State of Montana Dept. of Natural Resources; Nilan Water Users Association

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FILED 01/03/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41K-0437-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 ******************** CLAIMANTS: State of Montana Dept. of Natural Resources; Nilan Water Users Association NOTICE OF INTENT TO APPEAR: LF Ranch MT, LLC CASE 41K-0437-R-2023 41K 119362-00 41K 119364-00 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, conclusion 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. Claims 41K 119362-00 and 41K 1193641 00 each received issue remarks during the DNRC’s review of the claims. The claims were consolidated into Case 41K-0437-R-2023 and an Order Setting Filing Deadline was issued by the Water Court to resolve the issue remarks. FINDINGS OF FACT 1. Claim 41K 119362-00 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 4 TWP 19N RGE 8W LEWIS AND CLARK COUNTY. 2. On September 19, 2023, the Water Court consolidated the claims and issued an Order Setting Filing Deadline. Nothing was filed at the ordered deadline by either of the claimants. The Order Setting Filing Deadline included the following language regarding the above-listed issue remark: ORDERED that the Claimants review this order and, if necesswy, file a statement of why the point of diversion of claim 41K 119362-00 should not be modified as described in the above-listed issue remark by Wednesday, October 18, 2023.1fnothing isfiled by the deadline, this Master will conclude that the Claimants agree to the proposed modification to the point of diversion of claim 41K 119362-00, the point of diversion will be modifiedfrom the NWSENE of Section 4, Twp 19N, liseSW in Lewis and Clark County to the NESWNE ofSection 4, Twp 19N, 13g28W in Lewis and Clark County, and the issue remark will be removedfrom the claim. 3. On October 18, 2023, NOIA party LF Ranch MT, LLC filed a Response. LF Ranch’s Response states that LF Ranch agrees with the point of diversion identified by the issue remark. 4. Each of the claims also received a notice-type issue remark stating that the ditch name was modified by the DNRC during its claims reexamination. No Objections were filed. 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. 2 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. CONCLUSIONS OF LAW 1. The information in the record resolves the point of diversion issue remark appearing on claim 41K 119362-00. Based on the Claimant fact that the Claimants did not file anything to the contrary, and the Response filed at the filing deadline by NOIA party LF Ranch stating its agreement with the proposed modification, a preponderance of the evidence shows that the point of diversion of claim 41K 119362-00 should be modified from the NWSENE of Section 4, Twp 19N, Rge 8W in Lewis and Clark County to the NESWNE of Section 4, Twp 19N, Rge 8W in Lewis and Clark County and the issue remark should be removed from the claim. 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 Water Master recommends that the Court modify the point of diversion of claim 41K 119362-00 as described in Conclusion of Law No. 1 and remove the 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. 