Feb. 25, 1997 Restoration Hearing

STATE WATER RESOURCES CONTROL BOARD

PUBLIC HEARING

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REGARDING STREAM AND WATERFOWL HABITAT RESTORATION PLANS

AND GRANT LAKE OPERATIONS AND MANAGEMENT PLAN SUBMITTED BY

THE LOS ANGELES DEPARTMENT OF WATER AND POWER PURSUANT TO

THE REQUIREMENTS OF WATER RIGHT DECISION 1631

HELD AT:

STATE WATER RESOURCES CONTROL BOARD

PAUL BONDERSON BUILDING

901 P STREET, FIRST FLOOR HEARING ROOM

TUESDAY, FEBRUARY 25, 1997

9:00 AM

REPORTED BY: TERI L. VERES, CSR NO. 7522, RMR

CAPITOL REPORTERS (916) 923-5447

1 APPEARANCES

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3 BOARD MEMBERS:

4 JOHN CAFFREY, CHAIRMAN

JOHN W. BROWN, VICE CHAIR

5 JAMES STUBCHAER

MARY JANE FORSTER

STAFF MEMBERS:

JAMES CANADAY, ENVIRONMENTAL SPECIALIST

8 GERALD E. JOHNS, ASSISTANT DIVISION CHIEF

9 COUNSEL:

10 DAN FRINK, ESQ.

11 FOR LOS ANGELES DEPARTMENT OF WATER AND POWER:

12 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD

400 Capitol Mall, 27th Floor

13 Sacramento, California 95814

BY: THOMAS W. BIRMINGHAM, ESQ.

14 and

JANET GOLDSMITH, ESQ.

UNITED STATES FOREST SERVICE:

UNITED STATES DEPARTMENT OF AGRICULTURE

17 OFFICE OF GENERAL COUNSEL

33 New Montgomery, 17th Floor

18 San Francisco, California 94105

BY: JACK GIPSMAN, ESQ.

BUREAU OF LAND MANAGEMENT:

UNITED STATES DEPARTMENT OF THE INTERIOR

21 BUREAU OF LAND MANAGEMENT

BISHOP RESOURCE AREA

22 785 North Main Street, Suite E

Bishop, California 93514

23 BY: TERRY L. RUSSI

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1 APPEARANCES CONT'D

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3 PEOPLE FOR MONO BASIN PRESERVATION:

4 KATHLEEN MALONEY BELLOMO

JOSEPH BELLOMO

5 P.O. BOX 217

Lee Vining, California 93541

ARCULARIUS RANCH:

FRANK HASELTON, LSA

8 1 Park Plaza, Suite 500

Irvine, California 92610

CALIFORNIA TROUT, INC.:

NATURAL HERITAGE INSTITUTE

11 114 Sansome Street, Suite 1200

San Francisco, California 94104

12 BY: RICHARD ROOS-COLLINS, ESQ.

13 CALIFORNIA DEPARTMENT OF FISH AND GAME:

14 McDONOUGH, HOLLAND & ALLEN

555 Capitol Mall, Ninth Floor

15 Sacramento, California 95814

BY: VIRGINIA A. CAHILL, ESQ.

THE RESOURCES AGENCY

17 1416 Ninth Street, 12th Floor

Sacramento, California 95814

18 BY: NANCEE MURRAY, ESQ.

19 CALIFORNIA STATE LANDS COMMISSION:

CALIFORNIA DEPARTMENT OF PARKS AND RECREATION:

MARY J. SCOONOVER, ESQ.

