Klamath Falls Adjudication

Alternative Dispute Resolution Meeting Summary

Public Meeting #4, Facilitated by Martha Bean, Triangle Associates

December 17, 1997

The morning was dedicated to reviewing the principals of alternative dispute resolution (ADR), including some group exercises in discerning interests and positions.

During lunch, interest groups met to identify the goals to be achieved in the ADR process, and their specific issues and interests. They are summarized below.

Project Water Users:

Success: Project users get full, adequate, reliable supply of water for irrigation. Success will have been achieved if goal is met.

ADR must address:

• resolution of the short term issues, e.g., Klamath Project, operations
• storage
• community issues identified and addressed
• maintenance and preservation of social and economic fabric of the community

Tribes (includes allottees):

Success and interests:

• water rights be clearly decreed with an effective administrative process in place
• balance water supply and demand
• have an ability for a sustainable livelihood and homeland for the tribe and its members

Issues:

• what is supply and demand? assessment of hydrology
• administrative system that is clear and effective after rights have been allocated
• new water sources
• water quality and habitat improvements and stream and riparian restoration

Non-project water users:

It was noted that many individual water users are not represented in the ADR discussions.

In general, the non-project water users share the same goals and objectives as project water users.

Success:

• most of the water rights quantified and prioritized
• authorized uses are clearly defined with legal and historical entitlements recognized
• consensus is reached
• irrigated agriculture has full adequate supply of water to function and be viable

Process must address:

• data, reliability
• all participants' needs
• if agreement made, then a clear administrative pathway to implementation
• storage

Environmental and Special Interest Groups:

Interest:

Sufficient water of good quality to meet the full needs of the basin including water for the refuges, lake levels, instream uses. Ecosystem functions must be preserved. Process must be durable.

Success:

• Where an agreement is reached, there is success.
• If you can't agree, narrow the gap of disagreement. Results will be improved relationships that will improve chances for a long-term sustainable solution.

Issues:

• ADR process should serve to narrow the gap between demand and supply
• increase water supply in ways that are environmentally acceptable
• recognize that there will be short years - address how to share the shortfall during times of low water

Interests:

• address how you shift water between uses
• issues solved in an environmentally sound manner

Federal Agencies:

Would like sufficient water to fulfill the purposes of federal projects in perpetuity, taking into account social, cultural and environmental interests, etc.

Success:

- Parties are satisfied and there is an agreement that meets common purpose

Issues - short-term:

• agreement on confidentiality and admissibility
• framework for ADR process to define roles of participants
• basin hydrology is addressed

Issues - long-term:

• quantification of water rights or identification of process to reach same goals
• agreement on how rights will be administered

State Agencies (WRD)

Success:

• quantification of relative rights to water
• allocation decisions that are consistent with the regulatory/distribution system
• legally sufficient results, so that ADR results can be recognized in adjudication
• implementable, with clear direction and within our authority
• must be consistent with established water/applicable law
• any new policy or legal interpretation must be sound, so it can be used statewide
• solutions are customized for Klamath basin, but also are consistent and over-arching legal policies and principles

Issues:

• what are standards for quantifying federal reserved rights?
• how to match supply and demand, maximizing "beneficial use" as required by law within legal framework
• potential conflict between state and federal law
• how to wear different "hats" within the ADR process:

- exercising multiple authority

- representing different interests

• how to make decisions when new policies/legal interpretation are needed
• whether/how the Klamath compact and California water allocation fits in to Oregon Klamath Basin distribution
• how to pay for all the work that needs to be done

Interests:

• fair process
• equal playing field for all affected participants
• addressing both instream and out of stream needs and enhancements
• protecting legally established water rights
• maintaining and respecting government to government relationship with tribes
• minimizing costs to state of adjudication and resolution of water issues
• representing full range of interests in water use and full range of responsibility
• helping identify long-term water supply sufficient to meet all demands
• finality
• responsible to the public
• maintaining credibility/legal sufficiency of both the ADR and adjudication process

Martha Bean reiterated some of the common themes she heard throughout the presentations by the various interest groups. These will be the basis for the group's goals.

