Joan P. Wellman; Robert E. Wellman Jr., Blackfeet Tribe; United States of America (Bureau of Indian Affairs)

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FILED 02/02/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41M-0025-P-2017 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Block, Nathaniel 46.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION TWO MEDICINE RIVER – BASIN 41M ********************* CLAIMANTS: Joan P. Wellman; Robert E. Wellman Jr. OBJECTORS: Blackfeet Tribe; United States of America (Bureau of Indian Affairs) CASE 41M-0025-P-2017 41M 144185-00 41M 154873-00 41M 158725-00 41M 175875-00 41M 175876-00 41M 180718-00 41M 180719-00 41M 180720-00 41M 180721-00 41M 180746-00 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. 1 MASTER’S REPORT The above-captioned claims appeared in the Preliminary Decree for the Two Medicine River (Basin 41M) and received objections from the Blackfeet Tribe and the United States of America (Bureau of Indian Affairs) (“BIA”). Claimants Robert E. Wellman Jr. and Joan P. Wellman are represented by Thane Johnson. The claims were consolidated into Water Court Case 41M-0025-P-2017 on February 13, 2017. On September 7, 2022, a Stipulation to Resolve Objections and Issue Remarks (Doc.1 38.00) was filed with this Court. The Stipulation sought to dismiss claims 41M 144185-00, 41M 175876-00 and 41M 180746-00 and to modify the place of use for claim 41M 158725-00 to exclude tribal trust land from the claimed POU. The Stipulation was conditioned on Claimants filing an application for a Blackfeet Water Permit and obtaining authorization from the BIA for the use of tribal land associated with center pivot irrigation related to claim 41M 175876-00. On January 19, 2023, a deadline was set for the Blackfeet Tribe to file a status update relating to the Water Permit application. On April 28, 2023, the Tribe and the BIA filed a Status Report (Doc. 41.00) stating that the claimants failed to apply for the Water Permit as contemplated by the Stipulation. On July 31, 2023, this Court issued an Order (Doc. 42.00) requiring the parties to file documentation stating their position on whether the Stipulation survived despite failure to comply with the condition to apply for a Water Permit. The Claimants failed to respond and the Objectors filed a Status Report and Motion for Show Cause (Doc. 43.00). On October 30, 2023, an Order Setting Show Cause Filing Deadline (Doc. 44.00) was issued, requiring the Claimants to file documentation showing good cause why they have failed to participate in proceedings. The Order additionally required the Claimants to file evidence showing why claim 41M 144185-00 should not be dismissed due to non-perfection and as a sanction for failure to participate, why claim 41M 158725-00 should not be modified as described in the Stipulation for non-perfection and as a sanction for failure to participate, why claim 41M 1 “Doc.” numerical references correlate to case file docket numbers in the Water Court’s Full Court case management system. 2 175876-00 should not be dismissed pursuant to the withdrawal filed in 41M-0327-P-2018 (Doc 29.00, Water Court Case 41M-0327-P-2018), and why claim 41M 180746-00 should not be dismissed due to non-perfection/abandonment and as a sanction for failure to participate. The Order stated that failure to comply with the filing deadline would be viewed as agreement that claims 41M 144185-00, 41M 175876-00 and 41M 180746-00 should be dismissed and that claim 41M 158725-00 should not be modified as described. Nothing was filed in response to the Order. FINDINGS OF FACT 1. Claims 41M 144185-00, 41M 175876-00 and 41M 180746-00 should be dismissed, respectively, for non-perfection, the withdrawal filed in Water Court Case 41M-0327-P-2018, and non-perfection/abandonment. 2. Pursuant to the Show Cause Order, the place of use for claim 41M 158725-00 should be modified to the following: ID 1 2 3 4 5 Total Acres 21.8 14.5 3.9 28.6 12.2 81 Qtr Section SWNW NENE ENWNE SENE SWNE Section Township 31N 6 1 31N 1 31N 1 31N 1 31N Range 7W 8W 8W 8W 8W County Pondera Glacier Glacier Glacier Glacier PRINCIPLES OF LAW 1. The Montana Water Court has the authority to determine the extent of all water rights in the state as they existed prior to July 1, 1973. Fellows v. Saylor, 2016 MT 45, ¶ 25, 382 Mont. 298, 367 P.3d 732; §§ 85-2-233, -102(12), MCA. 2. If a claimant, objector, or intervenor fails to appear at a scheduled conference or hearing, or fails to comply with an order issued by the water court, the water court, upon motion, or its own initiative, may issue such orders of sanction with regard thereto as are just. Rule 22, W.R.Adj.R. Sanctions applied against claimants may include termination of the water right claim. Rule 22, W.R.Adj.R. 3 3. Active participation by water users, especially claimants, is imperative for the accuracy of the statewide adjudication effort. In re Korman, 2014 Mont. Water LEXIS 17, *6. Further, “[t]he time required to process these cases is extended substantially when litigants do not comply with deadlines imposed by the Court.” Huntsman v. Huntsman Ranch Co., 2015 Mont. Water LEXIS 2, *6. It is within the power of this Court to terminate a water right claim if a claimant fails to participate. Rule 22. W.R.Adj.R. CONCLUSION OF LAW 1. The claimant has failed to participate, despite being given opportunity to do so. See Order Setting Filing Deadline, July 31, 2023 (Doc 42.00); Order Setting Show Cause Filing Deadline, October 30, 2023 (Doc 45.00). Accordingly, the record supports the dismissal of claims 41M 144185-00, 41M 175876-00 and 41M 180746-00 as a sanction for failing to comply with this Court’s previous Order and for nonperfection/abandonment. 