Carol Nickelson Trust

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FILED 02/02/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 43B-6005-A-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov Brown, Stephen R 7.00 MONTANA WATER COURT, YELLOWSTONE DIVISION YELLOWSTONE RIVER ABOVE AND INCLUDING BRIDGER CREEK BASIN BASIN 43B PRELIMINARY DECREE ****************************** CASE 43B-6005-A-2023 43B 194623-00 43B 194624-00 CLAIMANT: Carol Nickelson Trust ORDER ON MOTION TO AMEND On September 12, 2023, claimant Carol Nickelson Trust (“Trust”) moved to amend water right claims 43B 194623-00 and 43B 194624-00. The motion asks the Court to correct the place of use and maximum acres irrigated for both claims. BACKGROUND The Water Court included claims 43B 194623-00 and 43B 194624-00 in the Preliminary Decree for Basin 43B, issued on May 9, 2019. The decree abstracts describe two rights to use water from Davis Creek for irrigation use in Park County. Davis Creek is a tributary of Mill Creek, which in turn is a tributary of the Yellowstone River. The decree abstracts included Department of Natural Resources and Conservation (“DNRC”) issue remarks. The claims did not receive objections or counterobjections. The claims were included on the objection list with the issue remarks noted. No notices of intent to appear were filed based on the objection list. The Court consolidated the claims into case 43B-0374-R-2021 to address the issue remarks. On September 16, 2021, the Senior Water Master assigned to the case filed a Master’s Report. On September 29, 2021, the Trust filed an objection to the Master’s Report. The objection sought modifications to the place of use. Place of use was not an 1 issue raised by issue remarks, so the Master’s Report declined to consider it. On November 22, 2021, the Court issued an Order Amending and Adopting Master’s Report. The order stated the Trust’s request to modify the place of use by objection was equivalent to a motion to amend because the place of use was never at issue in the case. The order closed case 43B-0374-R-2021 without addressing the place of use modification request, but noted it would “be addressed by separate order.” (Case 43B-0374-R-2021, Doc. 14.00, at 2). The Trust filed its motion to amend on September 12, 2023, nearly two years after the Court closed case 43B-0374-R-2021. The Court consolidated the Trust’s motion to amend into Water Court Case 43B-6005-A-2023 on the day it was filed. The Trust’s motion contends the post-decree abstracts for claims 43B 194623-00 and 43B 194624-00 “omitted (1) the entire 40-acre section in the NWSW of Section 33, Township 5S, Range 9E and (2) a 1-acre section in the NWNWSESW of Section 33, Township 5S, Range 9E.” The places of use for both claims are the same. To support the additional places of use, the Trust filed several documents including a copy of a DNRC mylar map contained in the claim files, the map submitted with the Statements of Claim, and the 1951 Water Resources Survey for T5S, R9E, Park County. By adding these two places of use, the maximum number of acres irrigated will increase to 216.40 acres for each claim. The Trust does not seek any modification to the flow rate or other elements. On October 17, 2023, the Court determined that the proposed amendments may adversely affect other water users due to the requested increased size of the place of use. Because notice of this issue was not provided in the Basin 43B objection list, the Court ordered the publication of a notice of the Trust’s motion to amend in local newspapers, pursuant to § 85-2-233(6), MCA. The Court required that the notice must provide that “any response or objection to the proposed amendment must be filed with the Montana Water Court within 45 days of the date of the last publication of the attached notice.” On December 5, 2023, the Trust filed affidavits of publication. The affidavits show that the last date of publication in the Bozeman Daily Chronicle was November 8, 2023, and the last date of publication in the Livingston Enterprise was November 11, 2023. 