Klamath Basin Adjudication

Alternative Dispute Resolution Meeting Summary

April 14, 1998

The meeting started with introductions and "Other Business." A potential meeting facilitator, Mike Golden was introduced and he shared his experience and background with the group. His intention for this meeting was to observe and be available to meet with people and answer questions. The group was asked to provide concerns or comments to Martha, Reed or Rebecca by April 21 regarding Mike Golden's role as facilitator. If no concerns are raised, he will begin facilitating at our May meeting.

There were no correction or additions to the March meeting summary.

Martha gave an update on the E-Board funding request for the adjudication. The request has been deferred to the June E- Board meeting to allow time to correct misunderstandings about the funding request and garner support. The goal is to have a unified request for funding that everyone supports.

Martha discussed a letter from attorneys Bill Schroeder and Carol Skerjanec stating that their clients no longer wish to participate in the ADR process. The goal of the ADR process is to have full participation and WRD will continue to work with them to bring them back into the process.

The subcommittees met for the remainder of the morning.

Subcommittee Reports:

Operating Principals Subcommittee

The operating principals have been reformatted and revised. The group has been working hard to complete them so that everyone can review them. One sentence still needs some work. The goal is to have a final draft sent in the next mailing and adopted at the May meeting. The operating principals consist of: goals, a statement about participants, roles and responsibilities, role of WRD, caucuses, role of mediator, relationship of the ADR process to adjudication, confidentiality and admissibility, types of agreements, conduct, subcommittees and negotiating groups, notice, meetings, communication and internal decision making. A section on "Milestones" has been taken out and is now a separate document.

Hydrology Subcommittee

The hydrology committee is established and ready to go to work. They have assembled all the factual data that is available and pertinent. The committee is prepared to tell the group what kind of questions can be supported with the available data. Parties still need to be identified that can do the analysis. The are looking to WRD to provide support or the group needs to hire a consultant. The committee needs direction on what topics need to be discussed and they also need access to additional data. For example, to identify low-hanging fruit, the committee needs access to the claims database so that claim overlaps can be identified.

Concept Subcommittee

The concept subcommittee primarily discussed the tribal settlement proposal and schedule. Walter Echo-Hawk provided more information to the subcommittee and gave a preview of his presentation to the whole group. Walter presented a rough framework for how their proposed process would work. Walter said further education would dictate how to proceed, and all the issues have to be developed in their own time when they are ready. Another hurdle has been funding for the process, which needs to be supported. Some polarization has happened over funding. Concerns were expressed by some participants that we did not yet have enough specific information about claims and that the state should provide more analysis on the claims and settlement concepts. Martha reminded the group that we are still early in the ADR process and that we must keep in mind that we haven't begun to get into the substance of the claims. Goals that have been identified in the ADR process are still there. The operating principles will bring it all together. The goal is to balance supply and demand and have a better water management plan for the basin with the hope that everyone will be better off and all legal rights will be maintained.

There was concern that some people impacted by the adjudication aren't engaged in the process or know that it is going on. There was some brainstorming to improve outreach and to develop a mailing list that is more inclusive.

Tribal Presentation:

Walter Echo-Hawk spent an hour discussing the tribal settlement proposal and schedule. He said we are close to a turning point in the process, now that the operating principals are almost in place. He presented an outline of how the Tribes would like to proceed over the next 6 months. At the last meeting the Tribes presented a 25 month process and that has been divided into three phases. The first phase takes us through August and consists of early consultation with the major groups affected by the tribal settlement. This will help with the second phase of developing an ADR proposal. Four discussion items were presented:

1. Nine settlement principals.

2. Identify major groups affected by settlement.

3. Tentative tribal plan for meeting with affected groups from May to August (see handout).

4. Identify other governmental forums or initiatives outside of the ADR process that are relevant to the settlement for information exchange and support.

Nine Settlement Principals:

1. Seeking water quantities that are biologically sound so that the water levels and timing of water that can be negotiated are biologically sound.

2. Water conservation - balance water supply and demand. Demand exceeds supply in basin. Identify acceptable ways to reduce water demand through conservation or other means. The Tribes are willing to reduce claims, if biologically acceptable, as long as others are willing to do the same. Everyone needs to address how they will get by with less water and conservation is a means to that end.

