Sixbarn Family Trust Timothy J. Wylder; David M. Wipf

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FILED 01/26/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41K-0461-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: Sixbarn Family Trust 10/14/2021; Timothy J. Wylder; David M. Wipf CASE 41K-0461-R-2023 41K 6644-00 41K 200810-00 41K 200811-00 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 reexamination by the DNRC, objections, and counterobjections. Claims 41K 6644-00, 41K 200810-00 and 41K 200811-00 each received issue remarks during the DNRC’s review of the claims. 1 The claims were consolidated into Case 41K-0461-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 200810-00 received the following substantive issue remark: THE POINT OF DIVERSION APPEARS TO BE INCORRECT. THE POINT OF DIVERSION APPEARS TO BE IN THE NWNWSE SEC 34 TWP 21N RGE 2E CASCADE COUNTY. Claim 41K 200811-00 received the following substantive issue remark: THE TYPE OF HISTORICAL RIGHT MAY BE QUESTIONABLE. DOCUMENTATION SUBMITTED WITH THE CLAIM INDICATES A USE RIGHT. 2. On September 26, 2023, the Water Court consolidated the claims and issued an Order Setting Filing Deadline. The Order Setting Filing Deadline included the following language regarding the above-listed issue remarks: ORDERED that the Claimant Sixbam Family Tmst review this order and, if necessary, file a statement of why the point of diversion of claim 41K 200810-00 should not be modified as described in the above-listed issue remark by Wednesday, October 25, 2023. If nothing isfiled by the deadline, this Master will conclude that the Claimant agrees to the proposed modffication to the paint of diversion of claim 41K 200810-00, the point of diversaonfor claim 200810-00 will be changedfrom NESESIV of Section 34, Twp 21N, Rge 2E in Cascade County to NWNWSE of section 34, Twp 21N, Rge 2E in Cascade County, and the issue remark will be removedfrom the claim. ORDERED that the Claimants Sixbam Family Trust and David M. Wipf review this order and, if necessary, file a statement of why the type of right for claim 41K 200811-00 should not be modified as described in the above-listed issue remark by Wednesday, October 25, 2023. If nothing isfiled by the deadline, this Master will conclude that the Claimants agree to the proposed modification to the type of rightfor claim 41K 200811-00, the type of rightfor claim 41K 200811-00 will be changedfrom decreed to use, and the issue remark will be removedfrom the claim. 3. On November 3, 2023, claimant Sixbarn Family Trust 10/14/2021 (“Sixbarn”) filed a Response. Sixbarn’s Response states that it agrees with the proposed modification 2 to the point of diversion identified by the issue remark for claim 41K 200810-00. Additionally, Sixbarn states that after consulting with the DNRC, claim 41K 200811-00 is correctly listed as a decreed right and should not be modified to a use right as proposed by the above-listed issue remark. Sixbarn attached a copy of of the Decree for Case 4742 in Cascade County showing claim 41K 200811-00 as decreed. Nothing was filed by coclaimant David M. Wipf in response to the filing deadline for claim 41K 200811-00. 4. Claim 41K 200811-00 was adjudicated during the Temporary Preliminary Decree for Basin 41K as part of Water Court Case 41K-1F. As a result of the second stipulation filed by the parties at that time to resolve Case 41K-1F, claim 41K 200811-00 was severed from its original decreed right and converted to a “use” right. However, this change was never applied to the abstract of claim 41K 200811-00 which resulted in the DNRC issue remark stating that documentation submitted with claim 41K 200811-00 indicates a “use” right. 