Christopher Gourley; Michael A. Gourley Tee Bar Ranch, Co., Tee Bar Ranch, Co.

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FILED 02/26/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41K-0080-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov White, Eugene 7.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION SUN RIVER BASIN (41K) PRELIMINARY DECREE ******************** CLAIMANTS: Christopher Gourley; Michael A. Gourley Tee Bar Ranch, Co. CASE 41K-0080-R-2023 41K 96515-00 OBJECTOR: Tee Bar Ranch, Co. 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 the DNRC, objections, and counterobjections. Claim 41K 96515-00 received a selfobjection from claimant Tee Bar Ranch Co. (“Tee Bar”) and received issue remarks during the DNRC’s review of the claims. 1 The claim was consolidated into Case 41K-0080-R-2023 and a status conference was set by the Court to resolve the self-objections and issue remarks. FINDINGS OF FACT 1. A Status Conference for Case 41K-0080-R-2023 took place on September 27, 2023, by telephone conference call. Water Master Eugene C. White presided; Claimants Christopher Gourley and Michael A. Gourley were both present; Ryan McLane was present on behalf of Claimant/Objector Tee Bar Ranch Co. During the conference, the parties discussed Tee Bar Ranch Co.’s objection to claim 41K 96515-00 as well as potential ownership issues including whether the Gourleys had any ownership interests in the claim. The Court then issued a filing deadline for the parties to file settlement documents addressing and resolving the objection, issue remarks, and potential ownership issues. 2. On November 7, 2023, claimants Michael and Christopher Gourley each filed separate Responses. (Doc. 3.00 and Doc. 4.00) 1 In each Response, the Gourleys, respectively, state that they “do not object to being removed as an owner of water right 41K 96515-00.” 3. On November 24, 2023, the Gourleys, collectively, filed another Response. (Doc. 5.00) 2 In the filing, the Gourleys reiterate their desire to be removed as claimants from claim 41K 96515-00. 4. On November 28, 2023, claimant/objector Tee Bar filed an Unopposed Motion to Correct Ownership and Motion for Summary Judgement (“Motion”). The Motion addresses first the Responses filed by the Gourleys, stating that Tee Bar agrees that the Gourleys should be removed as claimants from claim 41K 96515-00. Further, the Motion addresses the self-objections and notes that DNRC incorrectly modified the place of use for claim 41K 96515-00 to include lands not historically served by this water right. For clarification, the Motion requests the addition of a place of use information remark to the claim stating that “The place of use is located west of Highway 435.” Additionally, “Doc.” Numerical references correlate to case file docket numbers in the Water Court’s Full Court case management system. 2 Id. 1 2 the Motion proposes modifications to the place of use for claim 41K 96515-00 to correct the changes made by the DNRC and to bring the claim into historical conformity. The proposed modifications found in the Motion are as follows: 41K 96515-00 For the foregoing reasons, the place of use of 41K 96515-00, as it appeared in the 41K Preliminary Decree, should be corrected and adjudicated as follows, and the following information remark added: ID 1 21 2 3 4 5 6 Qtr Sec N2SW N2SW NWSE SENW S2NE NENE SWSW Sec 30 19 19 19 19 19 19 Twp 20N 20N 20N 20N 20N 20N 20N Rge 7W 6W 6W 6W 6W 6W 6W County Lewis & Clark Lewis & Clark Lewis & Clark Lewis & Clark Lewis & Clark Lewis & Clark Lewis & Clark The place of use is located west of Highway 435. 5. Claim 41K 96515-00 also received notice-type issue remarks during the DNRC claims reexamination. 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 CONCLUSIONS OF LAW 1. The proposed modifications contained in Tee Bar’s Motion resolve the self- objection appearing on claim 41K 96515-00. Based on the information contained in the Motion, the place of use for claim 41K 96515-00 should be modified as described in Finding of Fact No. 4. An information remark denoting that, “the place of use is located west of Highway 435” should be added to the abstract of claim 41K 96515-00. The issue remarks should be removed, the self-objection considered resolved, and the Motion for Summary Judgement considered granted. 2. Based on the Responses filed by the Gourleys, Christopher and Micheal Gourley should be removed as claimants from claim 41K 96515-00. 3. The notice-type issue remarks appearing on claim 41K 96515-00 served their 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 that the Court modify the place of use for claim 41K 96515-00 as described in Finding of Fact No. 4, add an information remark to the claim denoting “the place of use is located west of Highway 435,” remove Christopher and Michael Gourley as claimants, and remove all issue remarks from the claims. A post decree abstract of the water right claim reflecting the recommended changes is attached to this Report. ELECTRONICALLY SIGNED AND DATED BELOW. 4 Electronically Signed By: Hon. Judge Eugene White Mon, Feb 26 2024 08:19:57 AM Service via USPS Mail: Christopher Gourley; Michael A. Gourley 381 Carol Dr. Great Falls, MT 59405-3733 Service Via Electronic Mail: Ryan McLane William Driscoll FRANZ & DRISCOLL, PLLP PO Box 1155 Helena, MT 59624-1155 (406) 442-0005 Ryan@franzdriscoll.com WPD@franzdriscoll.com Office@franzdriscoll.com \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41K PD\41K Cases\80\41K-0080-R-2023 MR (single claim, responses filed, remove other owners, make changes to pou per response) 1-31-24 jbc.docx 5 February 15, 2024 41K 96515-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 96515-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: TEE BAR RANCH CO PO BOX 389 AUGUSTA, MT 59410 Owners: JANUARY 1, 1868 *Priority Date: Type of Historical Right: FILED 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: ELK CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec Sec Twp Rge County NENENW 30 20N 6W LEWIS AND CLARK Qtr Sec N2SW Sec 19 Twp 20N Rge 6W County LEWIS AND CLARK 2 NWSE 19 20N 6W LEWIS AND CLARK 3 SENW 19 20N 6W LEWIS AND CLARK 4 S2NE 19 20N 6W LEWIS AND CLARK 5 NENE 19 20N 6W LEWIS AND CLARK 6 SWSW 19 20N 6W LEWIS AND CLARK 1 Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: HEADGATE Ditch Name: MOSHER DITCH JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot THE PLACE OF USE IS LOCATED WEST OF HIGHWAY 435.

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