MEETING SUMMARY - KLAMATH BASIN ALTERNATIVE DISPUTE
RESOLUTION
Date: Tuesday, April 11, 2000
Location: Klamath County Courthouse Room 20, Klamath Falls, OR
Mike Golden welcomed those present. The days meeting agenda was reviewed. There were no
corrections to the ADR meeting notes of March 14, 2000.
Hydrology Subcommittee Report (HSC) Jonathan LaMarche distributed two reports: A
Summary of the Upper Klamath Basin Distribution Modeling Preliminary Results and Upper
Williamson River Low Flow Statistics. He explained that he had completed eight or nine model
runs and had compiled results that showed the main interactions between claimants. He
reviewed the Summary which is a general overview of the major claimant interactions identified,
using the Klamath basin distribution model. The water distribution model was developed to
build understanding of how different water users interact in the basin based on claimed and
permitted usage, and historical climatic and flow conditions. Jonathan described components
and limitations of the model. For the study period of 1974-97, he used data from consumptive
use estimates and available gage records.
Jonathan is also working on modeling estimates for the Wood River area and is contacting water
rights holders in that area for information when gage data is not available. A report on the study
will be distributed at the May 9 ADR meeting. The report will include instream claims, seven
day low flow statistics, and project low flow probability.
Referring to his report on low flow statistics prepared at the request of the Upper Williamson
negotiating group, Jonathan explained that he studied 21 and 30 day periods for shortage
probabilities. The resulting information illustrates how often shortages will occur during a year
for instream claims. To assist other negotiations, Jonathan will develop flow and consumptive
use estimates to illustrate probability of low flows.
Discussion of Contest Filing - Reed Marbut advised that answers to the ten questions posed at
the February and March meetings are being prepared by the Adjudicator with confirmation by the
Oregon Department of Justice. Participants at the March meeting asked that we expedite the
question: Is there a cutoff time for adding information to a file? That question was responded to
by way of a mailing to the ADR group. The mailing stated that:
"The Adjudicator may not accept information after the beginning of the contest period.
However, for claims or preliminary evaluations that have been contested, additional information
may be accepted into the record at the discretion of the Adjudicator or hearing officer as
appropriate."
Reed explained that answers to the other questions are expected to be available at the May 9
ADR meeting. The Oregon DOJ must approve answers to all questions. Once finalized, answers
are posted on the Water Resources Department web site at:
http://www.wrd.state.or.us
After the close of the contest period, it will take a period of time for the adjudication staff to
process contests and develop a contest database. It is anticipated that the database will contain
fields so that contests can be grouped and sorted. Telephone inquiries are being handled by the
adjudication staff, and files are available in Salem for review. If possible, contestants should
attempt to group their contests by claim and issue. That is, if a number of contestants are
contesting a single claim, and all the contests raise an identical issue of fact or law, the
contestants could group their contests.
Legal Action - Water For Life filed a motion for a temporary restraining order (TRO) and
preliminary injunction in Klamath County Circuit Court. The motion requests that the
Adjudication open inspection period be extended for 180 days, which would delay the contest
period to the end of the extended open inspection. The TRO was denied. A hearing on the
preliminary injunction is scheduled May 1 at the Klamath County Courthouse. The parties
(Water For Life and the State) are currently preparing briefs. Ed Bartell discussed some elements
of the legal action.
Legislative Update - Martha Pagel briefly outlined the process used for development of
legislative concepts and the schedule state agencies follow to identify legislative proposals. A
placeholder has been filed for possible adjudication issues. Nothing specific has yet been
proposed by the ADR group.
Oregon has established a central hearings panel to hear cases that include adjudication contested
case hearings. There is ongoing discussion between the Department and the Oregon DOJ
concerning the interface between the adjudication statute (ORS 539) and the Oregon APA.
These discussions include whether a legislative change should be proposed to clarify the
relationship between the adjudication process and the APA. There was discussion of the possible
legal impact of legislative procedural changes on the holding in U.S. v. Oregon. Martha
suggested that a subcommittee be formed to identify possible legislative changes to
adjudications. It was agreed that Mike Golden would reinstate the ADR legal subcommittee to
discuss possible legislative concepts related to the Klamath Adjudication.
Concerning federal legislation, Martha Pagel is Oregon's representative to the Western States
Water Council. The Council is proposing federal legislation to require the federal government to
pay fees in water right adjudications, like other (private) claimants.
Progress on Draft Water Rights Settlement Plan - Mike Golden reported on two
Administrative Subcommittee meetings which have been held to discuss a proposal intended to
move the Klamath Basin water rights settlement process forward. Issues under consideration are:
whether to hire an outside consultant to design and coordinate a process; the extent of Water
Resources Department involvement in development of a process; and funding. The
Subcommittee has agreed that Mike Golden, Martha Pagel, Bob Main and Reed Marbut should
continue to work on a preliminary settlement concept for presentation to the Administrative
Subcommittee. Prior to the May 9 ADR general meeting, the Subcommittee will review the
concept and decide whether and how the concept is presented to the full ADR group.