5. Each of the above-captioned claims also received a notice-type issue remark from 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. 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 3 1. The information in the record resolves the point of diversion issue remark appearing on claim 41K 200810-00. Based on the Response filed by claimant Sixbarn, a preponderance of the evidence shows that the point of diversion of claim 41K 200810-00 should be modified from the NESESW of Section 34, Twp 21N, Rge 2E in Cascade County to NWNWSE of section 34, Twp 21N, Rge 2E in Cascade County and the issue remark should be removed from the claim. 2. Based on the second stipulation filed to resolve Temporary Preliminay Decree Case 41K-1F and the resulting Master’s Report 1, specifically Findings of Fact Nos. 1-6 and 11, the type of right should be modified from “decreed” to “use” for claim 41K 200811-00 and the type of right issue remark should be removed. 3. 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 200810-00 as described in Conclusion of Law No. 1, modify the type of historical right for claim 41K 200811-00 as described in Finding of Fact No. 2, and remove the issue remarks from the claims. Post decree abstracts of the water right claims reflecting the recommended changes and a copy of the Masters Report for Case 41K-1F are attached to this Report. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail: Sixbarn Family Trust 10/14/2021 Tim & Teresa Neuman Trustees 201 Sun River Rd Great Falls, MT 59404 A copy of the previously issued Master Report for Water Court Case 41K-1F is attached to this Report for review by the parties. Electronically Signed By: Hon. Judge Eugene White 4 Fri, Jan 26 2024 09:38:33 AM 1 David M. Wipf 50 Loch Lane Great Falls, MT 59404 Timothy J. Wylder PO Box 2046 Great Falls, MT 59403 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41K PD\41K Cases\461\41K-0461-R-2023 MR (multiple claims, response resolves IRs, make changes to pod per IR, do not change type of right) 1-3-24 jbc.docx 5 January 24, 2024 41K 6644-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 6644-00 Water Right Number: STATEMENT OF CLAIM 3 -- POST DECREE Version: Status: ACTIVE TIMOTHY J WYLDER PO BOX 2046 GREAT FALLS, MT 59403 Owners: SIXBARN FAMILY TRUST 10/14/2021 %NEUMAN, TIM & TERESA TRUSTEES 201 SUN RIVER RD GREAT FALLS, MT 59404-6321 Priority Date: MAY 31, 1952 Type of Historical Right: USE Purpose (Use): IRRIGATION FLOOD Irrigation Type: 289.00 GPM Flow Rate: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. *Volume: 2 - MODERATELY HIGH Climatic Area: Maximum Acres: 17.00 Source Name: UNNAMED TRIBUTARY OF SUN RIVER SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge NWNWSW 4 20N 2E CASCADE 4 20N 2E CASCADE Qtr Sec SENW Sec 4 Twp 20N Rge 2E County CASCADE NWNE 3 20N 2E CASCADE Period of Diversion: MAY 1 TO SEPTEMBER 15 Diversion Means: HEADGATE 2 2 NWNWNE Period of Diversion: MAY 1 TO SEPTEMBER 15 Diversion Means: HEADGATE County MAY 1 TO SEPTEMBER 15 Period of Use: Place of Use: ID 1 Acres 10.00 2 7.00 Total: 17.00 Govt Lot January 24, 2024 41K 200810-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 200810-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE Owners: SIXBARN FAMILY TRUST 10/14/2021 %NEUMAN, TIM & TERESA TRUSTEES 201 SUN RIVER RD GREAT FALLS, MT 59404-6321 Priority Date: OCTOBER 7, 1892 Type of Historical Right: DECREED Purpose (Use): IRRIGATION FLOOD Irrigation Type: *Flow Rate: 440.00 GPM *Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 2 - MODERATELY HIGH Climatic Area: *Maximum Acres: 135.98 *Source Name: SUN RIVER SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NWNWSE 34 21N 2E CASCADE Qtr Sec SWSE Sec 34 Twp 21N Rge 2E County CASCADE MAY 1 TO OCTOBER 15 *Period of Diversion: