Carlene A. Orr; Darrell W. Orr

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FILED 03/27/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 76D-0549-R-2024 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: Carlene A. Orr; Darrell W. Orr I CASE 76D-0549-R-2024 76D 30126869 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 to be added to the 10-day 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 Statement of the case Domestic claim 76D 30126869 appeared in the Preliminary Decree for this Basin with the following issue remarks: THIS CLAIM NUMBER WAS NOT INCLUDED IN THE BASIN 76D DECREE ISSUED 03/22/1984. USDA AERIAL PHOTOGRAPH NO(S). 279-252, DATED 8/9/1979, APPEARS TO INDICATE 1.25 ACRES IRRIGATED. A DESCRIPTION OF THESE ACRES IS IN THE CLAIM FILE. ONLY 1.25 ACRES OF THE CLAIMED PLACE OF USE APPEAR IRRIGATED FOR DOMESTIC PURPOSES. 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. Claimants, Carlene A. Orr and Darrell W. Orr (“Orrs”) completed the issue remark resolution process. Issue Are the issue remarks resolved? Findings of fact 1. On March 14, 2024, DNRC filed a Memorandum concerning Orrs’ attempt at resolution of the issue remarks. DNRC reported the issue remarks were resolved. 2. Orrs filed an amendment to the claim reducing the maximum acres irrigated to 1.25. 3. The maximum numbers of acres historically irrigated by domestic claim 76D 30126869 are 1.25. 2 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. If the Montana Water Court cannot resolve issue remarks based upon information in the claim file or information available to the Court, claimants shall be required to confer with the DNRC to attempt resolution of the issue remarks. Claimants shall file documentation to resolve the issue remarks, and the DNRC shall submit recommendations regarding disposition of the issue remarks. Section 85-2-248(5), MCA. 3 Analysis Issue remark resolution The DNRC reviewed the claim file and visited with Orrs. Orrs confirmed 1.25 acres of domestic irrigation agreeing with issue remarks on the claim. The DNRC recommends removal of the issue remarks and acceptance of Orrs’ proposed modifications. DNRC’s Memorandum and its attachments may be viewed on the court’s case management system, FullCourt Enterprise, at document sequence 2.00. The claim appeared in the Preliminary Decree with the following issue remark: THIS CLAIM NUMBER WAS NOT INCLUDED IN THE BASIN 76D DECREE ISSUED 03/22/1984. Water users were given the opportunity to review the claim and file an objection. The deadline to file objections expired. No water users filed an objection to the claim. Conclusion of law Orrs’ proposed modification to the maximum number of acres irrigated is a reduction within the parameters of statement of claim 76D 30126869 and resolves the maximum acres irrigated issue remarks on the claim. The issue remark noting lack of the claim’s inclusion in the previous Basin 76D decree served its notice purpose. Recommendations Domestic claim 76D 30126869 should be modified as follows to accurately reflect historical use. MAXIMUM ACRES: PLACE OF USE: ACRES 1.25 5.00 TOTAL: 1.25 5.00 5.00 GOVT LOT 1.25 QTR SEC NENE SEC 15 TWP 30N RGE 30W COUNTY LINCOLN The issue remarks should be removed from the claim abstract. A Post Decree Abstract of Water Right Claim accompanies this report to confirm implementation of the recommendations in the state’s centralized water right record 4 system. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail Carlene A Orr Darrell W Orr 9655 MT Highway 37 Libby MT 59923-9253 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\76D PD\76D Cases\76D-0549-R-2024\MR--76D-549R sjs.docx 3/26/24 5 Electronically Signed By: Hon. Judge Anna Stradley Wed, Mar 27 2024 01:05:56 PM March 21, 2024 76D 30126869 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM KOOTENAI RIVER BASIN 76D 76D 30126869 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: CARLENE A ORR 9655 MT HIGHWAY 37 LIBBY, MT 59923-9253 Owners: DARRELL W ORR 9655 MT HIGHWAY 37 LIBBY, MT 59923-9253 Priority Date: JANUARY 6, 1966 Type of Historical Right: FILED Purpose (Use): DOMESTIC Flow Rate: 10.00 GPM Volume: 1.50 AC-FT 1 Households: Maximum Acres: 1.25 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 NENE 15 30N 30W LINCOLN Sec 15 Twp 30N Rge 30W County LINCOLN JANUARY 1 TO DECEMBER 31 WELL Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres 1.25 Total: 1.25 Govt Lot Qtr Sec NENE

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