Klamath Basin Alternative Dispute Resolution-- Meeting Summary

April 13, 1999

Mike Golden reviewed the agenda and asked for corrections to the previous month's minutes.

Steve Palmer requested the sentence reading "Steve Palmer with the USFWS said they are willing to enter negotiations to try to resolve the leased lands issue" on page four of the March minutes be changed. Instead, the sentence should read "Steve Palmer, of the Regional Solicitor's Office, stated that the USFWS is willing to form a negotiating group of the ADR to receive information on the criteria and operational mechanisms to be used in implementing the new lease terms pursuant to the compatibility/ consistency determination." The official minutes have been revised and are available on the Department's web page.

In addition, Wally Walkins asked for a clarification of the dates of open inspection after the discussion at the March meeting. Open inspection is the time when people can come into the Watermaster's office to review the Water Resource Department's proposed claims in the adjudication. The open inspection is scheduled from October 4 to November 5 in the Klamath Falls Watermaster's office.

Meeting summary approved with corrections.

Hydrology Sub-committee Report-- Bob Main

The Hydrology Sub-committee (HSC) is awaiting natural flow and water availability data that is being prepared for the Department by Rick Cooper, the Department's senior hydrologist; the information is expected in early May. Once that data is received, development of the basin model can begin.

During the morning meeting, the sub-committee ran through the KPOP SIM model. Jim Bryant noted that most people are familiar with the Klamath Project Operating Plan (KPOP) and forecast model. The model allows the variation of variables like lake levels, water flows, and so on; this in turn allows forecasting of how much water would be available for Project users. The sub-committee discussed whether it would be possible to link the KPOP model with the basin model Jonathan LaMarche is going to create. The sub-committee thought that some similarities would exist; however, there would likely be many difficulties in linking the two models. Bob Main will work with the KPOP SIM program and try the model to test its forecasting abilities.

The sub-committee discussed modeling in general. Members of the discussion raised questions of how useful a model would be and its possible limitations. Bob warned that models don't tell what is going to happen. Instead, given a set of assumptions, the model produces a result with some probability of occurring. The model is fraught with assumptions; if the assumptions are misleading, the model would be misleading. However, Bob cautioned that it would be a mistake to say a model is right or wrong, rather that it is important to understand just how close it might be to the real situation.

Jonathan is working on a broad model for the Klamath Basin that will provide a framework for asking questions based on a variety of assumptions. The model will not provide exact information like how much water would have been available to one person in 1981 or 1983 based upon certain assumptions. Hopefully, it will be able to give an idea whether or not a certain class of users would receive water in a certain year. Once the model is created, the assumptions can be changed as desired.

Roger Nicholson asked Bob Main to elaborate on the statement made during the sub-committee meeting that this model is based on less that 10% data. Bob noted that there are only six long term gages in the basin. Flow data for tributaries is limited and estimates are required to determine the flows.

Wally Walkins wondered if most of the streams in question were tributaries of the Williamson and Sprague Rivers. He referenced the United States Geologic Survey (USGS) publication of Sprague and Williamson River flow information and asked if the combination of USGS and OWRD data would allow for good estimates for the rivers in question. Jonathan noted the problem of lack of gages on most of the tributaries. Estimates are needed and the model would help identify potential flows. He noted that it is harder to estimate historical flows versus average flow. It is easier to estimate 10 cfs in a given spring month, versus a particular date. The finer the resolution, like by day, hour, or minute, the harder it is to get the information correct.

Bob noted that the remainder of the HSC meeting revolved around a lively discussion of how to apportion and estimate flow in tributaries. Rick Cooper's data set is needed to make such estimates. If the data is available next month, a report could be made to the HSC by June.

Jonathan met with irrigators from the Sycan area last month to verify information and check data on actual irrigated acreage versus the claimed acreage. Interested parties raised the question of whether or not information provided to Jonathan could be used in the adjudication. Reed Marbut clarified that people can come to a discussion with Jonathan or others associated with the ADR and discuss facts or figures without later affecting their claims in the adjudication. If someone else wants to challenge a certain claim based upon information learned in the ADR setting, the information is not admissible in court, as long as it is from an ADR meeting or submitted through the ADR process.

