Wade W. Jacobsen, United States of America (Bureau of Land Management)

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FILED 02/07/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41K-0026-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov White, Eugene 6.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION SUN RIVER BASIN (41K) PRELIMINARY DECREE ******************** CLAIMANT: Wade W. Jacobsen OBJECTOR: United States of America (Bureau of Land Management) CASE 41K-0026-R-2023 41K 187161-01 NOTICE OF INTENT TO APPEAR: Broken O Land & Livestock LLC 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 All water right claims that appeared in the Preliminary Decree for Sun River (Basin 41K) were subject to “issue remarks” resulting from pre-decree examination by 1 the DNRC, objections, and counterobjections. Claim 41K 187161-01 received an objection from the United States Bureau of Land Management (“BLM”), a Notice of Intent to Appear from Broken O Land and Livestock, LLC (“Broken O”), and issue remarks during the DNRC’s review of the claims. The claim was consolidated into Case 41K-0026-R-2023 to resolve the objection, NOIA, and issue remarks. FINDINGS OF FACT 1. The BLM withdrew its objection to claim 41K 187161-01 on October 10, 2. Claim 41K 187161-01 received the following substantive issue remark: 2023. THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT WERE FILED BY DIFFERENT PARTIES WHO CLAIM OVERLAPPING PLACES OF USE. 41K 187161-00, 41K 215211-00. 3. A Status Conference for Case 41K-0026-R-2023 took place on October 11, 2023, by telephone conference call. Water Master Eugene C. White presided; claimant Wade W. Jacobsen was not present and Judith Coleman, standing in for Eve McDonald appeared on behalf of objector United States BLM. During the conference, Ms. Coleman noted that the United States had previously withdrawn its objection, however, due to an error in filing, that withdrawal had not been included in the claim file for claim 41K 187161-01. 4. After the status conference, the Court issued a deadline for claimant Wade Jacobsen to confer with the DNRC regarding the above-listed issue remark. 5. Deb Stephenson, a water rights consultant for Broken O, contacted the Court after the issuance of the deadline to confer with DNRC and stated that it appeared that the overlapping place of use remark was placed on claim 41K 18716101 in error. 6. Upon review, the Court concurred that the overlapping place of use issue remark was placed in error and issued an Order Vacating DNRC Conference and an Order Setting Filing Deadline for Broken O to comment on the status of its NOIA. 2 7. On November 17, 2023, Broken O filed a Response. In its Response, Broken O states that it concurred that the overlapping place of use issue remark was placed in error. 8. Claim 41K 187161-01 also received a notice-type issue remark noting that the ditch name was modified by the DNRC during its claims reexamination. PRINCIPLES OF LAW 1. 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. 2. 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. 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. Based on the BLM’s Withdrawal of Objection, the information provided by Ms. Stephenson, and the Response filed by Broken O, the objection, NOIA, and overlapping place of use issue remark are resolved. The overlapping place of use issue remark should be removed from the claim. 