45-261

45-261. Presumption in favor of prior
filings and decrees

A. Except as otherwise specifically provided in this article and to the extent that
water rights have not been forfeited or abandoned, the director, the master and the court
shall apply the following evidentiary rules in determining the attributes of water rights
claimed pursuant to this article:

1. The court shall accept information in an applicable prior decree as prescribed
by section 45-257, subsection B, paragraph 1.

2. Information in an applicable prior filing shall be presumed correct unless
reported by the director to be clearly erroneous.

3. If information in a prior decree conflicts with information in one or more
applicable prior filings, the court shall accept the information in the prior decree as
prescribed by section 45-257, subsection B, paragraph 1.

4. If information in applicable prior filings conflicts, the information most
favorable to the claimant shall be presumed correct unless reported by the director to be
clearly erroneous.

5. If there is no information in any applicable prior filing or decree or if the
court finds that information contained in an applicable prior filing regarding a water
right attribute is clearly erroneous, the court shall determine the attribute. In making
a determination pursuant to this subsection, the court may use the director's report,
statement of claimant information, information obtained in claimant interviews, aerial
photographs, satellite technology, historical records, maps, technical data or other
relevant information in evidence.

B. Except as provided in section 45-258, the presumption in favor of information
contained in an applicable prior filing may be rebutted by any party who has filed a
proper objection pursuant to section 45-256, subsection B and on a showing of clear and
convincing evidence.

C. If there is a conflict in applicable prior filings regarding the ownership of a
water right and multiple parties have filed applicable statements of claimant, the
presumption in favor of information in applicable prior filings does not apply to the
determination of ownership. Any claimant may offer that information to support or refute
a claim of water right ownership. All other attributes of the water right shall be
determined pursuant to the presumptions in this section.

D. Section 45-256, subsections D and E apply to the evidentiary weight given to the
following determinations made by the director:

1. That information contained in a prior filing is clearly erroneous as it relates
to the water right claim or use being investigated.

2. That no water right was initiated or perfected under the applicable federal,
state or territorial law.

3. That a water right was forfeited or abandoned.

E. The director's report shall contain the basis for determinations made pursuant
to subsection D of this section.