Hot Bar Land & Cattle Co.

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FILED 01/03/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 42M-0037-I-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Stern, Anika 5.00 IN THE WATER COURT OF THE STATE OF MONTANA YELLOWSTONE DIVISION, YELLOWSTONE RIVER BELOW POWDER RIVER BASIN (42M) INTERLOCUTORY DECREE ******************** CASE 42M-0037-I-2023 CLAIMANT: Hot Bar Land & Cattle Co. 42M 30133733 42M 30134074 42M 30134078 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. Hot Bar Land & Cattle Co. (Hot Bar) is the record owner of claims 42M 30133733, 42M 30134074, and 42M 30134078. 2. Claims 42M 30133733, 42M 30134074, and 42M 30134078 were decreed with DNRC issue remarks: Claim 42M 30133733: NO QUANTIFIED FLOW RATE HAS BEEN CLAIMED. NO PERIOD OF USE WAS CLAIMED. NO PRIORITY DATE WAS CLAIMED. NO TYPE OF HISTORICAL RIGHT WAS CLAIMED. DOCUMENTATION TO SUPPORT THE DIPE OF HISTORICAL RIGHT WAS NOT SUBMITTED WITH THIS CLAIM. Claim 42M 30134074: THE CLAIMED FLOW RATE MAY BE QUESTIONABLE. DOCUMENTATION SUBMITTED WITH THIS CLAIM INDICATES A FLOW RATE OF 25 GPM. THE CLAIMED VOLUME EXCEEDS THE 8.50 ACRE-FEET GUIDELINE FOR THIS PURPOSE. ITS ACCURACY CANNOT BE CONFIRMED DUE TO LACK OF DATA. Claim 42M 30134078: THE CLAIMED FLOW RATE MAY BE QUESTIONABLE. DOCUMENTATION SUBMITTED WITH THIS CLAIM INDICATES A FLOW RATE OF 25 GPM. Additionally, the claims were decreed with a remark indicating they were not included in the 2014 decree in Basin 42M. 3. Hot Bar was ordered to meet with the DNRC to address the unresolved issue remarks. 4. On November 16, 2023, DNRC Water Resource Specialist Ryan Hartwell filed a Memorandum stating he discussed the issue remarks with Shana Baisch, a representative of Claimant Hot Bar Land & Cattle Co. (Doc. 12.00). Mr. Hartwell indicated that information in the claim files and his discussion with Shana Baisch served as the primary data sources for the Memorandum. 1 “Doc.” numerical references correlate to case file docket numbers in the Water Court’s Full Court case management system. 2 Based on his discussion with Ms. Baisch, Mr. Hartwell recommended the following changes be made to claims 42M 30133733, 42M 30134074, and 42M 30134078, addressing the unresolved issue remarks: Claim 42M 30133733: Priority Thite: 12131/1080 Type ofRistorkalRight: Flow Mite: FILED 18.00 GPM Period of Use: JANUARY 1 TO DECEMBER 31 Claim 42M 30134074: Bow Rate: 3,54D-GRM 25.04 GPM Volume: 7.00 AC FT 6.50 AC-FT Claim 42M 30134078: ?E.00 C.^1s1 2, 1.00 GPM Flow Rate: 5. To determine if Claimant Hot Bar agreed with the recommended changes, an Order was issued, setting a deadline for Hot Bar 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. 6. subject: On December 5, 2023, Shana Baisch filed an email with the following [EXTERNAL] case # 42M-0037-I-2023 (#1 of 3 emails) Subject: The content of the email addressed claims in Case 42M-0038-I-2023, also involving Hot Bar. It appears the subject line unintentionally referenced Case 42M-0037-I-2023. Shana Baisch did not address claims 42M 30133733, 42M 30134074, and 42M 30134078 in the December 5, 2023 response. 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 3 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 30133733, 42M 30134074, and 42M 30134078 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 30133733 should be modified as follows: 12+31/1080 Priority Date: Type of Historical Right: Flow Rate: FILED! 18.00 GPM Period of Use: JANUARY 1 TO DECEMBER 31 Claim 42M 30134074 should be modified as follows: Flow Rate: 36,011-GPM 25.00 GPM I Volume: 7.00 .AC F7 8.50 AC-FT And claim 42M 30134078 should be modified as follows: Flow Rate: 2. artee-GPM 25.00 GPM The issue remarks should be removed from claims 42M 30133733, 42M 30134074, and 42M 30134078. Post Decree Abstracts of Water Right Claims are served with the Report for review. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail: Hot Bar Land & Cattle Co. 323 Rd. 300 Glendive, MT 59330-9258 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\42M ILT\Cases\42M-0037-I-2023\42M-0037-I-2023 MR 12.12.23 rc.docx 4 Electronically Signed By: Hon. Judge Anika Stern Wed, Jan 03 2024 01:34:53 PM December 12, 2023 42M 30133733 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, BELOW POWDER RIVER BASIN 42M 42M 30133733 Water Right Number: STATEMENT OF CLAIM 2 -- POST DECREE Version: ACTIVE Status: HOT BAR LAND & CATTLE CO Owners: 323 RD 300 GLENDIVE, MT 59330 9258 Priority Date: DECEMBER 31, 1960 Type of Historical Right: FILED Purpose (use): STOCK Flow Rate: 18.00 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: ALSO KNOWN AS KRUG CREEK FLOWING WELL FLOWING ARTESIAN WELL *Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec Sec Twp Rge County 1 NENE 3 15N 56E DAWSON Sec 3 Twp 15N Rge 56E County DAWSON 1 JANUARY 1 TO DECEMBER 31 *Period of Diversion: WELL Diversion Means: JANUARY 1 TO DECEMBER 31 *Period of Use: *Place of Use: ID 1 Acres Govt Lot 1 Qtr Sec NENE December 12, 2023 42M 30134074 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, BELOW POWDER RIVER BASIN 42M 42M 30134074 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: HOT BAR LAND & CATTLE CO Owners: 323 RD 300 GLENDIVE, MT 59330 9258 JANUARY 1, 1958 Priority Date: FILED *Type of Historical Right: Purpose (use): DOMESTIC Flow Rate: 25.00 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 SESESW 28 16N 56E DAWSON Sec 28 Twp 16N Rge 56E 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: Govt Lot Qtr Sec SESESW 2.00 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. 30134074 30134078 December 12, 2023 42M 30134078 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, BELOW POWDER RIVER BASIN 42M 42M 30134078 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: HOT BAR LAND & CATTLE CO Owners: 323 RD 300 GLENDIVE, MT 59330 9258 JANUARY 1, 1958 Priority Date: FILED *Type of Historical Right: Purpose (use): STOCK Flow Rate: 25.00 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 SESESW 28 16N 56E DAWSON Sec 28 Twp 16N Rge 56E 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 SESESW 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. 30134074 30134078

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