Sun River Sawtooth Ranch, LLC

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FILED 01/18/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41K-0591-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov White, Eugene 6.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION SUN RIVER BASIN (41K) ******************** CLAIMANT: Sun River Sawtooth Ranch, LLC CASE 41K-0591-R-2023 41K 96440-00 41K 96443-00 41K 160857-00 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. The above-captioned claims received issue remarks during the DNRC’s review of the claims. 1 Claims 41K 96440-00, 41K 96443-00, and 41K 160857-00 were consolidated into Case 41K-0591-R-2023 and an Order Setting Filing Deadline was issued by the Water Court requesting any additional information needed to resolve the objections and issue remark. FINDINGS OF FACT 1. Claim 41K 96440-00 received the following substantive issue remark: THIS CLAIM PRESENTS ISSUES OF FACT AND LAW THAT MAY BE ADDRESSED AT THE OBJECTION STAGE. IT APPEARS THAT FEWER ACRES ARE ACTUALLY IRRIGATED AND PROBLEMS COULD EXIST WITH FLOW RATE AND VOLUME. Claim 41K 96443-00 received the following substantive issue remark: POINT OF DIVERSION NO. 8 IS THE SAME AS POINT OF DIVERSION NO. 6. Claim 41K 160857-00 received the following substantive issue remark: THE CLAIMED POINT OF DIVERSION IS IN QUESTION. THE LOCATION OF THE HEADGATES CANNOT BE IDENTIFIED FROM AVAILABLE DATA. 2. On April 26, 2023, Claimant Sun River Sawtooth Ranch, LLC (“SRS Ranch”) filed a Response to the Court’s Order Setting Filing Deadline. The Response stated that a Motion to Amend resolving the issues with claim 41K 96440-00 was forthcoming. Additionally, the Response contained a Statement by SRS Ranch that they agree to remove the redundant point of diversion No. 8 from claim 41K 96443-00. Finally, the Response included an attached Affidavit of Merle D. Morris which attests to the location of the headgates for claim 41K 160857-00. The Affidavit further refines the point of diversion stating that the headgates were historically located in the SWSENW and SESENW of Sec 31, Twp 22N, Rge 8W in Teton County rather than the SENW and SWNE as listed on the abstract for claim 41K 160857-00. 3. A new Order Setting Filing Deadline was issued by the Court on June 26, 2023, for the Claimant to file the Motion to Amend for claim 41K 96440-00. Nothing was filed by the ordered deadline. 2 4. On September 28, 2023, the Court set a second filing deadline for the Claimant to file the Motion to Amend for claim 41K 96440-00. 5. On November 29, 2023, Claimant SRS Ranch filed a second Response. Attached to the second Response was a Motion to Amend water right claim 41K 9644000, a proposed abstract detailing requested modifications to resolve the acres irrigated issue remark, and a map of the place of use. The Motion to Amend requests the following modifications to the claim: Maximum Mow Rate: 73.60 GPM Maximum Volume: Climatic Area: 5 - LOW Maximum Acres: 4.33 Source Name: SPRING, UNNAMED TRIBUTARY OF SUN RIVER Source Type: GROUNDWATER Point of I)iversion and Means of Diversion: Qtr Sec Govt Lot ID NENWSW 1 Sec 32 In fts cpiRut • 22N 8W LEWIS AND CLARK Sec 32 32 Twp 22N 22N Period of Diversion:JUNE 1 TO AUGUST 31 Diversion Means: HEADGATE JUNE 1 to AUGUST 31 Period of Use: Place of Use: ID Acres 3.67 1 2 0.66 Total: ()tr Sec 142N2SW S2SWNW Govt Lot Rre County 8W LEWIS AND CLARK 8W LEWIS AND CLARK 4.33 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. 3 4. 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. 5. If a claimant agrees to reduce or limit a claim, the Water Court may accept the reduction or limitation without reviewing further evidence, unless an unresolved issue remark remains. Rule 17(c), W.R.Adj.R. CONCLUSIONS OF LAW 1. The proposed modifications contained in Sun River Sawtooth Ranch, LLC’s Response and Motion to Amend resolve the issue remark appearing on claim 41K 96440-00. Based on the information contained in the SRS Ranch’s Response, along with the information contained in the attached Motion to Amend, claim 41K 96440-00 should be modified as described in Finding of Fact No. 5. Per Rule 17(c), W.R.Adj.R., the modifications constitute a reduction of the acres irrigated and place of use elements and may be accepted by the Court without further presentation of evidence. The modifications resolve the issue remark, and the issue remark should be removed from the claim. 2. Point of diversion No. 8 and the corresponding place of use No. 8 should be removed from claim 41K 96443-00 per Rule 17(c), W.R.Adj.R. and the issue remark should be removed from the claim. 