2. The notice-type issue remark appearing on claim 41K 187161-01 served its notice purpose and should be removed from the claim. RECOMMENDATIONS Based on the foregoing Findings of Fact and Conclusions of Law, this Water Master recommends issue remarks be removed from the claim. 3 A post decree abstract of the water right claim reflecting the removal of the issue remarks is attached to this Report. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail: Wade W. Jacobsen 1282 US Hwy 89 Sun River, MT 59483-9729 Service Via Electronic Mail: Mark J. Widerschein, Eve W. McDonald, Trial Attorney United States Department of Justice ENRD NRS PO Box 7611 Washington, DC 20044-7611 202-532-5803 Mark.Widerschein@Usdoj.Gov Montanabasins.ENRD@USDOJ.GOV Evelyn.mcDonald@usdoj.gov John W. Tietz Browning Kaleczyc Berry & Hoven PC PO Box 1697 Helena, MT 59624-1697 (406) 443-6820 john@bkbh.com kathys@bkbh.com \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41K PD\41K Cases\26\41K-0026-R-2023 MR (single claim, overlap IR placed in Error, remove, NOIA agrees, objections withdrawn) 1-31-24 jbc.docx 4 Electronically Signed By: Hon. Judge Eugene White Wed, Feb 07 2024 12:58:54 PM October 18, 2023 41K 187161-01 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 187161-01 Water Right Number: Version: STATEMENT OF CLAIM 6 -- POST DECREE Status: ACTIVE WADE W JACOBSEN Owners: 1282 US HWY 89 SUN RIVER, MT 59483 9729 Priority Date: JANUARY 16, 1900 Type of Historical Right: DECREED Purpose (use): IRRIGATION SPRINKLER/FLOOD Irrigation Type: Flow Rate: 27.50 CFS Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 3 - MODERATE Climatic Area: Maximum Acres: 3,640.00 Source Name: SUN RIVER SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NWNESW 20 21N 6W TETON Qtr Sec SE Sec 18 Twp 21N Rge 2W County CASCADE Period of Diversion: MARCH 15 TO SEPTEMBER 15 Diversion Means: HEADGATE Ditch Name: FLOWEREE (HAMILTON) CANAL MARCH 15 TO SEPTEMBER 15 Period of Use: Place of Use: ID 1 Acres 160.00 Govt Lot 2 80.00 E2SW 18 21N 2W CASCADE 3 40.00 NWSW 18 21N 2W CASCADE 4 40.00 SWNW 18 21N 2W CASCADE 5 80.00 E2NW 19 21N 2W CASCADE 6 160.00 NE 19 21N 2W CASCADE 7 80.00 W2SW 19 21N 2W CASCADE 8 40.00 SESW 19 21N 2W CASCADE 9 40.00 NESW 19 21N 2W CASCADE 10 160.00 N2N2 30 21N 2W CASCADE 11 40.00 SENE 30 21N 2W CASCADE 12 160.00 S2 30 21N 2W CASCADE 13 320.00 N2 31 21N 2W CASCADE October 18, 2023 41K 187161-01 Page 2 of 2 Post Decree Abstract 14 160.00 S2S2 31 21N 2W CASCADE 15 40.00 NWSW 31 21N 2W CASCADE 16 40.00 NESE 31 21N 2W CASCADE 17 40.00 NW 32 21N 2W CASCADE 18 40.00 NWSW 32 21N 2W CASCADE 19 160.00 NE 29 21N 2W CASCADE 20 160.00 SW 29 21N 2W CASCADE 21 80.00 N2NW 29 21N 2W CASCADE 22 40.00 SWNW 29 21N 2W CASCADE 23 40.00 SENW 29 21N 2W CASCADE 24 40.00 SWSE 29 21N 2W CASCADE 25 160.00 SE 20 21N 2W CASCADE 26 80.00 N2SW 20 21N 2W CASCADE 27 80.00 S2NW 20 21N 2W CASCADE 28 40.00 W2NE 20 21N 2W CASCADE 29 40.00 SWSW 18 21N 2W CASCADE 30 160.00 SW 17 21N 2W CASCADE 31 80.00 W2SE 17 21N 2W CASCADE 32 40.00 SESE 17 21N 2W CASCADE 33 320.00 W2 21 21N 2W CASCADE 34 80.00 W2NE 21 21N 2W CASCADE 35 80.00 W2SE 19 21N 2W CASCADE 36 40.00 SESW 19 21N 2W CASCADE 37 80.00 E2SE 19 21N 2W CASCADE 38 40.00 SWSW 20 21N 2W CASCADE 80.00 S2NW 30 21N 2W CASCADE 39 Total: 3640.00 Remarks: AUTHORIZATION TO CHANGE THE PLACE OF USE ISSUED 07/27/1992 SEE 41K-G(W)187161-02 NOTICE OF COMPLETION DUE 11/30/1994. AUTHORIZATION TO CHANGE THE PLACE OF USE OF A PORTION ISSUED 04/02/1990 COMPLETED 02/26/1992. FILE REFLECTS RIGHT AS IT EXISTED PRIOR TO JULY 1973. APPROVED CHANGES WILL BE RECORDED AFTER FINAL DECREE. SEE 41K-G(W)187161-01

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