Hugh (Dan) Sands; Rita D. Sands, State of Montana Board of Land Commissioners

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FILED 01/30/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41K-0052-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Block, Nathaniel 7.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION SUN RIVER BASIN (41K) PRELIMINARY DECREE ******************** CLAIMANTS: Hugh (Dan) Sands; Rita D. Sands CASE 41K-0052-R-2023 41K 200202-00 OBJECTOR: State of Montana Board of Land Commissioners 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 claim appeared in the Preliminary Decree for the Sun River (Basin 41K) and received an objection from the State of Montana Board of Land 1 Commissioners. The claim was consolidated into Water Court Case 41K-0052-R-2023 on October 30, 2023. On January 8, 2024, the parties filed a Stipulation for Resolution of Issue Remark seeking to transfer ownership of claim 41K 200202-00 to the Montana State Board of Land Commissioners. The Stipulation was signed by all parties. FINDINGS OF FACT 1. Claim 41K 200202-00 appeared in the Preliminary Decree for the Sun River (Basin 41K). The Montana State Board of Land Commissioners (“TLMD”) filed an objection to the claim. 2. Pursuant to the Stipulation, ownership of claim 41K 200202-00 should be transferred to the TMLD. 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. The purpose of the Water Court is to adjudicate rights to the use of water as they existed on July 1, 1973. In re Clark Fork River, 254 Mont. 11, 17, 833 P.3d 1120 (Mont. 1992). 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. “The Water Court is not bound by settlement agreements. Any settlement reached by the parties is subject to review and approval by the Water Court.” Rule 17(a), W.R.Adj.R; In re Argabright, 2014 Mont. Water LEXIS 9, 41I 265 (December 12, 2014). CONCLUSION OF LAW 1. The Stipulation conforms to applicable law. Ownership of 41K 200202-00 should be transferred to the Montana State Board of Land Commissioners. 2 RECOMMENDATION 1. Upon review of the record in this case ownership should be transferred as discussed above. TLMD’s objection should be resolved. A Post Decree Abstract of Water Right Claim is attached to this Master’s Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail: Hugh (Dan) Sands Rita D. Sands 175 N. Fort Shaw Road Fort Shaw, MT 59443-9730 Service via Electronic Mail: Michele L. Snowberger (Last Order) Terisa Oomens Montana Attorney General Agency Legal Services Bureau PO Box 201440 Helena, MT 59620 (406) 444-2026 (406) 444-7375 BLCWaterCourt@mt.gov Terisa.oomens@mt.gov Rochell.standish@mt.gov Kayla.churchill@mt.gov Note: Service List Updated 1-24-2024 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41K PD\41K Cases\52\NB 41K-0052-R-2023 - MR - Stipulation (single claim, ownership, state of montana, pettibone) 1-24-2024 rr.docx 3 Electronically Signed By: Hon. Judge Nathaniel Block Tue, Jan 30 2024 08:44:51 AM January 29, 2024 41K 200202-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 200202-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE Owners: MONTANA STATE BOARD OF LAND COMMISSIONERS TRUST LAND MANAGEMENT DIVISION PO BOX 201601 HELENA, MT 59620-1601 Priority Date: JULY 16, 1971 Type of Historical Right: FILED Purpose (Use): IRRIGATION FLOOD Irrigation Type: *Flow Rate: 2.30 CFS *Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 3 - MODERATE Climatic Area: 8.30 *Maximum Acres: SUN RIVER Source Name: SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SENENE 1 20N 2W CASCADE Sec 36 Twp 21N Rge 2W County CASCADE Period of Diversion: APRIL 1 TO NOVEMBER 30 Diversion Means: PUMP APRIL 1 TO NOVEMBER 30 Period of Use: *Place of Use: ID 1 Acres 8.30 Total: 8.30 Govt Lot Qtr Sec NENE

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