Alvin Hoff; Dena Hoff

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FILED 01/03/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 42M-0018-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 RIVER BELOW POWDER RIVER - BASIN (42M) INTERLOCUTORY DECREE ******************** CASE 42M-0018-I-2023 CLAIMANTS: Alvin Hoff; Dena Hoff 42M 30133477 42M 30133482 42M 30133484 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. Alvin Hoff and Dena Hoff are the record owners of claims 42M 30133477, 42M 30133482, and 42M 30133484. 2. Claims 42M 30133477, 42M 30133482, and 42M 30133484 were decreed with DNRC issue remarks. 3. The Claimants were ordered to meet with the DNRC to address the following issue remarks: 42M 30133477: THE CLAIMED FLOW RATE APPEARS TO BE INADEQUATE FOR THE CLAIMED PURPOSE. THE CLAIMS LISTED FOLLOWING THIS STATEMENT MAY BE A MULTIPLE USE OF THE SAME RIGHT. THESE CLAIMS HAVE STATED DIFFERENT FLOW RATES. IT APPEARS THE FLOW RATE SHOULD BE THE CAPACITY OF THE PUMP. 30133477. 30133482. ONLY .80 ACRES OF THE CLAIMED PLACE OF USE APPEAR IRRIGATED FOR DOMESTIC PURPOSES. VOLUME MAY REQUIRE MODIFICATION BASED ON RESOLUTION OF MAXIMUM ACRES ISSUE. THE CLAIMED FLOW RATE OR VOLUME MAY BE INCORRECT. BASED ON THE FLOW RATE AND PERIOD OF USE. THE SYSTEM WOULD HAVE TO RUN 20.28 HOURS PER DAY TO DELIVER THE CLAIMED VOLUME. NO INFORMATION EXISTS IN THE CLAIM FILE TO CONFIRM THESE FIGURES. 42M 30133482: THE CLAIMS LISTED FOLLOWING THIS STATEMENT MAY BE A MULTIPLE USE OF THE SAME RIGHT. THESE CLAIMS HAVE STATED DIFFERENT FLOW RATES. IT APPEARS THE FLOW RATE SHOULD BE THE CAPACITY OF THE PUMP. 30133482. 30133477. THE CLAIMED POINT OF DIVERSION IS IN QUESTION. THE LOCATION OF THE WELL CANNOT BE IDENTIFIED FROM AVAILABLE DATA. THE CLAIMED PLACE OF USE COULD NOT BE IDENTIFIED FROM DATA SUBMITIED WITH THE CLAIM. 4. The claims were also decreed with a notice-type remark indicating they were not included in the 2014 decree in Basin 42M. 5. On November 13, 2023, DNRC Water Resource Specialist Ryan Hartwell filed a Memorandum stating he was contacted by Alvin Hoff. (Doc.1 2.00). Mr. Hartwell explained that he reviewed the claim files and discussed the claims with Mr. Hoff to prepare the Memorandum. 6. During his discussion with Mr. Hoff, Mr. Hartwell confirmed that domestic claim 42M 30133477 and stock claim 42M 30133482 describe two separate wells and they are not multiple uses of the same claim. 1 “Doc.” numerical references correlate to case file docket numbers in the Water Court’s Full Court case management system. 2 7. Mr. Hartwell also explained that although 5.00 acres was decreed by claim 42M 30133477, “only .1 acres is all the lawn and garden that has been irrigated.” 8. According to information provided by Mr. Hoff to the DNRC, the flow rate for claim 42M 30133477 is 6.00 gallons per minute. 9. Pursuant to the information provided in the Memorandum, the place of use legal land description for claim 42M 30133482 should match the point of diversion – NENENWNE of Section 29, Township 15 North, Range 55 East, Dawson County. 10. A deadline was set for Claimants Alvin Hoff and Dena Hoff to agree or disagree with Mr. Hartwell’s Recommendations. The Order Setting Filing Deadline indicated that if nothing were filed by the deadline, this Water Master would conclude Claimants Alvin Hoff and Dena Hoff agree with Mr. Hartwell’s recommendations. The Order included the following language: 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 by the deadline. 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. 