Jerry G. Bowen; Brett R. Fagenstrom; Kim J. Fagenstrom; Kurt J. Fagenstrom; John Robert Sechena; Robert W. Sechena, John Robert Sechena; United States of America (USDA Forest Service), John Robert Sechena

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FILED 01/29/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41K-0015-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Block, Nathaniel 3.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION SUN RIVER BASIN (41K) PRELIMINARY DECREE ******************** CLAIMANTS: Jerry G. Bowen; Brett R. Fagenstrom; Kim J. Fagenstrom; Kurt J. Fagenstrom; John Robert Sechena; Robert W. Sechena CASE 41K-0015-R-2023 41K 30127964 OBJECTORS: John Robert Sechena; United States of America (USDA Forest Service) COUNTEROBJECTORS: John Robert Sechena 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. 1 MASTER’S REPORT The above-captioned claim appeared in the Preliminary Decree for the Sun River (Basin 41K) and received objections from claimant John Robert Sechena and the United States. Mr. Sechena seeks to modify the point of diversion and places of use while the United States seeks the addition of a remark on the claim clarifying that the “place of use and point of diversion occur entirely on private lands”. On October 30, 2023, the above-captioned claim was consolidated into Water Court Case 41K-0015-R-2023 and on November 30, 2023, the United States’ filed a ‘Response to Court Order’. The filing stated that the addition of the remark described above would resolve the United States’ objection. FINDINGS OF FACT 1. The places of use and points of diversion should be modified to the following to reflect historical use: Places of Dhiersion & Use: • SE % NE % SW 'A Section 3 Twp 20 N Range 9 W, Lewis & Clark County SW X NE IS SW X Section 3 Twp 20 N Range 9 W, Lewis & Clark County NW X NE X SW X Section 3 Twp 20 N Range 9 W,.Lewls & Clark County - NE X NW X SW X Section 3 Twp 20 N Range 9 W, Lewis & Clark County NE "X SE X SW X Section 3 Twp 20,N Range 9 W, Lewis & Cbrk CountY • NW X SW % SE% Section 3 Twp 20 N Range 9 W, Lewis & aark County SW 34 NW % SE % Section 3 Twp 20 N Range 9 W, LewiS & Clark County 2. The following remark should be placed on the claim: Place of use and point of diversion occur entirely on private lands 3. The issue remark on the claim requires no additional proceedings or information to resolve and should be removed from the claim. PRINCIPLES OF LAW 1. The Montana Water Court has the authority to determine the extent of all water rights in the state as they existed prior to July 1, 1973. Fellows v. Saylor, 2016 MT 45, ¶ 25, 382 Mont. 298, 367 P.3d 732; §§ 85-2-233, -102(12), MCA. 2 2. A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content. § 85-2-227, MCA. This prima facie proof may be contradicted and overcome by other evidence that proves, by a preponderance of the evidence, that the elements of the claim do not accurately reflect the beneficial use of the water right as it existed prior to July 1, 1973. This is the burden of proof for every assertion that a claim is incorrect. Rule 19, W.R.Adj.R. 3. Section 3-7-224, MCA the Water Court is directed to conduct hearings in the same manner as for other civil actions. The Water Court applies the Montana Rules of Civil Procedure (M.R.Civ.P.), the Montana Rules of Evidence (M.R.Evid.) and the Montana Uniform District Court Rules. This Master considers documents (including objections) filed with the Court as “other paper” under M.R.Civ.P. Rule 11(b)(3) which certifies that to the best of the parties knowledge the factual contentions contained within the Statement are supported by evidence. 