21 1300 I Street

Sacramento, California 95814

MICHAEL VALENTINE

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1 APPEARANCES CONT'D

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3 NATIONAL AUDUBON SOCIETY:

MONO LAKE COMMITTEE:

MORRISON & FOERSTER

5 425 Market Street

San Francisco, California 94105

6 BY: F. BRUCE DODGE, ESQ.

7 HEIDE HOPKINS

GREG REISE

8 PETER VORSTER

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1 INDEX

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3 PAGE

PEOPLE FOR MONO BASIN PRESERVATION

POLICY STATEMENT

BY MS. BELLOMO.............................1308

DIRECT EXAMINATION

BY MS. BELLOMO.............................1334

CROSS-EXAMINATION

BY MR. FRINK...............................1351

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1 SACRAMENTO, CALIFORNIA

2 TUESDAY, FEBRUARY 25, 1997, 9:00 AM

3 ---oOo---

4 CHAIRMAN CAFFREY: Good morning, welcome back.

5 If I recall correctly, we were going to spend last

6 evening talking with -- some of us anyway talking with the

7 folks they represent and we were going to hear, I believe,

8 from Ms. Bellomo this morning and also Mr. Roos-Collins was

9 going to make some contacts.

10 Shall we start with Ms. Bellomo then and see what

11 you've been able to accomplish. Why don't you come forward.

12 Good morning and welcome.

13 MS. BELLOMO: Good morning. We spent much of the

14 evening last night on the phone. The phone lines to Mono

15 County were busy late into the night and we have -- my

16 husband, Joe Bellomo, and I have three other members of the

17 People for Mono Basin Preservation over here with us. So we

18 want to let you know we were taking this very seriously. In

19 the room we have Heidi Hess-Griffin and her husband Floyd

20 Griffin and John Fredrickson is also in Sacramento. He

21 hasn't arrived at the hearing room this morning.

22 After considering this, as I say, quite seriously our

23 group has concluded that the settlement offer is not

24 acceptable to us and that we do not -- obviously we can't

25 discuss the terms of it with you, but we do not see it

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1 headed in any direction that will be acceptable to our group

2 and -- we do feel, however, that this settlement being

3 raised at this time is appropriate.

4 The hearings, we think, have illustrated that this is

5 not a process that can easily resolve the waterfowl habitat

6 portion of the case. With regard to the stream restoration

7 portion, we haven't been participating in that, as you've

8 noticed, and I can't comment on the adequacy of the record

9 for your decision in that; but I think that all parties in

10 the waterfowl habitat restoration part of the case have

11 agreed that really more fact finding and information

12 gathering is necessary at this point before a meaningful

13 decision can be arrived at, even before the environmental

14 impact review process could commence because there are too

15 many unanswered questions, we believe, even to settle on

16 what would be the right project to do the review of.

17 As we understand it, whether this process were to take

18 the course right now of a settlement or whether it goes

19 through the hearing process or some other process, the

20 environmental impact study process is ultimately where we're

21 going to end up. And at this point, as I'm sure the Members

22 of the Water Board know and probably most -- or all of the

23 parties in the room, the Water Board has responded to the

24 request of the Mono Lake Committee and the People for Mono

25 Basin Preservation to send over a staff member to facilitate

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1 setting up a process for evaluation of the very issues we've

2 been talking about in this proceeding about the waterfowl

3 habitat restoration and the uses of the water.

4 Mr. Canaday came over a couple weeks ago I think it

5 was to commence starting this process and got agreement from

6 the Department of Water and Power that they would provide

7 technical support, although they didn't commit to signing a

8 Memorandum of Understanding to participate in the process.

9 The Mono Lake Committee indicated that they would

10 participate and are right now working with our group and

11 with the County of Mono to enter into a Memorandum of

12 Understanding for this evaluation process, and they also

13 indicated that they would provide technical expertise in

14 this fact finding and evaluation process.

15 The Bureau of Land Management indicated that they

16 might not be -- it might not be appropriate for them to sign

17 the Memorandum of Understanding, but they will make

18 themselves fully available to -- and you can correct me if

19 I'm wrong, Mr. Russi -- but to provide technical support for

20 the review process, biologists and hydrologists, whatever

21 you have on your staff, and, of course, the People for Mono

22 Basin Preservation are fully committed to working on that

23 process.

