Tee Bar Ranch, Co., Tee Bar Ranch, Co.

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FILED 01/08/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: Julie __________________ Cristiani 41K-0081-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov White, Eugene 3.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION SUN RIVER BASIN (41K) PRELIMINARY DECREE ******************** CASE 41K-0081-R-2023 41K 96577-00 41K 96593-00 CLAIMANT: Tee Bar Ranch, Co. OBJECTOR: Tee Bar Ranch, Co. NOTICE OF INTENT TO APPEAR: Broken O’ Land & Livestock, LLC; LF Ranch MT, 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. Each of the above-captioned claims received a self-objection from claimant Tee Bar Ranch Co. (“Tee Bar”) Claim 41K 96577-00 received a notice of intent to appear from Broken O Land and Livestock, LLC (“Broken O”) and a notice of intent to appear from LF Ranch MT, LLC (“LF Ranch”). Claim 41K 96593-00 also received a notice of intent to appear from Broken O, and both claims received issue remarks during the DNRC’s review of the claims. The claims were consolidated into Case 41K-0081-R-2023 and a filing deadline was issued by the Court to resolve the self-objections, NOIAs, and issue remarks. FINDINGS OF FACT 1. Claims 41K 96577-00 and 41K 96593-00 each received the following substantive issue remark: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE FILED ON THE SAME FORMERLY DECREED WATER RIGHT. THE SUM OF THE CLAIMED FLOW RATES EXCEEDS THE 150 MINER'S INCHES DECREED IN CASE NO. 4742 , CASCADE COUNTY. 41K 96577-00, 41K 96593-00. Claim 41K 96577-00 received the following substantive issue remark: THE POINT OF DIVERSION APPEARS TO BE INCORRECT. THE POINT OF DIVERSION APPEARS TO BE IN THE NESWNE SEC 2 TWP 19N RGE 7W LEWIS AND CLARK COUNTY. 2. On September 26, 2023, claimant/objector Tee Bar filed an Unopposed Filing of Information to Resolve Self-Objections and Issue Remarks (“Notice”). The Notice addresses first the decree exceeded issue remark stating that this issue was previously addressed in Water Court case 41K-208. The Notice goes on to state that claim 41K 96577-00 is based on the March 31, 1883 Woolman Ranch and Sheep company right for 3.75 cfs while claim 41K 96593-00 is based on the March 1, 1883 Woolman Ranch and Sheep Company right for 3.75 cfs. Next, the Notice addresses the point of diversion issue remark appearing on claim 41K 96577-00 stating that Tee Bar agrees with the modification proposed to the point of diversion proposed in the issue remark that the point of diversion should be modified from SWNENE in Sec 2, Twp 19N, Rge 7W to the NESWNE of Sec 2, Twp 19N, Rge 7W. Further, the Notice states 2 that the remaining issue remarks are all notice-type remarks that should be removed after having served their notice purpose. Finally, the Notice States that Tee Bar also objected to the claims and requested the inclusion of an information remark on each claim clarifying that, “the place of use is located east of Highway 435.” Tee Bar attached maps showing that the place of use is, in fact, located entirely to the east of Highway 435 for each claim. 3. Each of the claims received notice-type issue remarks denoting modification made 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. 6. 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. 7. 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. 3 CONCLUSIONS OF LAW 1. The proposed modifications contained in Tee Bar’s Notice resolve the self- objections, NOIAs, and issue remarks appearing on each claim. Based on the information contained in the Notice, along with the fact that the relief requested is unopposed by the NOIA parties, the claims should be modified as described in Finding of Fact No. 2. The modifications resolve the self-objections and NOIAs for both claims, the decree exceeded issue remark appearing on both claims, and the point of diversion issue remark appearing on claim 41K 96577-00. The issue remarks should be removed. 