Klamath Basin Alternative Dispute Resolution
Meeting Summary - September 9, 1998
It was suggested that the name of the claims presenters be included in the summary. The
presenter for the refuge claims was Barbara Scott-Brier and for National Parks was Michelle
Gilbert.
INSTREAM WATER RIGHTS / DATABASE UPDATE
Reed Marbut discussed instream water rights, including a brief history, types and agencies eligible
to apply. He pointed out that instream rights are junior to those involved in the ADR process. A
summary of all certificated instream rights was handed out.
Reed presented a status report on the claims database. Private claimants' quantities are now
entered. Entry of federal claims and places of use are still in progress. Overheads showed what
the finished product will look like. Although there are some "bugs" still being worked out, the
database should be completed by the end of the month, with all available entries included. The
database will show only what has actually been claimed. As previously noted, Reed will present a
monthly update on the database.
Mike Golden will provide a detailed progress report on the ADR process under separate cover.
There was brief discussion as to whether reports from subgroup meetings could/should be
available. Martha indicated this would be possible if necessary. Bud Ullman commented that the
Tribes would be happy to report. Bill Kennedy suggested that time lines be given at each
meeting. In the same vein, Mike emphasized the need to keep focused and the importance of
including goals in each update.
REVIEW OF OPERATING PRINCIPLES / FORMATION OF NEGOTIATING GROUPS
There are two types of agreements: Those that areagreed to by all parties to the ADR, and non-ADR agreements. Only agreements negotiated within the ADR process and agreed to by all
parties, and found to be legally acceptable to Martha Pagel, are assured to be sent to the court
without change for inclusion in the adjudication; non-ADR agreements may or may not be
included by the adjudicator and the Court. The question was asked how to handle corrections to
claims in response to a Department letter sent to individual claimants requesting more information
or corrections. Martha explained that in order to process claims, all legally required information
must be in the file. She advised any claimant who receives such a letter to respond and supply
required information to ensure inclusion the ADR and adjudication processes. Questions were
raised about the Department's approval requirements for claims. Martha responded that upon
internal legal review, claims must demonstrate they are in fact valid and that they comply with
Oregon water law. Martha emphasized that there is a single set of state law governing claims. It
was asked if Martha's legal review will be subject to public comment, to which she replied "yes."
Operating principles are flexible insofar as the formation of negotiating groups is concerned.
Groups are encouraged but not required to report at monthly meetings. Their discussions may be
conducted under the confidentiality and admissibility requirements.
HYDROLOGIST POSITION
Discussion centered on the methodology to be used and whether the information generated can be
made available to the adjudication process. Discussion ensued regarding the neutrality of the
process and the potential conflict of interest because the position is being funded by a claimant,
i.e. BOR. Martha stated the WRD position: The ADR hydrologist is an employee of the WRD,
and is answerable to WRD and the ADR participants. To serve the ADR, it is necessary for the
ADR hydrologist and the WRD chief hydrologist (Rick Cooper) to work out the fundamental
hydrologic characteristics of the Klamath basin. It is important that the hydrologic charcteristics
used by the ADR and the adjudication not be in conflict. For that reason WRD seeks the
permission of the participants to make these fundamental characteristics available to the
adjudication process. The work done in determining the fundamental characteristics will be
available to all participants for peer and public review. Because there was no agreement on this
topic, it will be revisited at the next ADR meeting.
WATER QUALITY COORDINATION UPDATE
Steve Kirk of DEQ reported on water quality issues for both DEQ and DOA (SB1010). DEQ
conducted water quality discussions with local advisosry groups and reported to EPA. The EPA
has responded that DEQ must address water quality upstream of Klamath Lake. DEQ is taking
steps to do so.
CLAIM PRESENTATIONS
USFS: (Presented by Holly McLean)
Location of lands on which claims have been filed are primarily upstream from private rights in
the Klamath Basin. These lands were transferred to the Forest Service pursuant to various acts,
and claims will be made pursuant to various statutes containing purposes of the forest reserves, or
management direction. Generally the priority date for a particular claim will be the date when the
particular parcel was transferred to the National Forest System, or was otherwise set aside by
Congress for a specific purpose, (i.e. Wilderness, Wild and Scenic Rivers). The two types of
claims filed are non-consumptive, i.e. channel maintenance, fisheries, etc., and consumptive, i.e.
administrative uses, livestock grazing, etc. Non-consumptive claims have been filed on
approximately 30 stream segments. The amount of water claimed for non-consumptive favorable
conditions of flow starts at a trigger flow. The trigger flow is the amount of water necessary to
start moving a majority of the bed sediment in the stream reach. Non-consumptive fisheries
claims were quantified using IFIM modeling. Non-consumptive recreation claims were
determined by polling the public as to amount needed to provide a positive floating, boating or
other recreational experience (such as scenic). Consumptive uses, including consumptive fire
claims, were outlined with the range of claims made for each claim, with the amount claimed
based on actual use.
