David G. Winchell; Thomas J. Winchell

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FILED 01/18/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 42M-0032-I-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Stern, Anika 6.00 IN THE WATER COURT OF THE STATE OF MONTANA YELLOWSTONE DIVISION BASIN (42M) INTERLOCUTORY DECREE CLAIMANTS: David G. Winchell; Thomas J. Winchell CASE 42M-0032-I-2023 42M 30133498 42M 30133505 42M 30133508 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. David G. Winchell and Thomas J. Winchell are the record owners of claims 42M 30133498, 42M 30133505, and 42M 30133508. 2. Claims 42M 30133498 and 42M 30133508 were decreed with the following DNRC issue remarks: 42M 30133498: THE TYPE OF HISTORICAL RIGHT MAY BE QUESTIONABLE. DOCUMENTATION SUBMITTED WITH THE CLAIM INDICATES A USE RIGHT. 42M 30133508: Ot4LY .1 ACRES OF THE CLAIMED PLACE OF USE APPEAR IRRIGATED FOR DOMESTIC PURPOSES. VOLUME MAY REQUIRE MODIFICATION BASED ON RESOLUTION OF MAXIMUM ACRES ISSUE. Additionally, claims 42M 30133498, 42M 30133505, and 42M 30133508 were decreed with a remark indicating they were not included in the 2014 decree in Basin 42M. 3. Claimants David G. Winchell and Thomas J. Winchell were ordered to meet with the DNRC to address the unresolved issue remarks. 4. DNRC Water Resource Specialist Ryan Hartwell filed Memorandums stating he discussed the issue remarks with Claimant David G. Winchell. (Doc. 2.00 and 4.00). Based on information in the claim files, information provided by David G. Winchell, and aerial photographs, Mr. Hartwell made the following recommendations for the disposition of the issue remarks. 42M 30133498: Type otHistoricalRight: .FI6ED. 42M 30133505: No issue remark to be resolved. 42M 30133508: Volume: 4:60-A6-FF 6.50 AC-FT Maximum Acres: 486 2.00 5. To determine if Claimants David G. Winchell and Thomas J. Winchell agreed with the recommended changes, an Order was issued, setting a deadline for the 2 Claimants to agree or disagree with the changes recommended by Mr. Hartwell. The Order indicated that if 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. The issue remark indicating claims 42M 30133498, 42M 30133505, and 42M 30133508 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 30133498 and 42M 30133508 should be modified as shown in Finding of Fact No. 4. 2. The issue remarks should be removed from claims 42M 30133498, 42M 30133505, and 42M 30133508. Post Decree Abstracts of Water Right Claims are served with the Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. 3 Electronically Signed By: Hon. Judge Anika Stern Thu, Jan 18 2024 09:08:12 AM Service via USPS Mail: David G. Winchell 119 Glenwood Ave Glendive, MT 59330-2809 Thomas J. Winchell 114 Hillcrest Ave. Glendive, MT 59330-2815 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\42M ILT\Cases\42M-0032-I-2023\42M-0032-I-2023 MR 1.16.24 rc.docx 4 January 16, 2024 42M 30133498 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, BELOW POWDER RIVER BASIN 42M 42M 30133498 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE Status: ACTIVE DAVID G WINCHELL 119 GLENWOOD AVE GLENDIVE, MT 59330-2809 Owners: DECEMBER 31, 1930 *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. LOWER SEVENMILE CREEK Source Name: SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWSWSE 31 18N 55E DAWSON 18N 55E DAWSON 18N 55E DAWSON Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 2 Period of Diversion: SESW 31 JANUARY 1 TO DECEMBER 31 LIVESTOCK DIRECT FROM SOURCE Diversion Means: 3 W2SW 31 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 Acres Govt Lot Qtr Sec SWSWSE Sec 31 Twp 18N Rge 55E County DAWSON 2 SESW 31 18N 55E DAWSON 3 W2SW 31 18N 55E DAWSON January 16, 2024 42M 30133505 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, BELOW POWDER RIVER BASIN 42M 42M 30133505 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: DAVID G WINCHELL 119 GLENWOOD AVE GLENDIVE, MT 59330-2809 Owners: THOMAS J WINCHELL 114 HILLCREST AVE GLENDIVE, MT 59330-2815 DECEMBER 31, 1930 *Priority Date: Type of Historical Right: FILED Purpose (Use): STOCK Flow Rate: 8.00 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 SENWSW 31 18N 55E DAWSON Sec 31 Twp 18N Rge 55E County DAWSON 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 SENWSW January 16, 2024 42M 30133508 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, BELOW POWDER RIVER BASIN 42M 42M 30133508 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: DAVID G WINCHELL 119 GLENWOOD AVE GLENDIVE, MT 59330-2809 Owners: THOMAS J WINCHELL 114 HILLCREST AVE GLENDIVE, MT 59330-2815 DECEMBER 31, 1930 *Priority Date: Type of Historical Right: FILED Purpose (Use): DOMESTIC Flow Rate: 8.00 GPM Volume: 6.50 AC-FT 1 Households: Maximum Acres: 2.00 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 NENWSW 31 18N 55E DAWSON Sec 31 Twp 18N Rge 55E County DAWSON JANUARY 1 TO DECEMBER 31 WELL Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres 2.00 Total: 2.00 Govt Lot Qtr Sec NENWSW

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