Klamath Falls Adjudication

Alternative Dispute Resolution Meeting Summary

Public Meeting #5, Facilitated by Martha Bean, Triangle Associates

January 14, 1998

The meeting opened with a welcome and introductions, followed by an agenda review and recap of the last meeting. Comments and revisions in the meeting summary were noted and changes are provided at the end of this summary.

Martha Bean conducted an exercise on power with the full group.

Next we discussed the draft goals put together by Martha Bean. Interest groups met individually to discuss the draft goals and brought comments back to the group.

Comments on Draft Goals:

State:

Goals should have a clear tie to the adjudication process. KBADR will help to settle claims and minimize contests in the adjudication. It should also provide a forum for discussing broader water needs and issues.

Draft goals relating to process should be separately categorized, so as to distinguish process from settlement of substantive issues.

Non-Project Water Users:

There was a general concern that agreements among adjudication participants could be stopped by a participant in the ADR who would otherwise not have standing in court.

The "how to administer" language should be changed.

Project Water Users:

Goal 1: add " agreements will be reached in a timely and efficient manner." Project water users have limited resources; therefore, we need to develop a timely and efficient process as quickly as possible.

Goal 2: the term "water rights" should be omitted. The administration of water rights is already well defined and we don't want KBADR to affect other water right holders. It is appropriate to attempt to come to agreement on other water resource related issues.

Goal 3: remove the word "sole." They also agree with the concept of interim agreements, but for broader purposes.

Goal 4: Participants need to be clear "and specific." Add language to that effect.

Klamath Tribes and Allotees:

Strong interest in time and cost effectiveness. They would like to stay out of court.

Eliminate "sole" in second goal.

Add to goals, "balance supply and demand."

Environmental interests:

Goal 1: Need to recognize that a "full, adequate and reliable water supply" is important as well. There may also be environmental, legal and economic constraints, but they may not need to be spelled out in the goal. We also need to spell out an agreement on how we operate in low water years.

Note that agreements may not be complete, but we can still have a successful outcome.

Goal 4 is more of a principle than a goal and they should be separated.

Federal Agencies:

Goal 2 and 4, no changes.

Goal 3: agree with others (delete 'sole")

Goal 1: make more succinct and broader. Include other ways of meeting goals such as habitat restoration.

One representative from each group was selected to work as a sub-committee to discuss goals and comments and bring recommendations back to the group later in the afternoon.

Next item on the agenda was a discussion of confidentiality and admissibility in the ADR process. Reed Marbut prepared a hand out on the mediation confidentiality statute and rules and this was discussed. Rule "T" will set out the mechanics for process. Ordinarily, when an agency is a party or acts as the mediator, confidentiality and admissibility cannot be protected. However, if there is an outside facilitator the agency can participate and confidentiality can be protected. A workgroup was formed to further discuss how these rules will work in the ADR process.

After Martha Bean left the room, Martha Pagel mentioned that we need to discuss the role of the facilitator/mediator and how we as a group can fund a facilitator. She would like to extend Martha Bean for the next meeting or two to finish this phase of this work. The state is looking for contributors. A small subgroup was formed to discuss the role of the facilitator/mediator and how we would pay for it.

Next item on the agenda: Process/Workplan Outline

A time-line with significant events listed was made. Everyone contributed key dates and goals. A copy of the time-line is attached.

Part of the discussion on timelines and goals focused on hydrology. We need to move out of process into more nuts and bolts information and solution development. There is a lot of static information and it will be years before a model can be developed. We need to figure out how to make decisions in an environment of limited hydrologic information. To move us in this direction, a hydrology working group was formed and will meet before the February meeting. It was discussed that some solutions don't require data. We should identify approaches that may not need studies and technical information.

Other working groups were formed. They include:

Groundrules, goal and roles

Concepts

Hydrology

Confidentiality and Admissibility

Mediator

(Assignments were made and the list of working groups and members were sent out in a previous mailing.) Sub committees will meet as soon as possible, whether in person or on the phone. The February meeting will be a time for the sub-groups to meet, with the last two hours of the meeting for a general caucus. All materials and recommendations made by the sub-groups should be submitted to WRD by February 20 so that it can be sent to all of the participants by the March meeting.

The small group that left to discuss goals, returned and presented their revamped goals:

Goals of ADR:

1. Balancing water supply and demand in a practical and feasible manner to protect the economic vitality and livelihood of the community and the natural cultural and historic resources of the Klamath Basin.

2. To timely and effectively reach as many agreements as possible that will facilitate the adjudication and administration processes.

3. To incorporate, where appropriate, creative solutions such as water supply or other water related initiatives that promote the goals of ADR (1&2).

Guiding Principals:

1. To be clear and specific about our own interests and needs.

2. To develop an information base which facilitates the ADR process such as but not limited to, water availability within the Klamath Basin.

Participants were directed to take the goals to those who need to be on board and champion it to them, getting comments back to group for the February meeting. Discussion focused on the use of the word balance and what it means. It captures several ideas: augmenting supply, controlling demand, addressing what to do in water short years.

If you took claims as they are today, they are very out of balance in terms of economic, cultural and environmental reality and vitality. We need to make sure that activities here are in sync with other forums and visa versa.

Martha Bean suggested organizing a field trip for the ADR participants. The best option may be to have a smaller, more targeted field trip for those less familiar with the basin and then explore a larger group trip.

Everyone broke into interest groups to discuss concepts.

Lastly, a member from each working group was asked to summarize their group's objectives.

Confidentiality Working Group: WRD to adopt appropriate rules for ADR process.

Concept Working Group: Identify needs for quality and quantity in interest groups, outline process, get in sync with data. By February, interest groups will have elucidated interests.

Hydrology Working Group: Address procedural and technical matters as they may relate to an analysis of the hydrology in the basin.

Groundrules, Roles and Goals Working Group: Work on timeline for 1998, define what it means to agree, speak to how activities in this forum interact with the same questions being asked in other forums. Develop operating rules for how we conduct ourselves. Define the roles of representatives and how they represent their groups.

Concept Working Group (ideas shared from each interest group):

• stream enhancement - fencing and riparian repair
• fish screening and ladders where needed
• stream bank restoration
• respect for prior adjudication
• ISWR support
• enforcement and regulation of existing rights, measuring and reporting for enforcement
• rate and duty
• conservation measures and incentives
• facilitating transfers to solve water supply problems
• design modern ranching systems, increase farm yield and decrease environmental impact
• water supply initiative concepts
• start with senior water users to get ideas
• identify easy claims and resolve
• once operations plan comes out, wrestle with controversy it generates
• individual groups break out and negociate (e.g. tribes and irrigators)

Corrections to Meeting Summary, Public Meeting #4 (amended language in bold):

Page 1

Project Water Users

ADR must address: resolution of the short term issues, specifically Klamath Project annual operations

Page 2

Environmental and Special Interest Groups

Interest: Ecosystem functions must be restored and preserved.

Issues:

The first issue should be under success.

• Increase water supply in ways that are environmentally acceptable and demand management also important
• ...address how to handle the shortfall...

• outcomes, not process are durable

Interests:

The first interest should be under issues

add:

• issues of demand and supply management