PUMP Diversion Means: MAY 1 TO OCTOBER 15 *Period of Use: *Place of Use: ID 1 Acres 38.00 2 19.00 S2NWSE 34 21N 2E CASCADE 3 38.00 SESW 34 21N 2E CASCADE 4 15.00 S2NESW 34 21N 2E CASCADE 5 25.98 NWNE 3 20N 2E CASCADE Total: Govt Lot 135.98 Remarks: IMPLIED CLAIM NO. 41K 216258-00 WAS AUTHORIZED AND GENERATED BASED ON INFORMATION IN THIS CLAIM. January 24, 2024 41K 200811-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 200811-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: DAVID M WIPF 50 LOCH LANE GREAT FALLS, MT 59404 Owners: SIXBARN FAMILY TRUST 10/14/2021 %NEUMAN, TIM & TERESA TRUSTEES 201 SUN RIVER RD GREAT FALLS, MT 59404-6321 OWNERSHIP UPDATE PROCESSED TO ADD NEW OWNERS. THE WATER RIGHT MAY BE SPLIT INTO SEPARATE WATER RIGHTS UPON REQUEST OF THE OWNERS. DECEMBER 31, 1935 *Priority Date: Type of Historical Right: USE Purpose (Use): IRRIGATION FLOOD Irrigation Type: 5.57 CFS Flow Rate: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. *Volume: 2 - MODERATELY HIGH Climatic Area: 205.00 *Maximum Acres: SUN RIVER Source Name: SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SENWSW 34 21N 2E CASCADE Qtr Sec SWSW Sec 34 Twp 21N Rge 2E County CASCADE MAY 1 TO OCTOBER 15 *Period of Diversion: PUMP Diversion Means: MAY 1 TO OCTOBER 15 *Period of Use: *Place of Use: ID 1 Acres 35.00 Govt Lot 2 20.00 W2SESW 34 21N 2E CASCADE 3 5.00 SWNESW 34 21N 2E CASCADE 4 40.00 SWSE 34 21N 2E CASCADE 5 20.00 S2NWSE 34 21N 2E CASCADE 6 20.00 E2SESW 34 21N 2E CASCADE 7 30.00 NESW 34 21N 2E CASCADE January 24, 2024 41K 200811-00 8 Page 2 of 2 Post Decree Abstract 35.00 Total: NWNE 3 21N 2E CASCADE 205.00 Remarks: APPLICATION TO CHANGE THE POINT OF DIVERSION RECEIVED 06/17/1999. SEE 41K 200811-00. Montana Water Court PO Box 879 Bozeman, MT 59771-0879 1-800-624-3270 (In-state only) (406) 586-4364 IN THE MATTER OF THE ADJUDICATION OF ) ) THE EXISTING RIGHTS TO THE USE. OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND,) WITHIN THE SUN RIVER DRAINAGE AREA, INCLUDING ALL TRIBUTARIES OF THE SUN RIVER IN TETON, LEWIS AND CLARK, AND CASCADE COUNTIES, MONTANA. CASE C s'z 41Wcain6 9 1997 • JAN 4.1 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION SUN RIVER BASIN '(41K) * * * * * * * * * * * * * * * * * * * * 41K-W-019303-00 41K-W-200810-00 41K-W-200811-00 41K-W-210352-00 Implied Claims: 41K-W-216257-00 41K-W-216258-00 41K-W-216259-00 CLAIMANT: Lane C. Briggs; John K. Olson; John P. Eidel, John P. Eidel, Jr. ON MOTION OF THE WATER COURT OBJECTOR: L. F. Ranch; Greenfields Irrigation District; MT Department of Natural Resources and Conservation; United States of America (Bureau of Reclamation) MASTER'S REPORT FINDINGS OF FACT 1. Irrigation water right claims 41K-W-019303-00 filed by Lane C. Briggs; 41K-W-200810-00 and 41K-W-200811-00 filed by John P. Eidel and John P. Eidel, Jr. and 41K-W-210352-00 filed by John K. Olson are all based on a right decreed to C.H. Campbell in Mclver v. Campbell, Cause 4742 Cascade County. 2. These claims' received objections from J.B. Long Ranch for priority date and acres irrigated, (subsequently assumed by L.F. Ranch and withdrawn on October 20, 1993) and Greenfields Irrigation District for ownership, volume, acres irrigated and flow rate (019303 & 200811 only). Notices of Intent to Appear on these claims were filed by the United States of America (USA), Fort Shaw Irrigation District (withdrawn on February 14, 1996) and Kelly-Moore Paint Co. g a t, • (withdrawn on November 7, 1996). Motion of the Montana Water The claims were also called in on Court due to the gray area remark concerning the ownership, volume, acres irrigated, priority date, place of use and flow rate. 3. C.H. Campbell received a decreed water right for 22 CFS (cubic feet per second) with a