Edward F. Arnott Testamentary Trust; Linda J. Eklund; JPS Ranches; Susan Lucy Arnott; Margaret (Peggy) A. Bergsagel; Erik Engebretson

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FILED 02/12/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41S-0206-R-2024 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov Block, Nathaniel 1.00 IN THE WATER COURT OF THE STATE OF MONTANA LOWER MISSOURI DIVISION JUDITH RIVER BASIN (41S) PRELIMINARY DECREE ************************* CLAIMANTS: Edward F. Arnott Testamentary Trust; Linda J. Eklund; JPS Ranches; Susan Lucy Arnott; Margaret (Peggy) A. Bergsagel; Erik Engebretson CASE 41S-0206-R-2024 41S 139632-00 41S 139633-00 41S 139642-00 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 Judith River (Basin 41S) and received issue remarks placed on the claims during reexamination of the claims by the Department of Natural Resources and Conservation (DNRC). This Court is required to resolve issue remarks that are not resolved through objections. The claims received the following issue remarks: Claim 41S 139632-00: THE TIMELY FILED OBJECTION OF UNITED STATES OF AMERICA WAS AMENDED BY AGREEMENT OF THE PARTIES TO INCLUDE POINT OF DIVERSION . BECAUSE THIS ELEMENT WAS NOT INCLUDED ON THE OBJECTION LIST, ANY WATER USER WHOSE RIGHTS MAY BE ADVERSELY AFFECTED BY ENFORCEMENT OF THIS CHANGE MAY PETITION THE APPROPRIATE COURT FOR RELIEF OR MAY FILE AN OBJECTION AT THE PRELIMINARY DECREE. Claim 41S 139633-00: THE TIMELY FILED OBJECTION OF UNITED STATES OF AMERICA WAS AMENDED BY AGREEMENT OF THE PARTIES TO INCLUDE POINT OF DIVERSION . BECAUSE THIS ELEMENT WAS NOT INCLUDED ON THE OBJECTION LIST, ANY WATER USER WHOSE RIGHTS MAY BE ADVERSELY AFFECTED BY ENFORCEMENT OF THIS CHANGE MAY PETITION THE APPROPRIATE COURT FOR RELIEF OR MAY FILE AN OBJECTION AT THE PRELIMINARY DECREE. Claim 41S 139642-00: THE CLAIMED FLOW RATE MAY BE QUESTIONABLE. DOCUMENTATION SUBMITTED WITH THIS CLAIM INDICATES A FLOW RATE OF 4 GPM. The issue remarks on claims 41S 139632-00 and 41S 139633-00 are notice type remarks. The issue remarks do not raise unresolved issues nor require additional information to be resolved. The issue remarks state that if no objections were filed, the remarks would be removed. These claims did not receive objections or notices of intent to appear. The claim file for claim 41S 139642-00 includes a Notice of Completion of Groundwater Appropriation Without Well, which states that the water flowed “about 4 gallons per minute”. This document conflicts with the statement of claim form, which claims 10 GPM, as well as an affidavit from Myron Campbell included with the claim form. The affidavit states that the flow rate is 10 GPM. FINDINGS OF FACT 1. Information in the claim file for claim 41S 139642-00 is sufficient to resolve the remark. The claimants showed clear intent to claim a flow rate of 10 GPM and provided documentation supporting the flow rate. 2 2. The remarks on claims 41S 139632-00 and 41S 139633-00 have served their purpose and should be removed as no further action is needed. 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. 3. The law disregards trifles. § 1-3-224, MCA. CONCLUSIONS OF LAW 1. The issue remark on claim 41S 139642-00 should be removed as information in the claim file supports the 10 GPM claim and the issue remark fails to overcome the claims prima facie status. Further, the difference of a few GPM represents a trifle in this case. 2. The issue remarks on claims 41S 139632-00 and 41S 139633-00 should be removed as discussed above. RECOMMENDATIONS 1. The issue remarks should be removed from the claims for the reasons discussed above and the claims should be decreed with the elements as they appeared in the Preliminary Decree. Post Decree Abstracts of Water Right Claims are attached to this Master’s Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. 