Judy Claman-Fantasia; Mike Fantasia

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FILED 03/14/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: Julia __________________ Romero 76D-0598-R-2024 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Stradley, Anna 1.00 IN THE WATER COURT OF THE STATE OF MONTANA CLARK FORK DIVISION KOOTENAI RIVER BASIN (76D) PRELIMINARY DECREE ******************** CLAIMANTS: Judy Claman-Fantasia; Mike Fantasia CASE 76D-0598-R-2024 76D 23056-00 76D 23058-00 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. 1 MASTER’S REPORT Statement of the case Domestic claim 76D 23056-00 received the following issue remark: THE CLAIMED MEANS OF DIVERSION CANNOT BE IDENTIFIED FROM AVAILABLE DATA. Irrigation claim 76D 23058-00 received the following issue remark: EXISTENCE OF THE CLAIMED RESERVOIR CANNOT BE CONFIRMED WITH AVAILABLE DATA. 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 remarks were not resolved through the objection process. However, there was enough information in the claim files and before the court to resolve the issue remarks. Issue Are the issue remarks resolved? Finding of fact The Preliminary Decree abstracts for claims 76D 23056-00 and 76D 23058-00 identify their historically accurate elements. 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. This prima facie proof may be contradicted and 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 2 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. 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. Analysis The above captioned claims are multiple uses of the same water right. A multiple use of a water right occurs when one water right is used for more than one purpose. The multiple use information remark on the abstracts identifies three claims for three purposes – 76D 23056-00 (domestic), 76D 23057-00 (stock)1, and 76D 23058-00 (irrigation). DNRC provided no explanation for adding issue remarks to multiple use claims 76D 23056-00 (domestic) and 76D 23058-00 (irrigation) but not multiple use stock claim 76D 23057-00 - although multiple use stock claim 76D 23057-00 identifies the same means of diversion as domestic claim 76D 23056-00 and the same reservoir as irrigation claim 76D 23058-00. Conclusion of law The inconsistent examination of all claims in the multiple use relationship, and the lack of explanation and information in the claim files resulting in the issue remarks on claims 76D 23056-00 and 76D 23058-00, does not outweigh the prima facie proof 1 Stock claim 76D 23057-00 is not before the court. The Master’s Report includes this claim number only for analysis. 3 afforded statements of claim 76D 23056-00 and 76D 23058-00. The issue remarks do not present issues that require resolution. Recommendations Claims 76D 23056-00 and 76D 23058-00 accurately reflect historical use. No changes to the elements of the claims should be made. The issue remarks should be removed from the abstracts. Post Decree Abstracts of Water Right Claim accompany this report to confirm removal of the issue remarks in the state’s centralized water right record system. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail Judy Claman-Fantasia Mike Fantasia 12809 Greene Ave Los Angeles CA 90066-6409 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\76D PD\76D Cases\76D-0598-R-2024\MR--76D-598R sjs.docx 4 Electronically Signed By: Hon. Judge Anna Stradley Thu, Mar 14 2024 11:57:42 AM March 5, 2024 76D 23056-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM KOOTENAI RIVER BASIN 76D 76D 23056-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE JUDY CLAMAN-FANTASIA 12809 GREENE AVE LOS ANGELES, CA 90066-6409 Owners: MIKE FANTASIA 12809 GREENE AVE LOS ANGELES, CA 90066-6409 Priority Date: AUGUST 14, 1922 Type of Historical Right: FILED Purpose (Use): DOMESTIC Flow Rate: 26.93 GPM Volume: 1.50 AC-FT 1 Households: Maximum Acres: 0.50 Source Name: ELLIOT 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 NWSENW 32 29N 30W LINCOLN Sec 32 Twp 29N Rge 30W County LINCOLN JANUARY 1 TO DECEMBER 31 FLOWING Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres 0.50 Total: Govt Lot Qtr Sec SENWNW 0.50 Remarks: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 23056-00 23057-00 23058-00 March 5, 2024 76D 23058-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM KOOTENAI RIVER BASIN 76D 76D 23058-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: JUDY CLAMAN-FANTASIA 12809 GREENE AVE LOS ANGELES, CA 90066-6409 Owners: MIKE FANTASIA 12809 GREENE AVE LOS ANGELES, CA 90066-6409 Priority Date: AUGUST 14, 1922 Type of Historical Right: FILED Purpose (Use): IRRIGATION SPRINKLER/FURROW Irrigation Type: Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED FOR THIS USE FROM THIS ONSTREAM RESERVOIR. Volume: 9.20 AC-FT 4 - MODERATELY LOW Climatic Area: 4.50 *Maximum Acres: ELLIOT CREEK Source Name: SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge NWSENW 32 29N 30W LINCOLN Sec 32 Twp 29N Rge 30W County LINCOLN Sec 32 Twp 29N Rge 30W County LINCOLN Period of Diversion: MAY 1 TO OCTOBER 15 Diversion Means: HEADGATE Reservoir: ONSTREAM Govt Lot Qtr Sec NWSENW County Diversion to Reservoir: DIVERSION # 1 MAY 1 TO OCTOBER 15 Period of Use: Place of Use: ID 1 Acres 4.50 Total: Remarks: 4.50 Govt Lot Qtr Sec SENWNW March 5, 2024 76D 23058-00 Page 2 of 2 Post Decree Abstract THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 23056-00 23057-00 23058-00

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