Burt J. Keltner; United States of America (Bureau of Land Management)

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FILED 02/06/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 42M-0013-I-2023 Montana Water Court P. O. Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Stern, Anika 7.00 IN THE WATER COURT OF THE STATE OF MONTANA YELLOWSTONE DIVISION YELLOWSTONE RIVER BELOW POWDER RIVER – BASIN (42M) INTERLOCUTORY DECREE ******************************* CLAIMANTS: Burt J. Keltner; United States of America (Bureau of Land Management) CASE 42M-0013-I-2023 42M 30107244 42M 30142533 42M 30142536 42M 30142537 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. Burt J. Keltner is the record owner of claim 42M 30107244. The United States of America, Bureau of Land Management (BLM) is the record owner of claims 42M 30142533, 42M 30142536, and 42M 30142537. 2. The claims in Case 42M-0013-I-2023 were decreed with the following DNRC issue remarks: THIS CLAIM NUMBER WAS NOT INCLUDED IN THE BASIN 42M DECREE ISSUED 01/2412D14. THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT WERE FILED BY DIFFERENT PARTIES WHO CLAIM OVERLAPPING PLACES OF USE. 3010.7244. 30142537. 30142533. 30142536. 3. Claimants Keltner and BLM filed a Stipulation on January 24, 2024, addressing the overlapping place of use issue. (Doc. 16.00). The Stipulation states: D. Most of the federal land included in the place of use for claim 42M 30107244 is part of the Deer Creek AMP grazing allotment (MT01329), for which Keltner is the federal permittee. Other federal land included in the place of use for claim 42M 30107244 is within the Windmill AMP allotment (MT01356) or the Renn Place allotment (MT01347), for which Kellner is not the permittee. Keltner asserts that the current fencing alignment on the allotments does not reflect what existed historically and may change in the future as needed for efficient livestock management. The parties agree an information remark should be added to claim 42M 30107244, addressing the overlapping place of use issue on the claims in this Case: THE CLAIMANT’S LIVESTOCK CAN ACCESS ONLY THE STRETCHES OF CABIN CREEK, WITHIN THE DESCRIBED POINT OF DIVERSION AND PLACES OF USE, WHICH THEY ARE AUTHORIZED TO USE THROUGH FEDERAL GRAZING ALLOTMENT PERMIT(S). PRINCIPLES AND CONCLUSIONS OF LAW 1. The Water Court is required to address all issue remarks decreed on a claim. Sections 85-2-247 and 85-2-248, MCA. 1 “Doc.” numerical references correlate to case file docket numbers in the Water Court’s Full Court case management system. 2 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. The remark indicating the claims in Case 42M-0013-I-2023 were not included in the 2014 decree have served their purpose. As no objections were filed, no further proceedings are required. RECOMMENDATIONS 1. The following information remark should be added to claim 42M 30107244: THE CLAIMANT’S LIVESTOCK CAN ACCESS ONLY THE STRETCHES OF CABIN CREEK, WITHIN THE DESCRIBED POINT OF DIVERSION AND PLACES OF USE, WHICH THEY ARE AUTHORIZED TO USE THROUGH FEDERAL GRAZING ALLOTMENT PERMIT(S). 