Chelsea Leger; Michael Leger

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FILED 03/05/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 76D-0600-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: Chelsea Leger; Michael Leger CASE 76D-0600-R-2024 76D 134822-00 76D 134826-00 76D 134829-00 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 Power generation claim 76D 134822-00-00 received the following issue remarks: THE CLAIMANT DID NOT IDENTIFY THE PERIOD OF DIVERSION FOR THIS RIGHT. A PERIOD OF DIVERSION HAS BEEN ADDED TO MATCH THE PERIOD OF USE. IF NO OBJECTIONS ARE RECEIVED TO THE PERIOD OF DIVERSION OR PERIOD OF USE, THOSE ELEMENTS WILL BE DECREED AS SHOWN ON THIS ABSTRACT AND THIS ISSUE REMARK WILL BE REMOVED FROM THIS CLAIM. MEANS OF DIVERSION AND RESERVOIR RECORD WERE MODIFIED AS A RESULT OF DNRC REVIEW UNDER MONTANA WATER COURT REEXAMINATION ORDERS. IF NO OBJECTIONS ARE FILED TO THIS CLAIM, THESE ELEMENTS WILL REMAIN AS THEY APPEAR ON THIS ABSTRACT AND THE REMARK WILL BE REMOVED FROM THE CLAIM. THE CLAIMED VOLUME APPEARS TO BE EXCESSIVE FOR THE CLAIMED PURPOSE. THE CLAIMED VOLUME EQUALS 4 TIMES THE CAPACITY OF THE RESERVOIR. Power generation claim 76D 134826-00-00 received the following issue remarks: THE CLAIMANT DID NOT IDENTIFY THE PERIOD OF DIVERSION FOR THIS RIGHT. A PERIOD OF DIVERSION HAS BEEN ADDED TO MATCH THE PERIOD OF USE. IF NO OBJECTIONS ARE RECEIVED TO THE PERIOD OF DIVERSION OR PERIOD OF USE, THOSE ELEMENTS WILL BE DECREED AS SHOWN ON THIS ABSTRACT AND THIS ISSUE REMARK WILL BE REMOVED FROM THIS CLAIM. MEANS OF DIVERSION AND RESERVOIR RECORD WERE MODIFIED AS A RESULT OF DNRC REVIEW UNDER MONTANA WATER COURT REEXAMINATION ORDERS. IF NO OBJECTIONS ARE FILED TO THIS CLAIM, THESE ELEMENTS WILL REMAIN AS THEY APPEAR ON THIS ABSTRACT AND THE REMARK WILL BE REMOVED FROM THE CLAIM. THE CLAIMED VOLUME APPEARS TO BE EXCESSIVE FOR THE CLAIMED PURPOSE. THE CLAIMED VOLUME EQUALS 1.07 TIMES THE CAPACITY OF THE RESERVOIR. Power generation claim 76D 134829-00-00 received the following issue remarks: THE CLAIMANT DID NOT IDENTIFY THE PERIOD OF DIVERSION FOR THIS RIGHT. A PERIOD OF DIVERSION HAS BEEN ADDED TO MATCH THE PERIOD OF USE. IF NO OBJECTIONS ARE RECEIVED TO THE PERIOD OF DIVERSION OR PERIOD OF USE, THOSE ELEMENTS WILL BE DECREED AS SHOWN ON THIS ABSTRACT AND THIS ISSUE REMARK WILL BE REMOVED FROM THIS CLAIM. RESERVOIR RECORD WAS MODIFIED AS A RESULT OF DNRC REVIEW UNDER MONTANA WATER COURT REEXAMINATION ORDERS. IF NO OBJECTIONS ARE FILED TO THIS CLAIM, THESE ELEMENTS WILL REMAIN AS THEY APPEAR ON THIS ABSTRACT AND THE REMARK WILL BE REMOVED FROM THE CLAIM. THE CLAIMED VOLUME APPEARS TO BE EXCESSIVE FOR THE CLAIMED PURPOSE. THE CLAIMED VOLUME EQUALS 71.4 TIMES THE CAPACITY OF THE RESERVOIR. 2 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. DNRC may also add issue remarks providing some sort of notice to water users concerning a 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 the above captioned power generation claims 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 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 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 Preliminary Decree abstracts for each claim identify their purpose as power generation. Power generation claims due to their very nature normally do not utilize stored water, but cycle water through a system to generate power. True to the nature of power generation claims, stored water is not a component identified by the above captioned statements of claim or their attachments. (See the February 16, 1983 Reservoir Questionnaire in claim file 76D 134822-00 stating the claim does not use stored water; the statements of claim identifying the source as a lake, not a reservoir; and the maps and statements attached to the statements of claim depicting and describing the system.) The reservoir information added by DNRC was not objected to and while extraneous shall remain on the abstracts. The excessive volume issue remark based upon each reservoir record and capacity of each reservoir