2 Thus, the last date to file an objection based on the 45-day deadline was December 26, 2023. The Court did not receive any objections or other responses. On January 24, 2024, the Court asked the Trust to clarify the place of use request. (Doc. 5.00). The Trust filed clarifying information the next day. (Doc. 6.00). ISSUE Should the Court grant the Verified Motion to Amend Water Right Claim filed by the Trust? DISCUSSION Motions to amend are authorized under § 85-2-233(6), MCA and Rule 10, W.R.Adj.R. If the Court determines the proposed modification may adversely affect other water users, the Court requires notice and the opportunity to object before approving the modification. § 85-2-233(6), MCA. When a party seeks to amend an element of their own water right, the party must provide sufficient evidence to prove by a preponderance of the evidence that the modification overcomes the prima facie status of the claim. Rule 19, W.R.Adj.R.; Nelson v. Brooks, 2014 MT 120, ¶ 34, 375 Mont. 86, 329 P.3d 558. Preponderance of evidence is a relatively modest standard. DeBuff v. Mont. Dep't of Nat. Res. & Conservation, 2021 MT 68, ¶ 38, 403 Mont. 403, 482 P.3d 1183. The Court looks skeptically at motions to amend filed after a claim is included in a decree and closed without objections, although such motions are not always precluded. As the Court previously has explained, such motions run the risk of being disguised as a late objection filed after the close of the objection period. In re Brewer Ranch LLC, 2023 Mont. Water LEXIS 393, *7 (“[i]f parties are allowed to use the motion to amend provisions to cure the failure to file a timely objection, the motion to amend provision would conflict with the objection provisions and cause the objection deadlines imposed by the legislature to become meaningless”). However, if a motion identifies clerical-type errors, the Court may allow the motion. In re Haven, Case 42L-6003-A-2022, 2022 Mont. Water LEXIS 441. In this case the Court ordered additional notice requirements because it was not entirely clear as to whether the motion was clerical in nature and 3 because the Trust filed the motion while the prior case still was open. The Trust satisfied these requirements. Although the issue is close, in light of the filing of the motion while the prior case still was open, the lack of objection, and the filed evidence indicating the error likely was clerical by omitting descriptions of land shown to be irrigated historically, the Trust’s motion meets the standard for motions to amend. The Trust followed the procedural requirements enumerated under § 85-2-233(6), MCA by providing notice to potentially affected parties via publication in local newspapers. This process followed what the Court has required in prior procedurally similar cases. See, e.g., In re Circle S Ranch, Inc., Case 41P-108, 2019 Mont. Water LEXIS 228 (Order Granting Motion to Modify). The evidence provided by the Trust shows that the two additional places of use were historically irrigated by the claims. Also the claim file suggests the original claimant attempted to claim these two places of use in the Statements of Claim, but failed to describe them properly, resulting in their removal during DNRC examination procedures. The Trust also provided timely and sufficient responses to the Court’s request for clarification. Based on the facts specific to these claims and the lack of any objection, sufficient grounds exist to grant the motion. ORDER Therefore, it is ORDERED that the Trust’s Verified Motion to Amend is GRANTED. The maximum acres is modified to 216.40 and the place of use for claims 43B 194623-00 and 43B 194624-00 is modified to include the following described land: - ID 6 16 Acres Govt Lot 40.00 1.00 Qtr Sec NWSW NWSESW 1 Sec 33 33 Twp 5S 5S Rge 9E 9E County PARK PARK This Order closes the case. The Court describes this portion of the place of use consistent with other descriptions in the abstracts. The Court also reorders the places of use to align with standard legal description sorting sequencing. Consistent with the rest of the described place of use, the Court uses the nearest quarter-quarter-quarter section. 