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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

GALLATIN RIVER BASIN (41H) PRELIMINARY DECREE

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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:

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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:

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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).

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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