MEETING SUMMARY
KLAMATH BASIN ALTERNATIVE DISPUTE RESOLUTION (ADR)
Date: September 14, 1999
Location: OSU Extension Office, 3328 Vandenberg Road, Klamath Falls
Welcome, Meeting Summary Corrections and Agenda Review
1. Mike Golden reviewed the meeting agenda.
2. Corrections to the 8/10/99 meeting notes:
Steve Palmer submitted corrections from Mike Gheleta for page four, regarding Lost River
Adjudication: "Mike Gheleta reported that the Lost River Adjudication was reopened recently
when two irrigation districts within the Klamath Project filed a petition to amend the 1918 Lost
River Decree. The United States has filed a motion to dismiss this petition on the basis that it
does not fall within the scope of the McCarran Amendment, which does not permit piecemeal
proceedings affecting federal water rights. A status conference will be held with the Judge
shortly, and it is anticipated that the motion to dismiss will be heard within a month, with a
decision on the motion to follow."
Jonathan LaMarche stated that throughout the Hydrology Subcommittee Report beginning on
page one, the term "Klamath Marsh" should replace the term "Upper Klamath Marsh."
Hydrology Subcommittee Report
Jonathan LaMarche stated that he has finished building the model in the upper basin (i.e. the Williamson, Sprague and Sycan sub-basins) and is now starting on integrating the tributaries to Klamath Lake (i.e. Wood River, Crooked Creek, etc. ) into the model. Besides gaged inflows from the Williamson River, there is little discharge data on the Klamath Lake tributaries for
the period of analysis (1973-1997). Jonathan is using a water balance analysis on Klamath Lake to determine the combined flows from the Wood River and other tributaries during this period. This process will allow for the modeling of the interaction of lake level claims and downstream
claimants on users in the Wood River Valley. However, Jonathan stated that in the initial model,
he will not be able to determine how individual instream claims on tributaries in the Wood River
Valley interact with other users in the Wood River. Those interactions can be modeled at a later
date for a shorter time period in which data is available (i.e. 1992-1997).
Subcommittee and Negotiating Group Reports
Williamson Area Negotiating Group - Kip Lombard reported that the group is continuing
discussion with the tribes on the type of agreement that might be framed. Provisions of a
simplified "umbrella" type agreement are being considered. The group agreed to continue
discussions throughout the open inspection period.
Rate and Duty Subcommittee - Reed Marbut advised that the Adjudicator was making rate and
duty decisions as part of the summary evaluations to be released during the upcoming Open
Inspection. Any issues concerning the rate and duty proposed in the summary evaluations can be
challenged by filing a contest during the contest period. Therefore, it seems to be the consensus
of the ADR participants not to form a subcommittee to address the rate and duty issues at this
point.
Annie Creek/NPS Negotiating Group - did not meet since the last ADR group meeting. The
group's next meeting will be Monday, October 18 at 6:30 p.m. in Fort Klamath.
Discussion of Contest Filing Rules (Division 30)
Reed Marbut gave an overhead presentation which outlined the contest filing procedure. Specific
reference was made to ORS 539.100 Contest of Claims; OAR 690-28-010(15) definition of
"Party"; OAR 690-28-075 Filing Contests of Claims of Others; and OAR 690 Division 30
"Contests in the Adjudication of Water Rights." Reed also displayed an overhead titled "Matters
To Consider in Filing A Contest." He emphasized that filing a contest could be a very complex
and time consuming task. However, each claimant must decide how much effort should be put
into protecting the claimant's water rights. These rights are the assets of the claimant, and only
that person can determine the best course of action for the contest process.
The Adjudicator for the Klamath Basin Adjudication will publish a preliminary evaluation of
each claim, as required by Administrative Rules of the Department. Each preliminary evaluation
identifies the claimed beneficial use; the stream from which water is to be diverted; the priority
date claimed; the period of the year which the claimed water use is to be allowed; the locations of
the point of diversion and place of use; and the amount to be allowed for each claim. There were
no preliminary evaluations in previous adjudications in Oregon. However, the Rules now require
certain preliminary findings to be made for the open inspection. The Oregon Attorney General
has determined that claimants may contest the Adjudicator's preliminary evaluation of their
claim. Division 30 rules apply to such contests, and the standards for a contest of the preliminary
evaluation are the same as those for contesting a claim. A claimant contesting a preliminary
evaluation must state with reasonable certainty the grounds for the contest. Reed elaborated that
if a claim and the Adjudicator's preliminary findings do not agree, a claimant may file a contest
challenging the preliminary evaluation on that claim.
Reed intends to present a sample contest filing form for discussion and clarification at the
October or November ADR meeting.
Further clarification regarding contesting claims will be forthcoming from the Water Resources Department attorneys before the January claim period.
A question and answer period followed Reed's presentation. The following questions were presented (responses will be discussed at the October 12, 1999, ADR Monthly Meeting):
Martha Pagel stated that the Oregon Attorney General (AG) letters are marked as "drafts" and
will remain in that format for the purposes of open inspection. There was discussion of the time
constraints of the two week comment period allowed in the AG letters. Martha pointed out that
the opportunity to comment on the draft letters was not required and was offered only as a
courtesy. There will be ample opportunity to challenge the legal interpretations expressed in the
letters during the contest period. There was further discussion of the contest procedure, hearings,
definition of "party,"discovery, the process of becoming a participant in a contest, and
agreements made without Department approval.
In further discussion of the AG letters of advice to the Adjudicator, it was clarified that the legal
principles and ranges of options are provided as guidelines to the Adjudicator and the ADR
process. The advice is intended to be helpful to the process but leaves room for other legal
interpretations. The Adjudicator will make preliminary evaluations based on the draft letters of
advice. After contests are filed, it is possible that the scope of AG office advice will be
broadened or more focused.