2. Claim 41M 158725-00 should be modified as described above. RECOMMENDATION 1. Upon review of the record in this case, the claims should be dismissed or modified as discussed above. Post Decree Abstracts of Water Right Claims are attached to this Master’s Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. 4 Electronically Signed By: Hon. Judge Nathaniel Block Fri, Feb 02 2024 09:50:38 AM Service via Electronic Mail: JoAnn Kintz Rebecca M. Ross Cody L.C. McBride U.S. Department of Justice Indian Resources Section, ENRD P.O. Box 7611, Ben Franklin Station Washington, DC 20044 (202) 305-0269 JoAnn.Kintz@usdoj.gov Rebecca.Ross@usdoj.gov Cody.McBride@usdoj.gov IRSMontanaWater.enrd@usdoj.gov Derek E. Kline Blackfeet Legal Department P.O. Box 849 Browning, MT 59417 (406) 338-7777 dkline@blackfeetnation.com tgilham@blackfeetnation.com Thane Johnson Connor Walker Johnson, Berg & Saxby, PLLP P.O. Box 3038 Kalispell, MT 59903-3038 (406)755-5535 courtdocs@jbsattorneys.com Note: Caption Updated 1-24-2024 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41M\Cases\41M-25\NB 41M-0025-P-2017 MR - Failure to Participate (multiple claims, objection, POU, dismiss claims) 1-24-2024 rr.docx 5 January 26, 2024 41M 144185-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM TWO MEDICINE RIVER BASIN 41M Water Right Number: 41M 144185-00 Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: Owners: DISMISSED JOAN P WELLMAN 14779 VALIER CUT BANK HWY VALIER, MT 59486-5316 ROBERT E WELLMAN JR 14779 VALIER CUT BANK HWY VALIER, MT 59486-5316 Priority Date: Type of Historical Right: Purpose (Use): STOCK Flow Rate: Volume: Source Name: Source Type: TWO MEDICINE RIVER SURFACE WATER Point of Diversion and Means of Diversion: Period of Use: Place of Use: Remarks: THIS CLAIM WAS DISMISSED BY ORDER OF THE WATER COURT. January 26, 2024 41M 158725-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM TWO MEDICINE RIVER BASIN 41M 41M 158725-00 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: JOAN P WELLMAN 14779 VALIER CUT BANK HWY VALIER, MT 59486-5316 Owners: ROBERT E WELLMAN JR 14779 VALIER CUT BANK HWY VALIER, MT 59486-5316 Priority Date: APRIL 30, 1953 Type of Historical Right: FILED Purpose (Use): IRRIGATION SPRINKLER/FLOOD Irrigation Type: Flow Rate: 3.07 CFS Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 4 - MODERATELY LOW Climatic Area: Maximum Acres: 81.00 Source Name: BADGER CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SESWNW 1 31N 8W GLACIER Qtr Sec SWNW Sec 6 Twp 31N Rge 7W County PONDERA Period of Diversion: APRIL 15 TO OCTOBER 15 Diversion Means: HEADGATE Ditch Name: MCTAGGART DITCH APRIL 15 TO OCTOBER 15 Period of Use: Place of Use: ID 1 Acres 21.80 2 14.50 NENE 1 31N 8W GLACIER 3 3.90 E2NWNE 1 31N 8W GLACIER 4 28.60 SENE 1 31N 8W GLACIER 5 12.20 SWNE 1 31N 8W GLACIER Total: Govt Lot 81.00 Remarks: THIS WATER RIGHT IS LOCATED, IN WHOLE OR IN PART, WITHIN THE BOUNDARY OF THE BLACKFEET INDIAN RESERVATION. January 26, 2024 41M 158725-00 Page 2 of 2 Post Decree Abstract January 26, 2024 41M 175876-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM TWO MEDICINE RIVER BASIN 41M Water Right Number: 41M 175876-00 Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: Owners: DISMISSED JOAN P WELLMAN 14779 VALIER CUT BANK HWY VALIER, MT 59486-5316 ROBERT E WELLMAN JR 14779 VALIER CUT BANK HWY VALIER, MT 59486-5316 Priority Date: Type of Historical Right: Purpose (Use): IRRIGATION Flow Rate: Volume: Source Name: Source Type: TWO MEDICINE RIVER SURFACE WATER Point of Diversion and Means of Diversion: Period of Use: Place of Use: Remarks: THIS CLAIM WAS DISMISSED BY ORDER OF THE WATER COURT. January 26, 2024 41M 180746-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM TWO MEDICINE RIVER BASIN 41M Water Right Number: 41M 180746-00 Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: Owners: DISMISSED JOAN P WELLMAN 14779 VALIER CUT BANK HWY VALIER, MT 59486-5316 ROBERT E WELLMAN JR 14779 VALIER CUT BANK HWY VALIER, MT 59486-5316 Priority Date: Type of Historical Right: Purpose (Use): IRRIGATION Flow Rate: Volume: Source Name: Source Type: GROUNDWATER GROUNDWATER Point of Diversion and Means of Diversion: Period of Use: Place of Use: Remarks: THIS CLAIM WAS DISMISSED BY ORDER OF THE WATER COURT.

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