Jonathan requested clarification on what makes an "ADR meeting" and whether the meeting he held with the Sycan irrigators could be construed as such a meeting. Reed stated that a notice announcing the meeting as an ADR meeting would be sufficient. Martha Pagel noted that questions of Jonathan's position, as either an employee of the Department or of the ADR process, perhaps added confusion. Regardless of his position, she thought that information provided to Jonathan is protectable information under the ADR process and the operating principles.

Roger Nicholson voiced a concern over the type of information which might be submitted to and used by Jonathan. He expressed concern about whether the information could be verified. In response, Martha suggested there were two different issues at stake: one relates to whether and how any information provided to Jonathan under the ADR process would be protected under the admissibility provisions of the operating principles. A second, separate issue relates to the reliability of any information which might be received.

Martha requested affirmation from the group that information sent straight to Jonathan would not be admissible in the adjudication except as provided under the operating principles. Mike Golden asked for the group's consensus. No one disagreed, although Barbara Scott Brier noted that the idea that anything sent to Jonathan is not admissible seemed too broad in that it could cloak public or otherwise admissible information.

In response to Barbara's concern, Martha requested the issue of admissibility be tabled until the next meeting. In the meantime, the Administrative sub-committee will discuss the issue. A follow-up report will be provided at the May ADR meeting.

Klamath Project Operating Plan (KPOP)/ Water Reporting-- Jim Bryant

The Draft 1999 Operation Plan is out for initial review. A request for comments prompted many replies. The Bureau of Reclamation doesn't feel that it needs to get the plan out immediately because of the good water year. During the next few days Reclamation and PacifiCorp will be bypassing all inflow thru the dam because of storage limitations. The 1996 Biological Opinion requires certain minimum elevations in Upper Klamath Lake for the benefit of endangered species. Reclamation has re-consulted with the Fish & Wildlife Service for 1999 only because of the high inflow potential. The new Biological Opinion resulting from the re-consultation will allow Reclamation to raise the lake slower than normal while still providing spawning habitat for the endangered fish. The lake will be raised to 4142.3 as soon as practical and the lake would then be allowed to fill when threats from high runoff are minimized. At this time it is difficult to predict how the timing of the runoff will occur.

A new biological opinion is expected soon for the operation of the Klamath River below Iron Gate Dam from the National Marine Fisheries Service (NMFS). The opinion may be available within the week and the plan will only cover 1999 operations. Discussions about revisions to the Draft 1999 Operations Plan are currently underway; expected revisions include a revised EA as well as the removal of the options that deal with low flow years. The EA will be simplified because of changes caused by the high water year. Paul Simmons asked if the modification of the Biological Opinion on the lake was related to the July elevation. Jim responded that the new BO will not have any affect on the July elevation requirement.

The Bureau is administering the leasing program for the U.S. Fish and Wildlife Service. There was a 35% drop in revenues during this past year. A synopsis of this year's leasing income will be developed and published in the paper as soon as possible. Lessors have had a difficult time because of the farm economy. Other factors may have been the new lease language concerning water shortage provisions. The drop in receipts does not directly affect the budget because any funds received from the leasing of the lands go directly to the U.S. Treasury. The Bureau depends on Congressional appropriations for future years, rather than Treasury receipts. Discussions occur far in advance of the actual year; the 2001 lease season is being worked on right now.

Database Update-- Bob Main

The adjudication section at the Water Resources Department is working on gathering information on claims. The database is being updated as changes are made. Changes are still available on the web page, although from the number of comments he has received, it doesn't appear that the web page has been utilized much. Monthly updates are received.

Lease Lands-- Paul Simmons

At the last meeting, Paul reported on the Tulelake Lawsuit. The circumstances have changed since that time. The parties have entered an agreement with the US Fish and Wildlife Service that would allow the lawsuit to be dismissed. The agreement specifies that decisions about leased land terms related to water will be made only after further analysis. Tulelake Irrigation District (TID) dismissed the lawsuit without prejudice. TID is currently looking at an analysis of the effect on refuge water availability of farming the leased lands. A meeting was held this morning with the U.S. Fish and Wildlife Service; the meeting helped clear the air. Paul voiced appreciation of Steve Palmer's work in resolving the lawsuit and USFWS Hydrologists who are interested in getting the facts out.

Water Quality and SB 1010-- Mike Golden

Mike Golden reported in information he received from Ellen Hammond that the March meeting had been canceled. The group is working to decide how to combine enforceable conditions with a monitoring plan. The next meeting is April 14.

