Deena M. Birdwell; Jason W. Birdwell

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FILED 03/18/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41S-0689-R-2024 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov Stern, Anika 1.00 IN THE WATER COURT OF THE STATE OF MONTANA LOWER MISSOURI DIVISION JUDITH RIVER BASIN (41S) PRELIMINARY DECREE ************************* CLAIMANTS: Deena M. Birdwell; Jason W. Birdwell CASE 41S-0689-R-2024 41S 101644-00 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 FINDINGS OF FACT 1. Mining claim 41S 101644-00 was decreed with the following point of diversion: ID Gat Lot 1 2. Otr Sec Sec E2NWSE 38 18N &L County 17E FERGUS A DNRC point of diversion issue remark was decreed on claim 41S 101644-00: THE POINT OF DIVERSION MAY BE INCORRECT. THE LOCATION OF THE HEADGATE CANNOT BE IDENTIFIED FROM AVAILABLE DATA. 3. The DNRC examination notes did not provide any information explaining why the issue remark was placed on claim 41S 101644-00. 4. No objections were filed. 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. This prima facie validity may be overcome by evidence showing that one or more elements of the claim are incorrect. This standard of proof applies to objectors or claimants objecting to their own water right claims. Rule 19, W.R.Adj.R., Nelson v. Brooks, 2014 MT 120; 375 Mont.86, 95; 329 P.3d 558, 564. 2. The Water Court must address all issue remarks decreed on a claim. Section 85-2-248, MCA. CONCLUSION OF LAW 1. The issue remark decreed on claim 41S 101644-00 is not supported by evidence sufficient to overcome the prima facie status afforded the point of diversion of the claim. RECOMMENDATION 1. The issue remark should be removed from claim 41S 101644-00 with no changes to the elements of the claim. 2 A Post Decree Abstract of Water Right Claim is served with the Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail: Jason W. Birdwell Deena M. Birdwell 3383 Upper Spring Creek Rd Lewistown, MT 59457-8889 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41S PD\Cases\689\41S-0689-R-2024 MR 3.8.24 rc.docx 3 Electronically Signed By: Hon. Judge Anika Stern Mon, Mar 18 2024 01:18:13 PM March 13, 2024 41S 101644-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM JUDITH RIVER BASIN 41S 41S 101644-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: DEENA M BIRDWELL 3383 UPPER SPRING CREEK RD LEWISTOWN, MT 59457-8889 Owners: JASON W BIRDWELL 3383 UPPER SPRING CREEK RD LEWISTOWN, MT 59457-8889 Priority Date: MAY 19, 1969 Type of Historical Right: FILED Purpose (Use): MINING Flow Rate: 20.00 GPM THIS RIGHT IS LIMITED TO THE VOLUME OF WATER HISTORICALLY USED FOR MINING PURPOSES. *Volume: SPRING, UNNAMED TRIBUTARY OF IRON GULCH Source Name: GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County E2NWSE 36 18N 17E FERGUS Sec 36 Twp 18N Rge 17E County FERGUS Period of Diversion: APRIL 1 TO OCTOBER 31 Diversion Means: HEADGATE APRIL 1 TO OCTOBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NWSE

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