MEETING SUMMARY - KLAMATH BASIN ALTERNATIVE DISPUTE RESOLUTION

Date: Tuesday, February 8, 2000

Location: Klamath County Courthouse, Klamath Falls, OR (relocated from OSU Extension Office)

Mike Golden welcomed those present, and thanked everyone for making the extra effort for the last-minute change in meeting room location.

Corrections to meeting notes of January 11, 2000 include:

• Klamath Project Update on page four should read "there have been discussions among interior project irrigators and the Klamath Tribes."
• US Fish and Wildlife update on page five should read "received funding for a study."
• Klamath Watershed Coordination Group and Hatfield Group on page five should be clarified to reflect that Marshall Staunton from Tulelake, California has taken Alice Kilham's place only as co-chair of the Hatfield Group (she has not retired). She continues as a Hatfield Group member and as a Klamath Compact Commissioner.

The meeting agenda was reviewed. It was announced that the March 14 ADR meeting will be held at the Klamath County Courthouse, Room 20.

Hydrology Subcommittee Report (HSC) - Bob Main and Jonathan LaMarche

Jonathan reported that the HSC had discussed a new output format for MODSIM model results. The newest report allows comparison of two model results in the same format. Jonathan reviewed his presentation from the January ADR meeting, discussed comparisons between the first three model runs, and repeated the presentation he had given to the Hydrology Subcommittee during its morning meeting.

The model result information can be viewed on the WRD web site:

www.wrd.state.or.us

click on file pickup, studies, klamath adr, hydrology model output

Discussion included: interpretation of the model graphs; the model result illustrating that lake level and ESA requirements cannot be met simultaneously in dry years; ESA requirements that are only enforceable below Klamath Lake; requirements for inclusion or deletion of ESA flows in the model runs; treating ESA flow as a water right in model runs; and storage of water above Klamath Lake. (It should be noted that what were formerly called "Hardy Flows" will now be referred to as "ESA Requirements.")

There were requests that Jonathan prepare two additional model runs, (1) The ODFW instream water right flow as though they had very old priority dates, and (2) The flows allowed by the Adjudicator in his Preliminary Evaluations of the Tribal claims.

Jonathan announced a MODSIM workshop to be held at the Bureau of Reclamation office on Tuesday, February 15 beginning at 10:00a.m. and throughout day. The public is invited to bring questions.

Subcommittee and Negotiating Group Reports

Administrative Subcommittee Review of Draft Progress Report

Copies of the draft report were distributed. Mike Golden reviewed the work described in the report, noting that no proposed settlement agreements have been received to this date. He commented on the work of the subcommittees and negotiating groups and the time lines of the open inspection process. Group input is now needed for the process of moving into Phase II of the adjudication. Mike asked that additions or corrections to the draft be submitted soon, so the document can be sent out with the next ADR meeting notice.

Williamson Group

There have been no recent meetings. Becky Hatfield-Hyde will advise Reed Marbut or Jan DeVito of the next meeting date and/or report for the next ADR meeting agenda.

Tribes/Project Irrigators Negotiating Group

There was no report.

Discussion of Contest Filing

Reed Marbut reminded everyone of the contest period which begins April 3, 2000, and ends 5:00 p.m. on May 8, 2000. The Adjudicator is sending a mailing to approximately 1800 Adjudication claimants and holders of water right permits and certificates. This mailing is the "Notice of Opportunity for a Contested Case Hearing Regarding Claims." In addition to the Notice, the mailing will include a cover letter, contest forms and instructions.

During the contest period, the claim files will continue to be available for review during regular business hours at the Water Resources Department office in Salem. When open inspection ends, staff assistance can still be obtained by pre-arranged appointment. Reed encouraged interested parties to try to come to Salem to view the files, in as much as it could be quite costly and time consuming to copy large claim files.

Walton Claims

Reed Marbut provided information concerning claims that had been rejected in Adjudicator's Preliminary Evaluation because such claims were filed in previously adjudicated areas. Reed pointed out that, if these claims were filed based upon being successors to Indian ownership (Walton claims) a recently released Oregon Department of Justice (ODOJ) legal analysis indicated the Adjudicator's rejection could be challenged.

Reed distributed and explained the ODOJ legal analysis which states that, since the Walton case ­ which established the rule that a person can claim as an Indian successor ­ was not handed down until after the other Klamath Basin adjudications had been completed (e.g., Wood River decree) individuals are allowed to claim in this Klamath Basin Adjudication to secure a Walton Right. Therefore, the prior adjudications are not barriers to claiming in the Klamath Adjudication. This advice is available in hard copy form by request from Reed Marbut or Jan DeVito at (503)378-8455 extensions 292 and 240 respectively. The opinion will also be placed on the Water Resources Department web page along with other ADR legal documents. Reed urged everyone to read and study the letter, and to bring questions to the March 14 ADR meeting.

Reed explained that Walton claimants whose claims were rejected in their Preliminary Evaluations should challenge the rejection by filing contests against their own Preliminary Evaluations. Discussion included: the historical and legal background of the Walton case, and the general boundaries of areas previously adjudicated. In response to a question, Reed advised that the during the contest period, Water Resources Department web site may offer a data base of filed contests which is accessible by the public.

Questions and Answers from January 11 ADR Meeting and Adjudication Update

Most of the questions posed at previous ADR meetings have been answered, but answers to those remaining will be available by the March meeting.

Five additional questions from meeting participants were presented:

1. Will there be an interlocutory appeal process whereby legal issues can be presented to the Circuit Court, short of presenting factual evidence, that is, before the Adjudicator's findings and determination go to the Circuit Court.

