MEETING SUMMARY - KLAMATH BASIN ALTERNATIVE DISPUTE RESOLUTION

Welcome

Mike Golden welcomed everyone. The July 11, 2000, meeting summary was reviewed and approved.

Hydrology Subcommittee Report

Bob Main reported that the Hydrology Subcommittee met and discussed whether the ADR had funding to continue to employ Jonathan LaMarche's after September. The current funding source runs out in September and additional funds must be found if the ADR wants to continue to have Jonathan's services. Jonathan wrote two reports at the request of the Upper Williamson Negotiating Group's request. If anyone is interested in obtaining a copy of these reports, contact Bob Main.

The group discussed future funding of Jonathan's position. It's looking very promising that new funding can be secured, and Jonathan's position will likely be funded through June. Bob will report at the next (September) ADR meeting about the funding and whether Jonathan will continue.

Klamath Project Operations Report.

NOTE: THIS IS A VERY IMPORTANT ISSUE IN THAT THE BUREAU OF RECLAMATION HAS DISCOVERED AN ERROR IN THE LAKE LEVEL GAUGES. THE ELEVATION OF UPPER KLAMATH LAKE APPEARS TO BE LOWER THAN BEFORE THE ERROR WAS DISCOVERED. THE LOWER LEVEL MAY CONTRIBUTE TO WATER SHORTAGES FOR THE PROJECT AND THE LOWER REFUGES.

Jim Bryant said that things had been going smoothly over the past couple of months in regards water availability of Project water, until PacifiCorp called and reported that the gauges used to monitor the elevation of Upper Klamath Lake showed an unusually high elevation on one side of the Lake, another slightly higher elevation on the gauge below Pelican Bay gage and one normal gauge. PacifiCorp investigated and discovered the Lake level was about one-half foot lower than what had been reported earlier. It should be noted that the Lake level meet the elevation minimums under the 2000 Operating Plan on July 15 of 4141.6. Jim believes the Lake levels are going to be very tight through the rest of August and during September.

Contest Filing Report

Reed Marbut said that the database is up and running. It is a query type database that can be accessed through the Department's web page. Reed emphasized that the contests documents themselves are not in the database, only contest numbers and names and cross-reference to the claim contested. With this cross-reference it is possible to find the claim contested and go to the claim database and examine the Preliminary Evaluation of the contested claim. Reed explained how to move around once you are in the database. If you have trouble accessing the database or are uncertain how to obtain certain information, call the Department's Adjudication Section or Reed by calling (503)378-8455 Ext. 292.

Web site: www.wrd.state.or.us/

Click on: Programs (left column under "jump to")

Click on: Klamath Adjudication (blue band)

Click on: Contest Lists

Contest List [The form on the screen looks like this.]

This form can be used to query a database of Klamath Adjudication contests. The output will display the contest number, the relevant claim number, the contestant's name and address, and the contestant's agent's name and address, if applicable.

Show records matching this Contest #:

Search by Contest Number

Show records matching this Claim #:

Search by Claim Number

Show records matching this Contestant:

(for best results, enter a partial name)

Search by Contestant Name

Show records matching this Agent:

(for best results, enter a partial name)

Search by Agent Name

OR, click here to return the entire list (this may take several minutes for your browser to process):

The report will give you contest or claim numbers from which you can research the claim data base. To see contest details you will need to contact the Adjudication staff at 1-800-624-3199 at either extension 295 or 318.

The contest period ended on May 8, 2000. A high percentage of the contests were opposing the federal claims.

Discussion of Questions and Answers and Adjudication Update

Reed said the ADR staff works with the Adjudicator to make sure that the ADR is coordinated with the Adjudication schedule. The ADR staff, including the Director, have periodic meetings with the Adjudicator to coordinate the two processes. When the ADR was first started, a promise was made not to let the ADR slow down the Adjudication in any way. The Adjudicator will be moving forward with the contest phase as quickly as possible. The next step in the Adjudication is to begin sorting contests and claims to develop an appropriate and coordinated hearing schedule. Those contests that do not seem to be moving toward settlement either directly with the Adjudicator or in the ADR will be scheduled for hearing as soon as possible. In addition, there is a group of contests where individuals contested their own preliminary evaluation. It is the Adjudicators intent to meet with those people to attempt to settle these contests. If they can't settle, they will also be scheduled for hearing.

