Jody L. Hillyard; Sean C. Wilson; Kimberly A Moody; Marshall J Moody

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FILED 02/29/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: Julia __________________ Romero 76D-0564-R-2024 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Stradley, Anna 7.00 IN THE WATER COURT OF THE STATE OF MONTANA CLARK FORK DIVISION KOOTENAI RIVER BASIN (76D) PRELIMINARY DECREE ******************** CLAIMANTS: Jody L. Hillyard; Sean C. Wilson; Kimberly A Moody; Marshall J Moody CASE 76D-0564-R-2024 76D 19024-00 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 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 19024-00 appeared in the Preliminary Decree for this Basin with an issue remark noting Kimberly A. Moody and Marshall J. Moody may be potential co-owners of the claim. Ownership and place of use appeared on the Basin 76D objection list for claim 76D 19024-00. Issue remarks result from Department of Natural Resources and Conservation (“DNRC”) claims examination. 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 and potential owners completed the issue remark resolution process. Issues 1. Is the ownership issue remark resolved? 2. Should Jody L. Hillyard’s and Sean C. Wilson’s Ward Tracts Lot 16 be removed from the place of use legal land description? Findings of fact 1. The owners of domestic claim 76D 19024-00 should be Kimberly A. Moody and Marshall J. Moody (Moodys). 2. Jody L. Hillyard and Sean C. Wilson should be removed from the ownership of domestic claim 76D 19024-00 and Ward Tracts Lot 16 should be removed from the place of use legal land description. 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 2 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. Analysis Issues 1 and 2 – ownership issue remark resolution and place of use legal land description On January 31, 2024, Kari McPherson, Water Resource Specialist, Kalispell Regional Office DNRC, filed a letter with the court stating Moodys filed an ownership update for domestic claim 76D 19024-00, and the claim is located on and should be only for Ward Tracts Lot 17. On January 31, 2024, Moodys filed an ownership update for domestic claim 76D 19024-00. On February 15, 2024, DNRC processed the ownership update and added the 3 Moodys to the ownership of domestic claim 76D 19024-00. On February 12, 2024, claimants Jody L. Hillyard and Sean C. Wilson filed a request to withdraw their ownership and remove their lot number, Ward Tracts Lot 16, from the place of use legal land description identified by domestic claim 76D 19024-00. Jody L. Hillyard and Sean C. Wilson explained that the well identified by domestic claim 76D 19024-00, located on Ward Tracts Lot 17, and owned by the Moodys, was shared with Ward Tracts Lot 16 until 1999. In 1999, the boundaries for the lots changed and the supply from the well located on Lot 17 to Lot 16 was deleted. A new well was drilled on Lot 16. Jody L. Hillyard and Sean C. Wilson filed an Amended Plat along with their request to withdraw ownership and remove their lot number 16 from the place of use legal land description identified by domestic claim 76D 19024-00. This documentation may be viewed on the court’s case management system, FullCourt Enterprise, at document sequence 4.00. Based on the foregoing, Jody L. Hillyard and Sean C. Wilson should be removed from the ownership of claim 76D 19024-00 and Ward Tracts Lot 16 should be removed from the place of use legal land description. Conclusion of law Jody L. Hillyard’s and Sean C. Wilson’s proposed modification to the legal land description for the place of use is a reduction within the parameters of statement of claim 76D 19024-00. The ownership issue remark noting Moodys’ potential ownership of domestic claim 76D 19024-00 is resolved. Recommendations Domestic claim 76D 19024-00 should be modified as follows to accurately reflect historical use. OWNERSHIP: JODY L. HILLYARD; SEAN C. WILSON KIMBERLY A. MOODY; MARSHALL J. MOODY 4 PLACE OF USE: ACRES GOVT LOT Subdivision: 0.61 Subdivision: QTR SEC SEC TWP N2SWSW 24 30N WARD TRACTS TRACT/LOT: 16 N2SWSW 24 30N WARD TRACTS TRACT/LOT: 17 RGE 31W COUNTY LINCOLN 31W LINCOLN 0.61 TOTAL: The ownership issue remark 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 system. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail Potential Owners Kimberly A Moody Marshall J Moody 284 Wards Rd Libby, MT 59923-9124 Last Order: Jody L Hillyard Sean C Wilson 318 Wards Rd Libby, MT 59923-9124 Service via Electronic Mail This Order Only Kalispell Regional Office, DNRC Water Resources 655 Timberwolf Parkway, Ste 4 Kalispell, MT 59901-1215 (406) 752-2288 phone (406) 752-2843 fax jferch@mt.gov Note: Caption and Service List Updated 2/26/2024 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\76D PD\76D Cases\76D-0564-R-2024\MR--76D-564R sjs.docx 2/29/24 5 Electronically Signed By: Hon. Judge Anna Stradley Thu, Feb 29 2024 09:28:05 AM February 26, 2024 76D 19024-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM KOOTENAI RIVER BASIN 76D 76D 19024-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: KIMBERLY A MOODY 284 WARDS RD LIBBY, MT 59923-1924 Owners: MARSHALL J MOODY 284 WARDS RD LIBBY, MT 59923-1924 Priority Date: SEPTEMBER 5, 1963 Type of Historical Right: FILED Purpose (Use): DOMESTIC Flow Rate: 50.00 GPM Volume: 2.00 AC-FT 1 Households: Maximum Acres: 0.61 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 N2SWSW 24 30N 31W LINCOLN Sec 24 Twp 30N Rge 31W County LINCOLN JANUARY 1 TO DECEMBER 31 Diversion Means: WELL Subdivision: WARD TRACTS TRACT/LOT: 017 JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres 0.61 Qtr Sec N2SWSW WARD TRACTS TRACT/LOT: 017 Subdivision: Total: Govt Lot 0.61

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