Reed outlined some of the procedural steps to be followed in evaluating contests. Martha
differentiated between the Adjudicator's preliminary evaluations and his final determination.
Wally Watkins stated that at the Williamson Area meeting held this morning, tribal
representatives had indicated they would not file a general contest on the upper Williamson
River. He asked whether contests could be filed by lower Williamson users against upper
Williamson claimants. Reed clarified that this is allowable, and that contest filings are not
restricted just to parties within an "immediate vicinity."
In response to a question, Martha stated that she had delegated all adjudication authority to Water
Resources Department employee Dick Bailey, and that they do not discuss any matters of
substance regarding the Adjudication, ADR or specific claims. Martha noted that they do meet
periodically to discuss procedural coordination of the Adjudication and ADR. As Adjudicator,
Mr. Bailey must follow state law and is guided by advice from the AG's office.
Martha summarized that there will be continued discussion and more answers provided to
specific questions at the next meeting. The focus will be on understanding the contest filing
process before it occurs in January/February. She emphasized that participation in the ADR
process is not limited to those people filing contests. Specific questions can be directed to Mike
Golden or Reed Marbut to be addressed at the October ADR meeting.
Update:
Tribes - nothing to report.
Adjudications - Martha Pagel advised that the Water Resources Department Adjudications office will be located at 2312 South 6th Street in Klamath Falls. Open inspection of claims will begin there October 4 and end November 5. Office hours will be 8:00 a.m. to noon and 1:00 p.m. to 5:00 p.m. on Monday through Friday. (Note: Appointments are encouraged at the Open Inspection Office, and can be made by phoning (541)883-5549.)
On November 15, 1999, the open inspection will resume for the same hourly schedule in the Salem office of Water Resources Department located at 158 - 12th Street NE. The open inspection period will close January 14, 2000. As listed in the previous ADR meeting notes, copies of individual claim evaluations will be mailed to each claimant on October 1, 1999.
On October 4, 1999, the complete Summary and Preliminary Evaluation of Claims will be available as follows:
1. Hardbound sets can be reviewed on-site at the Klamath Falls Adjudication office at
2312 South Sixth Street, Klamath Falls 97601. Hardbound sets will also be placed in area libraries and government offices by October 4 at Jackson County Library in Ashland; Klamath County Libraries in Bly, Chiloquin, Malin, Merrill, Sprague River and Klamath Falls; Klamath County Historical Society Office; City of Klamath Falls Administrative Annex; Klamath County Commission and Planning offices; Klamath County OSU Extension Office; WRD Watermaster offices in Klamath Falls and Medford; and WRD's Salem office;
2. Computer diskette or CD - no charge;
3. Internet download from www.wrd.state.or.us - no charge;
4. Printed sets - approximately $2000/set.
To request the Summary and Preliminary Evaluation of Claims on diskette, CD, or in hardbound
sets, call 1-800-624-3199, Dick Bailey at extension 256 or Jan DeVito at extension 240.
Bob Main suggested that the claims data base be updated and available on CD. Martha asked Bob to take the lead on this and report back.
SB 1010 - Andrea Rabe advised that the Klamath Headwaters Local Advisory Committee has
separated into subgroups based on geographic location. The Lost River LAC is still working on
required conditions and historical perspective, which are expected to be completed by January or
February.
TMDL/303(d) list - Steve Kirk announced the availability of the proposed Revisions to the Water Quality Planning and Management Regulation (40 CFR Part 130). The proposed rules contain new requirements regarding the development of Total Maximum Daily Loads (TMDLs) from non-point sources. The proposed rule is available at the EPA Office of Water web site -
http://www.epa.gov/watrhome/new.html The deadline for public comment on the proposed rule
is October 22, 1999.
Klamath Project - BOR - Karl Wirkus stated that a cooperating agencies meeting will soon be
held to develop alternatives in preparation for impact analysis.
Lost River Adjudication - Paul Simmons reported that a hearing was held in Klamath Circuit
Court on a motion to dismiss the decree correction action. No decision has yet been reached.
Klamath Watershed Coordination - Alice Kilham distributed copies of a Draft Settlement
Concept/Habitat Conservation Plan for the Upper Klamath Basin. Accompanying the draft was
notice of an October 1 meeting of the Hatfield Klamath Basin Working Group. The meeting will
be held from 2:00-7:00 p.m. in Klamath Falls at the County Government Center, Room 214.
Public comment is invited at the meeting or can be sent to either to the Working Group at 6600
Washburn Way, Klamath Falls, OR 97603 or phoned to Alice Kilham at (541)883-6935.
Alice provided legislative background about formation of the Hatfield Working Group and the
mandate for an agreement which would facilitate exchange of information and cooperative work
between groups in the Klamath Basin.. Alice also described the August 10-12 Klamath Compact
Commission Meeting and Congressional Tour. She believes that the participants benefitted from
learning about the complexity of the Klamath Basin and its issues, and that the information will
help in finding solutions and identifying funding. Alice hopes for more Oregon participation
next year.
Other Business
October 12 Meeting and Agenda Items -
The Administrative Subcommittee confirmed the October 12 meeting date. As usual, meetings of Hydrology Subcommittee, Williamson Area and Administrative Subcommittee will precede the ADR group meeting.
There was general discussion of the possibility of inviting the Adjudicator to attend the October
12 meeting in order to provide procedural information. It was decided that the Adjudicator
should not attend, and that Martha and Water Resources Department staff should continue to
provide procedural guidance.
(Note: the October 12 ADR meeting will be held 1:00-4:15 p.m. at the OSU Extension Office, 3328 Vandenberg Road in Klamath Falls.)