3 4. The issue remark indicating claims 42M 30133477, 42M 30133482, and 42M 30133484 were not included in the 2014 decree are notice-type remarks. No objections were filed, and no further proceedings are required. RECOMMENDATIONS 1. Claim 42M 30133477 should be modified as follows: Flow Rate: -1,443-6P.1.4 6 00 GPM Maximum Acres: &GO ICI 'Place of Use: Aats m 1 1 con tot 5, Qtr-Sts. Sis NENWNE 29 In 15N Hu 55E Lanza DAWSON Total: THE PLACE OF USE IS LOCATED IN CERTIFICATE OF SURVEY NO. 988. Claim 42M 30133482 should be modified as follows: Pbce of Use: IQ Acts 1 2. Gott tot SitSic .51s In act Loan INENENWNEI 29 15N 55E DAWSON THE PLACE OF USE 15 LOCATED IN CERTIFICATE OF SURVEY NO. 988. The issue remarks should be removed from claims 42M 30133477, 42M 30133482, and 42M 30133484. Post Decree Abstracts of Water Right Claims are served with the Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail: Alvin Hoff Dena Hoff 426 Rd. 261 Glendive, MT 59330 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\42M ILT\Cases\42M-0018-I-2023\42M-0018-I-2023 MR 12.11.23.docx 4 Electronically Signed By: Hon. Judge Anika Stern Wed, Jan 03 2024 02:14:19 PM December 11, 2023 42M 30133477 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, BELOW POWDER RIVER BASIN 42M 42M 30133477 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: ALVIN HOFF Owners: 426 RD 261 GLENDIVE, MT 59330 DENA HOFF 426 RD 261 GLENDIVE, MT 59330 DECEMBER 31, 1942 *Priority Date: Type of Historical Right: USE Purpose (use): DOMESTIC Flow Rate: 6.00 GPM Volume: 1.50 AC-FT 1 Households: Maximum Acres: 0.10 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 NENWNE 29 15N 55E DAWSON JANUARY 1 TO DECEMBER 31 WELL Diversion Means: THE POINT OF DIVERSION IS LOCATED IN CERTIFICATE OF SURVEY NO. 986. JANUARY 1 TO DECEMBER 31 Period of Use: *Place of Use: ID 1 Acres 0.10 Total: Govt Lot Qtr Sec NENWNE Sec 29 Twp 15N Rge 55E County DAWSON 0.10 THE PLACE OF USE IS LOCATED IN CERTIFICATE OF SURVEY NO. 986. December 11, 2023 42M 30133482 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, BELOW POWDER RIVER BASIN 42M 42M 30133482 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: ALVIN HOFF Owners: 426 RD 261 GLENDIVE, MT 59330 DENA HOFF 426 RD 261 GLENDIVE, MT 59330 DECEMBER 31, 1942 *Priority Date: Type of Historical Right: USE Purpose (use): STOCK Flow Rate: 6.28 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 Qtr Sec 1 Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: WELL Sec Twp Rge County 29 15N 55E DAWSON THE POINT OF DIVERSION IS LOCATED IN CERTIFICATE OF SURVEY NO. 986. JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec NENENWNE Sec 29 Twp 15N Rge 55E County DAWSON THE PLACE OF USE IS LOCATED IN CERTIFICATE OF SURVEY NO. 986. December 11, 2023 42M 30133484 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, BELOW POWDER RIVER BASIN 42M 42M 30133484 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: ALVIN HOFF Owners: 426 RD 261 GLENDIVE, MT 59330 DENA HOFF 426 RD 261 GLENDIVE, MT 59330 DECEMBER 31, 1960 *Priority Date: 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: SPRING, UNNAMED TRIBUTARY OF SAND CREEK SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWSENW 29 15N 55E DAWSON Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE THE POINT OF DIVERSION IS LOCATED IN FARM UNIT #110. JANUARY 1 TO DECEMBER 31 Period of Use: *Place of Use: ID 1 Acres Govt Lot Qtr Sec SWSENW Sec 29 Twp 15N Rge 55E THE PLACE OF USE IS LOCATED IN FARM UNIT #110. County DAWSON

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