Flynn Hay & Grain LLC; Hidden Hollow Ranch

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FILED 01/16/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41I-0086-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov Lockman, Melissa 1.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION MISSOURI RIVER ABOVE HOLTER DAM BASIN (41I) PRELIMINARY DECREE ******************** CLAIMANT: Flynn Hay & Grain LLC; Hidden Hollow Ranch CASE 41I-0086-R-2023 41I 49375-00 41I 49376-00 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 are co-owned 1 by Flynn Hay & Grain Inc. and Hidden Hollow Ranch. 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 41I 49375-00 1. Claim 41I 49375-00 appeared in the Basin 41I Preliminary Decree as a claim for sprinkler/flood irrigation of 382.00 acres as follows: *Place of Use I7 Acres 1 95.00 2 3 hTt: ec Sec NW 14 6N 2E BROADWATER 60.00 SE 14 6N 2E BROADWATER 98.00 SW 14 6N 2E BROADWATER 4 87.00 NW 23 6N 2E BROADWATER 5 42.00 N2SW 23 6N 2E BROADWATER Total: 2. Govt Lot Ifl z S Cot 382.00 The claim received the following issue remarks: THE BROADWATER COUNTY WATER RESOURCES SURVEY ( 1956 ) APPEARS TO INDICATE 287.00 ACRES IRRIGATED. A DESCRIPTION OF THESE ACRES IS IN THE CLAIM FILE. THE MAXIMUM COMBINED ACRES FOR THIS GROUP OF SUPPLEMENTAL CLAIMS MAY REQUIRE MODIFICATION PENDING RESOLUTION OF MAXIMUM IRRIGATED ACRES ISSUE. 3. The Statement of Claim originally claimed a 560.00-acre place of use. The issue remarks were placed on the claim prior to the Basin 41I Temporary Preliminary Decree. 4. During adjudication of the Basin 41I Temporary Preliminary Decree, in addition to the issue remarks, the United States Department of Interior, Bureau of Reclamation (BOR) objected to the claim and Leonard Lambott filed a Notice of Intent to Appear. 5. In resolution of the objection and Notice of Intent to Appear, the place of use and maximum acres were reduced to 382.00 acres. 41I 49376-00 6. Claim 41I 49376-00 appeared in the Basin 41I Preliminary Decree as a claim for sprinkler/flood irrigation of 340.00 acres as follows: *Place of Use: ID Acres tr Sec Sec Twp NW 14 6N 2E BROADWATER 60.00 SE 14 6N 2E BROADWATER 98.00 SW 14 6N 2E BROADWATER 87.00 NW 23 6N 2E BROADWATER 1 95.00 2 3 4 Total: Govt Lot 340.00 2 g S Co 7. The claim received the following issue remarks: THE BROADWATER COUNTY WATER RESOURCES SURVEY ( 1956 ) APPEARS TO INDICATE 249.00 ACRES IRRIGATED. A DESCRIPTION OF THESE ACRES IS IN THE CLAIM FILE. USDA AERIAL PHOTOGRAPH NO(S). 379-180 AND 379-182 , DATED 08/28/1979 , APPEARS TO INDICATE 425.00 ACRES IRRIGATED. A DESCRIPTION OF THESE ACRES IS IN THE CLAIM FILE. THE MAXIMUM COMBINED ACRES FOR THIS GROUP OF SUPPLEMENTAL CLAIMS MAY REQUIRE MODIFICATION PENDING RESOLUTION OF MAXIMUM IRRIGATED ACRES ISSUE. 8. The Statement of Claim originally claimed a 490.00-acre place of use. The issue remarks were placed on the claim prior to the Basin 41I Temporary Preliminary Decree. 9. During adjudication of the Basin 41I Temporary Preliminary Decree, in addition to the issue remarks, the United States Department of Interior, Bureau of Reclamation (BOR) objected to the claim, and Leonard Lambott and Donald W. Shearer (later substituted with James D. Swan, Jr.) filed Notices of Intent to Appear. 10. In resolution of the objection and Notice of Intent to Appear, the place of use and maximum acres were reduced to 340.00 acres. 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. 