John R. Cobb; Cobb & Cobb LLC; Michaela Sarah Hamilton Howe-Cobb Trust; Morgan Helen Worthington Howe-Cobb Trust, United States of America (USDA Forest Service)

Annotate this Case

Download PDF

FILED 01/30/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41K-0018-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Block, Nathaniel 6.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION SUN RIVER BASIN (41K) PRELIMINARY DECREE ******************** CLAIMANTS: John R. Cobb; Cobb & Cobb LLC; Michaela Sarah Hamilton Howe-Cobb Trust; Morgan Helen Worthington Howe-Cobb Trust CASE 41K-0018-R-2023 41K 96002-00 41K 96121-00 41K 96122-00 41K 96142-00 41K 96155-00 OBJECTOR: United States of America (USDA Forest Service) 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 claims appeared in the Preliminary Decree for the Sun River (Basin 41K) and received objections from the United States of America (United States). On January 2, 2024, the parties filed a Stipulation to Resolve Objections, detailing modifications to the claims that would reflect historic use and resolve the objections. The Stipulation was signed by all parties. FINDINGS OF FACT 1. Pursuant to the Stipulation, claim 41K 96002-00 should be modified as follows: Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec Sec Twp 4 S2SENE 25 20N Period of Diversion: MARCH 1 TO SEPTEMBER 1 Diversion Means: LIVESTOCK DIRECT FROM SOURCE E2NESE 25 20N 2 Period of Diversion: MARCH 1 TO SEPTEMBER 1 Diversion Means: LIVESTOCK DIRECT FROM SOURCE Period of Use: Place of Use: ID Acres Rge County 9W LEWIS AND CLARK 9W LEWIS AND CLARK MARCH 1 TO SEPTEMBER 1 Qtr Sec Sec Twp Rge County 4- S2SENE 25 20N 9W LEWIS AND CLARK 2 E2NESE 25 20N 9W LEWIS AND CLARK Remarks: Govt Lot POINT OF DIVERSION AND PLACE OF USE ARE ENTIRELY ON PRIVATE LAND. 2. Pursuant to the Stipulation, claim 41K 96121-00 should be modified as follows: Point of Diversion and Means of Diversion: Qtr Sec Sec Twp Rge County ID Govt Lot SESENENESE 36 20N 9W LEWIS AND CLARK 1 Period of Diversion: MAY 1 TO NOVEMBER 1 LIVESTOCK DIRECT FROM SOURCE Diversion Means: MAY 1 TO NOVEMBER 1 Period of Use: Place of Use: ID Acres 1 Remarks: Govt Lot Qtr Sec Sec SESENENESE Twp 36 Rge County 20N 9W LEWIS AND CLARK POINT OF DIVERSION AND PLACE OF USE ARE ENTIRELY ON PRIVATE LAND. 3. Pursuant to the Stipulation, claim 41K 96122-00 should be modified as follows: 2 Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec Sec Twp Rge County 1 SWNWNWNE 36 20N 9W LEWIS AND CLARK Period of Diversion: MARCH 1 TO NOVEMBER 1 LIVESTOCK DIRECT FROM SOURCE Diversion Means: MARCH 1 TO NOVEMBER 1 Period of Use: Place of Use: ID Acres Govt Lot 1 Qtr Sec Sec SWNWNWNE Remarks-' Twp 36 Rge County 20N 9W LEWIS AND CLARK POINT OF DIVERSION AND PLACE OF USE ARE ENTIRELY ON PRIVATE LAND. 4. Pursuant to the Stipulation, claim 41K 96142-00 should be modified as follows: Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec Sec Twp 1 828E--NW 25 20N N2NESW Period of Diversion: JANUARY 1 TO DECEMBER 31 LIVESTOCK DIRECT FROM SOURCE Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID Acres 1 Remarks: Rge County 9W LEWIS AND CLARK Govt Lot Qtr Sec Sec Twp Rge County N2NL,SW S28E-NW 25 20N 9W LEWIS AND CLARK POINT OF DIVERSION AND PLACE OF USE ARE ENTIRELY ON PRIVATE LAND. 5. Pursuant to the Stipulation, the following remark should be placed on claim 41K 96155-00: POINT OF DIVERSION AND PLACE OF USE ARE ENTIRELY ON PRIVATE LAND. 6. Adoption of the modifications discussed above resolves the objections filed by the United States. 