MEETING SUMMARY - KLAMATH BASIN ALTERNATIVE DISPUTE RESOLUTION

Date: Tuesday, November 9, 1999

Location: OSU Extension Office, 3328 Vandenberg Road, Klamath Falls, OR

Welcome and Agenda Review

Mike Golden reviewed the meeting agenda. There were no corrections or additions to the ADR meeting notes of October 12, 1999.

Hydrology Subcommittee (HSC) Report

Jonathan LaMarche reported on the morning HSC meeting, and the discussion that took place. The HSC reviewed four items in their meeting: 1) KPOP and MODSIM model results comparison for simulations with Tribal lake and Hardy flow constraints, 2) general MODSIM model setup for the entire Klamath Basin, 3) results from the first basin-wide MODSIM model run and how to present future results, 4) consumptive use estimate methodology for each of the sub-basins within the Klamath.

Jonathan illustrated the results of comparing the data from KPOP and MODSIM, using overhead projection of:

"Modeled and Minimum Lake Elevations"

"Yearly Modeled Agricultural Shortages using Hardy Flow and Tribal Lake Constraints"

"New (2) Hardy Flow Shortages at Iron Gate"

Jim Bryant commented that the HSC was pleased that the two model runs yielded results that were closer than had been anticipated. The HSC requested that Jonathan prepare a brief written report for the next ADR meeting. At the October meeting of the HSC, the group had requested that Jonathan run a model including all claims and also one with all claims except instream claims. That report should be completed soon.

Jonathan reported that the initial model run for historical water usage and shortages with instream claims had been completed. He also commented that the output of the run would produce over 700 graphs for all combinations of months, sub-basins and users. He discussed with the HSC how to disseminate the amount of information into a usable format for the ADR group. The HSC had decided to present only yearly shortages for each priority group of users in each sub-basin at the ADR meetings. However, the full results would be accessible via a spreadsheet available on the WRD web site. The spreadsheet would show the monthly shortages by year, by sub-basin and by priority date.

Barbara Scott-Brier suggested that to avoid any confusion on the WRD website, that information the ADR hydrologist places there (or releases in hard copy) be marked as "Information Prepared for the Klamath Basin Alternative Dispute Resolution Process" and also marked as not admissible in legal proceedings, pursuant to ADR Operating Principle 7.2, without the consent of the affected participants, ADR Operating Principle 7.3.3(3). The ADR group concurred with this suggestion.

There was clarification about the procedure for requesting model runs. HSC members will continue to accept those requests to be relayed to Jonathan. If the workload becomes too heavy, Jonathan will ask for direction from the ADR.

Subcommittee and Negotiating Group Reports

Administrative Subcommittee - With no objection to the recommendation of the Subcommittee, there was consensus of the ADR group not to meet in December. The next meeting will be Tuesday, January 11, 2000, at Oregon Institute of Technology, 3201 Campus Drive, Klamath Falls, Oregon.

Mike Golden will draft the annual ADR report which will address the current ADR status, benchmarks, and will describe goals for 2000. This will be mailed prior to the January meeting.

Williamson Area Negotiating Group - Elwood Miller reported that at the next Williamson negotiating meeting, the Klamath Tribes plan to present revised settlement information for the Williamson and Sprague, but not the Marsh. Becky Hatfield-Hyde commented that the Williamson group is optimistically looking forward to the next meeting when they will review information presented by the Tribes. (Note: No Williamson Group meeting was held in December.)

Annie Creek/NPS Negotiating Group

Barbara Scott-Brier reported that a number of Annie Creek ranchers have decided to withdraw from the negotiating group at this time. Although a brief meeting was held that morning, it was decided that there was not enough participation to continue the meetings. For now, Annie Creek meeting reports will be removed from the ADR monthly agenda.