is irrelevant due to these power generation claims not using stored water. Additional issue remarks on each claim note certain elements were modified by DNRC during claims examination. Each issue remark instructed claimants and other water users that if no objections were filed to the elements identified by the issue remarks, the elements would remain as they appear on the Preliminary Decree abstract. No one objected to the elements of the claims. Conclusion of law There is no indication that the above captioned power generation claims use stored water. The excessive volume issue remark based on each claim does not raise an issue requiring resolution. 4 The issue remarks concerning the elements modified by DNRC served their notice purpose. Recommendations Power generation claims 76D 134822-00, 76D 134826-00, and 76D 134829-00 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 implementation of the recommendations in the state’s centralized water right record system. ELECTRONICALLY SIGNED AND DATED BELOW. Service via USPS Mail Chelsea Leger Michael Leger PO Box 82 Fortine MT 59918-0082 \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\76D PD\76D Cases\76D-0600-R-2024\MR--76D-600R sjs.docx 5 Electronically Signed By: Hon. Judge Anna Stradley Tue, Mar 05 2024 07:40:56 AM March 1, 2024 76D 134822-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM KOOTENAI RIVER BASIN 76D 76D 134822-00 Water Right Number: STATEMENT OF CLAIM 3 -- POST DECREE Version: ACTIVE Status: CHELSEA LEGER PO BOX 82 FORTINE, MT 59918-0082 Owners: MICHAEL LEGER PO BOX 82 FORTINE, MT 59918-0082 Priority Date: OCTOBER 6, 1964 Type of Historical Right: USE Purpose (Use): POWER GENERATION Flow Rate: 95.00 GPM Volume: 92.00 AC-FT Source Name: UNNAMED TRIBUTARY OF LAUGHING WATER 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 SENENE 32 35N 25W LINCOLN Sec 32 Twp 35N Rge 25W County LINCOLN Sec 32 Twp 35N Rge 25W County LINCOLN JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec SENENE Diversion to Reservoir: DIVERSION # 1 10.00 FEET Dam Height: Depth: 8.00 FEET Surface Area: 2.80 ACRES Capacity: 8.96 ACRE-FEET JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec S2NENE March 1, 2024 76D 134826-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM KOOTENAI RIVER BASIN 76D 76D 134826-00 Water Right Number: STATEMENT OF CLAIM 3 -- POST DECREE Version: ACTIVE Status: CHELSEA LEGER PO BOX 82 FORTINE, MT 59918-0082 Owners: MICHAEL LEGER PO BOX 82 FORTINE, MT 59918-0082 Priority Date: OCTOBER 6, 1964 Type of Historical Right: USE Purpose (Use): POWER GENERATION Flow Rate: 25.00 GPM Volume: 24.00 AC-FT Source Name: UNNAMED TRIBUTARY OF LAUGHING WATER 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 SENENE 32 35N 25W LINCOLN Sec 32 Twp 35N Rge 25W County LINCOLN Sec 32 Twp 35N Rge 25W County LINCOLN JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec SENENE Diversion to Reservoir: DIVERSION # 1 10.00 FEET Dam Height: Depth: 8.00 FEET Surface Area: 2.80 ACRES Capacity: 8.96 ACRE-FEET JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec S2NENE March 1, 2024 76D 134829-00 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM KOOTENAI RIVER BASIN 76D 76D 134829-00 Water Right Number: STATEMENT OF CLAIM 3 -- POST DECREE Version: ACTIVE Status: CHELSEA LEGER PO BOX 82 FORTINE, MT 59918-0082 Owners: MICHAEL LEGER PO BOX 82 FORTINE, MT 59918-0082 Priority Date: OCTOBER 6, 1964 Type of Historical Right: FILED Purpose (Use): POWER GENERATION Flow Rate: 4.01 CFS Volume: 1,600.00 AC-FT Source Name: LAUGHING WATER 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 SENENE 32 35N 25W LINCOLN Sec 32 Twp 35N Rge 25W County LINCOLN Sec 32 Twp 35N Rge 25W County LINCOLN JANUARY 1 TO DECEMBER 31 Diversion Means: DAM Reservoir: ONSTREAM Govt Lot Qtr Sec SENENE Diversion to Reservoir: DIVERSION # 1 10.00 FEET Dam Height: Depth: 8.00 FEET Surface Area: 2.80 ACRES Capacity: 8.96 ACRE-FEET JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 Acres Govt Lot Qtr Sec S2NENE

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