24 Our proposal at this point, then, is that what we

25 would do today is put into evidence all of the testimony

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1 that has been presented -- or offered by all of the parties

2 on the Waterfowl Habitat Restoration Plan. We would put in

3 all of the exhibits and attachments that have been

4 identified and we would be willing -- our group would be

5 willing to put them in and waive cross-examination of any of

6 the parties with the understanding that they would also

7 waive cross-examination of us. You would then have the

8 exhibits in the record in the way that you would have if

9 there was a settlement arrived at, and Mr. Frink had

10 indicated yesterday the possibility of taking all the

11 evidence without -- excuse me, the exhibits without

12 cross-examination so that you would have a record -- a

13 complete record since you've done half of the proceeding.

14 We would then suggest that the parties who are

15 involved in the stream restoration and monitoring part of

16 this case continue on with their settlement and arrive at

17 whatever settlement that they can and that we will represent

18 to you that we who -- the People for Mono Basin Preservation

19 who have not been involved in that part of the case will not

20 be an obstacle to a settlement of that portion of the case,

21 that either we will just not participate or if the

22 settlement that resulted was something that seemed agreeable

23 to us and if it was helpful we would be happy to sign on so

24 you would have a unanimous settlement in that portion of the

25 case.

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1 CHAIRMAN CAFFREY: Thank you, I think you've just

2 answered a question. I apologize for interrupting you, but

3 I think you answered a question that I had because I wanted

4 to ask you directly if you planned to participate in the

5 settlement discussions even though there wasn't anything in

6 it at this moment that you felt was beneficial to your

7 position; and if I heard you correctly, you said you will

8 not participate, but in the event that something comes

9 forward and brought into the record that you feel

10 comfortable with out of that process, there is the

11 possibility that you might sign on.

12 Do I understand you correctly?

13 MS. BELLOMO: I don't think so with all due respect.

14 The way I see it there are two parts to the case, at least

15 that's the way we've been approaching it. There's the

16 stream restoration and monitoring part, which is Grant Lake

17 Management and Rush and Lee Vining Creeks, issues Cal

18 Trout's been involved in that we have not participated in;

19 and that portion of the case we have no problem with the

20 parties going forward and settling. We have no problem with

21 the settlement as we understand that they have agreed to on

22 those issues. So as far as we're concerned, if that is

23 memorialized, fine. We're not offering testimony on that

24 part of the case anyway. We haven't conducted any

25 cross-examination. If it would be useful to have us sign on

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1 to that settlement assuming that it was written up the way

2 we understood it yesterday, we could even sign on to it if

3 that facilitated the process for you to have a unanimous

4 settlement on that part of the case.

5 On the waterfowl habitat restoration part of the case,

6 it seems to us that it's become pretty clear through the

7 process here and through the testimony and what we know of

8 the facts and through the community discussions that Jim

9 Canaday helped facilitate that much more fact finding and

10 information gathering is necessary and that that would be

11 well done in this CREWG process as it was referred to, the

12 Conway Ranch Evaluation Work Group process, which is looking

13 at all of the water in the north end of the Basin, which is

14 the water that we are talking about when we talk about

15 waterfowl habitat restoration proposals that are before the

16 Board here.

17 I think maybe it would be appropriate -- I'll wind

18 this up quickly. It might be appropriate for Mr. Canaday to

19 explain the process rather than me trying to put words in

20 his mouth as to what was being set up, but basically my

21 understanding is that the outcome of that process would be

22 ultimately alternatives -- an agreed-upon alternative of all

23 the parties or a couple of alternatives that then would be

24 subject to the environmental review process.

