Gene J. Swanson; Oscar J. Swanson

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FILED 03/04/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: Julia __________________ Romero 41K-0541-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov White, Eugene 8.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION SUN RIVER BASIN (41K) PRELIMINARY DECREE ******************** CLAIMANTS: Gene J. Swanson; Oscar J. Swanson CASE 41K-0541-R-2023 41K 133604-00 41K 133605-00 41K 133606-00 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 the DNRC, objections, and counterobjections. Each of the above-captioned claims received issue remarks during the DNRC’s review of the claims. 1 FINDINGS OF FACT 1. Claim 41K 133604-00 received the following substantive issue remark: IT APPEARS POINT OF DIVERSION NO. 1 MAY BE INCORRECT. THE EXISTENCE OF A DIKE CANNOT BE CONFIRMED FROM AVAILIBLE DATE. 2. The above-captioned claims were consolidated into Case 41K-0541-R-2023 and an Order Setting Filing Deadline was issued by the Water Court for the claimants to provide information or evidence clarifying the historically accurate location of point of diversion No. 1 for claim 41K 133604-00. 3. On July 12, 2023, claimant Gene Swanson filed a Response which states that there is a concrete dam. However, nothing describing the location of point of diversion No. 1 for claim 41K 133604-00 was filed with the Response. 4. On September 22, 2023, the Water Court issued a second Order Setting Filing Deadline for the claimants to file information regarding the legal land description for point of diversion No. 1 for claim 41K 133604-00. 5. On December 14, 2023, DNRC Water Resources Specialist Dixie Brough filed a Memorandum in this matter. The Memo states that the DNRC received a map from the Swansons which denoted multiple point of diversion locations associated with claim 41K 133604-00. Ms. Brough’s Memo states that the concrete dam appears to be associated with points of diversion Nos. 2 and 3. However, the location of a headgate appearing to be associated with point of diversion No. 1 was also denoted on the map in the SWSESW of Sec 28, Twp 19N, Rge 7W in Lewis and Clark County. Therefore, the DNRC recommends that the location of point of diversion No. 1 be modified from the SESWSW of Sec 28, Twp 19N, Rge 7W in Lewis and Clark County to SWSESW of Sec 28, Twp 19N, Rge 7W in Lewis and Clark County prior to the removal of the issue remark. 6. Each of the above-captioned claims received notice-type issue remarks from the DNRC during its claims reexamination. 2 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. 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. The information in the record is sufficient to resolve the point of diversion issue remark appearing on claim 41K 133604-00. Based on the information included in Ms. Brough’s Memo, point of diversion No. 1 should be modified as described in Finding of Fact No. 5 and the point of diversion issue remark should be removed from the claim. 2. The notice-type issue remarks appearing on each of the above-captioned 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 point of diversion No. 1 for claim 41K 133604-00 from the SESWSW of Sec 28, Twp 19N, Rge 7W in Lewis and Clark County to SWSESW of Sec 28, Twp 19N, Rge 7W in Lewis and Clark County and remove all issue remarks from the claims. Post decree abstracts of the water right claim reflecting the recommended changes are attached to this Report. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail: Gene J. Swanson Oscar J. Swanson P.O. Box 354 Augusta, MT 59410 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41K PD\41K Cases\541\41K-0541-R-2023 MR (multiple claims, 248 Memo resolves IR, remove IRs) 2-16-24 jbc.docx 3 Electronically Signed By: Hon. Judge Eugene White Mon, Mar 04 2024 10:55:39 AM February 20, 2024 41K 133604-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K Water Right Number: 41K 133604-00 Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: Owners: ACTIVE GENE J SWANSON PO BOX 354 AUGUSTA, MT 59410-0354 OSCAR J SWANSON PO BOX 354 AUGUSTA, MT 59410-0345 Priority Date: DECEMBER 31, 1895 Type of Historical Right: DECREED Purpose (Use): IRRIGATION Irrigation Type: Flow Rate: *Volume: Climatic Area: FLOOD 1.00 CFS THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 4 - MODERATELY LOW Maximum Acres: 88.60 Source Name: ELK CREEK Source Type: SURFACE WATER Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWSESW 28 19N 7W LEWIS AND CLARK 28 19N 7W LEWIS AND CLARK 28 19N 7W LEWIS AND CLARK Period of Diversion: APRIL 15 TO OCTOBER 15 Diversion Means: DIKE 2 SWNWSE Period of Diversion: APRIL 15 TO OCTOBER 15 Diversion Means: HEADGATE Ditch Name: WOODWARD DITCH 3 Period of Diversion: SWNWSE APRIL 15 TO OCTOBER 15 Diversion Means: HEADGATE Ditch Name: WOODWARD DITCH POINTS OF DIVERSION NO.2 AND 3 APPEAR TO REFER TO HEADGATES ON OPPOSITE BANKS OF ELK CREEK. Period of Use: APRIL 15 TO OCTOBER 15 February 20, 2024 41K 133604-00 Page 2 of 2 Post Decree Abstract Place of Use: ID 1 Acres 8.70 2 35.40 3 4 Total: Govt Lot Qtr Sec SWSW Sec 22 Twp 19N Rge 7W County LEWIS AND CLARK W2NW 27 19N 7W LEWIS AND CLARK 39.20 E2 28 19N 7W LEWIS AND CLARK 5.30 W2SESW 28 19N 7W LEWIS AND CLARK 88.60 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. 133604-00 133605-00 133606-00 THE SUN RIVER DECREE, CASE NO. 4742 IN CASCADE COUNTY, DECREES 5.30 ACRES FOR THIS RIGHT. February 20, 2024 41K 133605-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 133605-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE GENE J SWANSON PO BOX 354 AUGUSTA, MT 59410-0354 Owners: OSCAR J SWANSON PO BOX 354 AUGUSTA, MT 59410-0345 Priority Date: APRIL 15, 1887 Type of Historical Right: DECREED Purpose (Use): IRRIGATION FLOOD Irrigation Type: 4.00 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: *Maximum Acres: 55.00 *Source Name: ELK CREEK SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWNWSE 28 19N 7W LEWIS AND CLARK Period of Diversion: APRIL 15 TO OCTOBER 15 Diversion Means: HEADGATE Ditch Name: WOODWARD DITCH THE HEADGATE FOR THIS WATER RIGHT IS ON THE RIGHT BANK OF ELK CREEK. THE RIGHT BANK IS DETERMINED BY FACING DOWNSTREAM. APRIL 15 TO OCTOBER 15 Period of Use: *Place of Use: ID 1 Acres 8.70 2 3 Total: Remarks: Qtr Sec SWSW Sec 22 Twp 19N Rge 7W County LEWIS AND CLARK 35.40 W2NW 27 19N 7W LEWIS AND CLARK 10.90 E2 28 19N 7W LEWIS AND CLARK 55.00 Govt Lot February 20, 2024 41K 133605-00 Page 2 of 2 Post Decree Abstract 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. 133604-00 133605-00 133606-00 February 20, 2024 41K 133606-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 133606-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE GENE J SWANSON PO BOX 354 AUGUSTA, MT 59410-0354 Owners: OSCAR J SWANSON PO BOX 354 AUGUSTA, MT 59410-0345 Priority Date: DECEMBER 31, 1885 Type of Historical Right: DECREED Purpose (Use): IRRIGATION FLOOD Irrigation Type: 1.00 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: *Maximum Acres: 45.00 *Source Name: ELK CREEK SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWNWSE 28 19N 7W LEWIS AND CLARK Period of Diversion: APRIL 15 TO OCTOBER 15 Diversion Means: HEADGATE Ditch Name: WOODWARD DITCH THE HEADGATE FOR THIS WATER RIGHT IS ON THE LEFT BANK OF ELK CREEK. THE LEFT BANK IS DETERMINED BY FACING DOWNSTREAM. APRIL 15 TO OCTOBER 15 Period of Use: *Place of Use: ID 1 Acres 7.50 2 37.50 Total: Remarks: 45.00 Govt Lot Qtr Sec W2NW Sec 27 Twp 19N Rge 7W County LEWIS AND CLARK E2 28 19N 7W LEWIS AND CLARK February 20, 2024 41K 133606-00 Page 2 of 2 Post Decree Abstract 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. 133604-00 133605-00 133606-00

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