Jennifer G. Posselt; Wayne B. Posselt

Annotate this Case

Download PDF

FILED 01/04/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 76D-0528-R-2023 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Stradley, Anna 3.00 IN THE WATER COURT OF THE STATE OF MONTANA CLARK FORK DIVISION KOOTENAI RIVER BASIN (76D) PRELIMINARY DECREE ******************** CLAIMANTS: Jennifer G. Posselt; Wayne B. Posselt I CASE 76D-0528-R-2023 76D 141318-00 NOTICE OF FILING OF MASTER’S REPORT This Master’s Report was filed with the Clerk of the Montana Water Court. Please review this report carefully. You may file a written objection to the Report if you disagree or find errors with the Master’s Findings of Fact, Conclusions of Law, or Recommendations. The above stamped date indicates the date the Master’s Report was filed and mailed. Rule 23 of the Water Right Adjudication Rules requires written objections to the Master’s Report must be filed within 10 days of the date of the Master’s Report. Because the Report was mailed to you, the Montana Rules of Civil Procedure allow an additional 3 days be added to the 10-day objection period. Rule 6(d), M.R.Civ.P. This means your objection must be received no later than 13 days from the above stamped date. If you file an objection, you must mail 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 1 the content of this Master’s Report. MASTER’S REPORT Statement of the case Domestic claim 76D 141318-00 appeared in the Preliminary Decree with the following issue remark. THE MEANS OF DIVERSION APPEARS TO BE INCORRECT. THE MEANS OF DIVERSION APPEARS TO BE A PIPELINE. Issue remarks result from Department of Natural Resources and Conservation (“DNRC”) claims examination. Claims examination confirms the historical use of water right claims and identifies issues with claims. If claims examination cannot confirm some aspect of a claim, an issue remark is added to the claim. Montana law requires the Water Court to resolve issue remarks. The issue remark was not resolved through the objection process and while there appeared to be enough information in the claim file and before the court to resolve the issue remark, pursuant to § 85-2-248(11), MCA the court may not resolve an issue remark modifying an element without agreement from the claimant. Therefore, a deadline was set for Jennifer G. Posselt and Wayne B. Posselt (“Posselts”) to file their agreement with the issue remark or evidence resolving the issue remark. Posselts completed the issue remark resolution process. Issue Is the means of diversion issue remark resolved? Findings of fact 1. The Preliminary Decree abstract for domestic claim 76D 141318-00 identifies “flowing” as the means of diversion. 2. On November 29, 2023, Posselts filed a statement. Posselts disagree with the issue remark stating the means of diversion appears to be “pipeline.” 2 3. The Preliminary Decree abstract and the statement of claim identify the historically accurate means of diversion. Principles of law 1. A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content. Section 85-2-227, MCA. Prima facie proof may be overcome by other evidence that proves, by a preponderance of the evidence, that an element of the prima facie claim is incorrect. This is the burden of proof for every assertion that a claim is incorrect. Rule 19, W.R.Adj.R. A preponderance of the evidence is a “modest standard” and is evidence that demonstrates the fact to be proved is “more probable than not.” Hohenlohe v. State, 2010 MT 203, ¶ 33, 357 Mont. 348, 240 P.3d 628. 2. The Montana Water Court is permitted to use information submitted by the Department of Natural Resources and Conservation, the statement of claim, information from approved compacts, and any other data obtained by the Court to evaluate water right claims. Section 85-2-231(2), MCA. 3. Settlement, including the documents filed by a claimant where the claimant is the only party, is subject to review and approval by the Water Court. Rule 17(a), W.R.Adj.R. 4. The Montana Water Court may accept a settlement agreement that reduces or limits an element of a claim and need not determine whether the burden of proof is met unless there is an unresolved issue remark on the claim. Rule 17(c), W.R.Adj.R. 5. When resolving issue remarks, the Montana Water Court must weigh the information resulting in the issue remark and the issue remark against the claimed water right. Section 85-2-247(2), MCA. 6. The Montana Water Court has the authority to resolve issue remarks when the claim file and information available to the Court provide a sufficient basis to do so. Section 85-2-248(3), MCA. 3 Analysis Means of diversion issue remark resolution Posselts disagree with the means of diversion issue remark. Posselts confirm the historical accuracy of the prima facie proof afforded the means of diversion identified by statement of claim 76D 141318-00 – “flowing”. DNRC added a source information remark after issuance of the Temporary Preliminary Decree and before issuance of the Preliminary Decree stating “Also known as the Brock Pipeline” without confirmation by the claimants that a pipeline was the historically accurate means of diversion. The information remark should be removed from the face of the abstract. Conclusions of law Based upon the Posselts’ email confirming the accuracy of the prima facie statement of claim, the Preliminary Decree abstract for domestic claim 76D 141318-00 identifies the historically accurate means of diversion. The means of diversion issue remark is resolved. Recommendations Domestic claim 76D 141318-00 accurately reflects historical use. No changes to the elements of the claim should be made. The source information remark stating “Also known as the Brock Pipeline” should be removed from the claim abstract. The means of diversion issue remark should be removed from the claim abstract. A Post Decree Abstract of Water Right Claim accompanies this Report to confirm removal of the issue remark in the state’s centralized water right record system. ELECTRONICALLY SIGNED AND DATED BELOW. 4 Electronically Signed By: Hon. Judge Anna Stradley Thu, Jan 04 2024 07:41:34 AM Service via USPS Mail Jennifer G Posselt Wayne B Posselt 254 Waynes Lane Rexford MT 59930 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\76D PD\76D Cases\76D-0528-R-2023\MR--76D-528R sjs.docx 5 December 21, 2023 76D 141318-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM KOOTENAI RIVER BASIN 76D 76D 141318-00 Water Right Number: Version: STATEMENT OF CLAIM 4 -- POST DECREE ACTIVE Status: WAYNE B POSSELT Owners: 254 WAYNES LANE REXFORD, MT 59930 JENNIFER G POSSELT 254 WAYNES LANE REXFORD, MT 59930 Priority Date: MAY 15, 1918 Type of Historical Right: FILED Purpose (use): DOMESTIC Flow Rate: 15.00 GPM Volume: 1.50 AC-FT 1 Households: Maximum Acres: 0.58 Source Name: DODGE CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Period of Diversion: Qtr Sec Sec Twp Rge County NENWNE 35 37N 28W LINCOLN Sec 35 Twp 37N Rge 28W County LINCOLN JANUARY 1 TO DECEMBER 31 FLOWING Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: *Place of Use: ID 1 Acres 0.58 Total: Govt Lot Qtr Sec SWSENE 0.58 THE PLACE OF USE IS LOCATED IN LOT 7B5.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.