2. The issue remarks should be removed from claims 42M 30107244, 42M 30142533, 42M 30142536, and 42M 30142537. Post Decree Abstracts of Water Right Claims are served with the Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail: Burt J. Keltner 2202 Cabin Creek Rd. Ismay, MT 59336-7001 bjkeltner@yahoo.com Service Via Electronic Mail: Judith E. Coleman U.S. Dept of Justice, ENRD-NRS P.O. Box 7611 Washington, D.C. 20044-7611 (202) 514-3553 Judith.Coleman@usdoj.gov MontanaBasins.ENRD@usdoj.gov \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\42M ILT\Cases\42M-0013-I-2023\42M-0013-I-2023 MR 1.31.24 rc.docx 3 Electronically Signed By: Hon. Judge Anika Stern Tue, Feb 06 2024 08:40:26 AM January 26, 2024 42M 30107244 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, BELOW POWDER RIVER BASIN 42M Water Right Number: 42M 30107244 Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: Owners: *Priority Date: ACTIVE BURT J KELTNER 2202 CABIN CREEK RD ISMAY, MT 59336-7001 DECEMBER 31, 1889 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: Source Type: CABIN CREEK SURFACE WATER *Point of Diversion and Means of Diversion: ID 1 Govt Lot Qtr Sec Sec Twp Rge County SWSWSE 15 11N 56E PRAIRIE 11N 56E PRAIRIE 11N 56E PRAIRIE 11N 56E PRAIRIE 11N 56E PRAIRIE 11N 56E PRAIRIE Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 2 Period of Diversion: Diversion Means: 3 S2SW 15 JANUARY 1 TO DECEMBER 31 LIVESTOCK DIRECT FROM SOURCE N2NE 22 Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 4 Period of Diversion: Diversion Means: 5 SENE 22 JANUARY 1 TO DECEMBER 31 LIVESTOCK DIRECT FROM SOURCE E2NW 22 Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 6 Period of Diversion: Diversion Means: W2NW 22 JANUARY 1 TO DECEMBER 31 LIVESTOCK DIRECT FROM SOURCE January 26, 2024 42M 30107244 Page 2 of 2 Post Decree Abstract 7 Period of Diversion: NESE 22 11N 56E PRAIRIE 11N 56E PRAIRIE 11N 56E PRAIRIE 11N 56E PRAIRIE 11N 56E PRAIRIE 11N 56E PRAIRIE 11N 56E PRAIRIE JANUARY 1 TO DECEMBER 31 LIVESTOCK DIRECT FROM SOURCE Diversion Means: 8 SWNW 23 Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 9 Period of Diversion: SE 23 JANUARY 1 TO DECEMBER 31 LIVESTOCK DIRECT FROM SOURCE Diversion Means: 10 SW 23 Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 11 SESE 24 Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 12 Period of Diversion: W2SE 24 JANUARY 1 TO DECEMBER 31 LIVESTOCK DIRECT FROM SOURCE Diversion Means: 13 SW 24 Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE JANUARY 1 TO DECEMBER 31 Period of Use: *Place of Use: ID 1 Qtr Sec SWSWSE Sec 15 Twp 11N Rge 56E County PRAIRIE S2SW 15 11N 56E PRAIRIE 3 N2NE 22 11N 56E PRAIRIE 4 SENE 22 11N 56E PRAIRIE 5 E2NW 22 11N 56E PRAIRIE 6 W2NW 22 11N 56E PRAIRIE 7 NESE 22 11N 56E PRAIRIE 8 SWNW 23 11N 56E PRAIRIE 9 SE 23 11N 56E PRAIRIE 10 SW 23 11N 56E PRAIRIE 11 SESE 24 11N 56E PRAIRIE 12 W2SE 24 11N 56E PRAIRIE 13 SW 24 11N 56E PRAIRIE 2 Acres Govt Lot ALL OR A PART OF THE PLACE OF USE CONSISTS OF FEDERAL PUBLIC LANDS. THE WATER RIGHT USED ON THE PUBLIC LANDS IS APPURTENANT TO THE FOLLOWING PRIVATE LANDS: S2; NE; E2NW SEC 22; SW SEC 23; W2W2 SEC 26 TWP 11N RGE 56E. Remarks: THE CLAIMANT'S LIVESTOCK CAN ACCESS ONLY THE STRETCHES OF CABIN CREEK, WITHIN THE DESCRIBED POINT OF DIVERSION AND PLACES OF USE, WHICH THEY ARE AUTHORIZED TO USE THROUGH FEDERAL GRAZING ALLOTMENT PERMIT(S). January 26, 2024 42M 30142533 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, BELOW POWDER RIVER BASIN 42M Water Right Number: 42M 30142533 Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: ACTIVE Owners: USA (DEPT OF INTERIOR BUREAU OF LAND MGMT) 5001 SOUTHGATE DR BILLINGS, MT 59101-4669 Priority Date: APRIL 8, 1935 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: Source Type: *Source Name: Source Type: CABIN CREEK SURFACE WATER UNNAMED TRIBUTARY OF COW CREEK SURFACE WATER *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SE 23 11N 56E PRAIRIE 11N 56E PRAIRIE 11N 56E PRAIRIE 11N 56E PRAIRIE Source Name: CABIN CREEK Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 