notice of filing of master’s report...suite 3007 bozeman, mt 59715 (406) 220-2805...

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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 * * * * * * * * * * * * * * * * * * * * CLAIMANTS: Diana L. Ash; Samuel W. Ash; Dennis Chance;

Suzette M. Chance; Michele E. Franich; Kimberly J. Franich; Ernest R. Nevin; Keith J. Ruckdaschel; Nila E. Ruckdaschel; Harry W. Townes

OBJECTOR: United States of America (Bureau of Reclamation) COUNTEROBJECTORS: Michael T. Franich; Keith J.

Ruckdaschel; Nila E. Ruckdaschel

CASE 41G-0254-R-2019 41G 206713-00

Split Claims:

41G 30149974 41G 30149975 41G 30149976

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 206713-00 received objections from the United States Bureau

of Reclamation (BOR) and was consolidated into Case 41G-0254-R-2019 to address the

objection.

2. On September 25, 2020, the parties filed a Stipulation to resolve the BORs

objections. The Stipulation also requests that claim 41G 206713-00 be split between its

owners. The Stipulation provides details on the requested split and a map of the resulting

places of use. A copy of the Stipulation can be found in claim file 41G 206713-00.

3. The parties agreed that the place of use should be reduced from 150.2 acres

to a total of 65.00 acres, split between several of the owners. The resulting owners, acres

irrigated, and flow rate for each claim is reflected in the table below.

Claim Number Owners Acres Irrigated Flow Rate1 41G 206713-00 Samuel Ash; Diana Ash,

Dennis Chance; Suzette Chance; Ernest Nevin

15.00 acres 0.63 cfs

41G 30149974 Michele Franich; Kimberly Franich

18.00 acres 0.76 cfs

41G 30149975 Keith Ruckdaschel; Nila Ruckdaschel

17.00 acres 0.72 cfs

41G 30149976 Harry Townes 15.00 acres 0.63 cfs

4. Claim 41G 206713-00 appeared in the 41G Preliminary Decree with the

following issue remarks: ACCORDING TO CADASTRAL NO OWNERSHIP HAS CHANGED BUT NO ADDRESS FOR ERNEST AND ELIZABETH NEVIN CAN BE FOUND. POINT OF DIVERSION AND DITCH NAME 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.

1 Some of the agreed to flow rates provided in the Stipulation went to three decimal points. The database can only accommodate two decimal points. The requested flow rates were rounded to the nearest tenth.

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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.

The first issue remark appears to be outdated and no longer relevant. It should be

removed. The second two issue remarks are considered notice remarks. Notice-type issue

remarks provide water users notice of potential issues with a claim but may be removed

once notice has been provided. The requisite notice has been provided. The issue remarks

should be removed from the claim.

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 issue remarks

appearing on claim 41G 206713-00 do not overcome the prima facie status of the claim

and should be removed.

3. The claimant of a water right 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. The changes requested to claim 41G 206713-00 constitute reductions

and do not require the presentation of further evidence.

4. The Water Court may split claims into separate claims, by request or on its

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own initiative, at any time prior to the entry of the final decree. Rule 26, W.R.Adj.R.

5. Splitting claim 41G 206713-00 does not constitute an increase to any of the

elements of the claim. The requested split accurately reflects the ownership of the

underlying place of use and the proportions of water appurtenant. Claim 41G 206713-00

should be split pursuant to the Stipulation.

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

Court. Rule 17(a), W.R.Adj.R. Where a settlement seeks to enlarge or expand an element

of a claim, the documentation supporting the settlement must include sufficient evidence

to meet the burden of proof. Rule 17(b), W.R.Adj.R. The settlement documentation in

this Case should be accepted by the Court.

RECOMMENDATIONS

1. The place of use for claim 41G 206713-00 should be modified as provided

above and split between owners as requested by the parties.

2. The issue remarks should be removed from claim 41G 206713-00.

Post Decree Abstracts of Water Right Claims are 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: William Fanning Fanning Law PLLC 300 N. Wilson Ave. Suite 3007 Bozeman, MT 59715 (406) 220-2805 william@fanninglawpllc.com becki@fanninglawpllc.com accounts@fanninglawpllc.com 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 Eve W. McDonald, Trial Attorney US Department of Justice 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

Note: Caption Updated 11-24-2020

\\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\41G PD\CASES\41G-R254\41G-0254-R-2019 Master's Report 11-25-20 bw.docx

mailto:william@fanninglawpllc.commailto:becki@fanninglawpllc.commailto:accounts@fanninglawpllc.commailto:judith.coleman@usdoj.govmailto:MontanaBasins.ENRD@USDOJ.GOVmailto:Evelyn.mcDonald@usdoj.govmailto:Carla.Valentino@usdoj.govmailto:Amber.Engelkes@usdoj.govmailto:MontanaBasins.ENRD@USDOJ.GOVmailto:efile_nrs.enrd@usdoj.govmailto:william.bridges@usdoj.gov

EXHIBIT 2

November 25, 2020 Page 1 of 2

41G 206713-00

Version:Status:

*Owners: SAMUEL W ASH

DIANA L ASH

DENNIS CHANCE

SUZETTE M CHANCE

ERNEST R NEVIN

33550 N DOVE LAKES DR, UNIT 1001

35550 N DOVE LAKES DR, UNIT 1001

2255 W GERMANN RD APT 1106

2255 W GERMANN RD APT 1106

1926 OLD MILL LN

CAVE CREEK, AZ 85331 4540

CAVE CREEK, AZ 85331 4540

CHANDLER, AZ 85286 7203

CHANDLER, AZ 85286 7203

HENDERSON, NV 89014 5188

41G 206713-00 STATEMENT OF CLAIMWater Right Number:

4 -- SPLIT POST DECREE

ACTIVE

OCTOBER 3, 1897

Purpose (use): IRRIGATION

Irrigation Type: SPRINKLER/FLOOD

0.63 CFS

15.00

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:

Period of Use:

Post Decree Abstract

ABSTRACT OF WATER RIGHT CLAIMPOST DECREE

JEFFERSON RIVER

BASIN 41G

Point of Diversion and Means of Diversion:

Ditch Name: CREEKLYN DITCH

Period of Diversion: MARCH 1 TO NOVEMBER 30

MARCH 1 TO NOVEMBER 30

*Priority Date:

*Flow Rate:

*Maximum Acres:

Volume:

Type of Historical Right: DECREED

November 25, 2020 Page 2 of 2

41G 206713-00

*Place of Use:

Govt Lot Qtr Sec Sec Twp Rge CountyAcresID

1514

6.00 9.00

1S1S

5W5W

JEFFERSONJEFFERSON

E2NEW2NW

13

Total: 15.00

THE SPLIT CLAIMS LISTED FOLLOWING THIS STATEMENT WERE AUTHORIZED AND GENERATED BASED ON INFORMATION IN THIS CLAIM. 41G 30109771, 41G 30109772, 41G 30149974, 41G 3019975,41G 30149976.

Remarks:

Post Decree Abstract

November 25, 2020 Page 1 of 1

41G 30149974

Version:Status:

Owners: MICHELE E FRANICH

KIMBERLY J FRANICH

295 MT HIGHWAY 55

8772 ANCHOR POINT CIR

WHITEHALL, MT 59759 9736

LAS VEGAS, NV 89117 3305

41G 30149974 STATEMENT OF CLAIMWater Right Number:

1 -- SPLIT POST DECREE

ACTIVE

OCTOBER 3, 1897

Purpose (use): IRRIGATION

Irrigation Type: SPRINKLER/FLOOD

0.76 CFS

18.00

THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THEAMOUNT 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

1114

16.00 2.00

1S1S

5W5W

JEFFERSONJEFFERSON

S2SWN2NWNW

12

Total: 18.00

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:

Ditch Name: CREEKLYN DITCH

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

November 25, 2020 Page 1 of 1

41G 30149975

Version:Status:

Owners: KEITH J RUCKDASCHEL

NILA E RUCKDASCHEL

930 MT HIGHWAY 2 W

930 MT HIGHWAY 2 W

WHITEHALL, MT 59759 9724

WHITEHALL, MT 59759 9724

41G 30149975 STATEMENT OF CLAIMWater Right Number:

1 -- SPLIT POST DECREE

ACTIVE

OCTOBER 3, 1897

Purpose (use): IRRIGATION

Irrigation Type: SPRINKLER/FLOOD

0.72 CFS

17.00

THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THEAMOUNT 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

11 17.00 1S 5W JEFFERSONS2SW1

Total: 17.00

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:

Ditch Name: CREEKLYN DITCH

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

November 25, 2020 Page 1 of 1

41G 30149976

Version:Status:

Owners: HARRY W TOWNES 285 MT HIGHWAY 55WHITEHALL, MT 59759 9736

41G 30149976 STATEMENT OF CLAIMWater Right Number:

1 -- SPLIT POST DECREE

ACTIVE

OCTOBER 3, 1897

Purpose (use): IRRIGATION

Irrigation Type: SPRINKLER/FLOOD

0.63 CFS

15.00

THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THEAMOUNT 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

1514

2.00 13.00

1S1S

5W5W

JEFFERSONJEFFERSON

NENENENWNW

12

Total: 15.00

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:

Ditch Name: CREEKLYN DITCH

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

A9R11ayu3u_r44l36_9l4.tmp/reports/rwservlet?dnrcwr&report=WRD2040R.rep&P_CASE_ID_SEQ=14528mt.govhttp://wr.dnrc.mt.gov/reports/rwservlet?dnrcwr&report=WRD2040R.rep&P_CASE_ID_SEQ=14528

A9R1u4cw4x_r44l3j_9l4.tmp/reports/rwservlet?dnrcwr&report=WRD2040R.rep&P_CASE_ID_SEQ=14528mt.govhttp://wr.dnrc.mt.gov/reports/rwservlet?dnrcwr&report=WRD2040R.rep&P_CASE_ID_SEQ=14528

A9Ru6zx24_r44l3n_9l4.tmpStipulation (1).pdf41G 206713 General Abstract Ex. 1.pdf41G 206713 MAP EX.2 .pdf41G 206713 Ash 15 Ex. 3.pdf41G 206713 Franich 18 Ex. 4.pdf41G 206713 Ruckdaschel 17 Ex. 5.pdf41G 206713 Townes 15 Ex. 6.pdf41G 206713 Red marked abstract Ex. 7.pdf41G-R254 Stipulation to Resolve Objections.pdf41G-254 Final Stip 9.18.20 EWM signed.pdfAsh Signatures Case 41G-R254.pdfChance Signatures.pdfkimberly franich signature.pdfMichele Franich Signature.pdfRanch water rights final EN signature 20200921.pdfRuckwatersig.pdfSignature Townes.pdf

2020-11-25T14:45:21-0700Madeleine Weisz