USA (Department of Agriculture Forest Service)

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FILED 03/22/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41K-0217-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov White, Eugene 11.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION SUN RIVER BASIN (41K) ******************** CLAIMANT: USA (Department of Agriculture Forest Service) CASE 41K-0217-R-2023 41K 56591-00 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 (Basin 41K) were subject to “issue remarks” resulting from pre-decree examination by the DNRC, objections, and counterobjections. The above-captioned claim received an 1 issue remark during the DNRC’s review of the claims. Claim 41K 56591-00 was consolidated into Case 41K-0217-R-2023 and an Order Setting Filing Deadline was issued by the Court to resolve the issue remark. FINDINGS OF FACT 1. Claim 41K 56591-00 received the following substantive issue remark: AN AMENDMENT WAS SUBMITTED ON 08/13/2020 REQUESTING TO AMEND THE PURPOSE AND FLOW RATE. THE AMENDMENT WAS NOT PROCESSED. THE AMENDMENT WILL BE REVIEWED AFTER THE ISSUANCE OF THE PRELIMINARY DECREE. 2. On April 26, 2023, Claimant United States Department of Agriculture, Forest service (“Forest Service”) filed a Response which reiterated that the previously filed amendment resolved the issue remark and brought the claim into historical conformity. The Response states that correction to the flow rate is necessary to correct a decimal error in the original filing. Additionally, the Response states that the original filing is for a recreational cabin, necessitating a change in purpose from commercial to domestic. The Response included attachments of the amendment requesting the following modifications to the claim: 1. Purpose (use): Domestic a. If irrigation, method of irrigation use El Sprinkler 111 Flood Water spreading El Subirrigation 111 Natural Overflow 111 cubic feet per second 5-0 8. Flow Rate Claimed: gallons per minute miner's inches 3. On June 26, 2023, the Court set a filing deadline for the Forest Service to identify the number of households associated with claim 41K 56591-00 based on the previous request to modify the purpose to “domestic.” That deadline was subsequently extended in an Order issued on August 2, 2023. 4. On August 30, 2023, the Forest Service filed a second Response. In its second Response, the Forest Service states that based on its review of aerial imagery, there are two recreational cabins on the place of use. Based on this information, the 2 Forest Service requests two households be added to the claim. Additionally, the Forest Service states that it identified an error in its August 13, 2020 Motion to Amend. The Forest Service goes on to state that the original Motion to Amend correctly requests the flow rate be modified to 5 gallons per minute to account for the above-mentioned decimal error in the original filing, however, the Forest Service did not request modification to the volume to account for the proposed change in purpose for claim 41K 56591-00. The Forest Service requests modification of the volume to 1.5 acre-feet. 5. On October 31, 2023, the Court issued an Order Setting Filing Deadline for the Forest Service to file information or evidence substantiating the proposed increase to the volume element for claim 41K 56591-00. 6. On December 18, 2023, the Forest Service filed a third Response which states that the United States withdraws its Motion to Amend the volume and does not object to the volume appearing as it currently does on the abstract. 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. The proposed modification contained in the Forest Service’s Response and previously filed Motion to Amend resolve the issue remark appearing on the claim. Based on the information contained in the Forest Service’s Response, along with the information contained in the attached Motion to Amend, the flow rate and purpose of 3 claim 41K 56591-00 should be modified as described in Finding of Fact No. 2. Based on the Forest Service’s second Response, two households should be added to the claim. Finally, based on the Forest Service’s third Response, the volume element should remain as currently listed on the abstract. The modifications resolve the issue remark, and the issue remark should be removed from the claim. 2. The requested amendment and modifications do not have the reasonable potential to adversely affect other water rights as they are corrections to the abstracts which do not make any change to the actual historical use of the claimed right on the ground. Notice by publication of this amendment is not required. RECOMMENDATIONS Based on the foregoing Findings of Fact and Conclusions of Law, this Master recommends that the Court adopt the changes as outlined above. A post decree abstract of the water right claim reflecting the recommended changes is attached to this Report. ELECTRONICALLY SIGNED AND DATED BELOW. Service Via Electronic Mail: Mark J. Widerschein, United States Department of Justice ENRD NRS PO Box 7611 Washington, DC 20044-7611 202-532-5803 Mark.Widerschein@Usdoj.Gov Montanabasins.ENRD@USDOJ.GOV 4 Electronically Signed By: Hon. Judge Eugene White Fri, Mar 22 2024 01:04:05 PM \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41K PD\41K Cases\217\41K-0217-R-2023 MR (single claim, response filed, make chages to purpose and flow rate per MTA) 9-25-23 jbc.docx 5 March 8, 2024 41K 56591-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 56591-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE Owners: USA (DEPT OF AGRICULTURE FOREST SERVICE) WATER RIGHTS PROGRAM MANAGER, NORTHERN REGION 26 FORT MISSOULA RD MISSOULA, MT 59804-7203 Priority Date: JULY 22, 1935 Type of Historical Right: USE Purpose (Use): DOMESTIC Flow Rate: 5.00 GPM Volume: 0.36 AC-FT 2 Households: STRAIGHT CREEK Source Name: SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Period of Diversion: Qtr Sec Sec Twp Rge NENW 16 20N 10W County LEWIS AND CLARK JANUARY 1 TO DECEMBER 31 OTHER DIVERSION Diversion Means: THE MEANS OF DIVERSION IS A LOW CAPACITY PUMP OR BUCKET. JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NENW Sec 16 Twp 20N Rge 10W County LEWIS AND CLARK THE TOWNSHIP IS UNSURVEYED. THE LEGAL LAND DESCRIPTION FOR THE PLACE OF USE HAS BEEN ESTIMATED.

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