3. Water quality is relevant to achieving a water settlement and to balancing water supply and demand. The Tribes may be able to reduce their claim if water quality is improved, since claims are based on current water quality. An incentive to improving water quality is that it will make more water available for junior users. The Department of Environmental Quality and the Department of Agriculture have a water quality framework in place and will be initiating programs in this basin this year. The Tribes are interested in adopting the existing state framework and adopting it into the state decree, giving landowners more control and access to funding.

4. Stream and lake habitat restoration. Claims are based on existing habitat conditions. Improved habitat conditions will make more water available.

5. Improved water management for Klamath Marsh. It may be possible to satisfy tribal water needs in marsh with modest diking and water management, which will help water users near the marsh.

6. Find new water supplies and augment existing supplies.

7. Need money to implement settlement agreement.

8. All parties must stay whole upon signing of the water rights decree. It will take a number of years to implement the settlement, get money, build projects, implement restoration efforts, etc. During this time, farmers, fishermen and other water users must remain viable and have a sustainable livelihood during settlement implementation.

9. Implementation issues. Implementation can be more difficult than negotiating a settlement. It is important that implementation of a settlement be monitored and enforced. Implementation strategies need to be addressed as we go through the process.

The next step is to identify major parties and plan to meet with those parties in the next 6 months. The handout lays out a proposed schedule. In addition, it is recommended that a steering committee be formed to help keep an eye on the big picture. If the proposal is approved, the major interests should caucus and select a representative to participate on the steering committee. Interest groups may call Bud Ullman at (541) 783-3081 or Walter Echo-Hawk at (303)447-8760 with the name of a representative.

Seeps and springs claims were discussed. Claims are limited to forest service land. Some seeps and springs have been identified on private land, however, the intent is to only have claims on USFS land.

Other relevant forums were identified:

• State water quality framework; SB1010 (Water Quality Management Area Plans), 303(d) list and total maximum daily loads (TMDL). It was suggested that DEQ and ODA be invited to give presentations at our May meeting.
• BOR's development of an annual water management plan and is very relevant to what we are doing. How should ADR interface with BOR's process?
• Water supply augmentation feasibility study; 80 options have been identified by the Klamath Basin Working Group.
• USFWS endangered species act requirements. Make sure our ADR process does not disrupt the ESA process and that our settlement concepts support ESA requirements.

Questions and comments:

Q- Is ODWF a partner in the state water quality program? Martha Pagel has been briefing other state agencies of our progress and as we move into phases that require the other state agencies involvement, WRD will be sure they are at the table and informed.

Q- It would be nice to have some time to reflect on the Tribes' presentation before moving forward. Walter offered to move 'adoption' of this plan to the next meeting, it will just push the schedule back a month. In the meantime, the Tribes are available to meet with water users, to get acquainted and to talk about issues, at their invitation. Call Bud Ullman. It was decided to wait until next month to set committees and in the meantime, proceed with outreach and meetings.

Q: How do you fund tribal settlements, where does funding come from? Funding must be justified to the, U.S. Department of the Interior, which normally likes a variety of contributors.

Q. Some private land owners have an interest in water on federal land, e.g. seeps and springs. We need to keep them informed.

Q. There is a watershed council that has been formed, get them involved.

Q. Regarding conservation, work with USFWS, they should be a part of it.

Q. Does GWEB have a role and should they make a presentation?

End of tribal presentation and discussion.

Everyone broke-out into caucus groups to discuss the operating principals.

When the full group came back together, Reed Marbut walked everyone through the Operating Principals. The subcommittee wants to adopt them at the May meeting. Reed will make final changes and add some information on the coordination agreement and mail it out with the next mailing.

Once the Operating Principals have been adopted, they will be sent to everyone who has an interest in the basin that we know of. Our list includes over 1000 people. Those contacted will be asked to send in a request to remain on the mailing list.

Bob main asked if anyone had received anything from WRD regarding clarification of claims. One person responded. Bob clarified that some claimants were being contacted to provide additional information to clarify their claim form. For example, a priority date must be claimed as well as a quantity of water, source, use and name of claimant. When that type of information is missing, WRD staff are contacting claimants.

The caucus groups had an opportunity to provide comments on the operating principals. Martha Pagel said she would share them at the next cabinet meeting. The federal representatives want to look at the new revisions.

The next meeting will be May 12 at OIT. The agenda will include presentations from DEQ and ODA, a report from the Hatfield committee, adoption of operating principals and the tribal plan.

Come prepared to adopt the operating principals, provide a representative for the tribal steering committee and bring technical questions for the hydrology committee.

End of meeting.