2 Source Name: SWNW 23 CABIN CREEK Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 3 SESE 24 Source Name: CABIN CREEK Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 4 Source Name: NWNENE 25 CABIN CREEK Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE January 26, 2024 42M 30142533 Page 2 of 2 Post Decree Abstract 5 *Source Name: NWNW 25 11N 56E PRAIRIE 11N 56E PRAIRIE UNNAMED TRIBUTARY OF COW CREEK Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 6 NENE 26 Source Name: CABIN CREEK Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE JANUARY 1 TO DECEMBER 31 Period of Use: *Place of Use: ID 1 Qtr Sec SE Sec 23 Twp 11N Rge 56E County PRAIRIE SWNW 23 11N 56E PRAIRIE 3 SESE 24 11N 56E PRAIRIE 4 NWNENE 25 11N 56E PRAIRIE 5 NWNW 25 11N 56E PRAIRIE 6 NENE 26 11N 56E PRAIRIE 2 Acres Govt Lot Remarks: BLM FILED ELECTRONIC CLAIMS. THIS CLAIM REFERENCES BLM CLAIM ID BLM3175 AND GRAZING ALLOTMENT MT01329. January 26, 2024 42M 30142536 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, BELOW POWDER RIVER BASIN 42M Water Right Number: 42M 30142536 Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: ACTIVE Owners: USA (DEPT OF INTERIOR BUREAU OF LAND MGMT) 5001 SOUTHGATE DR BILLINGS, MT 59101-4669 Priority Date: APRIL 8, 1935 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: Source Type: CABIN CREEK SURFACE WATER *Point of Diversion and Means of Diversion: ID 1 Govt Lot Qtr Sec Sec Twp Rge County NENENE 1 11N 55E PRAIRIE 11N 56E PRAIRIE 11N 56E PRAIRIE 11N 56E PRAIRIE 11N 56E PRAIRIE 11N 56E PRAIRIE Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 2 Period of Diversion: Diversion Means: 3 SENENE 1 JANUARY 1 TO DECEMBER 31 LIVESTOCK DIRECT FROM SOURCE SWNE 8 Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 4 Period of Diversion: Diversion Means: 5 NENW 8 JANUARY 1 TO DECEMBER 31 LIVESTOCK DIRECT FROM SOURCE NESE 8 Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 6 Period of Diversion: Diversion Means: SWSW 9 JANUARY 1 TO DECEMBER 31 LIVESTOCK DIRECT FROM SOURCE January 26, 2024 42M 30142536 Page 2 of 2 Post Decree Abstract 7 Period of Diversion: 15 11N 56E PRAIRIE 11N 55E PRAIRIE JANUARY 1 TO DECEMBER 31 LIVESTOCK DIRECT FROM SOURCE Diversion Means: 8 NWNENE 1 Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE JANUARY 1 TO DECEMBER 31 Period of Use: *Place of Use: ID 1 Qtr Sec NENENE Sec 1 Twp 11N Rge 55E County PRAIRIE SENENE 1 11N 56E PRAIRIE 3 SWNE 8 11N 56E PRAIRIE 4 NENW 8 11N 56E PRAIRIE 5 NESE 8 11N 56E PRAIRIE 6 SWSW 9 11N 56E PRAIRIE 15 11N 56E PRAIRIE 1 11N 55E PRAIRIE 2 Acres Govt Lot 7 8 NWNENE Remarks: BLM FILED ELECTRONIC CLAIMS. THIS CLAIM REFERENCES BLM CLAIM ID BLM3178 AND GRAZING ALLOTMENT MT01347. January 26, 2024 42M 30142537 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, BELOW POWDER RIVER BASIN 42M 42M 30142537 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: ACTIVE Owners: USA (DEPT OF INTERIOR BUREAU OF LAND MGMT) 5001 SOUTHGATE DR BILLINGS, MT 59101-4669 Priority Date: APRIL 8, 1935 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. CABIN CREEK Source Name: SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWSWSW 15 11N 56E PRAIRIE 11N 56E PRAIRIE Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 2 Period of Diversion: W2NW 22 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 SWSWSW Sec 15 Twp 11N Rge 56E County PRAIRIE W2NW 22 11N 56E PRAIRIE Remarks: BLM FILED ELECTRONIC CLAIMS. THIS CLAIM REFERENCES BLM CLAIM ID BLM3179 AND GRAZING ALLOTMENT MT01356.

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