ADR is working with the Adjudicator to categorize the contests so that letters can be sent out to those contestants and claimants to invite the parties into the ADR process. Our goal is to try to establish a forum to settle the differences between the contestant and the claimant.

At the last meeting, there were three outstanding questions. We are working on these questions; however, none of these questions relate to urgent contest issues. Reed suggested that a new group of questions may need to be created to address specific contest and hearing issues.

#34 - Still working on answer

# 41 - Needs to visited w/ Holly

#42 - Chapter 539 says that the Adjudicator will send his findings and order of determination and all evidence to the circuit court.

Bob Main brought up another question for which an answer has yet to be determined. The question is "Can a claimed water right in the Adjudication be changed before the decree is complete?"

Reed said he didn't realize the question had been asked at an agency meeting. He will follow-up with the Adjudicator and the Attorney General on the question.

There may be an Attorney General's opinion regarding change of a water right which is in the claim status. We are not aware that a final AG opinion has been issued on the subject of the right to change a water use pending completion of the adjudication. We will research the matter and report back to the ADR as soon as possible.

Bob Hunter asked if we could post the Attorney General's opinion on the Department's website.

We will check on the status of an opinion and report back as soon as possible. If a final opinion has been issued, we will try to publish it on the Department's website.

Ed Bartell asked if the database is available in a text format. Reed suggested he call Cory Engel at the Department (Extension 318).

Earl Miller referred to the fact that the Adjudicator will be contacting people that had contested their own preliminary evaluation. He asked if that will be fouled up by the fact that other people have contested both the preliminary determination and their claim.

Reed said yes. The Adjudicator understands the limits of his ability in this matter. He may want to settle with the claimant in his own preliminary evaluation and then have that determination be available as a part of a negotiation with the other contestant. The other contestant would see before them, the recommended settlement between the Adjudicator and the claimant.

Jim Urling asked if there has been a determination made on whether Mr. Bailey will continue as adjudicator?

Paul Cleary said yes, he plans to have Dick Bailey continue as the Adjudicator. Paul intends to continue as leader of the Klamath ADR effort.

Ed Bartell asked when hearings are going to start.

Reed said it is not known at this time exactly when hearings are to begin. However, the Adjudicator has indicated that he would like to move forward with a hearing schedule as soon as possible. He would like to start referring some categories of contests to the hearing panel before the end of the year. He is currently reviewing the contests to identify categorizes of similar contests that raise a single legal issue, or very small number of legal issues, that could be grouped together for treatment in one hearing. A preliminary evaluation indicates that there could be several hundred, perhaps over 1000, such contests that could move to the hearing phase very soon.

Settlement Framework

Mike Golden discussed the framework. Responses were given by people that ranged from the framework idea is good, to individuals not understanding clearly what the framework is, or what it is intended to do.

Martha Pagel discussed where are we headed with the framework and how does it fit into the overall ADR process; where are we headed with the ADR; what should happen in the short-term; how do we get there; and how does the framework fit to the ADR.

Martha suggested that the framework is intended to identify critical, or fundamental issues which may need to be addressed in order to reach a comprehensive settlement. The framework is intended to provide an outline of topics, subjects or issues that parties in a subbasin negotiating group would want to consider if the goal is to have subbasin settlements incorporated into one or more comprehensive settlement(s). At the least, the framework is intended to be something to stimulate discussion.

The general question was posed: Where are we headed with ADR process?

A summary of the status of the Adjudication and the ADR is as follows: Contests are filed and the hearing planning is moving along. The Administrative Subcommittee's main focus is to come up with specific settlement proposals by the end of the year. We want to bring people together and get an agreement amongst people that they have viable settlement opportunities in the ADR. Martha said they want to build on the experience of the ADR participants and the optimism that came from participating in the Dividing-the-Waters Workshop in June.

The recommendation of the Administrative Subcommittee is that we plan for an intensive structured negotiating session (follow-up workshop) that would occur during the fall. The session would go on for a period of days. We would bring in the mediators from the June workshop and work through an agenda hopefully to come up with some settlement proposals.

There is a lot of groundwork that needs to be completed before the session can be held. The Administrative Subcommittee formed a subcommittee consisting of Rick Glick, Dick Fairclo, Bob Hunter, and Reed Marbut to work on final wording for the framework. At some point we will need to address questions such as: How the Framework will be used in settlement discussions? How do we draw from other documents? How and when do we bring in people that have filed contests? How do get the right people at discussion sessions? How do we bring in the federal agencies? How to structure the next workshop session to get the most out of it.