25 And we think that if we go through this CREWG process

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1 that the Water Board staff is helping to facilitate, that we

2 are much more likely to come back here before the Water

3 Board presenting a proposal or a couple of proposals that we

4 all agree on or at least to focus very definitely in on the

5 areas of disagreement because we will have participated in

6 this fact finding and information gathering and sharing of

7 information process and participated in the EIR process in

8 getting it up and going, who's the lead agency and how the

9 studies are done and whatnot so that we're much -- we're

10 very likely, we would think, to shortcut this litigation

11 mode of trying to figure out in a hearing room here what

12 facts are right and what facts aren't and so just -- we

13 iterate that we very much want to work with all the parties

14 to arrive at an agreeable solution in this proceeding on the

15 waterfowl habitat issue and that we see the CREWG process as

16 being a very good way to do it and that that would be our

17 offer, and I would just wonder if maybe Mr. Canaday could

18 add anything if I missed anything.

19 MR. BIRMINGHAM: I have an objection --

20 CHAIRMAN CAFFREY: Before we do that, I want to hear

21 from the other parties.

22 Mr. Birmingham, what is your concern?

23 MR. BIRMINGHAM: I would have an objection if

24 Mr. Canaday were to describe the CREWG process, and the

25 basis of that is pretty fundamental.

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1 This Board acts in a number of capacities and in this

2 particular situation the Board is acting in a

3 quasi-adjudicative role and one of the things which the

4 Board always confronts when it's acting in -- sometimes in a

5 regulatory role and other times in a quasi-adjudicative role

6 is ex parte communications.

7 Now, we are aware of Mr. Canaday's role in the process

8 that's been going on in the Mono Basin, and one of the

9 concerns that we've had about that is at some point that

10 process may become intertwined with this process and the

11 contacts that were going on would be inappropriate ex parte

12 communication. I don't think that's occurred to date, but

13 if Mr. Canaday were to suddenly make that -- those

14 discussions part of this hearing, that line might be

15 breached.

16 I have a reaction to what Ms. Bellomo just said and I

17 will provide that now or I will defer it, but I did want to

18 stand up and make that objection.

19 CHAIRMAN CAFFREY: All right. And I want to give you

20 the opportunity to do that, Mr. Birmingham, thank you very

21 much. I must say I don't know where the ex parte line

22 begins, but I also have that same concern and --

23 MR. JOHNS: Mr. Caffrey, I could help clarify that

24 possibly if you like later on.

25 CHAIRMAN CAFFREY: Yeah, I understand that. Thank

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1 you, Mr. Johns. I want to first hear about -- if I could, I

2 just want to get a handle on who's in and who's out, so to

3 speak.

4 MR. BIRMINGHAM: I don't want -- excuse me. I don't

5 want my comments to be viewed as an observation that

6 anything inappropriate has happened, because that's not our

7 position. We don't think anything inappropriate has

8 happened.

9 CHAIRMAN CAFFREY: I understand that and your position

10 and your statement is not viewed by this Hearing Officer in

11 that way at all. I understand that you are reminding the

12 Board, warning the Board, of its obligation and that's

13 perfectly appropriate for attorneys to do before the Board.

14 This Board has always taken great efforts to avoid not

15 only ex parte communication, but the appearance of ex parte

16 communication and we also understand that there are a lot of

17 legal arguments about what ex parte communication is and

18 that many of those arguments that are out there extend to

19 the staff and we understand that.

20 Before we go any further, I was just trying to get

21 a -- I've heard from Ms. Bellomo and we appreciate her

22 comments and her offer and we'll all talk about that in a

23 moment, but we now know the position of the folks that she's

24 representing and I know that, Mr. Roos-Collins, you were

25 going to try and reach a -- I can't remember which federal

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1 agency it was, but did you have any success?

2 MR. ROOS-COLLINS: Mr. Chairman, I agreed to contact

3 Dr. Ridenhour and the Trust for Public Land as parties to

4 this hearing. I'm pleased to report that they join in the

5 agreement in principal. They also join in the request

6 conditionally made yesterday afternoon to suspend the

7 hearing while the agreement in principal is reduced into

8 writing.