3 Electronically Signed By: Hon. Judge Eugene White Wed, Jan 03 2024 12:05:51 PM Service via USPS Mail: State of Montana Dept. of Natural Resources Nilan Dam 1424 9th Ave. P.O. Box 201601 Helena, MT 59620-1601 Nilan Water Users Association P.O. Box 486 Augusta, MT 59410 Service Via Electronic Mail: 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\437\41K-0437-R-2023 MR (multiple cliams, no response from claimant, make changes according to IR, NOIA agrees) 12-20-23 jbc.docx 4 December 20, 2023 41K 119362-00 Page 1 of 3 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K Water Right Number: 41K 119362-00 Version: STATEMENT OF CLAIM 4 -- POST DECREE ACTIVE Status: Owners: NILAN WATER USERS ASSOCIATION PO BOX 486 AUGUSTA, MT 59410 MONTANA, STATE OF DEPT OF NATURAL RESOURCES NILAN DAM 1424 9TH AVE PO BOX 201601 HELENA, MT 59620 1601 OWNERSHIP UPDATE PROCESSED TO ADD NEW OWNERS. THE WATER RIGHT MAY BE SPLIT INTO SEPARATE WATER RIGHTS UPON REQUEST OF THE OWNERS. *Priority Date: Type of Historical Right: *Purpose (use): AUGUST 30, 1950 FILED SALE THIS RIGHT INCLUDES WATER STORAGE AS PROVIDED FOR IN SECTION 89-121 R.C.M. (1947) (REPEALED). THIS RIGHT DIVERTS WATER INTO NILAN RESERVOIR FOR LATER RELEASE TO WATER PURCHASERS. THE HISTORIC USES OF THIS WATER INCLUDE IRRIGATION AND STOCK WATER. Flow Rate: 200.00 CFS THE COMBINED FLOW RATE FOR CLAIMS 41K 119362-00 AND 41K 119364-00 IS LIMITED TO THE HISTORIC CAPACITY OF THE DIVERSION STRUCTURES AND CONVEYANCE SYSTEM. THE COMBINED FLOW RATES FOR DIVERSIONS BY CLAIMS 41K 119362-00 AND 41K 30046594 CANNOT EXCEED 200.00 CFS. *Volume: 14,130.00 AC-FT THE COMBINED VOLUME OF CLAIMS 119362-00 AND 119364-00 SHALL NOT EXCEED 14,130 ACRE-FEET. THE VOLUME REFLECTS HISTORIC DIVERSION FOR RESERVOIR STORAGE, AND INCLUDES DEAD STORAGE, EVAPORATION, AND PARTIAL REFILL, WHEN WATER IS AVAILABLE. Climatic Area: 3 - MODERATE GENERAL SERVICE AREA Source Name: Source Type: SMITH CREEK SURFACE WATER *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NESWNE 4 19N 8W LEWIS AND CLARK Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: HEADGATE December 20, 2023 41K 119362-00 Page 2 of 3 Post Decree Abstract NILAN SUPPLY CANAL Ditch Name: OFFSTREAM *Reservoir: Govt Lot Reservoir Name: NILAN RESERVOIR, NORTH DAM Qtr Sec SWSENE Sec 18 Twp 20N Rge 7W County LEWIS AND CLARK Diversion to Reservoir: DIVERSION # 1 Dam Height: 34.00 FEET Surface Area: 535.00 ACRES 10,092.00 ACRE-FEET Capacity: OFFSTREAM *Reservoir: Govt Lot Reservoir Name: NILAN RESERVOIR, EAST DAM Qtr Sec W2SENE Sec 20 Twp 20N Rge 7W County LEWIS AND CLARK Qtr Sec W2SENE Sec 20 Twp 20N Rge 7W County LEWIS AND CLARK SWSENE 18 20N 7W LEWIS AND CLARK Diversion to Reservoir: DIVERSION # 1 Dam Height: 44.00 FEET Surface Area: 535.00 ACRES 10,092.00 ACRE-FEET Capacity: JANUARY 1 TO DECEMBER 31 *Period of Use: (STORAGE) APRIL 1 TO SEPTEMBER 30 (SALE) *Place of Use: ID 1 2 Acres Govt Lot PLACE OF USE #1 IS THE EAST DAM AND PLACE OF USE #2 IS THE NORTH DAM THE PLACE OF USE FOR SALE OF WATER IS THE LOCATION OF THE OUTLET WORKS AT THE NORTH AND EAST DAM SITES AT NILAN RESERVOIR. THE GENERAL SERVICE AREA FOR THE NILAN PROJECT INCLUDES THE FOLLOWING LOCATIONS: T19N R6W LEWIS AND CLARK COUNTY T19N R7W LEWIS AND CLARK COUNTY T19N R8W LEWIS AND CLARK COUNTY T20N R5W LEWIS AND CLARK COUNTY T20N R6W LEWIS AND CLARK COUNTY T20N R7W LEWIS AND CLARK COUNTY T20N R8W LEWIS AND CLARK COUNTY T21N R6W LEWIS AND CLARK COUNTY T21N R7W LEWIS AND CLARK COUNTY 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. December 20, 2023 41K 119362-00 119362-00 Page 3 of 3 Post Decree Abstract 119364-00 IMPLIED CLAIM NO. 41K 30046594 WAS AUTHORIZED AND GENERATED BASED ON INFORMATION IN THIS