1 4 Post-decree abstracts of the claims are included with this Order to confirm the amendments have been made in the State’s centralized water rights record system. ELECTRONICALLY SIGNED AND DATED BELOW. Service Via Electronic Mail: Jack Connors DONEY CROWLEY P.C. PO Box 1185 Helena, MT 59624 (406) 443-2211 jconnors@doneylaw.com legalsec@doneylaw.com Calli J. Michaels Michaels Law PLLC PO Box 1388 Dillon, MT 59725 406-660-4265 W cmichaels@mlawmt.com Patti L. Rowland Dillon Law PC PO Box 1418 Dillon, MT 59725 (406) 683-8795 prowland@dillon-law.com eriddle@dillon-law.com Courtesy Copies: Benjamin Sudduth Sudduth Law, PLLC 1050 East Main St Ste 3B PO Box 507 Bozeman, MT 59771-0507 (406) 272-2390 benjamin@sudduthlaw.com Samuel J. King Doney Crowley P.C. PO Box 1185 Helena, MT 59624 (406) 443-2211 sking@doneylaw.com legalsec@doneylaw.com \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\43B PD\43B Cases\6005A\43B-6005 Ord Granting MTA 1-2924 ld.docx 5 Electronically Signed By: Hon. Judge Stephen R Brown Fri, Feb 02 2024 11:57:01 AM February 1, 2024 43B 194623-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, ABOVE & INCLUDING BRIDGER CREEK BASIN 43B 43B 194623-00 Water Right Number: Version: STATEMENT OF CLAIM 5 -- POST DECREE Status: ACTIVE Owners: NICKELSON CAROL TRUST %TRIPLETT JENNIFER PO BOX 414 POWELL, WY 82435-0141 Priority Date: APRIL 12, 1882 Type of Historical Right: DECREED Purpose (Use): IRRIGATION FLOOD Irrigation Type: Flow Rate: 2.50 CFS Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 4 - MODERATELY LOW Climatic Area: Maximum Acres: 216.40 Source Name: DAVIS CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWSWSE 4 6S 9E PARK Period of Diversion: APRIL 1 TO NOVEMBER 1 Diversion Means: HEADGATE Ditch Name: WARFIELD-NICKELSON-RIGLER DITCH APRIL 1 TO NOVEMBER 1 Period of Use: Place of Use: ID 1 Acres 40.00 2 Govt Lot Qtr Sec SESE Sec 32 Twp 5S Rge 9E County PARK 4.70 NENESE 32 5S 9E PARK 3 6.50 NWNESE 32 5S 9E PARK 4 10.00 SWNESE 32 5S 9E PARK 5 10.00 SENESE 32 5S 9E PARK 6 40.00 NWSW 33 5S 9E PARK 7 9.00 NESWSW 33 5S 9E PARK 8 8.70 NWSWSW 33 5S 9E PARK 9 9.60 SWSWSW 33 5S 9E PARK 10 9.60 SESWSW 33 5S 9E PARK 11 1.00 NESESW 33 5S 9E PARK 12 10.00 NENESW 33 5S 9E PARK February 1, 2024 43B 194623-00 Page 2 of 2 Post Decree Abstract 13 10.00 NWNESW 33 5S 9E PARK 14 7.60 SWNESW 33 5S 9E PARK 15 3.60 SENESW 33 5S 9E PARK 16 1.00 NWSESW 33 5S 9E PARK 17 6.20 SWSENW 33 5S 9E PARK 18 6.30 SESENW 33 5S 9E PARK 19 5.00 NWSWNW 33 5S 9E PARK 20 10.00 SWSWNW 33 5S 9E PARK 21 7.60 SESWNW 33 5S 9E PARK Total: 216.40 Remarks: THE WATER RIGHTS FOLLOWING THIS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS. EACH RIGHT IS LIMITED TO THE FLOW RATE AND PLACE OF USE OF THAT INDIVIDUAL RIGHT. THE SUM TOTAL VOLUME OF THESE WATER RIGHTS SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 194623-00 194624-00 194625-00 February 1, 2024 43B 194624-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, ABOVE & INCLUDING BRIDGER CREEK BASIN 43B 43B 194624-00 Water Right Number: Version: STATEMENT OF CLAIM 5 -- POST DECREE Status: ACTIVE Owners: NICKELSON CAROL TRUST %TRIPLETT JENNIFER PO BOX 414 POWELL, WY 82435-0141 Priority Date: APRIL 27, 1965 Type of Historical Right: FILED Purpose (Use): IRRIGATION FLOOD Irrigation Type: Flow Rate: 5.00 CFS Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 4 - MODERATELY LOW Climatic Area: Maximum Acres: 216.40 Source Name: DAVIS CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SWSWSE 4 6S 9E PARK Period of Diversion: MAY 1 TO OCTOBER 1 Diversion Means: HEADGATE Ditch Name: WARFIELD-NICKELSON-RIGLER DITCH MAY 1 TO OCTOBER 1 Period of Use: Place of Use: ID 1 Acres 40.00 2 Govt Lot Qtr Sec SESE Sec 32 Twp 5S Rge 9E County PARK 4.70 NENESE 32 5S 9E PARK 3 6.50 NWNESE 32 5S 9E PARK 4 10.00 SWNESE 32 5S 9E PARK 5 10.00 SENESE 32 5S 9E PARK 6 40.00 NWSW 33 5S 9E PARK 7 9.00 NESWSW 33 5S 9E PARK 8 8.70 NWSWSW 33 5S 9E PARK 9 9.60 SWSWSW 33 5S 9E PARK 10 9.60 SESWSW 33 5S 9E PARK 11 1.00 NESESW 33 5S 9E PARK 12 10.00 NENESW 33 5S 9E PARK February 1, 2024 43B 194624-00 Page 2 of 2 Post Decree Abstract 13 10.00 NWNESW 33 5S 9E PARK 14 7.60 SWNESW 33 5S 9E PARK 15 3.60 SENESW 33 5S 9E PARK 16 1.00 NWSESW 33 5S 9E PARK 17 6.20 SWSENW 33 5S 9E PARK 18 6.30 SESENW 33 5S 9E PARK 19 5.00 NWSWNW 33 5S 9E PARK 20 10.00 SWSWNW 33 5S 9E PARK 21 7.60 SESWNW 33 5S 9E PARK Total: 216.40 Remarks: THE WATER RIGHTS FOLLOWING THIS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS. EACH RIGHT IS LIMITED TO THE FLOW RATE AND PLACE OF USE OF THAT INDIVIDUAL RIGHT. THE SUM TOTAL VOLUME OF THESE WATER RIGHTS SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 194623-00 194624-00 194625-00

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