3 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. CONCLUSION OF LAW 1. The acres irrigated and maximum acres issue remarks on claims 41I 49375- 00 and 41I 49376-00 were resolved by modifications made by the Court during adjudication of the Basin 41I Temporary Preliminary Decree. The evidence supporting the issue remarks was before the Court when it approved the stipulation and there is no new evidence before the Court questioning the place of use and maximum acres. RECOMMENDATIONS 1. The issue remarks should be removed from claims 41I 49375-00 and 41I 49376-00. 2. The elements of claims 41I 49375-00 and 41I 49376-00 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 USPS Mail Flynn Hay & Grain LLC 273 Flynn Ln Townsend, MT 59644 Hidden Hollow Ranch 99 Greyson Creek Rd Townsend, MT 59644 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41I PD\Cases\86\ML 41I-86 MR 12.6.23 VH.docx 4 Electronically Signed By: Hon. Judge Melissa Lockman Tue, Jan 16 2024 10:36:19 AM January 12, 2024 41I 49375-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, ABOVE HOLTER DAM BASIN 41I 41I 49375-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: FLYNN HAY & GRAIN LLC 273 FLYNN LN TOWNSEND, MT 59644-9770 Owners: HIDDEN HOLLOW RANCH 99 GREYSON CREEK RD TOWNSEND, MT 59644 Priority Date: OCTOBER 15, 1896 Type of Historical Right: FILED Purpose (Use): IRRIGATION SPRINKLER/FLOOD Irrigation Type: 5.00 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: 382.00 *Maximum Acres: DEEP CREEK Source Name: SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge NENESE 36 7N 2E BROADWATER Period of Diversion: MAY 1 TO OCTOBER 31 Diversion Means: HEADGATE Ditch Name: MITCHELL-PROSSER-ZUBRICH-FLYNN DITCH County MAY 1 TO OCTOBER 31 Period of Use: *Place of Use: ID 1 Acres 95.00 2 Qtr Sec NW Sec 14 Twp 6N Rge 2E County BROADWATER 60.00 SE 14 6N 2E BROADWATER 3 98.00 SW 14 6N 2E BROADWATER 4 87.00 NW 23 6N 2E BROADWATER 5 42.00 N2SW 23 6N 2E BROADWATER Total: Remarks: 382.00 Govt Lot January 12, 2024 41I 49375-00 Page 2 of 2 Post Decree Abstract 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. 49375-00 49376-00 49377-00 49378-00 January 12, 2024 41I 49376-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, ABOVE HOLTER DAM BASIN 41I 41I 49376-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: FLYNN HAY & GRAIN LLC 273 FLYNN LN TOWNSEND, MT 59644-9770 Owners: HIDDEN HOLLOW RANCH 99 GREYSON CREEK RD TOWNSEND, MT 59644 Priority Date: JULY 17, 1918 Type of Historical Right: FILED Purpose (Use): IRRIGATION SPRINKLER/FLOOD Irrigation Type: 2.50 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: 340.00 *Maximum Acres: DEEP CREEK Source Name: SURFACE WATER Source Type: CONTRACT WATER FROM THE BROADWATER-MISSOURI CANAL IS USED TO SUPPLEMENT THIS RIGHT. Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge NENESE 36 7N 2E BROADWATER Period of Diversion: MAY 1 TO OCTOBER 31 Diversion Means: HEADGATE Ditch Name: MITCHELL-PROSSER-ZUBRICH-FLYNN DITCH County MAY 1 TO OCTOBER 31 Period of Use: *Place of Use: ID 1 Acres 95.00 2 3 4 Total: Remarks: Qtr Sec NW Sec 14 Twp 6N Rge 2E County BROADWATER 60.00 SE 14 6N 2E BROADWATER 98.00 SW 14 6N 2E BROADWATER 87.00 NW 23 6N 2E BROADWATER 340.00 Govt Lot January 12, 2024 41I 49376-00 Page 2 of 2 Post Decree Abstract 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. 49375-00 49376-00 49377-00 49378-00

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