STATE WATER
RESOURCES CONTROL BOARD
PUBLIC
HEARING
---oOo---
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
2 ---oOo---
3 BOARD MEMBERS:
4 JOHN CAFFREY, CHAIRMAN
JOHN W. BROWN, VICE
CHAIR
5 JAMES STUBCHAER
MARY JANE FORSTER
6
STAFF MEMBERS:
7
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.
15
UNITED STATES FOREST SERVICE:
16
UNITED STATES DEPARTMENT
OF AGRICULTURE
17 OFFICE OF GENERAL COUNSEL
33 New Montgomery, 17th
Floor
18 San Francisco, California 94105
BY: JACK GIPSMAN, ESQ.
19
BUREAU OF LAND MANAGEMENT:
20
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
24
25
CAPITOL
REPORTERS (916) 923-5447
1272
1 APPEARANCES CONT'D
2 ---oOo---
3 PEOPLE FOR MONO BASIN PRESERVATION:
4 KATHLEEN MALONEY BELLOMO
JOSEPH BELLOMO
5 P.O. BOX 217
Lee Vining,
California 93541
6
ARCULARIUS RANCH:
7
FRANK HASELTON, LSA
8 1 Park Plaza, Suite 500
Irvine, California 92610
9
CALIFORNIA TROUT, INC.:
10
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.
16
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:
20
MARY J. SCOONOVER, ESQ.
21 1300 I Street
Sacramento,
California 95814
22
MICHAEL VALENTINE
23
24
25
CAPITOL
REPORTERS (916) 923-5447
1273
1 APPEARANCES CONT'D
2 ---oOo---
3 NATIONAL AUDUBON SOCIETY:
MONO LAKE COMMITTEE:
4
MORRISON & FOERSTER
5 425 Market Street
San Francisco,
California 94105
6 BY: F. BRUCE
DODGE, ESQ.
7 HEIDE HOPKINS
GREG REISE
8 PETER VORSTER
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CAPITOL
REPORTERS (916) 923-5447
1274
1 INDEX
2 ---oOo---
3 PAGE
PEOPLE FOR MONO BASIN
PRESERVATION
4
POLICY STATEMENT
5
BY MS.
BELLOMO.............................1308
6
DIRECT EXAMINATION
7
BY MS.
BELLOMO.............................1334
8
CROSS-EXAMINATION
9
BY MR.
FRINK...............................1351
10
11
12
13 ---oOo---
14
15
16
17
18
19
20
21
22
23
24
25
CAPITOL
REPORTERS (916) 923-5447
1275
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
CAPITOL
REPORTERS (916) 923-5447
1276
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
CAPITOL REPORTERS (916) 923-5447
1277
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
CAPITOL
REPORTERS (916) 923-5447
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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.
CAPITOL
REPORTERS (916) 923-5447
1279
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
CAPITOL
REPORTERS (916) 923-5447
1280
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
CAPITOL
REPORTERS (916) 923-5447
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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.
CAPITOL
REPORTERS (916) 923-5447
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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
CAPITOL REPORTERS (916) 923-5447
1283
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
CAPITOL
REPORTERS (916) 923-5447
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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.
9 I caution that I only had a few minutes to talk with
10 them. They may have
questions and concerns that need to be
11 worked out, but I am confident they can be worked out in the
12 process of reducing the agreement to writing.
13 CHAIRMAN CAFFREY:
All right. I appreciate that.
14 Thank you for making those contacts for all of us.
15 Mr. Frink, at this point before I ask the other
16 parties to respond to Ms. Bellomo's suggestion or anything
17 else they may have to offer, do you have anything to offer
18 as guidance to give the Board?
19 MR. FRINK: Yes,
Mr. Caffrey. The only thing I would
20 be a little wary of right now is having the Board commit how
21 it intends to approach any aspect of this until it has
22
actually received the
settlement proposal and gone over the
23 record, but certainly a settlement proposal by all or even
24 most of the parties could greatly simplify the issues; and
25 if there's a party who has not joined in the settlement
CAPITOL
REPORTERS (916) 923-5447
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1 proposal, then they could go ahead and present their
2 evidence.