Klamath Compact Commission Meeting Scheduled for May 8-9 - Alice Kilham reported on
plans by the Commission to present public information on water quality issues at the Klamath
County Courthouse in meeting Room 20. The agenda for Monday, May 8 from 1:00-5:00 p.m.
will include an overview of the Clean Water Act, and a technical overview of water data
collection, modeling, and monitoring. Dick Nichols of the Department of Environmental Quality
will present a coordination matrix. On Tuesday, May 9, from 8:00 a.m. to noon, the downstream
Tribes will present their water quality concerns and activities, and informational panels will
address citizen and regulatory issues. No attendance fee will be charged for the meetings. Please
contact Alice Kilham for additional information at (541)201-0772, or through the internet at
akilham@mp.usbr.gov
Updates
U.S. Fish and Wildlife Service - Paul Rauch reported that the Service is conducting a
groundwater feasibility study for development of groundwater at the Lower Klamath National
Wildlife Refuge. Phase 1 reconnaissance has been completed. Level study and literature review
is underway. Phase 2 in-depth study should be completed in three or four months, and will
involve testing existing wells and drilling test wells to assess production potential.
Williamson Negotiating Group - continues progress in its meetings, but had nothing to report.
SB1010 - continues work on the monitoring and conditions portions of draft plans and
integration with the Lost River group report.
TMDL/303(d) list - draft completion is hoped for by August.
Klamath Project and Near Term Legislation - Bureau of Reclamation
Jim Bryant said that after the dry weather in March, there may be water shortages in the project
later in the year. An operating plan is being considered and will be presented soon that will
attempt to meet needs of all water users in the Klamath Project. Options being considered to
lessen the impact of less than average water this year include purchase or rent of water from other
sources and water storage. National Marine Fisheries Service (NMFS) is being consulted, and
discussions are underway about the dry spring in the region which is a dramatic change from last
year. Rain is hoped for.
Paul Simmons reported that the water users in the Klamath Project have sent 60 day notice to
various federal agencies that they must comply with the consultation requirements of §7 the
Endangered Species Act.
A lawsuit pertaining to Klamath Project lease lands has been dismissed, having been resolved in
a mutually agreed manner.
Lost River Litigation - A court decision has been issued in the Lost River decree correction
action filed by the Langell Valley and Horsefly Irrigation Districts. The Lost River was initially
adjudicated in 1918 when the Klamath Project was in the initial stages of development. A decree
was issued which recognized water rights in the Lost River drainage in both Oregon and
California. As the two districts developed, lands both within and outside the area described in
the 1918 Decree were put under irrigation. In 1998, Langell Valley and Horsefly Irrigation
Districts asked the Water Resources Department to issue water right certificates based upon their
current water use. Since current water use does not conform to the place of use described in the
Decree, it became apparent that the Decree must be modified before certificates can be issued.
Langell Valley and Horsefly petitioned the Klamath County Circuit Court to amend the 1918
Decree to correctly reflect actual place of use of the Districts' water. The United States filed a
motion the intervene in the case simply to argue that the action should be dismissed because their
(U.S.) property rights would be affected, and since the case was limited to just a decree
correction proceeding and was not a general stream adjudication they were immune. The Circuit
Court dismissed the action stating that the U.S. was an indispensable party, that the action was
not a McCarran Amendment proceeding, and therefore, it could not proceed. The Court went on
to state that the Irrigation Districts could petition for a McCarran Amendment supplemental
adjudication. The Court also stated that, since the 1918 adjudication was before adoption of the
McCarran Amendment (1952), the Oregon court did not have jurisdiction over the U.S. in that
case, and thus the rights of the U.S. in the Lost River remain unadjudicated.
There was discussion of the 1918 Lost River adjudication and how water storage and use relate
to the Klamath Adjudication. Martha Pagel will check with the Adjudicator, and report back to
the ADR as soon as possible. It was clarified that the initial 1918 Lost River adjudication settled
private claims, and that a supplemental adjudication could settle federal claims. Since the Lost
River decree correction case has been dismissed, the Lost River litigation will be removed from
future ADR agendas.
Other points of discussion included: (1) Adjudication boundaries and equity between individual
(private) and federal claimants; (2) Whether water passing from Clear Lake, down Lost River to
Tule Lake is a violation of the 1918 Decree; (3) Clarification that existing water rights may be
junior to adjudication claims; (4) Certain federal claims can be made for future water needs; (5)
The change in law that may allow new claim opportunities for water uses in previously
unadjudicated areas; (6) Supplemental adjudications can be initiated for those who did not
receive notification in an adjudication; and (7) Individuals who have concerns should file
contests.
Dividing-The-Waters ADR Workshop - will be held June 27-28 at the Shilo Inn in Klamath
Falls. Reed Marbut reported that invitations are being mailed to those who have expressed
interest in participating. Workshop facilitators will present dispute resolution simulation models
that include various methods for negotiating positions and interests. The fee is $20 per person,
and the group will be limited to 50 participants. Contact Reed at (503) 378-8455 extension 292
if you wish to be sent an invitation.
Klamath Watershed Coordination Group and Hatfield Group
Under the Oregon Resource Conservation Act (ORCA) the Group is required to coordinate
resource efforts with the other three task forces in the watershed, toward the goal of cost
effectiveness. The Hatfield Upper Basin Working Group usually meets the evening before ADR
meetings from 5-7:00p.m. at the Klamath Courthouse, Room 20. Members and participants have
been asked to develop one-page position statements regarding opportunities and solutions to
basin restoration and other local activities. The purpose of the position statements is to reach the
next level of restoration in the Basin. Beginning in June, the Group will resume education and
information tours of resources and hydropower projects around the Basin. The tours serve as an
introductory overview for persons unfamiliar with Basin issues.
The Coordination Group is receiving a time allocation from the U.S. Forest Service to further
develop a basin-wide web page informational resource that is accessible at
www.klamathgroup.org
Other Business
- The next ADR meeting will be held Tuesday, May 9, beginning at 1:30 p.m. at the Klamath County Courthouse, Room 20, in Klamath Falls.