priority date of October 7, 1892 in McIver v. Campbell, Cause 4742 Cascade County. Approximately 35 claims in this adjudication claimed part of.this Campbell right. The Water Court consolidated all of these claims into Case 41K-1 and ordered all claimants to file a chain of title for their water rights. These chains of title were then reviewed by Kraig Van Voast of the Montana Department of Natural Resources and Conservation (DNRC). Mr. Van Voast filed a report detailing the results of his research on September 20, 1994. All parties in this case have had the'opportunity to review this report. According to this report, the Campbell decreed right was split into six branches through various real transfers over the years. Claims 41K-W-019303-00, 41K-W-200210-00, property 41K-W-200811-00 and 41K-W-210352-00 fall under the Joe Cook branch of the Campbell right. This branch is entitled to 2.25 CFS of the original 22 CFS right. 4. Case 41K-1 was subsequently reconsolidated into six cases to reflect the six branches of the C.H. Campbell right. Claims 41K-W-019303-00, 41K-W-200810-00, 41K-W-200811-00 and 41K-W-210352-00 were placed in Case 41K-1F. 5. On February 1,1996 the claimants filed a Stipulation addressing the flow rate and acres irrigated by these claims. On July 17, 1996 these three claimants and the United States of America filed a second Stipulation addressing the same issues. -2- The terms of the two Stipulations do not The agree. Court finds that the second Stipulation controls. The parties were aware of the first Stipulation when they entered into the Second Stipulation and therefore know that the second Stipulation contains terms that differ from the first Stipulation. Nonetheless, the parties filed the second Stipulation and resolved the remaining objections to the claims in this case. Greenfields Irrigation District and Kelly-Moore Paint Co. were not a party to either Stipulation. However, both of these parties previously agreed to review the second Stipulation through a Draft Master's Report and withdraw if it resolves their concerns on these claims. 6. The Court referred the second Stipulation to Kraig Van Voast to determine the legal description of the proposed place of use for each claim. His report, filed with the Court on August 14, 1996, provides the basis for the legal descriptions of the place of use used in this Master's Report. 7. The Temporary Preliminary Decree states the flow rate, period of use and acres irrigated for claim 41K-W-019303-00 are: FLOW RATE: 2.05 CFS PERIOD OF USE: April 1 to October 31 PLACE OF USE/ACRES IRRIGATED: ACRES 81.40 81.40 001 TOTAL QTR SEC N2 SEC TWP RGE COUNTY 02 20N 02E CASCADE Under the terms of the second Stipulation of the parties, this claim should appear in the next decree for this Basin as follows: 1,N7ATgR RI OWNER: T .NT4MBER: 41K-W-019303-00 LANE C. BRIGGS -3- PRIORITY DATE: OCTOBER 7, 1892' TYPE OF RIGHT: DECREED FLOW RATE:* 0.80 CFS VOLUME:* THE TOTAL VOLUME OF THIS RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. SOURCE: SUN RIVER MAXIMUM ACRES:* 55.42 PURPOSE (USE): IRRIGATION PERIOD OF USE:* MAY 1 TO OCTOBER 1 POINTS OF DIVERSION AND MEANS OF DIVERSION: LOT/BLK OTR SEC SENENE SEC .02 TWP RGE COUNTY 20N 02E CASCADE PUMP PLACE OF USE:* 001 002 TOTAL ACRES OTR SEC SEC TWP RGE COUNTY 45.42 10.00 55.42 S2NW W2SWNE 02 02 20N 20N 02E 02E CASCADE CASCADE REMARKS: THE TIMELY FILED OBJECTIONS TO THIS CLAIM WERE AMENDED BY AGREEMENT OF THE PARTIES TO INCLUDE PERIOD OF USE. BECAUSE THIS ELEMENT WAS NOT INCLUDED ON THE TEMPORARY PRELIMINARY DECREE OBJECTION LIST, ANY WATER USER WHOSE RIGHTS MAY BE ADVERSELY AFFECTED BY ENFORCEMENT OF THIS CHANGE MAY PETITION THE APPROPRIATE COURT FOR RELIEF OR MAY FILE AN OBJECTION AT THE PRELIMINARY DECREE. 