CLAIM. THE CLAIMANT MUST COMPLY WITH THE REQUIREMENTS OF TITLE 85, CHAPTER 2 PART 4 OF THE MONTANA CODE ANNOTATED BEFORE CONTRACTING TO SELL WATER TO ANY PARTY FOR ANY USE OTHER THAN IRRIGATION AND STOCK WATER. December 20, 2023 41K 119364-00 Page 1 of 3 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K Water Right Number: 41K 119364-00 Version: STATEMENT OF CLAIM 4 -- POST DECREE Status: Owners: ACTIVE MONTANA, STATE OF DEPT OF NATURAL RESOURCES NILAN DAM 1424 9TH AVE PO BOX 201601 HELENA, MT 59620 1601 *Priority Date: Type of Historical Right: *Purpose (use): AUGUST 30, 1950 FILED SALE THIS RIGHT INCLUDES WATER STORAGE AS PROVIDED FOR IN SECTION 89-121 R.C.M. (1947) (REPEALED). THIS RIGHT DIVERTS WATER INTO NILAN RESERVOIR FOR LATER RELEASE TO WATER PURCHASERS. THE HISTORIC USES OF THIS WATER INCLUDE IRRIGATION AND STOCK WATER. *Flow Rate: 300.00 CFS THE COMBINED FLOW RATE FOR CLAIMS 41K 119362-00 AND 41K 119364-00 IS LIMITED TO THE HISTORIC CAPACITY OF THE DIVERSION STRUCTURES AND CONVEYANCE SYSTEM. *Volume: 14,130.00 AC-FT THE COMBINED VOLUME OF CLAIMS 119362-00 AND 119364-00 SHALL NOT EXCEED 14,130 ACRE-FEET. THE VOLUME REFLECTS HISTORIC DIVERSION FOR RESERVOIR STORAGE, AND INCLUDES DEAD STORAGE, EVAPORATION, AND PARTIAL REFILL, WHEN WATER IS AVAILABLE. Climatic Area: 3 - MODERATE GENERAL SERVICE AREA Source Name: Source Type: FORD CREEK SURFACE WATER *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NESESW 26 20N 8W LEWIS AND CLARK Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: HEADGATE Ditch Name: NILAN SUPPLY CANAL December 20, 2023 41K 119364-00 Page 2 of 3 Post Decree Abstract OFFSTREAM *Reservoir: Govt Lot Reservoir Name: NILAN RESERVOIR, NORTH DAM Qtr Sec SWSENE Sec 18 Twp 20N Rge 7W County LEWIS AND CLARK Diversion to Reservoir: DIVERSION # 1 Dam Height: 34.00 FEET Surface Area: 535.00 ACRES 10,092.00 ACRE-FEET Capacity: OFFSTREAM *Reservoir: Govt Lot Reservoir Name: NILAN RESERVOIR, EAST DAM Qtr Sec W2SENE Sec 20 Twp 20N Rge 7W County LEWIS AND CLARK Qtr Sec W2SENE Sec 20 Twp 20N Rge 7W County LEWIS AND CLARK SWSENE 18 20N 7W LEWIS AND CLARK Diversion to Reservoir: DIVERSION # 1 Dam Height: 44.00 FEET Surface Area: 535.00 ACRES 10,092.00 ACRE-FEET Capacity: JANUARY 1 TO DECEMBER 31 *Period of Use: FOR STORAGE APRIL 1 TO SEPTEMBER 30 FOR SALE *Place of Use: ID 1 Acres Govt Lot 2 PLACE OF USE #1 IS THE EAST DAM, PLACE OF USE #2 IS THE NORTH DAM THE PLACE OF USE FOR SALE OF WATER IS THE LOCATION OF THE OUTLET WORKS AT THE NORTH AND EAST DAM SITES AT NILAN RESERVOIR. THE GENERAL SERVICE AREA FOR THE NILAN PROJECT INCLUDES THE FOLLOWING LOCATIONS: T19N R6W LEWIS AND CLARK COUNTY T19N R7W LEWIS AND CLARK COUNTY T19N R8W LEWIS AND CLARK COUNTY T20N R5W LEWIS AND CLARK COUNTY T20N R6W LEWIS AND CLARK COUNTY T20N R7W LEWIS AND CLARK COUNTY T20N R8W LEWIS AND CLARK COUNTY T21N R6W LEWIS AND CLARK COUNTY T21N R7W LEWIS AND CLARK COUNTY 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. 119362-00 119364-00 December 20, 2023 41K 119364-00 Page 3 of 3 Post Decree Abstract AUTHORIZATION TO CHANGE THE POD COMPLETED 07/29/1979. FILE REFLECTS RIGHT AS IT EXISTED PRIOR TO JULY 1973. APPROVED CHANGES WILL BE RECORDED AFTER FINAL DECREE. SEE 41K 119364-00 . THE CLAIMANT MUST COMPLY WITH THE REQUIREMENTS OF TITLE 85, CHAPTER 2 PART 4 OF THE MONTANA CODE ANNOTATED BEFORE CONTRACTING TO SELL WATER TO ANY PARTY FOR ANY USE OTHER THAN IRRIGATION AND STOCK WATER.

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