion and Means of Diversion: ID Govt Lot 1 Period of Diversion: Qtr Sec Sec Twp Rge County NWSESE 6 4N 3E BROADWATER Qtr Sec W2SENE Sec 15 Twp 5N Rge 2E County BROADWATER W2NE 15 5N 2E BROADWATER APRIL 1 TO NOVEMBER 15 Diversion Means: HEADGATE Ditch Name: BIG SPRINGS DITCH APRIL 1 TO NOVEMBER 15 Period of Use: *Place of Use: ID 1 Acres 4.50 2 74.50 Govt Lot December 18, 2023 41I 11122-00 3 4 Total: Page 2 of 2 Post Decree Abstract 3.75 W2SWNE 15 5N 2E BROADWATER 151.25 NW 15 5N 2E BROADWATER 234.00 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. 11122-00 11123-00 11124-00 December 18, 2023 41I 11123-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, ABOVE HOLTER DAM BASIN 41I 41I 11123-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: ELLIOTT E FAMILY PARTNERSHIP LLLP Owners: PO BOX 476 DAWSONVILLE, GA 30534 0009 ERNEST G ELLIOTT PO BOX 476 DAWSONVILLE, GA 30534 0009 Priority Date: MAY 23, 1869 Type of Historical Right: DECREED Purpose (use): STOCK Flow Rate: 5.80 GPM *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: SPRING, BIG SPRINGS GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec Sec Twp Rge NWSESE 6 4N 3E BROADWATER Qtr Sec W2SWNE Sec 15 Twp 5N Rge 2E County BROADWATER 2 W2NE 15 5N 2E BROADWATER 3 NW 15 5N 2E BROADWATER 1 Period of Diversion: APRIL 1 TO NOVEMBER 15 Diversion Means: HEADGATE Ditch Name: BIG SPRINGS DITCH County APRIL 1 TO NOVEMBER 15 Period of Use: Place of Use: ID 1 Acres Govt Lot 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. 11122-00 11123-00 11124-00 December 18, 2023 41I 11131-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, ABOVE HOLTER DAM BASIN 41I 41I 11131-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: ELLIOTT RANCH LLC *Owners: PO BOX 476 DAWSONVILLE, GA 30534 Priority Date: MAY 23, 1869 Type of Historical Right: DECREED Purpose (use): IRRIGATION SPRINKLER/FLOOD Irrigation Type: 7.43 CFS Flow Rate: THIS RIGHT IS FOR 1/7 THE FLOW OF BIG SPRINGS AS DESCRIBED IN CASE NO. 921 , BROADWATER COUNTY. 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: 267.65 *Source Name: SPRING, BIG SPRINGS GROUNDWATER Source Type: CONTRACT WATER FROM THE BROADWATER MISSOURI WATER USERS ASSOCIATION IS USED TO SUPPLEMENT THIS WATER RIGHT. Point of Diversion and Means of Diversion: ID Govt Lot 1 Period of Diversion: Qtr Sec Sec Twp Rge NWSESE 6 4N 3E County BROADWATER Qtr Sec N2NW Sec 23 Twp 5N Rge 2E County BROADWATER APRIL 1 TO NOVEMBER 15 Diversion Means: HEADGATE Ditch Name: BIG SPRINGS DITCH APRIL 1 TO NOVEMBER 15 Period of Use: *Place of Use: ID 1 Acres 22.00 2 58.75 SW 14 5N 2E BROADWATER 3 92.00 SE 15 5N 2E BROADWATER 4 80.00 E2NE 15 5N 2E BROADWATER 5 14.90 NWSE 15 5N 2E BROADWATER Total: Remarks: 267.65 Govt Lot December 18, 2023 41I 11131-00 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. 11131-00 11132-00 11133-00 THIS WATER RIGHT IS SUBJECT TO A PRIVATE AGREEMENT IN THE STIPULATION FILED 02/15/2000 LOCATED IN THE CLAIM FILE AND CASE FILE 41I-505. December 18, 2023 41I 11133-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, ABOVE HOLTER DAM BASIN 41I 41I 11133-00 Water Right Number: STATEMENT OF CLAIM 3 -- POST DECREE Version: ACTIVE Status: ELLIOTT RANCH LLC Owners: PO BOX 476 DAWSONVILLE, GA 30534 Priority Date: MAY 23, 1869 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: SPRING, BIG SPRINGS GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge NWSESE 6 4N 3E BROADWATER Sec 14 Twp 5N Rge 2E County BROADWATER Period of Diversion: APRIL 1 TO NOVEMBER 15 Diversion Means: HEADGATE Ditch Name: BIG SPRINGS DITCH County APRIL 1 TO NOVEMBER 15 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec W2SW 2 2 15 5N 2E BROADWATER 3 3 15 5N 2E BROADWATER 15 5N 2E BROADWATER 23 5N 2E BROADWATER 4 NESE 5 1 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. 11131-00 11132-00 11133-00 December 18, 2023 41I 23985-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, ABOVE HOLTER DAM BASIN 41I 41I 23985-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: ELLIOTT RANCH LLC Owners: PO BOX 476 DAWSONVILLE, GA 30534 Priority Date: DECEMBER 31, 1950 Type of Historical Right: USE Purpose (use): STOCK Flow Rate: 3.60 GPM 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. *Volume: GROUNDWATER Source Name: GROUNDWATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge SWNESE 15 5N 2E BROADWATER Sec 15 Twp 5N Rge 2E County BROADWATER Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: WELL County JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec SWNESE December 18, 2023 41I 23986-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, ABOVE HOLTER DAM BASIN 41I 41I 23986-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: ELLIOTT RANCH LLC Owners: PO BOX 476 DAWSONVILLE, GA 30534 Priority Date: DECEMBER 31, 1942 Type of Historical Right: USE Purpose (use): DOMESTIC Flow Rate: 15.00 GPM Volume: 2.00 AC-FT 2 Households: Maximum Acres: 1.00 Source Name: GROUNDWATER GROUNDWATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Period of Diversion: Qtr Sec Sec Twp Rge County SWNESE 15 5N 2E BROADWATER Sec 15 Twp 5N Rge 2E County BROADWATER JANUARY 1 TO DECEMBER 31 WELL Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres 1.00 Total: Govt Lot Qtr Sec SWNESE 1.00 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. 23984-00 23986-00

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.