Park Service/Annie Creek-- Barbara Scott-Brier

The Park Service and the Annie Creek water users continue to meet. Annie Creek remains an area of primary concern. The Park Service is continuing to collect information as requested by the group and is hoping that the information will be put together by the next meeting.

Hatfield Group-- Alice Kilham And Jim Carpenter

The group met last night to discuss the allocation of funds for restoration. So far, the group has spent three million dollars on the three target areas of the group. Some confusion over the money remains. Fish and Wildlife previously provided it; however, it seems likely that money will be available via the Bureau of Reclamation because of the group's demonstrated ability to accomplish activities on the ground.

The group has received some criticism; however, Alice expressed satisfaction at the group's ability to work with different groups. The collaborative process works and is on going.

Wally Walkins questioned if the group had designated a certain amount of funding for the Upper Williamson. Alice noted that the group has been overwhelmed by the number of projects that have been received; however, the funds must have matching dollars associated with the requests. Emergency funds are not available, though the USFWS or the Bureau might be good contacts.

The fear of an additional bureaucracy with high overhead was expressed. Support for actual work on the ground rather than people in bureaucracies was voiced.

Williamson River Group-- Reed Marbut and Becky Hatfield Hyde (plus daughter)

Reed noted that Becky called a few weeks back and requested assistance in setting up a meeting; the meeting occurred last Thursday night in Chiloquin. About 25 people from around the Basin, including Wood River, attended. The meeting included background on the adjudication and ADR, where these processes are headed, an update on the Hydrology sub-committee, and an update on the tribal process by Mike McKaen. Jeff Mitchell with the Klamath Tribes presented an historical report on the Tribes.

Becky said that it was a positive meeting. People in the Upper Williamson would like to settle their issues in the ADR process if possible. Out of the attendees at that meeting, all but two are interested in coming up with a settlement. The Tribal presentation was powerful and worth hearing. Reed felt encouraged by the fact that people are willing to sit down and discuss issues. The question of instream flows remains a large issue.

A follow up meeting is planned but has not yet been scheduled.

Reservation History and Tribal Trust Relationship; Preparation for May Meeting-- Mike Golden

In preparation for the May meeting, Mike requested whatever questions people might have for the presentation on the Reservation history and Tribal trust relationship. Questions included the following:

• Was the Tribe paid off and the reservation purchased by the U.S. government? Why is the government still in a trust position?



• Why is the Bureau of Indian Affairs (BIA) filing a claim exactly like that of the Klamath Tribes?



• What is the legal basis of the large Tribal claim when present use and fish are what matters in a water rights determination, rather than the treaty designation?



• What is the justification of filing for more water than runs in the creek?



• How is the trust relationship is going to affect settlements? How is the BIA going to participate in settlements? How do we reach the settlement level with the federal government on board? How is the trust relationship going to work between trustee and the beneficiary at the end of the deal? What happens if the tribes want the deal, but the trustee says no? Can tribes go to court if they want something else?



• Is the trustee the BIA? Who is the trustee? What branch of US government?

• What is the effect of Judge Soloman's decision? Is it the basis for settlement or does it go to time immemorial?



• What is the relationship of water quality to stream flows and lake level?



• What information is held by the Tribes about the Walton rights?

Answers to these questions will be part of the presentation at the May ADR meeting.

Adjudication Schedule and Supplemental Information-- Reed Marbut

This item is proposed as a standing topic for future meetings. The adjudication is going to happen; the adjudication schedule is what is driving the ADR process.

Background:

The original notice of the adjudication was mailed in 1975 when over 30,000 letters were sent out; this began the claiming period for the non-federal claims. Between 1975 and 1990, the Department mapped all of the water use claimed in 108 townships. The claiming period for all non-federal claims was open from October 1990 to February 1991. The 1995 decision in U.S. vs. Oregon held that the Federal and Tribal interests must claim in the adjudication. Anyone who didn't claim during the allowed time period lost the right to make a claim.

Right now, the adjudication staff is working to resolve issues with existing claims. A large number of letters have been sent out requesting additional information; how many letters remain to be sent out is unknown. If the information is not received by the time of the open inspection, a decision on the claim will be based on information available at that time.

Reed noted that a lot of information has been filed with the Department. The engineering analysis of claims will be available at the open inspection.

Note: If people are wondering about the level of requests for additional information, don't feel like you are alone. A huge number of requests have been sent out and the information is trickling in. The information is needed to do a complete analysis of the claims.