8. The timely filed objections to claim 41K-W-019303-00 were amended by agreement of the parties to include period of use. Rules 15(b) and 15(c) Mont.R.Civ.P. An appropriate remark should be added to the abstract of this claim to alert other water users of this change to the preliminary decree. 1 The Stipulation of the parties refers to the priority date of this claim as October 7, 1897. The priority date for the Campbell right in cause 4742 is October 7, 1892. The Court assumes that the date in the Stipulation is a scrivener's error and that October 7, 1892 is the correct priority date for this claim. -4- 9. The Temporary Preliminary Decree states the flow rate period of use, place of use and acres irrigated for claim 41K-W200810-00 are: FLOW RATE: 2,500 GPM , PERIOD OF USE: April 1 to October 19 PLACE OF USE/ACRES IRRIGATED: ACRES 001 .002 003 004 005 TOTAL 40.00 20.00 20.00 30.00 35.00 145.00 QTR SEC SEC TWP RGE COUNTY SWSE S2NWSE E2SESW SENESW NWNE 34 34 34 34 03 21N 21N 21N 21N 20N 02E 02E 02E 02E 02E CASCADE CASCADE CASCADE CASCADE CASCADE Under the. terms of the second Stipulation of the, parties, this claim should appear in the next ,decree for this Basin as follows: WATER RTGET NUMBER: 41K-W-200810-00 OWNER: JOHN P. EIDEL JOHN P. EIDEL, JR. PRIORITY DATE: OCTOBER 7, 18922 TYPE OF RIGHT: DECREED FLOW RATE:* 0.98 CFS VOLUME:* THE TOTAL VOLUME OF THIS RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. SOURCE: SUN RIVER MAXIMUM ACRES:* 135.98 PURPOSE (USE): IRRIGATION PERIOD OF USE:* MAY 1 TO OCTOBER 15 POINTS OF DIVERSION AND MEANS OF DIVERSION: LOT/BLK OTR SEC SEC TWP RGE COUNTY NESESW 33 21N 02E CASCADE PUMP 2 The Stipulation of the parties refers to the priority date of this claim as October 7, 1897. The priority date for the Campbell right in cause 4742 is October 7, 1892. The Court assumes that the date in the Stipulation is a scrivener's error and that October 7, 1892 is the correct priority date for this claim. PLACE OF USE:* ACRES 001 002 003 004 005 TOTAL 38.00 19.00 38.00 15.00 25.98 135.98 OTR SEC SEC TWP RGE COUNTY SWSE S2NWSE SESW S2NESW NWNE 34 34 34 34 03 21N 21N 21N 21N 20N 02E 02E 02E 02E 02E CASCADE CASCADE CASCADE CASCADE CASCADE REMARKS: THE TIMELY FILED OBJECTIONS TO THIS CLAIM WERE AMENDED BY AGREEMENT OF THE PARTIES TO INCLUDE PERIOD OF USE. BECAUSE THIS ELEMENT WAS NOT INCLUDED ON THE TEMPORARY PRELIMINARY DECREE OBJECTION LIST, ANY WATER USER WHOSE RIGHTS MAY BE ADVERSELY AFFECTED BY ENFORCEMENT OF THIS CHANGE MAY PETITION THE APPROPRIATE COURT FOR RELIEF OR MAY FILE AN OBJECTION AT THE PRELIMINARY DECREE. 10. The timely filed objections to claim 41K-W-200810-00 were amended by agreement of the parties to include period of use. Rules 15(b) and 15(c) Mont.R.Civ.P. An appropriate remark should be added to the abstract of this claim to alert other water users of this change to the preliminary decree. 11. .The Temporary Preliminary Decree states the priority date, period of use, place of use and acres irrigated for claim 41K-W200811-00 are: PRIORITY DATE: October .7, 1892 PERIOD OF USE: April 1 to October 19 PLACE OF USE/ACRES IRRIGATED: 001 002 003 TOTAL ACRES OTR SEC SEC TWP. RGE COUNTY 35.00 20.00 5.00 60.00 SWSW W2SESW SWNESW 34 34 34 21N 21N 21N 02E 02E 02E CASCADE CASCADE CASCADE , Under the terms of the second Stipulation of the parties, this claim is severed from the Campbell right and converted into a use right with a later priority date reflecting incremental development -6- of irrigation on the claimant's property. The claim should appear in the next decree for this Basin as follows: WAPER RtG1-11* NUMSER: 41K-W-200811-00 OWNER: JOHN P. EIDEL JOHN P. EIDEL, JR. PRIORITY DATE:* DECEMBER 31, 1935 TYPE OF RIGHT: USE FLOW RATE:* 2,500 GPM (5.57 