State of Montana Board of Land Commissioners, State of Montana Board of Land Commissioners

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FILED 02/16/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41K-0091-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 ******************** CLAIMANT: State of Montana Board of Land Commissioners OBJECTOR: State of Montana Board of Land Commissioners CASE 41K-0091-R-2023 41K 137335-00 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 1 (Basin 41K) were subject to “issue remarks” resulting from pre-decree examination by the DNRC, objections, and counterobjections. The above-captioned claim received a selfobjection from Montana Trust Land Management Division (“TLMD”) and issue remarks during the DNRC’s review of the claims. The claim was consolidated into Case 41K-0091-R-2023 and an Order Setting Filing Deadline was issued by the Water Court requesting any additional information needed to resolve self-objection and issue remarks. FINDINGS OF FACT 1. Claim 41K 137335-00 received the following issue remarks: POINT OF DIVERSION AND RESERVOIR RECORD WERE MODIFIED AS A RESULT OF DNRC REVIEW UNDER MONTANA WATER COURT REEXAMINATION ORDERS. IF NO OBJECTIONS ARE FILED TO THIS CLAIM, THESE ELEMENTS WILL REMAIN AS THEY APPEAR ON THIS ABSTRACT AND THE REMARK WILL BE REMOVED FROM THE CLAIM. THE PLACE OF USE APPEARS TO NEED MODIFICATION BASED ON THE DNRC CORRECTION TO THE POINT OF DIVERSION. THE CORRECT PLACE OF USE LEGAL LAND DESCRIPTION APPEARS TO BE THE SENWNE SEC 16, T20N, R7W, LEWIS AND CLARK COUNTY. 2. On July 23, 2021, prior to consolidation, TLMD filed a self-objection to the place of use/maximum acres element of claim 41K 137335-00. Attached to the objection was a Motion to Amend requesting the following change to the place of use to resolve the self-objection and place of use issue remark: CHANGES: 1) Place of Use to — "SWNWNE sec 16, T2ON R7W, Lewis and Clark County" This VMA resolves the issue remarks on this claim and better reflects historical use. 3. On November 3, 2023, the Court consolidated claim 41K 137335-00 into Case 41K-0091-R-2023 and set a filing deadline for TLMD to file information clarifying if they believed that the modification to the place of use proposed in the above-listed issue remark or the proposed modification to the place of use found in the Motion to Amend was historically accurate. 2 4. On December 12, 2023, TLMD filed a Statement of Clarification which states that the legal land description appearing in the Motion to Amend was a typographical error and that TLMD agrees with the modification to the place of use for claim 41K 137335-00 as proposed in the issue remark. 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. 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. CONCLUSIONS OF LAW 1. Based on the TLMD’s Statement of Clarification, the issue remark overcomes the prima facie status of the Statement of Claim. The point of diversion for claim 41K 137335-00 should be modified as described in Finding of Fact No. 1. The modification resolves the self-objection and the place of use issue remark, and the issue remark should be removed from the claim. 2. The notice-type issue remark appearing on claim 41K 137335-00 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 that the Court modify the place of use for claim 41K 137335-00 from NWSWNE in Sec 16, Twp 20N, Rge 7W in Lewis and Clark County to the SENWNE of Sec 16, Twp 20N, Rge 7W in Lewis and Clark County and remove the issue remarks from the claim. A post decree abstract of the water right claim reflecting the recommended changes is attached to this Report. 3 ELECTRONICALLY SIGNED AND DATED BELOW. Service Via Electronic Mail: Ben Eckstein Michelle Snowberger Montana Attorney General Agency Legal Services Bureau PO Box 201440 Helena, MT 59620 (406) 444-0296 BLCWaterCourt@mt.gov \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41K PD\41K Cases\91\41K-0091-R-2023 MR (single claim, response filed, make changes per IR) 2-6-24 jbc.docx 4 Electronically Signed By: Hon. Judge Eugene White Fri, Feb 16 2024 07:55:18 AM February 7, 2024 41K 137335-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 137335-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: Owners: MONTANA STATE BOARD OF LAND COMMISSIONERS TRUST LAND MANAGEMENT DIVISION PO BOX 201601 HELENA, MT 59620-1601 Priority Date: JUNE 1, 1950 Type of Historical Right: USE Purpose (Use): STOCK Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED FOR THIS USE FROM THIS ONSTREAM RESERVOIR. 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 MURPHY COULEE SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SENWNE 16 20N 7W LEWIS AND CLARK Sec 16 Twp 20N Rge 7W County LEWIS AND CLARK Sec 16 Twp 20N Rge 7W County LEWIS AND CLARK Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec SENWNE Diversion to Reservoir: DIVERSION # 1 JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec SENWNE

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