Klamath Falls Adjudication

Alternative Dispute Resolution Meeting Summary

Public Meeting #6, Facilitated by Martha Bean, Triangle Associates

February 11, 1998

The Working Groups met in the morning and the full group met in the afternoon. After introductions, the participants were asked to make comments or revisions to the last meeting summary. There were no changes or comments.

Martha Pagel gave an update on WRD's request for funding from the E-Board. At the E-Board's upcoming April 9 meeting, WRD will ask that the E-Board provide the balance of the funds requested in November, 1997. Because the E-Board only approved 50% of the request, WRD was not able to fill two positions. With current staffing WRD will not make the January, 1999 open inspection target date. If more funding is approved by the E-Board in April, the Department will fill the two vacant positions as soon as possible.

An update on the KBADR Web-page was given. By the next meeting, there will be access to Klamath Basin ADR information on the Department's web page. It will have meeting summaries, meeting announcements, operating principles and a FTP site for file sharing.

The Working Groups gave updates on their groups progress.

Operating Principles Group:

The Operating Principles Group is fleshing-out the time-line, clarifying what agreements mean, developing rules to operate by. They are also looking at how to address questions across forums. The group is revising its third draft of operating principles. There is space left to be filled in by other working groups. There will be a "preview group" to help interface with WRD and meeting facilitator regarding logistics and administration. The next step involves getting information from other working groups to "fill in the blanks."

Concept Working Group:

This group formed 3 new groups:

• Low Hanging Fruit - Chuck Petee, NPS
• Tribal Issues - Walter Echo-Hawk. Group will help resolve policy issues
• Upper Basin Working Group - Alice Kilham, Jim Carpenter. Group will do a "viability test" and offer advice as well as look at water conservation and ways to find more and high quality water.

Group will bring back a model and framework for operating.

Mediator Working Group:

A meeting facilitator is needed to comply with Rule T of the Confidentiality and Admissibility Rule to maintain confidentiality and admissibility when the state is a participant in an ADR process. It was decided that the meeting facilitator/mediator would participate in the large group meetings and act as a meeting facilitator. Small group meetings would have their own agreements or have a state representative present to protect confidentiality and admissibility. Since costs are a concern, the group recommended that we try to find another agency person locally to facilitate our meetings at no cost. If more assistance is needed and we need to hire someone, the group will address the issue of funding at that time. Ideas were shared on contacts for potential meeting facilitators.

Confidentiality Working Group:

The Confidentiality Working Group was charged to assess the need for a confidentiality and admissibility concept and rule under the proposed concept. Meetings won't be confidential, but information could be inadmissible. Two steps were identified for WRD: 1) adopt rules and 2) declare WRD will apply the rules to the Klamath ADR. The Governor's permission is needed to engage in rulemaking. The goal is to have the rule in place by the March meeting. Questions were raised in the group as to whether or not the state should use this rule, how do you identify what statements are protected? In general, the statement is protected, not the party. "Otherwise discoverable" means factual information, or information that is generally known or can be found independently. You cannot assume a statement is protected if it is otherwise discoverable.

A question was raised about the inherent conflict of federal attorneys representing more that one agency. Courts have held no such conflict is possible, and thus attorneys for the U.S. Department of Justice can represent more than one federal agency at a time.

The group will continue to work on these issues and WRD will move forward with rule making.

Hydrology Working Group:

The group concurred that they were a temporary committee and that a permanent committee needed to be formed. The new group should be made up of technical people only. The group will use available information and the committee will serve as a resource to the whole group. All interests will be represented. The hydrology working group will look to the whole group for direction. Funding will be needed. The working group would like Rick Cooper of WRD to give a presentation and be available as a resource. Next steps are to assemble a new group (done), assemble existing data and identify strengths and weaknesses. Technical information will be for settlement purposes. Discussions will be inadmissible but products will be available for all ADR and court proceedings.

Next Meeting

Meeting dates have been changed to the second Tuesday of the month.