3 CHAIRMAN CAFFREY:
All right. Thank you very much,
4 Mr. Frink.
5 Let's see -- well, Mr. Dodge, I was going to go to
6 Mr. -- please. I was
going to go to Mr. Birmingham, but
7 there's no particular order.
Since you're up, why don't you
8 finish your thought.
9 MR. DODGE: I
was going to suggest since now that we
10 have this somewhat disappointing news, that the parties who
11 do have a settlement in principal have a few minutes to talk
12 about how we would like to proceed rather than going one by
13 one.
14 CHAIRMAN CAFFREY:
All right. Do you want to take
15 about a half an hour recess, 15-minute recess?
16 MR. DODGE:
Fifteen minutes would be plenty.
17 CHAIRMAN CAFFREY:
Let's see what Mr. Russi has to
18 say. Mr. Russi.
19 MR. RUSSI: Yes,
Mr. Chairman. I've been instructed
20 by my managers here in Sacramento that the BLM does agree to
21 enter into --
22
CHAIRMAN CAFFREY: I'm sorry, sir. I'm having trouble
23 hearing you.
24 MR. RUSSI: I'm
sorry.
25 CHAIRMAN CAFFREY:
Sometimes my inability to hear is
CAPITOL
REPORTERS (916) 923-5447
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1 convenient, but at the moment it's not. At least that's
2 what my wife tells me anyway. Please, sir.
3 MR. RUSSI: I
was instructed this morning by managers
4 here in Sacramento for the BLM that we will enter into the
5 settlement process that was discussed yesterday by
6 Mr. Birmingham or, for that matter, any other process that
7 may at sometime be proposed by this Board or others.
8 I would also like to say at this time that the BLM was
9 in attendance at the most recent meeting in Lee Vining in
10 which Mr. Canaday was there and presented to us the CREWG
11 process for discussion concerning the north basin area and
12 we agreed wholeheartedly that that was a very sound and
13 efficient, we thought, way to go through discussions and
14 ultimate resolutions of problems in the north basin area.
15 So I would just like to say that the BLM also feels
16 that was a very appropriate manner in which to approach the
17 problem.
18 CHAIRMAN CAFFREY:
All right. Thank you, sir.
19 Appreciate your comments.
20 Then let's take -- let's see, it's about 22 minutes
21 after 9:00 by that clock.
Why don't we come back at 9:45
22 and see if the rest of you are able to speak with one voice.
23 Thank you.
24 (Whereupon a recess was taken.)
25 MR. DODGE: Mr.
Caffrey, I think we're ready whenever
CAPITOL
REPORTERS (916) 923-5447
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1 you are.
2 CHAIRMAN CAFFREY:
All right, we're back. Who are
we
3 going to hear from?
Mr. Birmingham.
4 MR. BIRMINGHAM:
I was not selected by the other
5 parties to speak. I
asked for the opportunity to speak
6 because I wanted to respond to some of the things that
7 Ms. Bellomo said in her comments.
8 Throughout this process, this particular hearing,
9 there has been, from our perspective, a great deal of
10 confusion concerning the issues that are actually before the
11 Board in this hearing; and on the first day of the hearing I
12 tried to set out from our perspective what those issues are
13 based upon the original Hearing Notice, and with respect to
14 the Waterfowl Habitat Restoration Plan it's our
15 understanding that the only issue that is before the Board
16 is: Is the plan
submitted by the Department of Water and
17 Power consistent with D-1631 and if it's not, how should it
18 be amended?
19 Questions of implementation and water rights in the
20 north end of the Basin are not part of this hearing, and
21 it's for that reason that the owner of Conway Ranch withdrew
22 his evidence when that understanding was reached.
23 So from our perspective this Board can -- as a result
24 of this hearing can make a decision on the issues presented
25 in the Hearing Notice:
Is the plan consistent with D-1631
CAPITOL
REPORTERS (916) 923-5447
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1 and if it isn't, how should it be amended?