Ed Bartell asked if it would be possible to put what she said at the top of the settlement principles so people understand.

Martha said yes. There has not been a revised version to date, and we need to reevaluate our the framework is structured to see if we need more introduction and perhaps a goal statement. Martha reminded the participants that the framework is not intended to be a consensus document. The Administrative Committee will continue to try to refine it and fit in the comments that have been received.

She said that if anyone has more comments on the framework, they need to get them in to Reed within the next week. He will meet with the sub-subcommittee to go over the comments and try to improve the document.

Wally Watkins asked if there was a possibility to add something regarding the alternatives to a the framework. What happens if you don't agree on the settlement.

Martha said people who do not settle will be forced into the hearing process of the adjudication.

Wally expressed concern for the people who have not been involved in the ADR process. What happens to them.

Martha said that people need to inform others if possible .

Mike asked the group if this seemed like a good way to move ahead.

Paul Simmons asked the question, is this where things are happening? If you are not involved in the ADR process, then your not in the loop? Is there going to be some kind of recognition that the ADR is where it is happening?

Martha said that if Paul had any ideas on what needs to happen, he needs to bring them forward.

Reed said things are going to happen in the Basin that are completely different from this process. However, if there is a need to fold something into the adjudication, it is going to have to be a part of the ADR.

Paul Simmons asked what should he do based on what Reed said.

Reed said that water users and interested parties may be participating in a variety of activities that include reading reports and other documents and going to meetings, but since the ADR is the only forum for resolving adjudication issues, he and/or his clients should at least pay attention to what is going on in the ADR.

Walter Echo-Hawk said that it is important that the Administrative Subcommittee give some careful thought about the additional people that need to be involved to do the next stage of the process.

Martha said this is a critical stage in the process.

Walter Echo-Hawk suggested you can't walk into negotiation session cold. Everyone needs to be prepared.

Paul Cleary agreed that results need to be produced from the ADR in order to provide a viable alternative to individuals involved in the adjudication. Paul Cleary agrees with Martha that they are at a critical time in the process. In terms of moving forward in the Basin, if the ADR is abandoned and everything was thrown into the adjudication, it will not be this Director who completes the process, it will be two or three Directors down the road before we see an end.

Updates

Williamson Group - Bud Ullman said on behalf of the Klamath Tribes and the Upper Williamson Negotiating Group that they feel they are close to a significant settlement breakthrough. There is a lot of enthusiasm for moving forward. The next step is to broaden the circle of parties outside the Williamson to the other upper subbasins. The Tribes have agreed to trying to bring the other subbasins to the table within the next few weeks. Some meetings have been scheduled. It is a very encouraging situation on both sides of the table and hopefully others will see it the same way.

TMDL - Reed Marbut said that the consent decree ­ in the lawsuit which has to do with the speed of the TMDLs ­ confirmed a stipulated settlement on the schedule for the TMDLs. That schedule says that the Upper Basin TMDL's will be completed by the end of this year. The guiding principles in SB1010 have come close to being approved. Everyone seems to be optimistic about the progress that is being made.

Reed asked Wally to route his questions regarding the FLIR at the mouth of Irving Creek and Jackson Creek to Steve Kirk.

SB2882 - Paul Simmons said that there was a hearing on the legislation the end of July. The same bill was introduced in the House also in July.

Dividing the Waters

Reed Marbut suggested that people pick up a copy of the summary from the Dividing-the-Waters Workshop that was held in June.

Wally Watkins asked who pays for the trainers in the Dividing-the-Waters.

Reed said that Dividing-the-Waters pays for them. The Dividing-the-Waters received primary support from the Hewlett Foundation.

Jim Bryant commented about an article that was in the Herald & News Paper. He asked if anyone knew what it was about.

Reed said that there is an individual who did not file a claim during the period provided under the adjudication. This individual along with other, hired an attorney and made a request to the Adjudicator to accept further claims. That request has been denied. Reed said he doesn't know where it is going from here.

Dick Fairclo asked a question regarding federal money being used for the mediator in this process.

Reed said he didn't remember anything about that. He asked Dick to check with Steve Lewis regarding this issue.

There being no further business, the meeting was adjourned.