BNSF Railway Co.; Town of Stanford, BNSF Railway Co
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FILED 03/25/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41S-0019-R-2024 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov Block, Nathaniel 4.00 IN THE WATER COURT OF THE STATE OF MONTANA LOWER MISSOURI DIVISION JUDITH RIVER BASIN (41S) PRELIMINARY DECREE ************************* CLAIMANTS: BNSF Railway Co.; Town of Stanford CASE 41S-0019-R-2024 41S 1398-00 OBJECTOR: BNSF Railway Co 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 Claim 41S 1398-00 appeared in the Preliminary Decree for the Judith River (Basin 41S) and BNSF Railway Company filed an objection to the seeking to refine the legal description of the point of diversion from Section 16, Township 16N Range 12E to the NWSENW of Section 16, Township 16N Range 12E to reflect the historical point of diversion. On March 11, 2024, the Town of Stanford filed a ‘Response to Objection’ stating that they concurred with BNSF’s proposed refinement and that the proposal correctly reflected the legal land description of the well. FINDINGS OF FACT 1. The point of diversion should be modified to the NWSENW of S16 T16N R12E. 2. Adoption of the modification resolves the objection. 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(13), MCA. 2. A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content. § 85-2-227, MCA. This prima facie proof may be contradicted and overcome by other evidence that proves, by a preponderance of the evidence, that the elements of the claim do not accurately reflect the beneficial use of the water right as it existed prior to July 1, 1973. This is the burden of proof for every assertion that a claim is incorrect. Rule 19, W.R.Adj.R. 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. CONCLUSION OF LAW 1. The point of diversion should be refined to the NWSENW of S16 T16N R12E. RECOMMENDATION 1. The claim should be decreed with the elements as they appeared in the Preliminary Decree, except for point of diversion should be refined to the NWSENW of S16 T16N R12E. Adoption of the recommendation resolves the objection. 2 A Post Decree Abstract of Water Right Claim is attached to this Master’s Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail: Last Order: Town of Stanford PO Box 123 Stanford, MT 59479 Service via Electronic Mail: W. John Tietz Browning Kaleczyc Berry & Hoven PC PO Box 1697 Helena, MT 59624-1697 (406) 443-6820 john@bkbh.com kathys@bkbh.com Oliver J. Urick Clare N. Ols Urick Law Firm, PLLC PO Box 556 Stanford, MT 59479 (406) 566-2500 ourick@uricklawfirm.com cols@uricklawfirm.com Note: Service List Updated 3-21-2024 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41S PD\Cases\19\NB 41S-0019-R-2024 MR - Resolution of Objection (single claim, POD) 3-21-2024 rr.docx 3 Electronically Signed By: Hon. Judge Nathaniel Block Mon, Mar 25 2024 11:12:35 AM March 15, 2024 41S 1398-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM JUDITH RIVER BASIN 41S 41S 1398-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: BNSF RAILWAY CO % BLAINE BILDERBACK 2650 LOU MENK DR # MOB-2 FORT WORTH, TX 76131-2830 Owners: STANFORD, TOWN OF PO BOX 123 STANFORD, MT 59479 Priority Date: JULY 31, 1930 Type of Historical Right: USE Purpose (Use): MUNICIPAL Flow Rate: 40.00 GPM Volume: 64.50 AC-FT 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 NWSENW 16 16N 12E JUDITH BASIN JANUARY 1 TO DECEMBER 31 Diversion Means: WELL Subdivision: STANFORD ORIGINAL TOWNSITE TRACT/LOT: 19 BLOCK: 6 JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Subdivision: 2 Govt Lot Qtr Sec NESE 3 Twp 16N Rge 12E 17 16N 12E 17 16N 12E Subdivision: SEE REMARK FOR SUBDIVISION INFORMATION Subdivision: SEE REMARK FOR SUBDIVISION INFORMATION NWNW 5 SWNW Subdivision: JUDITH BASIN SEE REMARK FOR SUBDIVISION INFORMATION SWNE 4 County JUDITH BASIN SEE REMARK FOR SUBDIVISION INFORMATION NENE Subdivision: Sec 17 16 16 16N 16N 12E 12E SEE REMARK FOR SUBDIVISION INFORMATION PLACE OF USE IS THE TOWN OF STANDFORD. JUDITH BASIN JUDITH BASIN JUDITH BASIN
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