Nilan Water Users Association

Annotate this Case

Download PDF

FILED 01/29/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41K-0464-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov White, Eugene 2.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION SUN RIVER BASIN (41K) PRELIMINARY DECREE ******************** CASE 41K-0464-R-2023 41K 119363-00 41K 30046594 CLAIMANT: Nilan Water Users Association 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 119363-00 and 41K 30046594 each received issue remarks during the DNRC’s review of the claims. The claims were 1 consolidated into Case 41K-0464-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 119363-00 received the following substantive issue remark: THE POINT OF DIVERSION APPEARS TO BE INCORRECT. THE POINT OF DIVERSION APPEARS TO BE IN THE NESESE SEC 33 TWP 20N RGE 7W LEWIS AND CLARK COUNTY. Claim 41K 30046594 received the following substantive issue remark: THE POINT OF DIVERSION APPEARS TO BE INCORRECT. THE POINT OF DIVERSION APPEARS TO BE IN THE NESESE SEC 33 TWP 20N RGE 7W LEWIS AND CLARK COUNTY. 2. On October 3, 2023, the Water Court consolidated the claims and issued an Order Setting Filing Deadline. Nothing was filed at the ordered deadline by the Claimant. The Order Setting Filing Deadline included the following language regarding the abovelisted issue remark: ORDERED that claimant Nilan Water Users Association review this order and, if necessary, file a statement of why the point of diversion of claims 41K 119363-00 and 41K 30046594 should not be modified as described in the above-listed issue remarks by Wednesday, November 1, 2023. If nothing isfiled by the deadline, this Master will conclude that the Claimant agrees to the proposed modification to the point of diversion of claims 41K 119363-00 and 41K 30046594, the point of diversion will be modifiedfrom SENESE Sec 33, Twp 20N, Rge 7W in Lewis and Clark County to NESESE of Sec 33, Twp 20N, Rge 7W in Lewis and Clark County, and the issue remarks will be removed from the claims. 3. Claim 41K 119363-00 also received a notice-type issue remark detailing modifications made 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 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 1. The information in the record resolves the point of diversion issue remarks appearing on claim 41K 119363-00 and 41K 30046594. Because nothing was filed at the filing deadline by the Claimant, a preponderance of the evidence shows that the point of diversion of each claim, should be modified from the SENESE of Section 33, Twp 20N, Rge 7W in Lewis and Clark County to the NESESE of Section 33, Twp 20N, Rge 7W in Lewis and Clark County and the issue remarks should be removed from the claims. 2. The notice type issue remark appearing on claim 41K 119363-00 served its notice purpose and should be removed from the claim. 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 each claim 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 Mon, Jan 29 2024 01:05:50 PM Service via USPS Mail: Nilan Water Users Association PO Box 486 Augusta, MT 59410 \\JUDHLNSRV-DATA\Share\JUDGALH2OS RV (Datavol)\Share\WC-BASIN FOLDERS\41K PD\41K Cases\464\41K-0464-R-2023 MR (multiple claims, no response to FD, make changes per IR) 1-22-24 jbc.docx 4 January 25, 2024 41K 119363-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 119363-00 Water Right Number: Version: STATEMENT OF CLAIM 4 -- POST DECREE ACTIVE Status: NILAN WATER USERS ASSOCIATION PO BOX 486 AUGUSTA, MT 59410 *Owners: * OWNERSHIP OF WATER RIGHT CHANGED BY ORDER OF THE WATER COURT DURING ADJUDICATION OF THE TEMPORARY PRELIMINARY DECREE. *Priority Date: MAY 1, 1955 *Type of Historical Right: USE STOCK Purpose (Use): 10.00 CFS *Flow Rate: Volume: THIS RIGHT INCLUDES THE AMOUNT OF WATER CONSUMPTIVELY