2. As an expansion on question #38 distributed 1/11/00 - Is legal advice of the Oregon Department of Justice (DOJ) binding on the hearings officer, or will the DOJ act more like a litigant and participate on briefing in legal issues before the hearings officer?

3. Will there be communication between DOJ and the hearings officer in the absence of the litigating parties?

4. There was a request for a precise description of what paperwork is needed in a situation where a contestant is contesting another person's claim. That is, how should the contested claim be identified (i.e., claim number, claim name, facts about the claim like POD, POU, priority date, etc.)?

5. Follow-up on question #19 distributed 1/11:

19. How does this process relate to the new law creating a central hearing panel (HB 2525)?

Answer: See answer to question number 18. The Oregon Attorney General's office is currently reviewing the relationship between the adjudication process under ORS 539 and the central hearing panel procedure under HB 2525 and the new Uniform Rules of Procedure.

Martha explained that the AG office and Water Resources Department are still considering this questions as well as others that have not yet been answered.

Reed displayed copy of a book titled A River Never the Same - History of Water in the Klamath Basin. The book is available from the Shaw Library and was published by the Shaw Historical Society in 1999. To obtain a copy, contact the OIT Technical Services Librarian, Marita Kunkel at 541-885-1774, FAX 541-885-1777, and e-mail kunkelm@mail.oit.osshe.edu

2:45 - 3:00 BREAK

Goals for ADR Meetings in 2000 - Work Toward Water Rights Settlements

As a carryover from the January ADR meeting, Mike Golden initiated discussion about how the ADR group would like to work toward reaching water rights settlements. He advised that the Administrative Subcommittee discussed ways to move the process forward.

Martha Pagel asked for the ADR group's reaction to a concept that would involve participants pooling financial resources to hire someone who would assemble a draft basin-wide settlement plan. Within the next few months, this person could: work full time to develop a proposal; meet with groups and individuals; explore all natural resource and regulatory issues; identify location of possible supply augmentation projects; and bring a settlement concept to the ADR for consideration. Martha suggested that if there was general interest in this idea, she would work with Bob Main and Mike Golden to prepare a concept for presentation at the March or April ADR meeting.

Discussion included: whether the position would be funded by contributions from all parties in the ADR; that the person selected would need technical knowledge as well as understanding of the political, social and economic issues; whether someone from another adjudicated basin, OSU or outside the Klamath basin should be selected; the need for the person selected to work full-time over a short period of time to achieve a product as quickly as possible; the need for community involvement; and challenge of promoting a plan toward eventual settlement.

Aspects of the project to be considered include: starting with a small consensus group or executive committee to work with the consultant; possibility of obtaining funding through grants and/or joint participation; and not completely ruling out Water Resources Department putting forth a draft settlement plan.

Jim Carpenter reported that the Hatfield group is inviting Senators Wyden and Smith to a meeting in August, for the purpose of bringing new energy and possible funding to their efforts toward a new level of agreement for environmental progress. On behalf of the Hatfield group, he endorsed the preceding concept.

There was group consensus to move the concept for development of a draft basin-wide settlement plan ahead as quickly as possible. Mike Golden will work with Bob Main to draft a concept for discussion at the March ADR meeting.

Updates

Tribes Report: Bud Ullman advised that the Tribes will not be giving broad-scope presentations at future ADR meetings, and requested that this no longer be a regular ADR agenda item.

Legislative Report: was suggested to be given by Martha Pagel at future ADR meetings. (Note: Martha Pagel will be unable to attend the March 14 ADR meeting.)

Hydrological Model Report: preparation is underway, and is targeted for presentation at the April ADR meeting.

SB 1010 Group: Jim Carpenter reported that the group will meet soon for a review of 1010 plans in the Klamath Basin. Jim will bring a report to the March ADR meeting.

TMDL/303(d) list: no report.

Klamath Project: BOR is preparing a summary of near term legislation for increasing the Project water supply.

Lost River Adjudication: no report.

Klamath Watershed Coordination Group and Hatfield Group: Alice Kilham reported that the agreement containing elements of cooperation between basin groups has now been sent to the Secretary of the Interior for official approval.

Other Business:

- Upcoming groundwater study: Bob Main reported that a groundwater study of the Klamath Basin is beginning, to be coordinated by Marshall Gannett. Quarterly meetings for interested parties will be held in the basin. Bob suggested that a meeting be held for 1-1.5 hours on March 14, in conjunction with the ADR meeting. He will work with Mike Golden to include this on the ADR agenda.

- Klamath River Compact Commission requests a meeting on water quality in conjunction with the

April 11 ADR meeting. The Commission will present data on regulation and studies as well as coordination of water quality issues in the Klamath Basin. Alice Kilham will work with Reed Marbut on scheduling of a morning or afternoon meeting.

- Adjudications training workshops - Reed Marbut announced that the Dividing-the-Waters organization plans to offer an ADR workshop in Klamath Falls sometime this spring or early summer. He reminded the Participants that the Dividing-the-Waters group was the organization that sponsored the water adjudication judges March 1999 meeting in Ashland and Klamath Falls. The Dividing-the-Waters sponsors were so impressed with Klamath Basin ADR efforts that they have put together a plan for a training workshop. The workshop is intended to provide negotiation training to help individuals participate effectively in interest based water negotiations. Reed will announce details at the next ADR meeting (March 14). Anyone interested in participating in the workshop should contact Reed.

- The next ADR meeting will be held Tuesday, March 14 from 1:00-5:00 p.m.at the Klamath County Courthouse, Room 20, in Klamath Falls.

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