Debi K. Basta; Todd J. Basta ON MOTION

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FILED 01/12/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 42M-0001-I-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Stern, Anika 8.00 IN THE WATER COURT OF THE STATE OF MONTANA YELLOWSTONE DIVISION, YELLOWSTONE RIVER BELOW POWDER RIVER BASIN (42M) INTERLOCUTORY DECREE ******************** CLAIMANTS: Debi K. Basta; Todd J. Basta ON MOTION CASE 42M-0001-I-2023 42M 30122870 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. Todd J. Basta and Debi K. Basta are the record owners of domestic claim 42M 30122870. 2. Review of the scanned file for claim 42M 30122870 shows Todd Basta and Debi Basta submitted exempt domestic claim to the DNRC on February 27, 2019 for 5.00 acres of lawn and garden irrigation. A Declaration of Vested Groundwater Rights was attached to the Statement of Claim, showing that the claimed well was first used in 1915 for “livestock water & household use.” The form also stated: 5. If used for irrigation, give the acreage and description of the lands to Bhich water has been applied and name ot the owner thereof z During the examination of claim 42M 30122870, DNRC examiners noted issues. Among the elements identified as problematical by DNRC was claimed place of use/maximum acres; DNRC data sources showed .42 acres (WRS) and .43 acres (USDI aerial photo) were historically irrigated for domestic purposes at the claimed place of use by the claimed well. DNRC Water Resources Specialist Pam Weinmeister contacted Claimants Todd J. Basta and Debi K. Basta by letter on February 5 and February 19, 2021, notifying them of the issues with claim 42M 30122870. Based on a DNRC interview report form in the claim file, it appears Todd J. Basta contacted the DNRC on February 11, 2021 to discuss the issues identified in the February 5, 2021 letter. 1 After each letter, Todd J. Basta and Debi K. Basta filed Amendments to claim 42M 30122870: an amendment filed by both Claimants on February 18, 2021 indicates the volume should be 2.57 acre-feet; an amendment filed by Todd Basta on March 17, 2021 indicates the historical place of use/maximum acres used for domestic is .43 acres, Debi K. Basta signed the Amendment on March 26, 2021. Copies of the letters and attachments, the DNRC Interview Report Form, and Amendments are available in the scanned claim file available here: https://gis.dnrc.mt.gov/apps/WRQS/. 1 2 3. Ultimately, claim 42M 30122870 was decreed with only a notice-type issue remark stating the claim was not included in the 2014 Preliminary Decree for Basin 42M. The volume and maximum acres elements were decreed as follows: Volume. Maximum Acres: 4. 2.57 AC-FT 0.43 Todd J. Basta and Debi K. Basta filed a Motion to Amend claim 42M 30122870 on February 14, 2023. (Doc. 2 1.00). The Motion to Amend states: Owners, Todd and Debi Basta, would like to restore their water right claim (42M 30122870) to the original five acres from the current 0.43 acres which was assessed to them based on inaccurate aerial photography, use of the wrong exemption for the well, and historical use. A late-filed objection to claim 42M 30122870 was attached to the Motion to Amend. The late-filed Objection indicated the basis of the objection was to address “reduction in flow /volume” and the form stated: 8. State the changes you think should be made to this claim and why. State thc specific grounds and evidencc on which the Objection is based. (Use additional paper if necessary.) Red1106, in 4-6,4Thekale Wry) or. ihnannaC• wed pivios The place of use, maximum acres, flow rate, and volume for 42M 30122870 were called in on motion of the Montana Water Court to address during the Interlocutory Decree in Basin 42M. (Doc. 3.00). 5. A deadline was set for Claimants Todd J. Basta and Debi K. Basta to file evidence supporting the historical place of use, maximum acres, flow rate, and volume for claim 42M 30122870. On November 14, 2023, two Affidavits were filed; the Affidavit of consultant Deborah M. Stephenson and the Affidavit of Claimant Todd J. Basta. (Docs. 5.00 and 6.00). 2 “Doc.” numerical references correlate to case file docket numbers in the Water Court’s Full Court case management system. 3 In her Affidavit, Deborah M. Stephenson explains: 1 reviewed the water right files for domestic water right 42M 30122870, various historic images dated 1949. 1965. 