2 Now, a number of the parties -- well, in fact, all of
3 the parties with the exception of People for Mono Basin
4 Preservation have reached a tentative settlement, an
5 agreement in principal, about -- on that issue: If the plan
6 is not consistent
with D-1631, how should it be amended?
7 And what we would like to do at this point is suspend the
8 hearing process to give the parties who've reached an
9 agreement an opportunity to commit that agreement to
10 writing -- or to reduce it to writing and if we are able to
11 do that, come back to the Board and at that time ask the
12 Board to make a decision on the issues presented based upon
13 all of the evidence that's in the record and the agreement
14 of the parties.
15 In order to do that it will be necessary for the
16 parties to stipulate to the admission of the written
17 evidence and
other documentary evidence that has been marked
18 for identification as an exhibit, and at that point we would
19 be willing to do that.
20 CHAIRMAN CAFFREY:
Excuse me, Mr. Birmingham. Are
you
21 still just speaking for your clients or are you speaking for
22 all?
23 MR. BIRMINGHAM:
I'm speaking for the entire group in
24 making these comments.
25 CHAIRMAN CAFFREY:
All right.
CAPITOL
REPORTERS (916) 923-5447
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1 MR. BIRMINGHAM:
All of the parties that have reached
2 a tentative agreement would stipulate to the admission of
3 the evidence that's been marked for evidence so that the
4 State Board can make a decision, and we would expect the
5 State Board to make a decision on the issues in light of the
6 evidence and in light of the agreement that's been reached
7 by the parties; but it's our understanding that the State
8 Board has to make a decision on that issue.
9 In the event that some of the parties drop out because
10 the way the settlement agreement is ultimately drafted, if
11 there are some parties that drop out, whether or not we
12 present the agreement and stipulate to the admission of the
13 evidence would have to be considered on a case-by-case
14 basis.
15 For instance, if the Department of Fish and Game were
16 unable to support
the agreement that was ultimately
17 submitted, then that certainly would affect the Department
18 of Water and Power's interest in proceeding with the
19 settlement differently than if another party were to drop
20 out.
21 The Bellomos have offered to stipulate to the
22 admission of evidence without cross-examination if the
23 parties will agree not to cross-examine then. If they want
24 to submit to -- submit their evidence to the Board today
25 either in writing or orally, the parties are agreeable to
CAPITOL
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1 that and the parties will agree that they won't be
2 cross-examined. But
if we come back in 30 days or after a
3 period of time and say to the Board, "We would like the
4 hearing to resume because we were unable to reduce our
5 agreement to writing," then we would want to have the
6 opportunity to introduce all of the evidence, have an
7 opportunity to cross-examine the other parties' witnesses
8 and put on a rebuttal case, if required.
9 CHAIRMAN CAFFREY:
All right. You've obviously had
10 some good discussion and thought this through. Do I
11 understand you to be saying, then, that if you were to bring
12 an agreement to this Board that all the parties stipulated
13 to with the exception of Ms. Bellomo, that that would, in
14 effect, close the record?
15 MR. BIRMINGHAM:
No, I don't think the agreement would
16 close the record.
What we would do is introduce the
17 agreement into the record and then stipulate to the
18 admission of all the other evidence that's been marked for
19 identification.
20 CHAIRMAN CAFFREY:
In other words, that would, in
21 effect, close the hearing once that was accepted as evidence
22 and part of the record.
Then the Board would then go about
23 its process of making its decision.
24 I also understand you to be saying that in the event
25 that the agreement process fails by your definition of
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1 "failure," then you reserve the right that we
resume the
2 hearing exactly where we left it off?
3 MR. BIRMINGHAM:
Yes.
4 CHAIRMAN CAFFREY:
And you're reserving the right to
5 define what "failure" is because, as you stated, if
I heard
6 you correctly, depending on who does and doesn't drop out,
7 that could greatly affect the City's desire to go forward.
8 MR. BIRMINGHAM:
That's also correct.
9 CHAIRMAN CAFFREY:
All right.