4. Add to this rule the recognition that “the heart of a judicial process is the development of the truth through conflict between parties with adverse interests.” United States of America (USDI) –Bureau of Indian Affairs)-General Objection to Basin 42B and 42C Preliminary Decrees, Case 42B-1, ¶ 3 at p. 14, (Order Denying Motion June 27, 2014). Considering these tenets, significant weight is given to the filings to establish the accurate historical use of the claims. CONCLUSIONS OF LAW 1. The places of use and points of diversion should be modified as discussed above. 2. The remark discussed above should be placed on the claim. RECOMMENDATION 1. Upon review the record in this case, the claim should be modified as discussed above. The issue remark should be removed from the claim. A Post Decree Abstract of Water Right Claim is attached to this Master’s Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. 3 Electronically Signed By: Hon. Judge Nathaniel Block Mon, Jan 29 2024 01:38:11 PM Service via USPS Mail: Jerry G. Bowen 1525 16th Ave. SW Great Falls, MT 59404 Brett R. Fagenstrom Kim J. Fagenstrom Kurt J. Fagenstrom PO Box 2623 Great Falls, MT 59403-2623 John Robert Sechena 12208 Greenwood Ave. N Seattle, WA 98133-8106 Robert W. Sechena 1526 Central Ave. Great Falls, MT 59401-3836 Service via Electronic Mail: Eve McDonald, Attorney US Dept of Justice-ENRD 999 18th Street, South Terrace Suite 370 Denver, CO 80202 (303) 844-1381 evelyn.mcdonald@usdoj.gov MontanaBasins.ENRD@USDOJ.GOV Mark Widerschein, Trial Attorney US Dept of Justice, ENRD-NRS PO Box 7611 Washington, DC 20044-7611 (202) 532-5803 Mark.widerschein@usdoj.gov MontanaBasins.ENRD@USDOJ.GOV \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41K PD\41K Cases\15\41K-0015-R-2023 MR - self objection FR, IR, other paper, single claim 1-192024 rr.docx 4 January 25, 2024 41K 30127964 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K Water Right Number: 41K 30127964 Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: Owners: JERRY G BOWEN 1525 16TH AVE SW GREAT FALLS, MT 59404 BRETT R FAGENSTROM PO BOX 2623 GREAT FALLS, MT 59403-2623 KIM J FAGENSTROM PO BOX 2623 GREAT FALLS, MT 59403-2623 KURT J FAGENSTROM PO BOX 2623 GREAT FALLS, MT 59403-2623 JOHN ROBERT SECHENA 12208 GREENWOOD AVE N SEATTLE, WA 98133-8106 ROBERT W SECHENA 1526 CENTRAL AVE GREAT FALLS, MT 59401-3836 OWNERSHIP UPDATE PROCESSED TO ADD NEW OWNERS. THE WATER RIGHT MAY BE SPLIT INTO SEPARATE WATER RIGHTS UPON REQUEST OF THE OWNERS. Priority Date: DECEMBER 20, 1919 Type of Historical Right: USE 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: UNNAMED TRIBUTARY OF BEAVER CREEK, WEST FORK Source Type: SURFACE WATER Point of Diversion and Means of Diversion: ID 1 Period of Diversion: Govt Lot Qtr Sec Sec Twp Rge County SENESW 3 20N 9W LEWIS AND CLARK MAY 15 TO OCTOBER 31 January 25, 2024 41K 30127964 Page 2 of 2 Post Decree Abstract LIVESTOCK DIRECT FROM SOURCE Diversion Means: 2 Period of Diversion: SWNESW 3 20N 9W LEWIS AND CLARK 20N 9W LEWIS AND CLARK 20N 9W LEWIS AND CLARK 20N 9W LEWIS AND CLARK 20N 9W LEWIS AND CLARK 20N 9W LEWIS AND CLARK MAY 15 TO OCTOBER 31 LIVESTOCK DIRECT FROM SOURCE Diversion Means: 3 NWNESW 3 Period of Diversion: MAY 15 TO OCTOBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 4 Period of Diversion: NENWSW 3 MAY 15 TO OCTOBER 31 LIVESTOCK DIRECT FROM SOURCE Diversion Means: 5 NESESW 3 Period of Diversion: MAY 15 TO OCTOBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 6 NWSWSE 3 Period of Diversion: MAY 15 TO OCTOBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 7 Period of Diversion: SWNWSE 3 MAY 15 TO OCTOBER 31 LIVESTOCK DIRECT FROM SOURCE Diversion Means: MAY 15 TO OCTOBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec SENESW Sec 3 Twp 20N Rge 9W County LEWIS AND CLARK 2 SWNESW 3 20N 9W LEWIS AND CLARK 3 NWNESW 3 20N 9W LEWIS AND CLARK 4 NENWSW 3 20N 9W LEWIS AND CLARK 5 NESESW 3 20N 9W LEWIS AND CLARK 6 NWSWSE 3 20N 9W LEWIS AND CLARK 7 SWNWSE 3 20N 9W LEWIS AND CLARK Remarks: PLACE OF USE AND POINT OF DIVERSION OCCUR ENTIRELY ON PRIVATE LANDS.

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