1967, 1974, 1980, 1991. and 2021, and discussed the current and historic use of 42M 30122870 with Todd and Debi Basta. the claimants and current owners of the property including water right 42N1 30122870. The historic irrigation prior to 1973 includes approximately 1.7 acres of lawn & garden irrigation around the grain silos and chicken coup. These acres were sprinkled with water from the claimed groundwater well. ln addition. the well provided water to approximately 2.5 acres of irrigated hay fields. Based on the cotwersation with Todd and Debi Basta and review of the hhtoric aerials, prior to 1973 these fields were historically irrigated with water from the wcll and then cut for hay. Based on my review of the water right file, analysis of the historic aerials, and discussion with Todd and Debi Basta, it is mv opinion that a total of 4.2 acres were historically irrigmed under 42M 30122870. The historic aerials are attached as Exhibit B, and a map depicting the 4.2 acres historically irrigated under 42M 30122870 is attached as Exhibit C. Exhibit C, attached to Ms. Stephenson’s Affidavit, is an aerial showing 1.70 acres of lawn and garden irrigation and 2.50 acres of field irrigation in 1965: Todd J. & DebiIC Basta Richland County, MT 0 02M 30122820 Historic Irrigation Exhibit C * 431,0133870 POD 10.530 42M 31122470 Irriviion POI) Imgaled. Hay Fields (3 5 Av.) Lawi Carta hnotion }I 7,33.3 Geate3110/6/1033 Aenal Imam-, 93300365 USG} 0 0 035 107 Md. ...747—trrst (Doc. 5.00). In his Affidavit, Todd J. Basta recalled his contact with a DNRC water resources specialist after filing exempt claim 42M 30122870: 4 4. Pam Weinmeister indicated that changes to the abstract must be made or the well would be deemed "illegal" by DNRC. This resulted in binary pressure on Claimant to either amend the abstract as she suggested or lose the legality of well. 5. Furthermore, Ms. Weinmeister indicated that legal counsel was not needed by Claimants by saying "this can be done without an attomey." No alternative was suggested that an attorney would be useful in reviewing the abstract, attendant water rights, or explaining the binding nature of the process and its resolution. … 12. Claimant believed all issues had been resolved in the manner explained above. Not until Claimant received written notice of the Basin 42M Interlocutory Decree did he realize the diminution of his water rights to 0.43 acres. At which time he sought legal help. 13. Claimant believes he was pressured to amend his water rights without being apprised of his legal right to seek counsel and that he was encouraged to do so without all of the relevant facts. (Doc. 6.00). 6. A deadline was set for Claimants Todd J. Basta and Debi K. Basta to file a proposed abstract showing how claim 42M 30122870 should be modified to address the Claimants’ concerns. (Doc. 7.00). 7. On December 14, 2023, Claimants Todd J. Basta and Debi K. Basta filed a proposed abstract, indicating the following modifications should be made to claim 42M 30122870: Volum,F. 15.25 AC-FT tmal Maximum Acre,:: 1 1.70 Place of L.,e: Ip AS= Dataatiatt 13,43 Tom], ()tr C.c j_tc Lyn NESENW 9 19N Counr.• STE RICHLAND 643 Pince of Use: 102 &us 4;69,3 Total: 1. gazast grt cr,,C ags NESENW 9 19N 241 C owl 57E RIC—LAND 0.43 PRINCIPLES AND CONCLUSIONS OF LAW 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 5 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. Pursuant to Rule19(b)(iii), W.R.C.E.R., the volume guideline is 1.50 acre- feet per household and 2.50 acre-feet per acre of lawn and garden or shelterbelt, plus a reasonable amount for evaporation. The requested 5.25 acre-feet proposed by the Claimants is under the volume guideline for claim 42M 30122870. 3. The issue remark indicating claim 42M 30122870 was not in the 2014 decree is a notice-type issue remark; as no objection was filed, no further proceedings are required. RECOMMENDATIONS 1. Claim 42M 30122870 should be modified as shown in Finding of Fact No. 2. The issue remark should be removed from the claim. 3. The on motion concerns of the Court should be dismissed as they have been 7. addressed. A Post Decree Abstract of Water Right Claim is served with the Report for review. Service Via Electronic Mail: Ryan A. Payne Netzer, Krautter & Brown, P.C. 1060 S Central Ave Ste. 2 Sidney, MT 59270 ryan@nkbattorneys.com \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\42M ILT\Cases\42M-0001-I-2023\42M-0001-I-2023 MR 1.3.23 rc.docx 6 Electronically Signed By: Hon. Judge Anika Stern Fri, Jan 12 2024 09:46:01 AM January 10, 2024 42M 30122870 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, BELOW POWDER RIVER BASIN 42M 42M 30122870 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: DEBI K BASTA 33649 COUNTY RD 104 SAVAGE, MT 59262-9449 Owners: TODD J BASTA 33649 COUNTY RD 104 SAVAGE, MT 59262-9449 DECEMBER 31, 1915 *Priority Date: Type of Historical Right: FILED Purpose (Use): DOMESTIC Flow Rate: 30.00 GPM Volume: 5.25 AC-FT 1 Households: Maximum Acres: 1.70 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 NESENW 9 19N 57E RICHLAND Sec 9 Twp 19N Rge 57E County RICHLAND JANUARY 1 TO DECEMBER 31 WELL Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres 1.70 Total: Govt Lot Qtr Sec NESENW 1.70 Remarks: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 30122870 30122872

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