Discussion of Contest Filing with Questions and Answers from October 12 ADR Meeting

Reed Marbut commented that on October 4, 1999, the Adjudicator had mailed out the preliminary evaluation of claims. Reed emphasized that the preliminary evaluations were intended to portray the current analysis of each claim. Claim deficiencies identified in the preliminary evaluations were expected to be resolved through the contest process. The Klamath Falls location of the Open inspection period closed November 5. The Salem Open Inspection portion will begin on November 15 in Salem. The Open Inspection will close January 14, 2000. (Note: The Adjudicator has decided to extend the open inspection period through March 31, 2000.)

The Department's suggested contest forms, with instructions, are expected to be available by the end of November. The contest forms and instructions will be placed on the Department's web page to allow parties to download the forms into a word processing document. There will be two types of forms: one form to be used by claimants to contest one's own preliminary evaluation; and the other form to be used for contesting someone else's claim and/or preliminary evaluation.

In response to questions, Reed stated that:

1. The Adjudicator does not intend to publish a list of updated preliminary evaluations. However, updates to his evaluations will be documented in the individual files.



2. Adjudication questions posed at ADR meetings are given by Jan DeVito to

Reed Marbut, who in turn prepares and presents them to the Adjudicator for response.

The following additional questions for the Adjudicator were submitted by those in attendance:

1. Who will the hearings officers be for the Adjudication contest hearings? Reed responded that in previous adjudications the State Engineer or WRD Director (Adjudicator) was the hearing officer, or he/she would designate a hearings officer for a specific contest hearing. Now with the enactment of HB 2525, there is a hearings officer pool which services all state Departments. The specific process for naming hearing officers for the Klamath adjudication contest hearing has not been identified.



2. Regarding the contests, will a contestant need to file a form for each claim, or can a single contest form be filed in opposition to more than one claim?



3. Can one form be used for contests against multiple claims where the basis of the contest is identical?



4. Regarding preliminary evaluations, can a claimant discuss with the adjudication staff the reasoning used in making an evaluation? What is the procedure for an individual to contact the Adjudicator in order to talk with the specific staff person who made the determination in the preliminary evaluation? (Note: Claimants may contact the adjudication staff directly at any time by telephone or by visiting the Water Resources Department office in Salem.)



5. What is permissible contact with the Adjudicator? Specifically, can a claimant have contact with the Adjudicator or a member of his staff which is not in violation of an ex parte rule?

6. Can multiple contests be mailed together in one envelope/package?

There was a request that the details of service be clarified (e.g., a "boilerplate" example in the contest instructions).

Answers to the above and other prior questions will be provided by the Water Resources Department at the January 11, 2000 ADR meeting.

Updates

Tribes - Bud Ullman reported that the Tribes are preparing information for contest filing. Data is being finalized for the next meeting with parties involved in the Wood River, Sprague and Williamson negotiations. Reed Marbut offered assistance from WRD in sending out a notification for the meeting scheduled at the Tribal main office on November 29. At that meeting, there will be discussion about amending claims and potential settlements.

Adjudications - See Reed Marbut's presentation during the earlier agenda item titled "Discussion of Contest Filing with Questions and Answers from the October 12 ADR Meeting."

SB1010 - The Klamath Headwaters Local Advisory Committee is working toward completion of a plan by the end of the year.

TMDL/303(d) List - The public comment period on the proposed rule revision to the Water Quality Planning and Management Regulation has been extended to 1/20/2000.

Klamath Project - BOR - Nothing was reported.

Lost River Adjudication - Paul Simmons reported that there was an additional hearing on October 29 on the U.S. Motion to Dismiss, but no decision has yet been announced.

Klamath Watershed Coordination Group and Hatfield Group - Jim Carpenter advised that the Coordination Group is nearing the point of obtaining signatures to a cooperative agreement that will be forwarded to the Secretary of the Interior for review. That agreement will contain goals of the various groups toward accomplishing basin-wide restoration of the ecosystem. Alice Kilham commented on the continued need for coordination and cooperation.

Other Business

1. Mike Golden reminded everyone that there will be no ADR Meeting held in December.

2. The January 11, 2000, ADR and Subcommittee meetings will be held at Oregon Institute of

Technology, 3201 Campus Drive, Klamath Falls, Oregon.