CFS) VOLUME:* THE TOTAL VOLUME OF THIS RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. SOURCE: SUN RIVER MAXIMUM ACRES:* 205.00 PURPOSE (USE): IRRIGATION PERIOD OF USE:* MAY 1 TO OCTOBER 15 POINTS OF DIVERSION AND MEANS OF DIVERSION: LOT/BLK OTR SEC SEC TWP RGE COUNTY SENWSW 34 21N 02E CASCADE SEC TWP RGE COUNTY 34 34 34 34 34 34 34 03 21N 21N 21N 21N 21N 21N 21N 21N 02E 02E 02E 02E 02E 02E 02E 02E CASCADE CASCADE CASCADE CASCADE CASCADE CASCADE CASCADE, CASCADE PUMP PLACE OF USE:* ACRES 001 002 003004 005 006 007 008 TOTAL 35.00 20.00 5.00 40.00 20.00 20.00 30.00 35.00 205.00 OTR SEC SWSW . W2SESW SWNESW SWSE S2NWSE E2SESW NESW NWNE REMARKS: THE TIMELY FILED OBJECTIONS TO THIS CLAIM WERE AMENDED BY AGREEMENT OF THE PARTIES TO INCLUDE PERIOD OF USE. BECAUSE THIS ELEMENT WAS NOT INCLUDED ON THE TEMPORARY PRELIMINARY DECREE OBJECTION LIST, ANY WATER USER WHOSE RIGHTS MAY BE ADVERSELY AFFECTED BY ENFORCEMENT OF THIS CHANGE MAY PETITION THE APPROPRIATE COURT FOR RELIEF OR MAY FILE AN OBJECTION AT THE PRELIMINARY DECREE. 12. The timely filed objections to claim 41K-W-200811-00 -7- were amended by agreement of the parties to include period of use. Rules 15(b) and 15(c) Mont.R.Civ.P. An appropriate remark should be added to the abstract of this claim to alert other water users of this change to the preliminary decree. 13. Claim 41K-W-210352-00 was not initially identified as a part of the Campbell decreed right. The original Statement of Claim did not include any reference to the Campbell right. On August 3, 1993 John K. Olson filed a "Request to Amend Statement of Claim" that appeared to tie his claim to the Campbell right. filing, the claim was included in Case 41K-1. Based on this The chain of title submitted for this claim and reviewed by Kraig Van Voast confirmed that claim 41K-W-210352-00 is based on a portion of the Campbell right The claim was placed in through the Joe Cook branch of that right. Case 41K-1F when 41K-1 was split into 6 separate cases. 14. Claim 41K-W-210352-00 was called in on Motion of the Water Court due to an apparent overlap in the place of use for this claim and three other claims in this Basin. This overlapping place of use issue has been resolved through amendment to the place of use for this claim and the other claims involved. 15. The Court notes that the listed means of diversion for claim 41K-W-210352-00 is "Multiple". This designation is no longer applied to claims in this adjudication. Upon review of the claim file, the Court finds that the correct means of diversion for this claim is "Pump". 16. The Temporary Preliminary Decree states the priority date, flow rate, period of use, means of diversion, place of use and acres irrigated for claim 41K-W-210352-00 are: PRIORITY DATE: 0,000 -8- FLOW RATE: 3,000 GPM PERIOD OF USE: April 28 to November 30 MEANS OF DIVERSION: Multiple PLACE OF USE/ACRES IRRIGATED: ACRES 001 002 TOTAL 82.00 61.90 143.90 QTR SEC E2SW W2SE SEC TWP RGE COUNTY 35 35 21N 21N 02E 02E CASCADE CASCADE Under the terms of the second Stipulation of the parties, this claim should appear in the next decree for this Basin as follows: WA 41K-W-210352-00 H OWNER: JOHN K. OLSON PRIORITY DATE:* OCTOBER 7, 18923 TYPE OF RIGHT: DECREED FLOW RATE:* 0.47 CFS VOLUME:* THE TOTAL VOLUME OF THIS RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. SOURCE: SUN RIVER MAXIMUM ACRES:* 48.90 PURPOSE (USE): IRRIGATION PERIOD OF USE:* MAY 1 TO OCTOBER 15 POINTS OF DIVERSION AND MEANS OF DIVERSION:* LOT/BLK OTR SEC SEC TWP RGE COUNTY NWNWSE 35 21N 02E CASCADE SEC TWP RGE COUNTY 35 35 21N 21N 02E 02E CASCADE CASCADE PIJMP PLACE OF USE:* 001 002 TOTAL ACRES OTR SEC 18.90 30.00 48.90 NWSE W2SE. 3 The Stipulation of the parties refers to the priority date of this claim