Anna Schneider; Michael Schneider, Anna Schneider; Michael Schneider

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FILED 03/14/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: Vicki __________________ Heiser 41I-0102-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: Anna Schneider; Michael Schneider CASE 41I-0102-R-2023 41I 6065-00 OBJECTORS: Anna Schneider; Michael Schneider 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 6065-00 appeared in the Preliminary Decree for the Missouri River above Holter Dam (Basin 41I) issued on June 24, 2022. The claim is owned by Anna and 1 Michael Schneider. The claim received an issue remark. Issue remarks are notations identifying potential legal or factual issues with water rights and the Water Court is required to resolve these potential issues. The Schneiders also self-objected to the place of use. FINDINGS OF FACT 1. Claim 41I 6065-00 appeared in the Basin 41I Preliminary Decree as a domestic claim for a spring in the NWSWSW of Section 7, T9N, R3W, Lewis and Clark County. 2. The claim was decreed with a flow rate of 13.30 gallons per minute (GPM) and a volume of 10.70 acre-feet (AC-FT). 3. The claim received the following issue remark: VOLUME MAY BE EXCESSIVE. BASED ON THE FLOW RATE AND PERIOD OF USE. THE SYSTEM WOULD HAVE TO RUN 11.9 HOURS PER DAY TO DEUVER ME CLAIMED VOLUME. NO INFORMATION EXISTS IN ME CLAIM FILE TO CONFIRM MIS FIGURE. 4. On February 27, 2024, Claimants filed information addressing the volume issue remark. (Doc.1 2.00). 5. The Statement of Claim for claim 41I 6065-00 originally claimed 133.00 GPM, however the flow rate was entered into the DNRC database as 13.30 GPM. 6. When calculated using the flow rate of 133.00 GPM, the volume does not exceed the DNRC’s feasibility standards. 7. Claim 41I 6065-00 appeared in the Basin 41I Preliminary Decree with the following place of use: Place of Use: ID 1 Total: 8. kcres 4.13 Govl Lot gn.e NWSW SW Sec 7 ft e County ST 9N 3W LEWIS AND CLARK 4.13 The Statement of Claim listed the place of use as: 7 Place of use and acres irnAgsvateedMO Owv..ny Cour 41hcai's 44•49 Cloos..< Ng 1. , ,r was. 0147;14 7 $4 JAv Vi, Section . " 9 9. N Claimants self-objected to claim 41I 6065-00 to correct the place of use by including portions of the “in and adjoining” the NWSWSW of Section 7, T9N, R3W. As “Doc.” numerical references correlate to case file docket numbers in the Water Court’s Full Court case management system. 1 2 shown by the maps attached to the Statement of Claim and the current maps filed by Claimants, the place of use includes the SWSWSW of Section 7, T9N, R3W: Map attached to Statement of Claim Map filed by Claimants (Doc. 2.00) 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. 3 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. 8. The party seeking to overcome the prima facie status of a Statement of Claim bears the burden of proof; this burden also applies to a claimant’s objection to his own claim. Nelson v. Brooks, 2014 MT 120, ¶¶ 34, 37, 375 Mont. 86, 329 P.3d 558. 9. The Court may correct a clerical mistake found in a judgment, order, or other part of the record on motion or on its own, with or without notice. Rule 60(a), M.R.Civ.P. CONCLUSIONS OF LAW 1. The volume issue remark does not overcome the prima facie status of claim 41I 6065-00. Based on the information in the claim file, the flow rate was originally claimed as 133.00 GPM. The 13.30 GPM flow rate that appeared in the Basin 41I Preliminary Decree was a clerical error. Therefore, based on Rule 60(a), M.R.Civ.P., the flow rate should be corrected to 133.00 GPM. 2. Claimants’ self-objection overcomes the prima facie status of claim 41I 6065-00. Claimants showed by a preponderance of the evidence that the place of use includes the SWSWSW of Section 7, T9N, R3W. RECOMMENDATIONS 1. The flow rate should be corrected to 133.00 GPM. 2. The place of use should be modified to the W2SWSW of Section 7, T9N, 2. The issue remark should be removed from claim 41I 6065-00. R3W. 4 A post decree abstract of the water right claim reflecting the recommended changes is attached to this Report. ELECTRONICALLY SIGNED AND DATED BELOW. Service via Electronic Mail William P. Driscoll Ryan P. McLane Franz & Driscoll, PLLP P.O. Box 1155 Helena, MT 59624-1155 (406) 442-0005 wpd@franzdriscoll.com ryan@franzdriscoll.com office@franzdriscoll.com \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41I PD\Cases\102\ML 41I-102 MR 3.4.24 VH.docx 5 Electronically Signed By: Hon. Judge Melissa Lockman Thu, Mar 14 2024 11:52:10 AM February 28, 2024 41I 6065-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM MISSOURI RIVER, ABOVE HOLTER DAM BASIN 41I 41I 6065-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE ANNA SCHNEIDER 1965 TUCKER GULCH RD HELENA, MT 59601-6334 Owners: MICHAEL SCHNEIDER 1965 TUCKER GULCH RD HELENA, MT 59601-6334 Priority Date: APRIL 1, 1945 Type of Historical Right: USE Purpose (Use): DOMESTIC Flow Rate: 133.00 GPM Volume: 10.70 AC-FT 2 Households: Maximum Acres: 4.13 Source Name: SPRING, UNNAMED TRIBUTARY OF TUCKER GULCH SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Period of Diversion: Qtr Sec Sec Twp Rge County NWSWSW 7 9N 3W LEWIS AND CLARK Sec 7 Twp 9N Rge 3W County LEWIS AND CLARK JANUARY 1 TO DECEMBER 31 PIPELINE Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres 4.13 Total: 4.13 Govt Lot Qtr Sec W2SWSW

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