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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 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:[email protected]
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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 [email protected] [email protected] [email protected] Jennifer A. Najjar US Dept of Justice, ENRD-NRS PO Box 7611 Washington, DC 20044-7611 (202) 305-0476 [email protected] [email protected] Eve W. McDonald, Trial Attorney US Department of Justice 999 18th Street, South Terrace Suite 370 Denver, CO 80202 (303) 844-1381 [email protected] [email protected] [email protected]; [email protected] [email protected] [email protected]
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:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]
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EXHIBIT 2
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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
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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
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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
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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
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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