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(13), MCA. 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 3 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. 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. 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 above-captioned claims should be modified as described above to reflect historical use of the claims. 2. Modification of the claims resolves the objections filed by the United States. RECOMMENDATIONS 1. The POUs & PODs for claims 41K 96002-00, 41K 96121-00, 41K 96122-00 and 41K 96142-00 should be modified as described in Findings of Fact 1-5. 2. The information remark described above should be added to the above-captioned claims. Post Decree Abstracts of Water Right Claims are attached to this Master’s Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. 4 Electronically Signed By: Hon. Judge Nathaniel Block Tue, Jan 30 2024 11:30:58 AM Service via USPS Mail: John R. Cobb PO Box 388 Augusta, MT 59410-0388 Cobb & Cobb LLC PO Box 348 Augusta, MT 59410-0348 Michaela Sarah Hamilton Howe-Cobb Trust PO Box 289 Augusta, MT 59410-0289 Morgan Helen Worthington Howe-Cobb Trust Morgan Helen Worthington Howe-Cobb Trustee 14970 Dark Star Ct Morgan Hill, CA 95037-6011 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\18\NB 41K-0018-R-2023 MR - Resolution of Objection (NEW, multiple claim, POD, POU, other paper) 1-24-2024 rr.docx 5 January 25, 2024 41K 96002-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 96002-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE JOHN R COBB PO BOX 388 AUGUSTA, MT 59410-0388 Owners: COBB & COBB LLC PO BOX 348 AUGUSTA, MT 59410-0348 HOWE-COBB, MICHAELA SARAH HAMILTON TRUST PO BOX 289 AUGUSTA, MT 59410-0289 HOWE-COBB, MORGAN HELEN WORTHINGTON TRUST MORGAN HELEN WORTHINGTON HOWE-COBB TRUSTEE 14970 DARK STAR CT MORGAN HILL, CA 95037-6011 JANUARY 1, 1868 *Priority Date: 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 WILLOW CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County E2NESE 25 20N 9W LEWIS AND CLARK Twp 20N Rge 9W County LEWIS AND CLARK Period of Diversion: MARCH 1 TO SEPTEMBER 1 Diversion Means: LIVESTOCK DIRECT FROM SOURCE MARCH 1 TO SEPTEMBER 1 Period of Use: Place of Use: ID 1 Remarks: Acres Govt Lot Qtr Sec E2NESE Sec 25 January 25, 2024 41K 96002-00 POINT OF DIVERSION AND PLACE OF USE ARE ENTIRELY ON PRIVATE LAND Page 2 of 2 Post Decree Abstract January 25, 2024 41K 96121-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 96121-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE JOHN R COBB PO BOX 388 AUGUSTA, MT 59410-0388 Owners: COBB & COBB LLC PO BOX 348 AUGUSTA, MT 59410-0348 HOWE-COBB, MICHAELA SARAH HAMILTON TRUST PO BOX 289 AUGUSTA, MT 59410-0289 HOWE-COBB, MORGAN HELEN WORTHINGTON TRUST MORGAN HELEN WORTHINGTON HOWE-COBB TRUSTEE 14970 DARK STAR CT MORGAN HILL, CA 95037-6011 JANUARY 1, 1868 *Priority Date: 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 WILLOW CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SESENE 36 20N 9W LEWIS AND CLARK Twp 20N Rge 9W County LEWIS AND CLARK Period of Diversion: MAY 1 TO NOVEMBER 1 Diversion Means: LIVESTOCK DIRECT FROM SOURCE MAY 1 TO NOVEMBER 1 Period of Use: Place of Use: ID 1 Remarks: