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Home My WebLink AboutAppendix V.2 - Notice of Motion and Order Deadline for Comments1 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 GALLATIN RIVER BASIN (41H) PRELIMINARY DECREE * * * * * * * * * * * * * * * * * * * CLAIMANTS: Bozeman Haus Two LLC; Buffalo Run Bozeman LLC; Elizabeth R. Christensen; Jon C. Christensen; KDG Holdings LLC; Schaff Family Trust DTD 5/3/01; Delores J. Van Zyl CASE 41H-6002-A-2022 41H 103732-00 41H 103733-00 41H 30151619 ORDER AMENDING CLAIMS BACKGROUND The Water Court previously resolved objections to claims 41H 103732-00 and 41H 103733-00 in case 41H-0164-R-2021. As part of that case, the Court also generated implied claim 41H 30151619. The claims are owned in common by several owners and share identical places of use. Bozeman Haus Two, LLC (“Bozeman Haus”) is one of the common owners of the three claims. On May 18, 2022, Bozeman Haus Two, LLC filed statements to withdraw its interests in the claims. As the notice was not served on the other common owners, the Court provided notice of the request, and set a filing deadline of June 24, 2022 to allow Bozeman Haus and the other common owners to file any additional modifications to the claims. 2 On June 24, 2022, Buffalo Run Bozeman LLC (“Buffalo Run”), another of the common owners, filed a comment and withdrawal of its interest in the three claims. As part of its filing, Buffalo Run asked the Court to remove its property from the place of use. Buffalo Run provided chain of title information to support its request. Buffalo Run also noted that the chain of title information indicates Schaff Family Trust DTD 5/3/01 (“Schaff”) should not be included as a common owner of implied claim 41H 30151619. No other parties filed anything by the deadline. DISCUSSION The requests filed by Bozeman Haus and Buffalo Run are motions to amend the claims, which are authorized under Section 85-2-233(6), MCA and Rule 10, W.R.Adj.R. Typically when a party seeks to amend an element of their own water right, the party must provide sufficient evidence to prove by a preponderance of the evidence that the modification overcomes the prima facie status of the claim. Rule 19, W.R.Adj.R.; Nelson v. Brooks, 2014 MT 120, ¶ 34, 375 Mont. 86, 329 P.3d 558. Because the requests are voluntary relinquishment of interests that reduce claimed elements, the evidentiary burdens here are minimal. Rule 17(c), W.R.Adj.R. The request by Bozeman Haus shows good cause to remove it as a common owner of the three claims. As neither Bozeman Haus nor any other party ask the Court to amend the places of use to remove property it owns, removal of Bozeman Haus as a common owner will not modify the decreed places of use. The request by Buffalo Run also shows good cause to remove it as a common owner of the three claims. Buffalo Run also requested and provided evidentiary support to remove the N1/2SW1/4SW1/4, Section 23, Township 2 South, Range 5 East from the places of use. Buffalo Run also provided evidence to show its processor Schaff should not be included as a common owner of claim 41H 30151619. As the Court indicated in its previous order, it lacks jurisdiction to address any ditch easements that may be associated with modifications of the water right claims in this case. 3 ORDER Therefore, it is ORDERED: 1. Claims 41H 103732-00, 41H 103733-00, and 41H 30151619 are amended to remove Bozeman Haus as a common owner; 2. Claims 41H 103732-00, 41H 103733-00, and 41H 30151619 are amended to remove Buffalo Run as a common owner, to remove the N1/2SW1/4SW1/4 Section 23, Township 2 South, Range 5 East from the places of use, and to reduce the maximum acres for claims 41H 103732-00 and 41H 30151619 from 120 acres to 100 acres. 3. Schaff is removed as a common owner of claim 41H 30151619 Post-decree abstracts of the claims are included with this Order to confirm the modifications to the claims have been made in the State’s centralized water rights database records. ____________________________ Stephen R. Brown Associate Water Judge Service Via Electronic Mail: Dana E. Pepper River and Range Law, PLLC PO Box 477 Bozeman, MT 59771 (406) 599-7424 office@riverandrangelaw.com dana@riverandrangelaw.com *Last Order* Abigail R. Brown ARB Law Group PO Box 1182 Helena, MT 59624 (406) 457-5494 office@mtwaterlaw.com abby@mtwaterlaw.com 4 Service via USPS Mail: Susan B. Swimley Attorney and Counselor at Law 1807 W Dickerson Unit B Bozeman, MT 59715 Bozeman Haus Two LLC 15267 SE Rivershore Dr Vancouver, WA 98683-5371 Buffalo Run Bozeman LLC 5400 Fowler Ln Bozeman, MT 