Dixie Brookings; Ron Brookings

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FILED 02/07/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41K-0150-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Block, Nathaniel 4.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION SUN RIVER BASIN (41K) PRELIMINARY DECREE ******************** CLAIMANTS: Dixie Brookings; Ron Brookings CASE 41K-0150-R-2023 41K 30112681 41K 30112682 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 claims appeared in the Preliminary Decree for the Sun River 1 (Basin 41K) with the following remarks: 41K 30112681: THIS CLAIM NUMBER WAS NOT INCLUDED IN THE BASIN 41K DECREE ISSUED 05/14/1985. 41K 30112682: THIS CLAIM NUMBER WAS NOT INCLUDED IN THE BASIN 41K DECREE ISSUED 5/14/1985. THE CLAIMED PRIORITY DATE INDICATES AN APPROPRIATION OF WATER AFTER JUNE 30, 1973. These remarks were not addressed through the objection process. The Water Court is required to resolve the issue raised by an issue remark. Section 85-2-248, MCA. On June 12, 2023, the above-captioned claims were consolidated into case 41K0150-R-2023 and an Order was issued requiring the claimants to work with the Department of Natural Resources and Conservation (DNRC) to resolve the issue remark on claim 41K 30112682. On November 6, 2023, the DNRC filed a Memorandum stating that the claimants had not been in contact with DNRC and that claim 41K 30112682 should be dismissed unless claimants resolve the issue remark. On October 24, 2023, an Order was issued requiring the claimants to file documentation stating their position on the DNRC Memo. The Order stated that “[f]ailure to comply with this filing deadline will be viewed as agreement that claim 41K 30112682 should be dismissed”. Nothing was filed in response to the order. FINDINGS OF FACT 1. Claim 41K 30112682 should be dismissed as a sanction for failure to participate in proceedings and because it appears the claim was not put to beneficial use before July 1, 1973. 2. The issue remark on claim 41K 30112681 should be removed from the claim as it has served its notice purpose and requires no additional proceedings to resolve. 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(13), MCA. 2. A properly filed Statement of Claim for Existing Water Right is prima facie 2 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. CONCLUSION OF LAW 1. Claim 41K 30112682 should be dismissed as discussed above. The issue remark on claim 41K 30112681 should be removed. RECOMMENDATION 1. Upon review the record in this case, the above-captioned claims should be modified as discussed above. Post Decree Abstracts of Water Right Claims are attached to this Master’s Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail: Dixie Brookings Ron Brookings 23 Sun River Cascade Road Sun River, MT 59483 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41K PD\41K Cases\150\NB 41K-0150-R-2023 MR - Resolution of IRs 248 (NEW, multiple claims,dismiss, issue remarks) 1-25-2024 rr.docx 3 Electronically Signed By: Hon. Judge Nathaniel Block Wed, Feb 07 2024 10:40:45 AM January 31, 2024 41K 30112681 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 30112681 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: DIXIE BROOKINGS 23 SUN RIVER CASCADE RD SUN RIVER, MT 59483 Owners: RON BROOKINGS 23 SUN RIVER CASCADE RD SUN RIVER, MT 59483 Priority Date: DECEMBER 31, 1950 Type of Historical Right: FILED Purpose (Use): DOMESTIC Flow Rate: 10.00 GPM Volume: 7.50 AC-FT 1 Households: Maximum Acres: 2.50 Source Name: GROUNDWATER GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Period of Diversion: Qtr Sec Sec Twp Rge County NWNESE 34 21N 1W CASCADE Sec 34 Twp 21N Rge 1W County CASCADE JANUARY 1 TO DECEMBER 31 WELL Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres 2.50 Total: 2.50 Govt Lot Qtr Sec NWNESE January 31, 2024 41K 30112682 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K Water Right Number: 41K 30112682 Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: Owners: DISMISSED DIXIE BROOKINGS 23 SUN RIVER CASCADE RD SUN RIVER, MT 59483 RON BROOKINGS 23 SUN RIVER CASCADE RD SUN RIVER, MT 59483 Priority Date: Type of Historical Right: Purpose (Use): STOCK Flow Rate: Volume: Source Name: Source Type: SUN RIVER SURFACE WATER Point of Diversion and Means of Diversion: Period of Use: Place of Use: Remarks: THIS CLAIM WAS DISMISSED BY ORDER OF THE WATER COURT.

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