Acres Govt Lot Qtr Sec SESENE Sec 36 January 25, 2024 41K 96121-00 POINT OF DIVERSION AND PLACE OF USE ARE ENTIRELY ON PRIVATE LAND Page 2 of 2 Post Decree Abstract January 25, 2024 41K 96122-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 96122-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: JOHN R COBB PO BOX 388 AUGUSTA, MT 59410-0388 Owners: COBB & COBB LLC PO BOX 348 AUGUSTA, MT 59410-0348 HOWE-COBB, MICHAELA SARAH HAMILTON TRUST PO BOX 289 AUGUSTA, MT 59410-0289 HOWE-COBB, MORGAN HELEN WORTHINGTON TRUST MORGAN HELEN WORTHINGTON HOWE-COBB TRUSTEE 14970 DARK STAR CT MORGAN HILL, CA 95037-6011 JANUARY 1, 1868 *Priority Date: 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: SPRING, UNNAMED TRIBUTARY OF WILLOW CREEK GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWNWNE 36 20N 9W LEWIS AND CLARK Twp 20N Rge 9W County LEWIS AND CLARK Period of Diversion: MARCH 1 TO NOVEMBER 1 Diversion Means: LIVESTOCK DIRECT FROM SOURCE MARCH 1 TO NOVEMBER 1 Period of Use: Place of Use: ID 1 Remarks: Acres Govt Lot Qtr Sec SWNWNE Sec 36 January 25, 2024 41K 96122-00 POINT OF DIVERSION AND PLACE OF USE ARE ENTIRELY ON PRIVATE LAND Page 2 of 2 Post Decree Abstract January 25, 2024 41K 96142-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 96142-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: JOHN R COBB PO BOX 388 AUGUSTA, MT 59410-0388 Owners: COBB & COBB LLC PO BOX 348 AUGUSTA, MT 59410-0348 HOWE-COBB, MICHAELA SARAH HAMILTON TRUST PO BOX 289 AUGUSTA, MT 59410-0289 HOWE-COBB, MORGAN HELEN WORTHINGTON TRUST MORGAN HELEN WORTHINGTON HOWE-COBB TRUSTEE 14970 DARK STAR CT MORGAN HILL, CA 95037-6011 JANUARY 1, 1868 *Priority Date: 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: SPRING, UNNAMED TRIBUTARY OF WILLOW CREEK GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County N2NESW 25 20N 9W LEWIS AND CLARK Twp 20N Rge 9W County LEWIS AND CLARK Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Remarks: Acres Govt Lot Qtr Sec N2NESW Sec 25 January 25, 2024 41K 96142-00 POINT OF DIVERSION AND PLACE OF USE ARE ENTIRELY ON PRIVATE LAND Page 2 of 2 Post Decree Abstract January 25, 2024 41K 96155-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K Water Right Number: 41K 96155-00 Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: Owners: ACTIVE JOHN R COBB PO BOX 388 AUGUSTA, MT 59410-0388 COBB & COBB LLC PO BOX 348 AUGUSTA, MT 59410-0348 HOWE-COBB, MICHAELA SARAH HAMILTON TRUST PO BOX 289 AUGUSTA, MT 59410-0289 HOWE-COBB, MORGAN HELEN WORTHINGTON TRUST MORGAN HELEN WORTHINGTON HOWE-COBB TRUSTEE 14970 DARK STAR CT MORGAN HILL, CA 95037-6011 *Priority Date: JANUARY 1, 1868 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 WILLOW CREEK Source Type: SURFACE WATER Point of Diversion and Means of Diversion: ID 1 Govt Lot Qtr Sec Sec Twp Rge County S2SESW 25 20N 9W LEWIS AND CLARK 20N 9W LEWIS AND CLARK Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 2 Period of Diversion: Diversion Means: Period of Use: W2SWSE 25 JANUARY 1 TO DECEMBER 31 LIVESTOCK DIRECT FROM SOURCE JANUARY 1 TO DECEMBER 31 January 25, 2024 41K 96155-00 Page 2 of 2 Post Decree Abstract Place of Use: ID 1 2 Acres Govt Lot Qtr Sec S2SESW Sec 25 Twp 20N Rge 9W County LEWIS AND CLARK W2SWSE 25 20N 9W LEWIS AND CLARK Remarks: POINT OF DIVERSION AND PLACE OF USE ARE ENTIRELY ON PRIVATE LAND

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.