59718-7813 Elizabeth R. Christensen Jon C. Christensen 685 Vandyke Rd Bozeman, MT 59718-7829 KDG Holdings LLC 900 N Whittier Dr Beverly Hills, CA 90210-3014 Schaff Family Trust DTD 5/3/01 %Schaff, Allen & Diane Trustees 164 Terrance Loop Bozeman, MT 59718-8916 Delores J. Van Zyl 4950 US HWY 89 S Livingston, MT 59047 *Service List updated 7-19-2022* \\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\41H PD\41H Cases\41H-6002A\41H-6002A OR amend ag 6-29-2022.docx POST DECREE ABSTRACT OF WATER RIGHT CLAIM GALLATIN RIVER BASIN 41H Water Right Number:41H 103732-00 STATEMENT OF CLAIM Version:4 -- POST DECREE Status: ACTIVE Owners:JON C CHRISTENSEN 685 VANDYKE RD BOZEMAN, MT 59718 7829 ELIZABETH R CHRISTENSEN 685 VANDYKE RD BOZEMAN, MT 59718 7829 KDG HOLDINGS LLC 900 N WHITTIER DR BEVERLY HILLS, CA 90210 3014 Priority Date:DECEMBER 31, 1909 Type of Historical Right:FILED Purpose (use):IRRIGATION Irrigation Type:FLOOD Flow Rate:2.50 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:100.00 Source Name:WASTE & SEEPAGE, UNNAMED TRIBUTARY OF BAXTER CREEK Source Type:GROUNDWATER Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec Sec Twp Rge County 1 SWSWSW 23 2S 5E GALLATIN Period of Diversion:JUNE 1 TO OCTOBER 1 Diversion Means:DRAIN DITCH Period of Use:JUNE 1 TO OCTOBER 1 Place of Use: ID Acres Govt Lot Qtr Sec Sec Twp Rge County 1 20.00 S2SWSW 23 2S 5E GALLATIN 2 40.00 NWSW 23 2S 5E GALLATIN 3 40.00 NESW 23 2S 5E GALLATIN Total:100.00 Remarks: July 13, 2022 41H 103732-00 Page 1 of 2 Post Decree Abstract THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 103732-00 103733-00 IMPLIED CLAIM NO. 41H 30151619 WAS AUTHORIZED AND GENERATED BASED ON INFORMATION IN THIS CLAIM. July 13, 2022 41H 103732-00 Page 2 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM GALLATIN RIVER BASIN 41H Water Right Number:41H 103733-00 STATEMENT OF CLAIM Version:4 -- POST DECREE Status: ACTIVE Owners:JON C CHRISTENSEN 685 VANDYKE RD BOZEMAN, MT 59718 7829 ELIZABETH R CHRISTENSEN 685 VANDYKE RD BOZEMAN, MT 59718 7829 KDG HOLDINGS LLC 900 N WHITTIER DR BEVERLY HILLS, CA 90210 3014 Priority Date:DECEMBER 31, 1909 Type of Historical Right:FILED Purpose (use):STOCK Flow Rate:A SPECIFIC FLOW RATE HAS NOT BEEN DECREED BECAUSE THIS USE CONSISTS OF STOCK DRINKING DIRECTLY FROM THE SOURCE, OR FROM A DITCH SYSTEM. THE FLOW RATE IS LIMITED TO THE MINIMUM AMOUNT HISTORICALLY NECESSARY TO SUSTAIN THIS PURPOSE. Volume:THIS RIGHT INCLUDES THE AMOUNT OF WATER CONSUMPTIVELY USED FOR STOCK WATERING PURPOSES AT THE RATE OF 30 GALLONS PER DAY PER ANIMAL UNIT. ANIMAL UNITS SHALL BE BASED ON REASONABLE CARRYING CAPACITY AND HISTORICAL USE OF THE AREA SERVICED BY THIS WATER SOURCE. Source Name:WASTE & SEEPAGE, UNNAMED TRIBUTARY OF BAXTER CREEK Source Type:GROUNDWATER Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec Sec Twp Rge County 1 SWSWSW 23 2S 5E GALLATIN Period of Diversion:JANUARY 1 TO DECEMBER 31 Diversion Means:DRAIN DITCH Period of Use:JANUARY 1 TO DECEMBER 31 Place of Use: ID Acres Govt Lot Qtr Sec Sec Twp Rge County 1 S2SWSW 23 2S 5E GALLATIN 2 NWSW 23 2S 5E GALLATIN 3 NESW 23 2S 5E GALLATIN Remarks: July 13, 2022 41H 103733-00 Page 1 of 2 Post Decree Abstract THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 103732-00 103733-00 July 13, 2022 41H 103733-00 Page 2 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM GALLATIN RIVER BASIN 41H Water Right Number:41H 30151619 STATEMENT OF CLAIM Version:2 -- ORIGINAL RIGHT Status: ACTIVE Owners:DELORES J VAN ZYL 5532 FOWLER LN BOZEMAN, MT 59718 7853 JON C CHRISTENSEN 685 VANDYKE RD BOZEMAN, MT 59718 7829 ELIZABETH R CHRISTENSEN 685 VANDYKE RD BOZEMAN, MT 59718 7829 KDG HOLDINGS LLC 900 N WHITTIER DR BEVERLY HILLS, CA 90210 3014 Priority Date:JUNE 9, 1925 Type of Historical Right:FILED Purpose (use):IRRIGATION Irrigation Type:FLOOD Flow Rate:1.25 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:100.00 Source Name:WASTE & SEEPAGE, UNNAMED TRIBUTARY OF BAXTER CREEK Source Type:GROUNDWATER Point of Diversion and Means of Diversion: ID Govt Lot Qtr Sec Sec Twp Rge County 1 SWSWSW 23 2S 5E GALLATIN Period of Diversion:JUNE 1 TO OCTOBER 1 Diversion Means:DRAIN DITCH Period of Use:JUNE 1 TO OCTOBER 1 Place of Use: ID Acres Govt Lot Qtr Sec Sec Twp Rge County 1 20.00 S2SWSW 23 2S 5E GALLATIN 2 40.00 NWSE 23 2S 5E GALLATIN 3 40.00 NESW 23 2S 5E GALLATIN Total:100.00 July 13, 2022 41H 30151619 Page 1 of 2 Post Decree Abstract Remarks: THIS IMPLIED CLAIM WAS AUTHORIZED BY THE WATER COURT BASED ON INFORMATION IN CLAIM NO. 41H 103732. July 13, 2022 41H 30151619 Page 2 of 2 Post Decree Abstract