Robert M. Duberow; Carol J. Murray; Tina Murray; William S. Murray; Kelly G. Watson Marital Trust Oct

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FILED 03/14/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: Julia __________________ Romero 76D-0560-R-2024 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Stradley, Anna 2.00 IN THE WATER COURT OF THE STATE OF MONTANA CLARK FORK DIVISION KOOTENAI RIVER BASIN (76D) PRELIMINARY DECREE 1 ********************************* CLAIMANTS: Robert M. Duberow; Carol J. Murray; Tina Murray; William S. Murray; Kelly G. Watson Marital Trust Oct 2021 CASE 76D-0560-R-2024 76D 1165-00 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. The order consolidating this case included the wrong decree heading. The heading is corrected for the Master’s Report. 1 1 MASTER'S REPORT FINDINGS OF FACT 1. Domestic well claim 76D 1165-00 appeared in the Preliminary Decree with a priority date of July 31, 1968, and with the following issue remark concerning the priority date: THE PRIORITY DATE MAY BE QUESTIONABLE. NO DOCUMENTATION AS REQUIRED BY THE 1961 GROUNDWATER CODE WAS SUBMITTED TO SUPPORT THIS CLAIM. 2. The claim received no objections. The issue remark was not addressed and resolved during the objection process. The Montana Legislature directs the Water Court to resolve issue remarks using the procedures set forth in § 85-2-248, MCA. 3. The 1961 Ground Water Code required the filing of certain documents with the county clerk and recorder’s office to establish priority date for groundwater appropriated between January 1, 1962, and July 1, 1973. Neither a Notice of Appropriation nor a Notice of Completion was filed in support of the priority date claimed by Statement of Claim 76D 1165-00. Therefore, it appeared that the priority date should be the date the Statement of Claim was filed, February 7, 1980. 4. Pursuant to § 85-2-248(3), MCA an order set a deadline for claimants to file a copy of a duly filed Notice of Appropriation and/or Notice of Completion to support the earlier claimed priority date of July 31, 1968. 5. No further documentation was submitted by claimants. 6. Based upon the current record, the priority date for claim 76D 1165-00 should be the date the Statement of Claim was filed, February 7, 1980. The type of historical right should be changed from “use” to “filed.” 7. The issue remark regarding priority date should be removed as it has been resolved. CONCLUSIONS 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. This prima facie proof may be contradicted and overcome by other evidence that proves, by a preponderance of the 2 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. 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. 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. 4. 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. 5. Montana law required an appropriator of groundwater by means of a well between January 1, 1962 and July 1, 1973 to timely file a Notice of Completion of Groundwater Appropriation with the county clerk of the county in which the appropriation was located. Section 89-2913(d), RCM (1963). Until an appropriator filed a Notice of Completion no right to use the water was recognized. Section 89-2913(e), RCM (1963). These provisions were repealed in 1973 with the enactment of § 85-2-306, MCA. The statute provides: (4) An appropriator of ground water by means of a well or developed spring first put to beneficial use between January 1, 1962 and July 1, 1973, who did not file a notice of completion, as required by laws in force prior to April 14, 1981, with the county clerk and recorder shall file a notice of completion, as provided in subsection (3), with the department to perfect the water right. The filing of a claim of existing water right pursuant to 85-2-221[a Statement of Claim] is sufficient notice of completion under this subsection. The priority date of the appropriation is the date of the filing of a notice as provided in subsection (3), or the date of the filing of the claim of existing water right. 6. As a Notice of Completion was not filed, the priority date of the claimed appropriation for 76D 1165-00 is the date of the filing of the Statement of Claim. Section 85-2-306(4), MCA. 3 7. There is sufficient information to resolve the issue remark. RECOMMENDATIONS Based upon the above Findings of Fact and Conclusions of Law, this Master recommends that the court make the changes specified in the Findings of Fact to correct the Preliminary Decree for this Basin. A Post Decree Abstract of Water Right Claim accompanies this Report to confirm that the recommended changes have been made in the state’s centralized water right record system. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail: Robert M Duberow Carol J Murray Tina Murray William S Murray 115 Hueth Ln Whitefish MT 59937 Kelly G. Watson Marital Trust Oct 2021 1645 9th St W Columbia Falls MT 59912-4406 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\76D PD\76D Cases\76D-0560-R-2024\MR--76D-560R sjs.docx 4 Electronically Signed By: Hon. Judge Anna Stradley Thu, Mar 14 2024 11:58:58 AM March 12, 2024 76D 1165-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM KOOTENAI RIVER BASIN 76D 76D 1165-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: ROBERT M DUBEROW 115 HUETH LN WHITEFISH, MT 59937 Owners: CAROL J MURRAY 115 HUETH LN WHITEFISH, MT 59937 TINA MURRAY 115 HUETH LN WHITEFISH, MT 59937 WILLIAM S MURRAY 115 HUETH LN WHITEFISH, MT 59937 WATSON, KELLY G MARITAL TRUST OCT 2021 1645 9TH ST W COLUMBIA FALLS, MT 59912-4406 Priority Date: FEBRUARY 7, 1980 Type of Historical Right: FILED Purpose (Use): DOMESTIC Flow Rate: 5.00 GPM Volume: 1.50 AC-FT 1 Households: GROUNDWATER Source Name: GROUNDWATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Period of Diversion: Qtr Sec Sec Twp Rge County NWNWNW 27 36N 26W LINCOLN Twp 36N Rge 26W County LINCOLN JANUARY 1 TO DECEMBER 31 Diversion Means: WELL Subdivision: GLEN LAKE TRACTS TRACT/LOT: 009 JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Subdivision: Govt Lot Qtr Sec NWNWNW Sec 27 GLEN LAKE TRACTS TRACT/LOT: 009

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