as October 7, 1897. The priority date for the Campbell right in cause 4742 is October 7, 1892. The Court assumes that the date in the Stipulation is a scrivener's error and that October 7, 1892 is the correct priority date for this claim. -9- REMARKS: THE TIMELY FILED OBJECTIONS TO THIS CLAIM WERE AMENDED BY AGREEMENT OF THE PARTIES TO INCLUDE PERIOD OF USE AND MEANS OF DIVERSION. BECAUSE THESE ELEMENTS WERE NOT INCLUDED ON THE TEMPORARY PRELIMINARY DECREE OBJECTION LIST, ANY WATER USER WHOSE RIGHTS MAY BE ADVERSELY AFFECTED BY ENFORCEMENT OF THESE CHANGES MAY PETITION THE APPROPRIATE COURT FOR RELIEF OR MAY FILE AN OBJECTION AT THE PRELIMINARY DECREE. 17. The timely filed objections to claim 41K-W-210352-00 were amended by agreement of the parties to include period of use and means of diversion. Rules 15(b) and 15(c) Mont.R.Civ.P. An appropriate remark should be added to the abstract of this claim to alert other water users of these changes to the preliminary decree. 18. A11 three claimants. filed Requests for Implied Claims in this case. Because these claims are limited to a lower flow rate and acres irrigated under the Campbell right, the original filings appear to include not only that right but also a use right reflecting incremental development. The Court finds that Implied Claims based on the Requests for Implied Claims, Affidavit of John P. Eidel and Affidavit of long time area resident John Eustance, are proper. In addition, the second Stipulation of the parties addresses the implied claims and provides the terms for the requested implied claims. 19. The following Implied Claim should be generated from claim 41K-W-019303-00: WATER CRT NUMBER: 41K-W-216257-00 OWNER: LANE C. BRIGGS PRIORITY DATE: DECEMBER 31, 1948 TYPE OF RIGHT: USE FLOW RATE: 1.25 CFS VOLUME: THE TOTAL VOLUME OF THIS RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. SOURCE: SUN RIVER -10- MAXIMUM ACRES: 38.00 PURPOSE (USE): IRRIGATION , PERIOD OF USE: MAY 1 TO OCTOBER 15 POINTS OF DIVERSION AND MEANS OF DIVERSION: LOT/BLK OTR SEC SEC TWP RGE COUNTY SENENE 02 20N 02E CASCADE SEC TWP RGE COUNTY 02 20N 02E CASCADE PUMP PLACE OF USE: ACRES 001 TOTAL OTR SEC 81.40 81.40 N2 REMARKS: THIS IMPLIED CLAIM WAS AUTHORIZED BY THE WATER COURT BASED ON INFORMATION IN CLAIM NO. 41K-W-019303-00 20. The following Implied Claim should be generated from claim 41K-W-200810-00:. WA RT lwumpgg: 41K-W-216258-00 OWNER: JOHN P. EIDEL JOHN P. EIDEL, JR. PRIORITY DATE: DECEMBER 31, 1935 TYPE OF RIGHT: USE FLOW RATE: 4.59 CFS VOLUME: THE TOTAL VOLUME OF THIS RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. SOURCE: SUN RIVER MAXIMUM ACRES: 205.00 PURPOSE (USE): IRRIGATION PERIOD OF USE: MAY 1 TO OCTOBER 15 POINTS OF DIVERSION AND MEANS OF DIVERSION: LOT/BLK OTR SEC SEC TWP RGE COUNTY NESESW 33 21N 02E CASCADE -11- PUMP PLACE OF USE: ACRES 001 002 003 004 005 006 007 008 TOTAL 35.00 20.00 5.00. 40.00 20.00 20.00 30.00 35.00 205.00 OTR SEC SEC TWP RGE COUNTY SWSW W2SESW SWNESW SWSE S2NWSE E2SESW NESW NWNE 34 34 34 34 34 34 34 03 21N 21N 21N 21N 21N 21N 21N 21N 02E 02E 02E 02E 02E 02E 02E 02E CASCADE CASCADE CASCADE CASCADE CASCADE CASCADE CASCADE CASCADE REMARKS: THIS IMPLIED CLAIM WAS AUTHORIZED BY THE WATER COURT BASED ON INFORMATION IN CLAIM NO. 41K-W-200810-00 21. The following Implied Claim should be generated from claim 41K-W-210352-00: WAT RI T WMBER: 41K-W-216259-00 OWNER: JOHN K. OLSON PRIORITY DATE: DECEMBER 31, 1935 TYPE OF RIGHT: USE FLOW RATE: 6.21.CFS VOLUME: THE TOTAL VOLUME OF THIS RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. SOURCE: SUN RIVER MAXIMUM ACRES: 48.90 PURPOSE (USE): IRRIGATION PERIOD OF USE: MAY 1 TO OCTOBER 15 POINTS OF DIVERSION AND MEANS OF DIVERSION: LOT/BLK OTR SEC SEC TWP RGE COUNTY NWNWSE 