Klamath Tribes: (Presented by David Harder)
David Harder reported that the Tribes claim quantifies rights recognized in the Adair case, which
recognized water for both non-consumptive and consumptive uses. Non-consumptive uses in the
Sycan and Sprague River systems encompass instream flows and claims on seeps and springs.
This type of claims looks to protect physical and riparian habitat and is based on the amount of
water that is necessary to maintain these in beneficial condition. Structural habitat and channel
maintenance refers to keeping a channel open and the amount of water required to do this. The
cap flow for this type of claim is based on the twenty-five year flood. Claims will not be
"stacked" one on top of the other; as each claim requiring a lower cfs is satisfied, it would drop
away. The priority date for non-consumptive claims is "time immemorial". Consumptive claims
will have a priority date of October 10, 1864.
David Harder clarified that the BIA and the Klamath Tribes have separate claims, but they each
claim the same amounts of water for the same purposes. When the amount of the tribes' water
rights are determined, those rights will be held in trust by the BIA for the benefit of the Tribes.
Concern was expressed by private claimants that in some months, the Tribe is claiming over 2,000
cfs, which constitutes the entire flow. Walter Echo Hawk reminded the group that this claim is a
starting point for future negotiations. He also made reference to possible trade-offs based on
water quality concerns. David stressed commonality among claimants and the need for trust in
these settlement proceedings. The public was urged to attend a meeting in Chiloquin this evening
at which time the Tribe would present a settlement proposal.
Nature Conservancy: (Presented by Cathy MacDonald)
The Nature Conservancy described the history and mechanics of the irrigation system on the
Sycan Marsh, which provides grazing for livestock, supports wildlife and wetlands, and regulates
flows.
The Marsh is essentially divided into eastern and western sections. The priority date for the east
portion is 1879; the west side (former tribal lands) receives a priority date of October 14, 1864 in
the claim. Conservancy staff developed their claim based on historic operations and water budget
modeling which evaluated water use under average, wet, and dry conditions. The claim covers
18,234.6 acres and approximately 72,000 acre feet (3.99 af/a), with maximum diversion rates
equal to the "30 minute" maximum flow.
Private Claims: (Presented by Reed Marbut)
Reed distributed four sets of handouts summarizing data available to date on private claims. He
will work on refining the database for generation of future reports.
The Department has completed a mass mailing to claimants and interested parties and will compile
a master mailing list based on mailed-in response slips. He explained the difference between
certificated and adjudicated rights and the fact that people will have to eventually choose between
the two.
Allottees: (Presented by Paul Hamai)
As with the Tribeal claim, the allottee claims are based on the Adair case. Overheads detailing the
claims were shown listing total acreages for claims and total water to be claimed. The claims will
be undergoing changes as the process moves forward due to land sales which may result in the
withdrawal of claims. At present, the claims cover 7,386 acres and other consumptive uses.
OTHER BUSINESS
Barbara Scott-Brier announced that there will be a meeting in Fort Klamath on October 14, 1998
with the Naitonal Park Service negotiating group to begin negotiations on the Park Service claim.
OCTOBER AGENDA ITEMS
1. Subgroup report.
2. Hydrologist position discussion. Review hand out. Martha and Reed will be available by phone prior to next meeting to answer questions. Martha will make address next month.
3. Martha to initiate conference call on role of ADR process in preparing Klamath Operating Plan for 1999. Subcommittee members include Messrs. Simmons, Fairclo, Ullman, Anderson and Wirkus. Report at next meeting.
4. DEQ/ODA report.
5. Reed: monthly database update.
4. Subgroup report from Chiloquin meeting on September 9, 1998.
5. Claimant presentations: Williamson River, Wood River, Klamath Lake, Klamath River below lake by Tribe, USFS, FS, BLM, private.
6. Tribal subgroup meeting at noon hour.