USED FOR STOCK WATERING PURPOSES AT THE RATE OF 30 GALLONS PER DAY PER ANIMAL UNIT. ANIMAL UNITS SHALL BE BASED ON REASONABLE CARRYING CAPACITY AND HISTORICAL USE OF THE AREA SERVICED BY THIS WATER SOURCE. Source Name: SMITH CREEK SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec Sec Twp Rge County NESESE 33 20N 7W LEWIS AND CLARK Qtr Sec NENESW Sec 33 Twp 20N Rge 7W County LEWIS AND CLARK 2 SE 33 20N 7W LEWIS AND CLARK 3 SENW 33 20N 7W LEWIS AND CLARK 4 S2 34 20N 7W LEWIS AND CLARK 5 S2S2 35 20N 7W LEWIS AND CLARK 6 NE 2 19N 7W LEWIS AND CLARK 7 NWNW 1 19N 7W LEWIS AND CLARK 8 NE 1 19N 7W LEWIS AND CLARK 9 SESESW 36 20N 7W LEWIS AND CLARK 10 E2E2SE 36 20N 7W LEWIS AND CLARK 11 SW 31 20N 6W LEWIS AND CLARK 12 N2NE 6 19N 6W LEWIS AND CLARK 13 N2N2 5 19N 6W LEWIS AND CLARK 1 Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: HEADGATE Ditch Name: FLORENCE CANAL JANUARY 1 TO DECEMBER 31 Period of Use: *Place of Use: ID 1 Acres Govt Lot January 25, 2024 41K 119363-00 Page 2 of 2 Post Decree Abstract 14 S2N2 4 19N 6W LEWIS AND CLARK 15 N2 3 19N 6W LEWIS AND CLARK 16 NWNW 2 19N 6W LEWIS AND CLARK 17 N2N2 1 19N 6W LEWIS AND CLARK 18 S2 35 20N 6W LEWIS AND CLARK 19 SWSW 36 20N 6W LEWIS AND CLARK 20 SESE 36 20N 6W LEWIS AND CLARK 21 S2SW 31 20N 5W LEWIS AND CLARK 22 N2SE 31 20N 5W LEWIS AND CLARK 23 W2 32 20N 5W LEWIS AND CLARK THE PLACE OF USE GENERALLY DESCRIBES THE COURSE OF THE FLORENCE CANAL. Remarks: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 119363-00 119364-00 30046594 January 25, 2024 41K 30046594 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 30046594 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: NILAN WATER USERS ASSOCIATION PO BOX 486 AUGUSTA, MT 59410 Owners: *Priority Date: MAY 1, 1955 *Type of Historical Right: USE *Purpose (Use): IRRIGATION FLOOD Irrigation Type: 75.00 CFS *Flow Rate: THE COMBINED FLOW RATES FOR DIVERSIONS BY CLAIMS 41K 119362-00 AND 41K 30046594 CANNOT EXCEED 200.00 CFS. 797.00 AC-FT *Volume: VOLUME RETAINED BY ORDER OF THE WATER COURT SMITH CREEK *Source Name: SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec Sec Twp Rge County NESESE 33 20N 7W LEWIS AND CLARK Qtr Sec NENESW Sec 33 Twp 20N Rge 7W County LEWIS AND CLARK 2 SE 33 20N 7W LEWIS AND CLARK 3 SENW 33 20N 7W LEWIS AND CLARK 4 S2 34 20N 7W LEWIS AND CLARK 5 S2S2 35 20N 7W LEWIS AND CLARK 6 NE 2 19N 7W LEWIS AND CLARK 7 NWNW 1 19N 7W LEWIS AND CLARK 1 Period of Diversion: APRIL 1 TO JUNE 30 Diversion Means: HEADGATE Ditch Name: FLORENCE CANAL APRIL 1 TO JUNE 30 *Period of Use: *Place of Use: ID 1 Acres Govt Lot 8 NE 1 19N 7W LEWIS AND CLARK 9 SESESW 36 20N 7W LEWIS AND CLARK 10 E2E2SE 36 20N 7W LEWIS AND CLARK 11 SW 31 20N 6W LEWIS AND CLARK 12 N2NE 6 19N 6W LEWIS AND CLARK 13 N2N2 5 19N 6W LEWIS AND CLARK January 25, 2024 41K 30046594 Page 2 of 2 Post Decree Abstract 14 S2N2 4 19N 6W LEWIS AND CLARK 15 N2 3 19N 6W LEWIS AND CLARK 16 NWNW 2 19N 6W LEWIS AND CLARK 17 N2N2 1 19N 6W LEWIS AND CLARK 18 S2 35 20N 6W LEWIS AND CLARK 19 SWSW 36 20N 6W LEWIS AND CLARK 20 SESE 36 20N 6W LEWIS AND CLARK 21 S2SW 31 20N 5W LEWIS AND CLARK 22 N2SE 31 20N 5W LEWIS AND CLARK 23 W2 32 20N 5W LEWIS AND CLARK THE PLACE OF USE GENERALLY DESCRIBES THE COURSE OF THE FLORENCE CANAL THIS CLAIM REPRESENTS USE OF THE FLORENCE CANAL BY CONTRACT WATER USERS FROM THE NILAN PROJECT. THERE ARE NO QUANTIFIED MAXIMUM ACRES IRRIGATED. THE ACRES IRRIGATED AND PLACE OF USE ARE LIMITED TO HISTORICAL PRACTICES. Remarks: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 119363-00 119364-00 30046594 THIS IMPLIED CLAIM WAS AUTHORIZED BY THE WATER COURT BASED ON INFORMATION IN CLAIM NO. 41K 119362-00. THIS CLAIM NUMBER WAS NOT INCLUDED IN THE BASIN 41K TEMPORARY PRELIMINARY DECREE ISSUED 05/14/1985.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.