3 Electronically Signed By: Hon. Judge Nathaniel Block Mon, Feb 12 2024 08:50:38 AM Service via USPS Mail: Susan Lucy Arnott 780 20th Road NW Choteau, MT 59422 Edward F. Arnott Testamentary Trust Peggy Bergsagel & R.T. Snyder Jr. Trustees 780 20th Road NW Choteau, MT 59422-9113 Margaret (Peggy) A. Bergsagel 5247 Telegraph Road Malta, MT 59538 Erik Engebretson 1006 Doubletree Court NE Cedar Rapids, IA 52402 Linda J. Eklund PO Box 73 Shawmut, MT 59078-0073 JPS Ranches 5247 Telegraph Road Malta, MT 59538-9567 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41S PD\Cases\206\NB 41S-0206-R-2024 MR - Resolution of Objection (NEW, multiple claim, prima facie, notice) 2-5-2024 rr.docx 4 February 7, 2024 41S 139632-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM JUDITH RIVER BASIN 41S 41S 139632-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE LINDA J EKLUND PO BOX 73 SHAWMUT, MT 59078-0073 Owners: ARNOTT, EDWARD F TESTAMENTARY TRUST BERGSAGEL PEGGY & SNYDER R.T. JR TRUSTEES 780 20TH RD NW CHOTEAU, MT 59422-9113 JPS RANCHES 5247 TELEGRAPH RD. MALTA, MT 59538-9567 Priority Date: DECEMBER 31, 1900 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: HARRISON CREEK SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge S2NE 36 13N 9E JUDITH BASIN 13N 9E JUDITH BASIN Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 2 Period of Diversion: NESE 36 County JANUARY 1 TO DECEMBER 31 LIVESTOCK DIRECT FROM SOURCE Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: *Place of Use: ID 1 2 Acres Govt Lot Qtr Sec S2NE Sec 36 Twp 13N Rge 9E County JUDITH BASIN NESE 36 13N 9E JUDITH BASIN February 7, 2024 41S 139633-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM JUDITH RIVER BASIN 41S 41S 139633-00 Water Right Number: STATEMENT OF CLAIM 3 -- POST DECREE Version: Status: ACTIVE Owners: ARNOTT, EDWARD F TESTAMENTARY TRUST BERGSAGEL PEGGY & SNYDER R.T. JR TRUSTEES 780 20TH RD NW CHOTEAU, MT 59422-9113 Priority Date: DECEMBER 31, 1900 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: DOERR CREEK SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID 1 Govt Lot Qtr Sec Sec Twp Rge County 3 SW 31 13N 10E JUDITH BASIN 13N 10E JUDITH BASIN Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 2 Period of Diversion: N2SW 31 JANUARY 1 TO DECEMBER 31 LIVESTOCK DIRECT FROM SOURCE Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: *Place of Use: ID 1 2 Acres Govt Lot 3 Qtr Sec SW Sec 31 Twp 13N Rge 10E County JUDITH BASIN N2SW 31 13N 10E JUDITH BASIN February 7, 2024 41S 139642-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM JUDITH RIVER BASIN 41S 41S 139642-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: SUSAN LUCY ARNOTT 780 20TH RD NW CHOTEAU, MT 59422 Owners: MARGARET (PEGGY) A BERGSAGEL 5247 TELEGRAPH RD MALTA, MT 59538 ERIK ENGEBRETSON 1006 DOUBLETREE COURT NE CEDAR RAPIDS, IA 52402 Priority Date: JANUARY 1, 1920 Type of Historical Right: FILED Purpose (Use): STOCK Flow Rate: 10.00 GPM 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. *Volume: SPRING, UNNAMED TRIBUTARY OF WAITE CREEK Source Name: GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWSENE 34 13N 12E JUDITH BASIN Sec 34 Twp 13N Rge 12E County JUDITH BASIN Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: FLOWING JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec SWSENE

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