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Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov

IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION JEFFERSON RIVER BASIN (41G)

PRELIMINARY DECREE * * * * * * * * * * * * * * * * * * * * CLAIMANT: M Bar K Livestock LLC OBJECTORS: M Bar K Livestock LLC; United States of

America (Bureau of Reclamation)

CASE 41G-0316-R-2019 41G 30109772

NOTICE OF FILING OF MASTER’S REPORT

This Master’s Report was filed with the Clerk of the Montana Water Court. Please

review this Report carefully.

You may file a written objection to this Master’s Report if you disagree or find

errors with the Master’s Findings of Fact, Conclusions of Law, or Recommendations.

The above stamped date indicates the date this Master’s Report was filed and mailed.

Rule 23 of the Water Right Adjudication Rules requires written objections to a Master’s

Report be filed within 10 days of the date of the Master’s Report. Because this Master’s

Report was mailed to you, Rule 6(d) of the Montana Rules of Civil Procedure provides an

additional 3 days to the 10-day objection period.

If you file an objection, you must mail a copy of the objection to all parties on the

Service List found at the end of this 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.

mailto:watercourt@mt.gov

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MASTER’S REPORT

FINDINGS OF FACT

1. Claim 41G 30109772 is an irrigation claim owned by M Bar K Livestock

LLC. Claimant M Bar K objected to the claim, as did the United States Bureau of

Reclamation (BOR). In addition, claim 41G 30109772 received the following issue

remarks: AN AMENDMENT WAS SUBMITTED ON 08/29/2017 REQUESTING TO AMEND THE POINT OF DIVERSION AND FLOW RATE. THE AMENDMENT WAS NOT PROCESSED. THE AMENDMENT WILL BE REVIEWED AFTER THE ISSUANCE OF THE PRELIMINARY DECREE.

THE TIMELY FILED OBJECTION OF THE CO-CLAIMANT WAS AMENDED TO INCLUDE POINT OF DIVERSION. BECAUSE THIS ELEMENT WAS NOT INCLUDED ON THE TEMPORARY PRELIMINARY DECREE OBJECTION LIST, ANY WATER USER WHOSE RIGHTS MAY BE ADVERSELY AFFECTED BY ENFORCEMENT OF THIS CHANGE MAY PETITION THE APPROPRIATE COURT FOR RELIEF OR MAY FILE AN OBJECTION AT THE PRELIMINARY DECREE.

2. On September 28, 2020, the parties filed a Stipulation that resolves the

objections and the issue remarks. The Stipulation requests the place of use be reduced to

the 62 acres historically irrigated under the water right; the point of diversion legal land

description be corrected; and an information remark clarifying the location of flow rate

measurement be added.

3. The place of use should be reduced to 62.00 acres, and the resulting place

of use should be described as follows:

ID Acres Qtr Sec Sec Twp Rge County

1 16.90 SENE 15 1S 5W Silver Bow

2 10.00 NESE 15 1S 5W Silver Bow

3 5.50 SWNE 15 1S 5W Silver Bow

4 27.80 NWSE 15 1S 5W Silver Bow1

1 The Stipulation indicates that Place of Use ID #4 is in both Madison and Silver Bow Counties. Because of database limitations, the county for POU ID#4 will be coded as Silver Bow County and an information remark will be added to indicate that POU ID #4 is also located in Madison County.

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5 1.80 SWSE 15 1S 5W Silver Bow

Total: 62.00 acres PART OF POU ID #4 IS ALSO LOCATED IN MADISON COUNTY.

4. The point of diversion for claim 30109772 should be corrected to

accurately reflect the location of the point of diversion as depicted on the map attached to

the Stipulation. The point of diversion should be corrected from the SWSWNW to the

NWSWNW of Section 26, T2s, R6W. The information in the claim file and the map

attached to the Stipulation support the requested correction.

5. The parties agree that the following flow rate information remark should be

added to the claim to describe where the flow rate is to be measured: 80 MINERS INCH (2.00 CFS) FLOW RATE FOR THIS RIGHT IS MEASURED AT A POINT IN THE CREEKLYN DITCH DOWNSTREAM FROM THE HEADGATE, IN THE SWNWNE, SEC 31, T01S, R05W, MADISON COUNTY, PURSUANT TO THE HOLTER COMPANY V. JONES DECREE, CAUSE NO. 3437, MADISON COUNTY.

The requested flow rate information remark should be added to the abstract as a

commissioner flow rate remark.

CONCLUSIONS OF LAW

1. A properly filed claim of an existing right or an amended claim of existing

right is prima facie proof of its content. § 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 the elements of the claim do not accurately reflect the beneficial use of the

water right as it existed prior to July 1, 1973. This is the burden of proof for every

assertion that a claim is incorrect. Rule 19, W.R.Adj.R.

2. Section 85-2-248(2), MCA requires the Water Court to resolve all issue

remarks that are not resolved through the objection process. 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. § 85-2-248(3), MCA. The first issue

remark was placed on the claim to provide notice of the claimant’s requested

modifications to claim 41G 30109772. The second issue remark was placed on the claim

to provide notice that an objection was amended during adjudication of the Basin 41G

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Temporary Preliminary Decree. Both remarks have served their purpose of providing

notice and do not require further proceedings. The issue remarks do not overcome the

prima facie status of the claim and they should be removed.

