USA (Department of Agriculture Forest Service)

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FILED 01/31/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41K-0223-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov White, Eugene 5.00 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-0223-R-2023 41K 56644-00 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 issue remark during the DNRC’s review of the claims. The claim was consolidated into Case 41K-0223-R-2023 to resolve the issue remark. 1 FINDINGS OF FACT 1. Claim 41K 56644-00 received the following substantive issue remark: AN AMENDMENT WAS SUBMITTED ON 08/13/2020 REQUESTING TO AMEND THE PURPOSE, PLACE OF USE, AND FLOW RATE. THE AMENDMENT WAS NOT PROCESSED. THE AMENDMENT WILL BE REVIEWED AFTER THE ISSUANCE OF THE PRELIMINARY DECREE. 2. On May 3, 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 and that the modification to the place of use corrects the legal land description which was transposed when the claim was originally filed. The Response included attachments of the amendment requesting the following modification to the claim: 1. Purpose (use): Add Purpose Remark: Resort a. lf irrigation, method of irrigation use D Sprinkler El Flood 0 Water spreading Subirrigation 7. Place of Use: County acres Lot Block 1/4 SW 14 / acres Lot Block % acres Lot Block 14 / acres Lot Block % acres Lot Block Total Acres Subdivision 14 / 14 / 14 / 14 / % SE 14 / 14 / 14 / 14 / 14 / 0 Natural Overflow Section 10 Section Section Section Section 0 See attachment R 8W T 18N T R T R T R T R E Replaces claimed information E Supplements claimed information 0 Addendum included 8. cubic feet per second O gallons per minute Flow Rate Claimed: 42.0 miner's inches 3. On July 14, 2023, the Court issued another Order Setting Filing Deadline requesting clarification and a proposed abstract from the Forest Service as to which remark it proposed to add to claim 41K 56644-00. 4. On August 30, 2023, the Forest Service filed a second Response. In its second Response, the Forest Service states, “upon further review, the United States no longer believes that a remark is needed to clarify the use... Implementation of the Forest 2 Service’s amendment as to the flow rate would resolve the issue remark.” Attached to the Forest service’s second Response was a proposed abstract requesting the following modifications to claim 41K 56644-00: Purpose (use): aomEsTic RECREAT oN Flow Rate: 26-.93 5 GPM THE-GLA4ME19-FL-GW-RA-TE-EXGEEDS-THE-35-GPM-GUIAEL-INE÷GR-THIS-PURPOSE 5. On October 10, 2023, the Court issued a filing deadline for the Forest Service to provide clarification as to which modifications they would like to see implemented to resolve the issue remark and ensure the historical accuracy of claim 41K 56644-00. Nothing was filed by the ordered deadline. 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 modifications contained in the Forest Service’s second 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 second Response, along with the information contained in the attached Motion to Amend, the flow rate of claim 41K 56644-00 should be modified as described in Finding of Fact No. 4 and the place of use modified as described in Finding of Fact No. 2. The modifications are based on the most recent information filed by the Forest Service. Per the DNRC Claims Examination Manual Standard Purpose List Figure VI-1, the recreational purpose is appropriate for ponds or reservoirs and instream recreational use. As claim 41K 56644-00 3 is for use in a household as indicated by the abstract, the purpose should remain as domestic. Based on the Forest Service’s second Response no additional informational remark needs to be added to clarify this use. The modifications to the flow rate and place of use resolve the issue remark. 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 USPS Mail: USA (Department of Agriculture Forest Service) Water Rights Program Manager, Northern Region 26 Fort Missoula Rd Missoula, MT 59804-7203 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41K PD\41K Cases\223\41K-0223-R-2023 MR (single claim, response filed make changes per VMA) 1-24-23 jbc.docx 4 Electronically Signed By: Hon. Judge Eugene White Wed, Jan 31 2024 01:06:12 PM January 26, 2024 41K 56644-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 56644-00 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: MARCH 5, 1951 Type of Historical Right: USE Purpose (Use): DOMESTIC Flow Rate: 5.00 GPM Volume: 1.50 AC-FT 1 Households: CATARACT 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 County SWSE 10 18N 8W LEWIS AND CLARK MAY 1 TO NOVEMBER 30 OTHER DIVERSION Diversion Means: THE MEANS OF DIVERSION IS A LOW CAPACITY PUMP OR BUCKET. MAY 1 TO NOVEMBER 30 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec SWSE Sec 10 Twp 18N Rge 8W County LEWIS AND CLARK January 26, 2024 41K 56644-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 56644-00 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: MARCH 5, 1951 Type of Historical Right: USE Purpose (Use): DOMESTIC Flow Rate: 5.00 GPM Volume: 1.50 AC-FT 1 Households: CATARACT 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 County SWSE 10 18N 8W LEWIS AND CLARK MAY 1 TO NOVEMBER 30 OTHER DIVERSION Diversion Means: THE MEANS OF DIVERSION IS A LOW CAPACITY PUMP OR BUCKET. MAY 1 TO NOVEMBER 30 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec SWSE Sec 10 Twp 18N Rge 8W County LEWIS AND CLARK

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