3. Based on the information contained in the Affidavit of Merle D. Morris, the points of diversion for claim 41K 160857-00 should be refined according to the statement made in the Affidavit, as described in Finding of Fact No. 2, and the issue remark should be removed from claim. RECOMMENDATIONS Based on the foregoing Findings of Fact and Conclusions of Law, this Master recommends that the Court adopt the changes as outlined above. Post decree abstracts of the water right claims reflecting the recommended changes are attached to this Report. ELECTRONICALLY SIGNED AND DATED BELOW. 4 Electronically Signed By: Hon. Judge Eugene White Thu, Jan 18 2024 11:23:03 AM Service via USPS Mail: Sun River Sawtooth Ranch, LLC 1320 Mills St. Menlo Park, CA 94025-3210 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41K PD\41K Cases\591\41K-0591-R-2023 MR 1-9-23 jbc.docx 5 January 17, 2024 41K 96440-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 96440-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: Owners: SUN RIVER SAWTOOTH RANCH LLC 1320 MILLS ST MENLO PARK, CA 94025-3210 Priority Date: MAY 25, 1932 Type of Historical Right: FILED Purpose (Use): IRRIGATION FLOOD Irrigation Type: 73.60 GPM Flow Rate: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. *Volume: 5 - LOW Climatic Area: Maximum Acres: 4.33 Source Name: SPRING, UNNAMED TRIBUTARY OF SUN RIVER GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NENWSW 32 22N 8W LEWIS AND CLARK Qtr Sec N2SW Sec 32 Twp 22N Rge 8W County LEWIS AND CLARK S2SWNW 32 22N 8W LEWIS AND CLARK Period of Diversion: JUNE 1 TO AUGUST 31 Diversion Means: HEADGATE JUNE 1 TO AUGUST 31 Period of Use: Place of Use: ID 1 Acres 3.67 2 0.66 Total: 4.33 Govt Lot January 17, 2024 41K 96443-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K Water Right Number: 41K 96443-00 Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE Owners: SUN RIVER SAWTOOTH RANCH LLC 1320 MILLS ST MENLO PARK, CA 94025-3210 Priority Date: APRIL 20, 1932 Type of Historical Right: USE Purpose (Use): STOCK Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED BECAUSE THIS USE CONSISTS OF STOCK DRINKING DIRECTLY FROM THE SOURCE, OR FROM A DITCH SYSTEM. THE FLOW RATE IS LIMITED TO THE MINIMUM AMOUNT HISTORICALLY NECESSARY TO SUSTAIN THIS PURPOSE. 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: Source Type: SUN RIVER SURFACE WATER *Point of Diversion and Means of Diversion: ID 1 Govt Lot Qtr Sec Sec Twp Rge County N2SE 31 22N 8W LEWIS AND CLARK 22N 8W LEWIS AND CLARK 22N 8W LEWIS AND CLARK 22N 8W LEWIS AND CLARK 22N 8W LEWIS AND CLARK 22N 8W LEWIS AND CLARK Period of Diversion: MAY 15 TO OCTOBER 15 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 2 Period of Diversion: Diversion Means: 3 SWNE 31 MAY 15 TO OCTOBER 15 LIVESTOCK DIRECT FROM SOURCE SENE 31 Period of Diversion: MAY 15 TO OCTOBER 15 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 4 Period of Diversion: Diversion Means: 5 NENE 31 MAY 15 TO OCTOBER 15 LIVESTOCK DIRECT FROM SOURCE NW 32 Period of Diversion: MAY 15 TO OCTOBER 15 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 6 Period of Diversion: Diversion Means: W2NE 32 MAY 15 TO OCTOBER 15 LIVESTOCK DIRECT FROM SOURCE January 17, 2024 41K 96443-00 Page 2 of 2 Post Decree Abstract 7 Period of Diversion: N2SW 32 22N 8W LEWIS AND CLARK MAY 15 TO OCTOBER 15 LIVESTOCK DIRECT FROM SOURCE Diversion Means: MAY 15 TO OCTOBER 15 Period of Use: *Place of Use: ID 1 Acres Govt Lot Qtr Sec N2SE Sec 31 Twp 22N Rge 8W County LEWIS AND CLARK 2 SWNE 31 22N 8W LEWIS AND CLARK 3 SENE 31 22N 8W LEWIS AND CLARK 4 NENE 31 22N 8W LEWIS AND CLARK 5 NW 32 22N 8W LEWIS AND CLARK 6 W2NE 32 22N 8W LEWIS AND CLARK 7 N2SW 32 22N 8W LEWIS AND CLARK January 17, 2024 41K 160857-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM SUN RIVER BASIN 41K 41K 160857-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE Owners: SUN RIVER SAWTOOTH RANCH LLC 1320 MILLS ST MENLO PARK, CA 94025-3210 Priority Date: APRIL 15, 1932 Type of Historical Right: USE Purpose (Use): IRRIGATION FLOOD Irrigation Type: 374.00 GPM Flow Rate: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. *Volume: 5 - LOW Climatic Area: Maximum Acres: 22.00 Source Name: WASTE & SEEPAGE, 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 County SESENW 31 22N 8W TETON 31 22N 8W TETON Qtr Sec SENW Sec 31 Twp 22N Rge 8W County TETON SWNE 31 22N 8W TETON Period of Diversion: APRIL 5 TO SEPTEMBER 30 Diversion Means: HEADGATE 2 SWSENW Period of Diversion: APRIL 5 TO SEPTEMBER 30 Diversion Means: HEADGATE APRIL 5 TO SEPTEMBER 30 Period of Use: Place of Use: ID 1 Acres 8.00 2 14.00 Total: 22.00 Govt Lot

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