Arena M. De La Cruz; Kenck Ranch LLC

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FILED 03/26/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41K-0495-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov White, Eugene 4.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION SUN RIVER BASIN (41K) PRELIMINARY DECREE ******************** CLAIMANTS: Arena M. De La Cruz; Kenck Ranch LLC NOTICE OF INTENT TO APPEAR: Tee Bar Ranch Co. CASE 41K-0495-R-2023 41K 22816-00 41K 96340-00 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 1 the DNRC, objections, and counterobjections. The above-captioned claims received an issue remark during the DNRC’s claims reexamination. The claims were consolidated into Case 41K-0495-R-2023 to resolve the issue remarks. FINDINGS OF FACT 1. Each of the claims received the following issue remark: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE FILED ON THE SAME FORMERLY DECREED WATER RIGHT. THE SUM OF THE CLAIMED FLOW RATES EXCEEDS THE 100 MINER'S INCHES DECREED IN CASE NO. 4742 , LEWIS AND CLARK COUNTY. 41K 96340-00 & 41K 22816-00. 2. A Status Conference for Case 41K-0495-R-2023 took place on October 25, 2023, by telephone conference call. Water Master Eugene C. White presided; claimant Arena M. De La Cruz was present; Abby Brown was present on behalf of claimant Kenck Ranch, LLC; and Ryan McLane was present on behalf of NOIA party Tee Bar Ranch Co. During the conference, the parties discussed the decree exceeded issue remark appearing on the above-captioned claims and agreed on a timeline to file information or evidence resolving the issue remarks. 3. On January 22, 2024, claimant Kenck Ranch, LLC (“Kenck Ranch”) filed an Unopposed Statement and Motion to Resolve Issue Remarks. The Motion states that the decree exceeded issue remarks appearing on claim 41K 22816-00 and 41K 96340-00 were already addressed and resolved during the 41K Temporary Preliminary Decree in in a Master’s Report for Case 41K-4 issued on February 23, 1998. Additionally, the Motion recounts then-claimant Larry Lucero’s Amendment to Statement of Claim for claim 41K 22816-00 which showed the claim was based on the June 1, 1871 J.W. Eberl right, rather than the June 1, 1871 Richard Auchard right. 4. Claim 41K 96340-00 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. 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 2. The Water Court may use information submitted by the DNRC, the Statement of Claim, and any other data obtained by the Court to evaluate a water right. Sections 85-2-227, -231(2), MCA. CONCLUSIONS OF LAW 1. Based on the information contained in Kenck Ranch’s Unopposed Motion, the decree exceeded issue remarks appearing on claims 41K 22816-00 and 41K 96340-00 were previously addressed and resolved during the 41K Temporary Preliminary Decree. The elements of each claim should remain as they appear on the abstracts and the decree exceeded issue remarks should be removed from the claims. 2. The notice-type issue remark appearing on claim 41K 96340-00 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 remove all issue remarks from the above-captioned claims. Post decree abstracts of the water right claims reflecting the removal of the issue remarks are attached to this Report. ELECTRONICALLY SIGNED AND DATED BELOW. 3 Electronically Signed By: Hon. Judge Eugene White Tue, Mar 26 2024 11:27:18 AM Service via USPS Mail: Arena M. De La Cruz 6888 N Overfield Rd Casa Grande, AZ 85194 Service Via Electronic Mail: William Driscoll Ryan McLane FRANZ & DRISCOLL, PLLP PO Box 1155 Helena, MT 59624-1155 (406) 442-0005 WPD@franzdriscoll.com Ryan@franzdriscoll.com Office@franzdriscoll.com Abigail R. Brown Attorney at Law Parsons Behle & Latimer 127 East Main Street, Suite 301 Missoula, MT 59802 Main: 406-317-7220 Direct: 406-317-7243 AbbyBrown@parsonsbehle.com ecf@parsonsbehle.com \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41K PD\41K Cases\495\41K-0495-R-2023 MR (multiple claims, stipulation resolves IRs and NOIA) 3-8-24 jbc.docx 4 March 13, 2024 41K 22816-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 22816-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE Owners: ARENA M DE LA CRUZ 6888 N OVERFIELD RD CASA GRANDE, AZ 85194-7373 Priority Date: JUNE 1, 1871 Type of Historical Right: DECREED Purpose (Use): IRRIGATION SPRINKLER Irrigation Type: 48.00 GPM Flow Rate: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. *Volume: 4 - MODERATELY LOW Climatic Area: Maximum Acres: 5.50 Source Name: ELK CREEK SURFACE WATER Source Type: ALSO KNOWN AS SUN RIVER, SOUTH FORK. Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NWNENE 17 20N 6W LEWIS AND CLARK Sec 17 Twp 20N Rge 6W County LEWIS AND CLARK Period of Diversion: MAY 1 TO OCTOBER 1 Diversion Means: PUMP MAY 1 TO OCTOBER 1 Period of Use: Place of Use: ID 1 Acres 5.50 Total: Govt Lot Qtr Sec NENE 5.50 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. 22816-00 22817-00 March 13, 2024 41K 96340-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 96340-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE Owners: KENCK RANCH LLC PO BOX 308 AUGUSTA, MT 59410-0308 Priority Date: JUNE 1, 1871 Type of Historical Right: DECREED Purpose (Use): IRRIGATION FLOOD Irrigation Type: 2.50 CFS Flow Rate: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. *Volume: 4 - MODERATELY LOW Climatic Area: 165.00 *Maximum Acres: ELK CREEK Source Name: SURFACE WATER Source Type: ALSO KNOWN AS SUN RIVER, SOUTH FORK. Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWSWNE 30 20N 6W LEWIS AND CLARK Qtr Sec N2 Sec 20 Twp 20N Rge 6W County LEWIS AND CLARK Period of Diversion: APRIL 1 TO AUGUST 31 Diversion Means: HEADGATE Ditch Name: AUCHARD (KENCK) DITCH APRIL 1 TO AUGUST 31 Period of Use: *Place of Use: ID 1 Acres 110.00 2 50.00 S2SE 17 20N 6W LEWIS AND CLARK 3 5.00 SESW 17 20N 6W LEWIS AND CLARK Total: 165.00 Govt Lot

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