Common themes:

• interest to sustain life and livelihood, that water is a part of
• adequate water supply, quantification of supplies
• attentiveness to water quality and environmental issues
• demand and supply, new opportunities, storage
• how you administer decisions
• federal interests are understood
• implementable result
• robust decision
• work together with full disclosure/no end run
• certainty, no surprises that undo the deal

ADR Components

Next, everyone was divided into four groups to discuss the components of the ADR process:

Fairness

Logistics

Technical Information

Framework for Making Decisions

Fairness:

1. Everyone gets heard and has opportunity to speak.
2. Issue of inadmissability and confidentiality is resolved.
3. General respect: need to respect and understand interests and remove outside animosity and promote good atmosphere.
4. Parties need to maintain clear communication with groups they represent and have a clear understanding of their authority.
5. Come to process in "good faith" and a desire to succeed and find a common purpose, i.e, no hidden agenda.
6. Have an agreed upon process for decision making.
7. Define each participant's role.
8. Disclosure of data.
9. State should be party to ADR and bound by these discussions. Decisions should not be overruled by state.
10. Mechanisms needed that say when parties agree and that agreements be accepted by DOJ and adjudicators. State has the ability to bring forward law and policy constraints.
11. Define agreements so that adjudicator knows how the proposal is represented. i.e. consensus, majority, etc.
12. Open process, so non-claimants can participate, however, need to have timeline and ground rules to keep process moving to handle latecomers who may slow down the process.
13. There needs to be fairness in how factual information is determined, i.e. how hydrological data is collected, developed and used.
14. Due process and role of AG's office in ADR and adjudication. Make sure ADR information doesn't get to Dick Baily through attorneys.
15. Need to develop delegation order and coordination agreement.

Logistics and Communications:

The group felt the ADR process should wrap-up soon after open inspection in spring, 1999. We should continue to meet monthly with smaller interest groups meeting between monthly meetings. Meet somewhere where food is readily available. Best time to meet for farmers and ranchers is after lunch. Best time for those with families is during the day. Evening meetings are good and should be available. Move evening meetings to smaller outlying communities, having them at a different location every month. This would provide an opportunity to keep the community informed and provide a forum for questions. Meeting materials should be available in local offices, such as BOR, Watermaster's office, Extension office, Klamath tribes' offices, etc.

In addition, utilize local media and newsletters to publish updates on the ADR process. For example, the agricultural page in the Tuesday Herald News.

Technical Information:

(There is an assumption that a confidentiality agreement has been reached.)

Information needed:

• pure data, i.e. hydraulic, stream gage, climatological, etc. Accessibility to all modeling information
• data to support claims
• water augmentation

No one trusts anyone. Raw data is trustworthy. Summaries should not be included with data.

How to receive technical information:

• academic presentation by an "expert"
• technical presentation by those who based claims on technical data and interpretations and how they developed their claim
• website on WRD homepage to act as library for technical data. Information also should be available at Watermaster's office.

Making a decision:

Representation: Recognize that not all claimants and/or parties are at the table, and the people at table cannot speak for others. Those represented at the table may have an opinion different than the unrepresented interest.

Organization: Organize around issues and then by region. Any two parties can come to agreement and settle, but they must also be aware that a 3^rd party could be affected and settlement may be subject to change in the adjudication process. State needs to be a "filter" and be represented in every group. The first step is to achieve and make available acceptable technical information. At the least, a methodology needs to be developed and accepted by the parties. Maybe a sub-group could be used in developing "what-if" solutions. An outside hydrology analysis is needed as well as money to pay for it.

Three things necessary to make a decision are:

1. Technical information must be developed and approved

2. Early in the process, the parties must clearly state their interests

3. Identify the issues: those that are basin-wide and affect all parties and those more localized issues that can be readily resolved and put aside.

There may be different types of decisions made in different ways. Not all agreements may be achieved by consensus.

There was a wrap-up and then the meeting was adjourned.