Harold Cole

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FILED 01/09/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 42M-0009-I-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Stern, Anika 4.00 IN THE WATER COURT OF THE STATE OF MONTANA YELLOWSTONE DIVISION, YELLOWSTONE RIVER BELOW POWDER RIVER BASIN (42M) INTERLOCUTORY DECREE ******************** CLAIMANT: Harold Cole CASE 42M-0009-I-2023 42M 30145131 42M 30145877 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. Harold Cole is the record owner of stock claim 42M 30145131 and domestic claim 42M 30145877. 2. Claims 42M 30145131 and 42M 30145877 were decreed with DNRC issue remarks: THIS CLAIM NUMBER WAS NOT INCLUDED IN THE BASIN 42M DECREE ISSUED 01124/2014. THE TYPE OF HISTORICAL RIGHT AND PRIORITY DATE MAY BE QUESTIONABLE. DOCUMENTATION TO SUPPORT THE TYPE OF HISTORICAL ROHS AND PRIORMY DATE WAS NOT SUBMITMD WITH THIS CLAIM. NO PRIORITY DATE WAS CLAIMED. 3. Claimant Harold Cole was ordered to meet with a DNRC employee to address the priority date and type of historical right issue remarks. 4. On November 8, 2023, DNRC Water Resource Specialist Ryan Hartwell filed a Memorandum stating he was not contacted by the Claimant. (Doc.1 2.00). Mr. Hartwell indicated he reviewed the claim files and he made recommendations for the disposition of the issue remarks, concluding: The exempt notice 42M 10645-00 in Harold Cole's name appears to be the same well as claims 42M 30145131 & 42M 30145877 because they have the same land description, and he wrote it on the claim form. The 42M 10645-00 Exempt Notice claims a priority date of December 31, 1950 and claims a Use type of historical right. See Exhibit 1. No GW4 form was included in the filing of 42M 10645-00. Since the claimant appears to indicate on claims 42M 30145131 & 42M 30145877 that these are the same right, it would follow that the claimant may have intended to claim a. Use right with the December 31, 1950 priority date. Mr. Hartwell recommended the following changes be made to claims 42M 30145131 and 42M 30145877 addressing the unresolved issue remarks: Priority Date: DECEMBER 31, 1950 Type of Historical Rielit: I- !LCD 5. To determine if Claimant Harold Cole agreed with the recommended changes, an Order was issued setting a deadline for Claimant Harold Cole to agree or disagree with the changes recommended by Mr. Hartwell. The Order indicated that if 1 “Doc.” numerical references correlate to case file docket numbers in the Water Court’s Full Court case management system. 2 nothing were filed by the deadline, this Water Master would conclude the Claimant agreed with the recommended changes. The following language was included in the Order: Failure to comply with the terms of this Order may result in sanctions, up to and including entry of default and termination of a water right claim or dismissal of objections. Rule 22, W.R.Adj.R. Nothing was filed. PRINCIPLES AND CONCLUSIONS OF LAW 1. The Water Court must address all issue remarks decreed on a claim. Section 85-2-248, MCA. 2. 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. 3. Pursuant to Rule 22, W.R.Adj.R., 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 may issue such orders of sanction with regard thereto as are just. 4. The issue remark indicating claims 42M 30145131 and 42M 30145877 were not included in the 2014 decree are notice-type remarks. No objections were filed, and no further proceedings are required. RECOMMENDATIONS 1. Claims 42M 30145131 and 42M 30145877 should be modified as follows: Prierit- Date: DECEMBER 31, 1950 Type of Historical Right: F LED USE 3 2. The issue remarks should be removed from claims 42M 30145131 and 42M 30145877. Post Decree Abstracts of Water Right Claims are served with the Report for review. Service via USPS Mail: Harold Cole c/o Chele Cole Harrington 254 Pine Unit Rd Fallon, MT 59326-7020 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\42M ILT\Cases\42M-0009-I-2023\42M-0009-I-2023 MR 1.3.23 rc.docx 4 Electronically Signed By: Hon. Judge Anika Stern Tue, Jan 09 2024 11:21:29 AM January 4, 2024 42M 30145131 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, BELOW POWDER RIVER BASIN 42M 42M 30145131 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: HAROLD COLE %CHELE COLE HARRINGTON 254 PINE UNIT RD FALLON, MT 59326-7020 Owners: DECEMBER 1, 1950 *Priority Date: Type of Historical Right: USE Purpose (Use): STOCK Flow Rate: 5.00 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: GROUNDWATER Source Name: GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County NESESE 20 14N 48E PRAIRIE Sec 20 Twp 14N Rge 48E County PRAIRIE Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: WELL JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NESESE 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. 30145131 30145877 THIS WATER RIGHT IS ASSOCIATED WITH WATER RIGHT NO. 42M 10645-00 . THEY ARE BASED ON THE SAME HISTORIC WATER RIGHT. January 4, 2024 42M 30145877 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, BELOW POWDER RIVER BASIN 42M 42M 30145877 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: Owners: HAROLD COLE %CHELE COLE HARRINGTON 254 PINE UNIT RD FALLON, MT 59326-7020 Priority Date: DECEMBER 1, 1950 Type of Historical Right: USE Purpose (Use): DOMESTIC Flow Rate: 5.00 GPM Volume: 3.50 AC-FT 1 Households: Maximum Acres: 1.00 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 NESESE 20 14N 48E PRAIRIE Sec 20 Twp 14N Rge 48E County PRAIRIE JANUARY 1 TO DECEMBER 31 WELL Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres 1.00 Total: Govt Lot Qtr Sec NESESE 1.00 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. 30145131 30145877 THIS WATER RIGHT IS ASSOCIATED WITH WATER RIGHT NO. 42M 10645-00 . THEY ARE BASED ON THE SAME HISTORIC WATER RIGHT.

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