The next step in the process is to hold an open inspection of all the claims and the preliminary report of the Department. There is no deadline between the end of the claiming period and the open inspection date. However, open inspection must occur for a period of at least 80 hours, from 8 AM to 5 PM each day, according to statutory requirements. The open inspection is currently scheduled from October 4 to November 5, 1999. The adjudicator's analysis of the claims will be available at the Klamath Falls Watermaster office on Summer Avenue or another suitable location. All claims, database, information and files will be available. Staff will be available to answer questions.

Once the open inspection ends, a statutorily required contest period of at least 15 days opens. If you are interested in contesting someone else's claims, the recommendation is to do the research before the contest period. The contest is not simple and the format is set by rules. The 15 day contest period may be extended up to 35 days. After this 35 day period, the contests will be resolved by negotiation, or through contested case hearings. The actual length of time needed to resolve the contests is unknown; it largely depends on the number of contested claims. The adjudication cannot be finished until the contests are resolved.

Once the contests are resolved, the adjudicator will prepare a draft findings of fact and order of determination, including the priority of water rights in the Klamath Basin. The finished report will then be sent to the Circuit Court. There is a period of exception at the Court level if someone wants to challenge the adjudicator's findings. The Court will take action on any exceptions, then settle the decree. Any disagreement at this level will be resolved through the court system.

Information requests:

Many people expressed interest in the format of the engineering summary on filed claims. When and how the information could be obtained was also of interest. Martha commented that there would be a file for each claim, then also a large book of the report summary. Questions that were raised about this process include the following:

• Can a book of the engineering summary be ordered?



• Is it the responsibility of the claimant to search out the results on the claims, or will the Department notify the claimant?



• Is there a form for filing contests?



• Will there be a discovery, and what type?



• Will the Department send the engineering summary to the owner of the water right, or does the person have to go to open inspection?



• Who is the hearings officer for the contested cases?

Martha reminded the ADR participants that the motivator for the ADR is the adjudication process. The ADR process overlays on top of the adjudication. Any agreements that are reached before the open inspection period will be presented with the summary of findings. After the open inspection period, the ADR process will enter into Phase II where the contestants are invited to join the ADR process to promote settlement.

The amount of information being generated is too voluminous to post on the Internet; however, the book of summary reports may be available on the Internet. The database is currently available on-line, but some of the data lags behind the real changes that are occurring. Reed and Martha will investigate this further and report back.

Roger Nicholson expressed frustration that the original claims filed were lacking information that is now being requested. Martha apologized for the frustration and explained that the original requests for information were deficient. Subsequent staff, funding and advice from the Oregon Attorney General has helped analyze the claims, but also led to the realization that additional information was needed to make a determination on the claims.

Kip Lombard voiced interest in any additional information the Tribes might have about the creation of Walton rights in their archives or elsewhere. Reed commented the ADR group could help facilitate getting information to the Walton right holders. Barbara Scott Brier shared that the USFWS has had a large number of Walton claims and has been able to piece together the histories by working with OWRD. Adjudication documents exist for areas already adjudicated; documentation does exist in archival files, but it requires work to find it. National archives in Seattle have provided some people with background information, but that source is also difficult to use because of lack of clear organization.

Roger Nicholson requested clarification of the dates of importance for a Walton rights: is the actual date the land passed out of Indian ownership important, or the date of development? Roger then asked what source of information is acceptable to verify the title history. Reed commented that the historical documentation and title history would be different for each claim. Roger asked whether a five year time period, or "reasonable diligence" is required under the PIA standard. Reed will bring copies of the Division 29 and 30 standards for the next meeting to help clarify these issues.

Other Business

Roger Nicholson asked if people receive certificates for claims, would they receive a refund for fees paid on subsequently filed water rights. Reed responded that such a rebate is required by statute.

On lands with overlapping water rights due to the adjudication and filed water rights, it is up to the person to choose the preferred priority dates. Water rights cannot be stacked; any fee for a water right already paid will be refunded to the current owner of the property.

Roger Nicholson wanted to know how land shared by a non-Indian and Indian ownership would be treated. Reed responded that any Indian interest held in common would be treated as Indian ownership.

Mike Golden asked if the afternoon meetings still worked for the group; the group agreed that afternoons are fine.

The administrative sub committee will meet briefly after this meeting; the Annie Creek group will meet the May 10 at 6:30 p.m. in Fort Klamath.

The agenda for the next meeting was discussed briefly and is attached.