35 21N 02E CASCADE SEC TWP RGE COUNTY 35 35 21N 21N 02E 02E CASCADE CASCADE PUMP PLACE OF USE: ACRES 001 002 TOTAL 18.90 30.00 48.90 OTR SEC NWSE W2SE -12- REMARKS: THIS IMPLIED CLAIM WAS AUTHORIZED BY THE WATER COURT BASED ON INFORMATION IN CLAIM NO. 41K-W-210352-00 22. Mater right claims 41K-W-019303-00, 41K-W-200210-00, 41K-W-200811-00 and 41K-W-210352-00 are direct flow irrigation rights susceptible to measurement by flow rate. 23. On October 3, 1996 the Court acting pursuant to Rule 53 (e)(5), M.R.Civ.P. circulated a Draft Master's Report to all parti,es in this case with an Order Setting Time For Comment. Parties were given until November 27; 1996 to submit comments to the Court. No comments were received by the Court. The Court now issues this Master's Report incorporating the terms of the Draft Master's Report. CONCLUSIONS OF LAW I. The Montana Water Court has jurisdiction to review all objections to temporary preliminary decrees pursuant to Mont. Code Ann. §85-2-233. The Montana Water Court has jurisdiction 9ver all matters relating to the determination of existing water rights and may consider a matter within the Court's jurisdiction on its own motion. Mont. Code Ann. §3-7-224. Upon review of the Stipulation, Requests for Implied Claims, Affidavit of John P. Eidel, Affidavit of John Eustance and Withdrawals it appears that they are proper and are accepted by this Court. IV. The changes to claims 41K-W-019303-00, 41K-W-200810-00, 41K-13- W-200811-09 and 41K-W-210352-00 stated in the Findings of Fact should be made to correct the Temporary Preliminary Decree in the Sun River Basin (41K). V. Pursuant to Rule 6.IV. Water Right Claim Examination Rules the Water Court may generate implied claims whenever a single claim appears to contain more than one right. Based on the information contained in the Stipulation between the USA and the claimants; the Requests for Implied Claims filed by the claimants; Affidavits of John P. Eidel and John Eustance; and water right claims 41K-W-019303-00, 41K-W-200810-00, and 41K-W-210352-00, implied claims 41K-W-216257-00, 41K-W-216258-00 and 41K-W-216259-00 should by generated by the Court to accurately reflect the historical use of water on the property involved in these claims. VI. The volume quantification should be removed from direct flow irrigation claims as specified by Mont. Code Ann. §85-2-234(6)(b)(i). DATED this day of %._7; Water Master -14- , 199;. these CERTIFICATE OF SERVICE I, Lori. M. Burnham, Clerk of Court of the Montana Water Court, hereby certify that a true and correct copy of the above MASTER'S REPORT was duly served upon the persons listed below by depositing the same, postage prepaid in the Uriited States mail. John P: Eidel John P. Eidel, Jr. RR 1137 Great Falls, MT 59401 James J. DuBois, Attorney U.S. Dept. of Justice 999 - 18th St., Suite 945 Denver, CO 80202 / Gorham E. Swanberg Attorney at Law P. O. Box 2567 Great Falls, MT 59403-2567 Kelly-Moore Paint Co., Inc. 987 Commercial St. San Carlos, CA 94070 Russ McElyea, Attorney P. O. Box•1288 Bozeman, MT 59771-1288 John K. Olson 239 S. Manchester Rd. Great Falls, MT 59404 Fort Shaw Irrigation District Fort Shaw, MT 59443 Lane C. Briggs B Bar B Ranches, Inc. 40 Haven Lane Great Falls, MT 59404 Matthew W. Williams, Attorney 506 E. Babcock Bozeman, MT 59715 Scott Boulman Greenfields Irrigation Distr P. 0. Box 157 Fairfield, MT 59436 Tim D. Hall, Legal Counsel Dept. of Natural Resource 1520 East Sixth Helena, MT 59620 Bureau of Reclamation P. O. Box 36900 Billings, MT 59107-6900 LF Ranch PO Box 367 Augusta, MT 59410 John Bloomquist Attorney at Law P. O. Box 1185 Helena, MT 59624 DATED this day of L Clerk -15- , 19g4. Burnha f Court

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