2. The notice-type issue remarks appearing on the claims served their notice purpose and should be removed from the claims. RECOMMENDATIONS Based on the foregoing Findings of Fact and Conclusions of Law, this Master recommends that the Court modify the point of diversion of claim 41K 96577-00 from SWNENE in Sec 2, Twp 19N, Rge 7W to the NESWNE of Sec 2, Twp 19N, Rge 7W, add an information remark to each claim stating that “the place of use is located east of Highway 435,” and remove all issue remarks from the claims. Post decree abstracts of the water right claims reflecting the recommended changes are attached to this Report. ELECTRONICALLY SIGNED AND DATED BELOW. 4 Electronically Signed By: Hon. Judge Eugene White Mon, Jan 08 2024 08:59:21 AM Service Via Electronic Mail: Ryan McLane William Driscoll FRANZ & DRISCOLL, PLLP PO Box 1155 Helena, MT 59624-1155 (406) 442-0005 Ryan@franzdriscoll.com Office@franzdriscoll.com WPD@franzdriscoll.com W. John Tietz Browning, Kaleczyc, Berry & Hoven PC P.O. Box 1697 Helena, MT 59624-16976 john@bkbh.com kathys@bkbh.com Benjamin Sudduth Sudduth Law PLLC P.O. Box 507 Bozeman, MT 59771-0507 (406) 272-2390 Benjamin@Sudduthlaw.com \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41K PD\41K Cases\81\41K-0081-R-2023 MR (multiple claims, response resolves obj and IR) 12-20-23 jbc.docx 5 December 20, 2023 41K 96577-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 96577-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: TEE BAR RANCH CO Owners: PO BOX 389 AUGUSTA, MT 59410 MARCH 31, 1883 *Priority Date: Type of Historical Right: DECREED Purpose (use): IRRIGATION FLOOD Irrigation Type: *Flow Rate: 3.75 CFS *Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 4 - MODERATELY LOW Climatic Area: 20.00 Maximum Acres: ELK CREEK *Source Name: SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NESWNE 2 19N 7W LEWIS AND CLARK Qtr Sec E2SE Sec 35 Twp 20N Rge 7W County LEWIS AND CLARK W2SW 36 20N 7W LEWIS AND CLARK Period of Diversion: APRIL 1 TO NOVEMBER 1 Diversion Means: HEADGATE Ditch Name: MOSHER-BOHLER DITCH APRIL 1 TO NOVEMBER 1 Period of Use: *Place of Use: ID 1 Acres 10.00 2 10.00 Total: Govt Lot 20.00 THE PLACE OF USE IS LOCATED EAST OF HIGHWAY 435. Remarks: THE WATER RIGHTS FOLLOWING THIS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS. EACH RIGHT IS LIMITED TO THE FLOW RATE AND PLACE OF USE OF THAT INDIVIDUAL RIGHT. THE SUM TOTAL VOLUME OF THESE WATER RIGHTS SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 96577-00 96592-00 96593-00 December 20, 2023 41K 96593-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 96593-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: TEE BAR RANCH CO Owners: PO BOX 389 AUGUSTA, MT 59410 Priority Date: MARCH 1, 1883 Type of Historical Right: DECREED Purpose (use): IRRIGATION FLOOD Irrigation Type: *Flow Rate: 1.25 CFS *Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 4 - MODERATELY LOW Climatic Area: Maximum Acres: 20.00 Source Name: ELK CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NESWNE 2 19N 7W LEWIS AND CLARK Qtr Sec E2SE Sec 35 Twp 20N Rge 7W County LEWIS AND CLARK W2SW 36 20N 7W LEWIS AND CLARK Period of Diversion: APRIL 1 TO NOVEMBER 1 Diversion Means: HEADGATE Ditch Name: MOSHER-BOHLER DITCH APRIL 1 TO NOVEMBER 1 Period of Use: Place of Use: ID 1 Acres 10.00 2 10.00 Total: Govt Lot 20.00 THE PLACE OF USE IS LOCATED EAST OF HIGHWAY 435. Remarks: THE WATER RIGHTS FOLLOWING THIS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS. EACH RIGHT IS LIMITED TO THE FLOW RATE AND PLACE OF USE OF THAT INDIVIDUAL RIGHT. THE SUM TOTAL VOLUME OF THESE WATER RIGHTS SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 96577-00 96592-00 96593-00

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