Robert H. Polich
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FILED 01/31/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41K-0486-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-0486-R-2023 41K 208700-00 CLAIMANT: Robert H. Polich 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. Claim 41K 208700-00 received an issue remark during the DNRC’s review of the claims. 1 The claim was consolidated into Case 41K-0486-R-2023 and an Order Setting Filing Deadline was issued by the Water Court requesting any additional information needed to resolve the issue remark. FINDINGS OF FACT 1. Claim 41K 208700-00 received the following substantive issue remark: THE CLAIMED FLOW RATE EXCEEDS THE 35 GPM GUIDELINE FOR THIS PURPOSE AND CANNOT BE CONFIRMED DUE TO LACK OF DATA. 2. Currently, the flow rate listed on the Statement of Claim for claim 41K 208700-00 is 40.00 gpm. 3. On October 11, 2023, the Water Court issued an Order Setting Filing Deadline with the following language regarding the above-listed issue remark: ORDERED that the Claimant review this ordcr and, if necessary, file a statement denoting that the flow rate of claim 41K 208700-00 should be modified as described in the above-listed issue remark by Wednesday, November 8, 2023. If nothing isfiled by the deadline, this Master will conclude that the Claimant agrees that theflow rate of claim 41K 208700-00 is historically accurate as listed on the Statement of Claim, no modification will be made, and the issue remark will be removedfrom the claim. PRINCIPLES OF LAW 1. 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. 2. 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. 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). 2 CONCLUSIONS OF LAW 1. The information in the record resolves issue remark appearing on claim 41K 208700-00. Because nothing was filed at the filing deadline by the Claimant, and the DNRC did not provide sufficient information supporting the issue remark, the issue remark does not overcome the prima facie status afforded the Statement of Claim for claim 41K 208700-00. Therefore, the flow rate should remain as it appears on the abstract, and the issue remark 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 remove the issue remark from claim 41K 208700-00. A post decree abstract of the water right claim reflecting the removal of the issue remark is attached to this Report. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail: Robert H. Polich PO Box 1631 Great Falls, MT 59403 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41K PD\41K Cases\486\41K-0486-R-2023 MR (single claim, no response to FD, prima facie remove IRs) 1-23-24 jbc.docx 3 Electronically Signed By: Hon. Judge Eugene White Wed, Jan 31 2024 08:08:39 AM January 26, 2024 41K 208700-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 208700-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: Owners: ROBERT H POLICH PO BOX 1631 GREAT FALLS, MT 59403-1631 Priority Date: MAY 24, 1921 Type of Historical Right: USE Purpose (Use): DOMESTIC Flow Rate: 40.00 GPM Volume: 2.00 AC-FT 1 Households: Maximum Acres: 0.50 Source Name: GROUNDWATER GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Period of Diversion: Qtr Sec Sec Twp Rge County NWSESE 22 20N 2E CASCADE Sec 22 Twp 20N Rge 2E County CASCADE JANUARY 1 TO DECEMBER 31 WELL Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres 0.50 Total: Govt Lot Qtr Sec NWSESE 0.50 Remarks: CLAIM FILED 05/03/1982 . THIS IS AN EXEMPT RIGHT VOLUNTARILY FILED UNDER SECTION 85-2-222, MCA.
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