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Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 [email protected]
IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION
GALLATIN RIVER BASIN (41H) PRELIMINARY DECREE
* * * * * * * * * * * * * * * * * * *
CLAIMANTS: Douglas Boylan; Holly Brown; Ken Leclair CASE 41H-0427-R-2021
41H 42371-00 41H 42372-00
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, conclusion
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 10-
day objection period. Rule 6(d), M.R.Civ.P. 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 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.
MASTER’S REPORT
FINDINGS OF FACT
1. Claim 41H 42371-00 was decreed with the following DNRC issue remark:
2
2. On August 13, 2020, Douglas Boylan filed a Statement of no Interest in
claims 41H 42371-00 and 41H 42372-00, a copy is attached. The Statement explained
that Mr. Boylan is listed as a record co-owner of claims 41H 42371-00 and 41H 42372-
00, but that the water rights are not on Mr. Boylan’s property. Mr. Boylan requested to
be removed as a co-owner from the claims and asked that the geocodes be updated.
3. Generally, ownership updates are made through the DNRC. While the
water court can update ownership of claims in certain situations, if appropriate, the water
court does not update or correct geocodes. To allow Mr. Boylan the opportunity to
determine how he would like to proceed, an Order Setting Filing Deadline was issued on
August 19, 2021. The Order indicated that if Mr. Boylan chooses to pursue updating the
ownership of claims 41H 42371-00 and 41H 42372-00 with the Court, he would need to
contact the DNRC after the final order in this Case to address any geocode concerns he
has.
4. On September 28, 2021, Mr. Boylan filed a statement with the Court
indicating he would like to make the following changes to the claims in this Case,
reflecting the withdrawal of his interest in the claims:
41H 42371-00:
3
41H 42372-00:
A copy of the September 28, 2021 filing is enclosed.
CONCLUSIONS OF LAW
1. The Water Court must address all issue remarks that appear on a claim as
well as any objections the claim receives. Sections 85-2-233, 85-2-247, and 85-2-248,
MCA.
2. A properly filed Statement of Claim for an existing water right is prima
facie proof of its content. Section 85-2-227, MCA. This prima facie validity may be
overcome by evidence showing that one or more elements of the claim are incorrect.
This standard of proof applies to objectors or claimants objecting to their own water right
claims. Rule 19, W.R.Adj.R., Nelson v. Brooks, 2014 MT 120; 375 Mont.86, 95; 329
P.3d 558, 564.
3. With respect to the priority date of claim 41H 42371-00, the only evidence
before the Court is the existence of Case No. 1772, Gallatin County and the resulting
issue remark that appeared on the claim. While historical decrees provide some evidence
of existing water rights on a given source, they are not conclusive. Decrees were often
the result of a specific controversy between water users; thus, rights were adjudicated on
a piecemeal basis by the district courts. Further, decrees were usually limited in scope,
and often multiple decrees were issued on the same stream. See Albert Stone, Are There
Any Adjudicated Streams in Montana? 19 Mont. L. Rev. 19 (1957).
4
Various reasons exist why a claim might not have been included in a decree, but it
is objectors that bear the burden of establishing that a priority date should be something
other than what was claimed. Nobody objected to claim 41H 42371-00 and, the prima
facie proof of priority date has not been overcome. The priority date of 41H 42371-00
should remain unchanged and the priority date remark should be removed.
RECOMMENDATIONS
1. Claims 41H 42371-00 and 41H 42372-00 should be changed as shown in
Finding of Fact No. 4, reflecting Douglas Boylan’s withdrawal of interest in the claims.
2. The issue remark should be removed from claim 41H 42371-00.
3. Any corrections to geocodes should be pursued through the DNRC – the
Water Court will not make changes to geocodes.
Post Decree Abstracts of Water Right Claims are served with the Report to
confirm that the recommended changes have been made in the DNRC’s water rights
database.
_________________________ Anika M. Stern Senior Water Master Service via USPS Mail: Holly Brown Ken Leclair 2421 Highland Blvd Bozeman, MT 59715-5852 Douglas Boylan 9447 Gant Rd Bozeman, MT 59718-9114
\\judgalh2osrv\Datavol\Share\WC-BASIN FOLDERS\41H PD\41H Cases\41H-R427\41H-0427-R-2021 MR 10.6.21 rc.docx
POST DECREE
ABSTRACT OF WATER RIGHT CLAIM
GALLATIN RIVER
BASIN 41H
Water Right Number: 41H 42371-00 STATEMENT OF CLAIM
Version: 3 -- POST DECREE
Status: ACTIVE
Owners: HOLLY BROWN 2421 HIGHLAND BLVDBOZEMAN, MT 59715 5852
KEN LECLAIR 2421 HIGHLAND BLVDBOZEMAN, MT 59715 5852
Priority Date: NOVEMBER 25, 1889
Type of Historical Right: USE
Purpose (Use): IRRIGATION
Irrigation Type: SPRINKLER/FLOOD
Flow Rate: 6.06 CFS
Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE.
Climatic Area: 4 - MODERATELY LOW
Maximum Acres: 108.00
Source Name: HYALITE CREEK
Source Type: SURFACE WATER
Point of Diversion and Means of Diversion:ID Govt Lot Qtr Sec Sec Twp Rge County
1 NENESW 33 2S 5E GALLATIN
Period of Diversion: MAY 1 TO SEPTEMBER 15
Diversion Means: HEADGATE
Ditch Name: BOYLAN DITCH
Period of Use: MAY 1 TO SEPTEMBER 15
Place of Use:ID Acres Govt Lot Qtr Sec Sec Twp Rge County1 26.00 S2N2NW 33 2S 5E GALLATIN
2 82.00 S2NW 33 2S 5E GALLATIN
Total: 108.00
Remarks:
October 13, 202141H 42371-00
Page 1 of 2 Post Decree Abstract
THE WATER RIGHTS FOLLOWING THIS STATEMENT ARE SUPPLEMENTAL WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS. EACH RIGHT IS LIMITED TO THE FLOW RATE AND PLACE OF USE OF THAT INDIVIDUAL RIGHT. THE SUM TOTAL VOLUME OF THESE WATER RIGHTS SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE.
42371-00 42372-00
October 13, 202141H 42371-00
Page 2 of 2 Post Decree Abstract