3. The claimant of a water right claim may waive the advantage of § 85-2-

227, MCA by requesting a reduction or limitation of an element of a water right claim.

The water court may accept a claimant’s requested reduction or limitation without further

presentation of evidence unless there is an unresolved issue remark on the claim. Rule

17(c), W.R.Adj.R.

4. The changes requested to the place of use for claim 41G 30109772

constitute reductions or limitations that do not require the further presentation of

evidence. The modification to the point of diversion is a correction to the legal land

description that more accurately reflects historical use of the claim and is supported by

the information in the claim file and the map attached to the stipulation. The requested

flow rate information remark provides details on how the right is distributed and should

be added to the abstract based on the parties’ agreement.

5. Settlement agreements are subject to review and approval of the Water

Court. Rule 17(a), W.R.Adj.R. Rule 17(b), W.R.Adj.R. The settlement documentation in

this Case should be accepted by the Court.

RECOMMENDATIONS

1. Claim 41G 30109772 should be modified as provided above.

2. The issue remarks should be removed from claim 41G 30109772.

A Post Decree Abstract of Water Right Claim is served with the Report to confirm

that the recommended modifications have been made in the state’s centralized record

system.

_________________________ Madeleine Weisz Senior Water Master

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Service via Electronic Mail: Jennifer A. Najjar US Dept of Justice, ENRD-NRS PO Box 7611 Washington, DC 20044-7611 (202) 305-0476 Jennifer.Najjar@usdoj.gov MontanaBasins.ENRD@USDOJ.GOV Peter G. Scott Attorney at Law 682 Ferguson #4 Bozeman, MT 59718 peter@scott-law.com office@scott-law.com Eve McDonald, Attorney US Dept of Justice-ENRD 999 18th Street, South Terrace Suite 370 Denver, CO 80202 (303) 844-1381 evelyn.mcdonald@usdoj.gov Carla.Valentino@usdoj.gov Amber.Engelkes@usdoj.gov MontanaBasins.ENRD@USDOJ.GOV efile_nrs.enrd@usdoj.gov william.bridges@usdoj.gov

\\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\41G PD\CASES\41G-R316\41G-0316-R-2019 MR 10-26-2020 bw.docx

mailto:judith.coleman@usdoj.govmailto:MontanaBasins.ENRD@USDOJ.GOVmailto:peter@scott-law.commailto:office@scott-law.commailto:james.dubois@usdoj.govmailto:Carla.Valentino@usdoj.govmailto:Amber.Engelkes@usdoj.govmailto:MontanaBasins.ENRD@USDOJ.GOVmailto:efile_nrs.enrd@usdoj.gov

October 27, 2020 Page 1 of 2

41G 30109772

Version:Status:

Owners: M BAR K LIVESTOCK LLC PO BOX 737SILVER STAR, MT 59751 0737

41G 30109772 STATEMENT OF CLAIMWater Right Number:

3 -- POST DECREE

ACTIVE

OCTOBER 3, 1897

Purpose (use): IRRIGATION

Irrigation Type: SPRINKLER/FLOOD

2.00 CFS

62.00

80 MINERS INCH (2.00 CFS) FLOW RATE FOR THIS RIGHT IS MEASURED AT A POINT IN THE CREEKLYN DITCH DOWNSTREAM FROM THE HEADGATE, IN THE SWNWNE, SEC 31, T01S, R05W, MADISON COUNTY, PURSUANT TO THE HOLTER COMPANY V. JONES DECREE, CAUSE NO. 3437, MADISON COUNTY.

THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE.

Climatic Area: 3 - MODERATE

Source Type: SURFACE WATER

JEFFERSON RIVER Source Name:

ID Govt Lot Qtr Sec Sec Twp Rge CountyMADISON1 26 6W2SNWSWNW

HEADGATEDiversion Means:

Govt Lot Qtr Sec Sec Twp Rge CountyAcresID

1515151515

16.90 10.00 5.50

27.80 1.80

1S1S1S1S1S

5W5W5W5W5W

JEFFERSONJEFFERSONMADISONMADISONSILVER BOW

SENENESE

SWNENWSESWSE

12345

Total: 62.00

THIS SPLIT CLAIM WAS AUTHORIZED BY THE WATER COURT BASED ON INFORMATION IN CLAIM NO. 41G 206713-00.

Remarks:

Period of Use:

Post Decree Abstract

ABSTRACT OF WATER RIGHT CLAIMPOST DECREE

JEFFERSON RIVER

BASIN 41G

Point of Diversion and Means of Diversion:

PART OF POU ID # 4 IS ALSO LOCATED IN MADISON COUNTY.

Period of Diversion: MARCH 1 TO NOVEMBER 30

MARCH 1 TO NOVEMBER 30

Place of Use:

*Priority Date:

*Flow Rate:

*Maximum Acres:

Volume:

Type of Historical Right: DECREED

October 27, 2020 Page 2 of 2

41G 30109772 Post Decree Abstract

A9Rk1gmvt_1ag5zli_3ug.tmp/reports/rwservlet?dnrcwr&report=WRD2040R.rep&P_WRGT_ID_SEQ=446585&P_VERS_ID_SEQ=3mt.govhttp://wr.dnrc.mt.gov/reports/rwservlet?dnrcwr&report=WRD2040R.rep&P_WRGT_ID_SEQ=446585&P_VERS_ID_SEQ=3

2020-10-27T09:39:54-0600Madeleine Weisz