10 MS. BELLOMO:
May I clarify? Mr. Birmingham
11 misstated -- perhaps misunderstood my position. I had
12 offered that if this proceeding was to bifurcate and they
13 can have their settlement going forward on the -- if they
14 chose to on the stream portion of the case and if we were
15 going to then go into a CREWG type process, that we would
16 put the testimony in without cross-examination and we would
17 all go forward and that would be that.
18 But if this is going to go forward as a settlement
19 that we're not part of, then we would like all the evidence
20 to go in and an opportunity to cross-examine the parties.
21 It certainly doesn't seem equitable at all that the settling
22 parties would reserve the right to reopen the record and
23 cross-examine if they didn't like the way things were going,
24 but we then wouldn't be allowed to cross-examine witnesses
25 as long as they were all in agreement. If this is going
CAPITOL REPORTERS (916) 923-5447
1292
1 forward as a settlement, we'd like the settlement in the
2 record and we would like to cross-examine the witnesses as
3 we had planned to do so.
4 MR. BIRMINGHAM:
If we come back and -- because we've
5 not been able to reduce our agreement to writing, ask the
6 Board to resume the hearing, then we would expect that the
7 Bellomos or the People for Mono Basin Preservation would
8 have the opportunity to cross-examine witnesses to the same
9 extent as the other parties; but we're not saying that we
10 are agreeing to the Bellomos' proposal.
11 What we are essentially doing is making a different
12 proposal to the Board, because it's our perspective that if
13 all of the parties have reached an agreement with the
14 exception of People for Mono Basin Preservation, that there
15 is enough information in the evidence, in the record, and
16 there will be sufficient information or evidence in the
17 record after a
stipulation that the Board can make a
18 decision. From my
individual perspective, there's enough
19 information in the record as we stand here today for the
20 Board to make a decision.
21 MS. BELLOMO: We
would think that should be the case
22 whether or not the settlement fell apart and some parties
23 stepped out of the settlement. Either the evidence should
24 be taken in and no cross-examination and the record is
25 closed, or you should take the evidence and let us do
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1 cross-examination now and not -- no one party or group of
2 parties should have the right to decide whether
3 cross-examination's going to occur or not.
4 If you're going
to have a settlement and all the
5 evidence in the record and we don't agree with the
6 settlement obviously, that's why we're not joining in, then
7 we think it's necessary for the record to be tested; and
8 obviously if somehow they came to disagreement among
9 themselves, then they realize that the evidence needs to be
10 tested. The evidence
needs to be tested evidently as long
11 as people are not in agreement. We're not in agreement and
12 we would think the evidence needs to be tested then.
13 CHAIRMAN CAFFREY:
Now, which one of you gentlemen --
14 Mr. Birmingham first?
Do you yield, Mr. Dodge?
15 MR. DODGE: I
don't yield.
16 CHAIRMAN CAFFREY:
All right. Mr. Dodge, then
17 Mr. Birmingham. He
was there first, Mr. Birmingham.
18 MR. DODGE: I
think there seems to be agreement that
19 if the settlement falls apart that we resume where we are
20 with cross-examination and further evidence and rebuttal.
21 On the other
hand, if the settlement does go through,
22 with everyone except the People for the Mono Basin
23 Preservation and the settlement is presented to this Board,
24 I think you can then decide -- I don't think you have to
25 decide today -- whether Ms. Bellomo should be allowed to
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1 cross-examine some or all of the witnesses.
2 I frankly am somewhat sympathetic to her point of view
3 that if she were to think she could make some headway on
4 some witness through cross-examination then, you know, God
5 bless her. Go ahead
and do it.
6 CHAIRMAN CAFFREY:
Let me make an observation. You
7 have respectfully rejected Ms. Bellomo's offer; is that
8 correct?
9 MR. DODGE:
That's correct.
10 CHAIRMAN CAFFREY:
So that offer's off the table.
11 Now that leaves us with the question -- I have a
12 couple questions.
13 MR. DODGE:
Could I just make two more points and
14 then --
15 CHAIRMAN CAFFREY:
Go ahead.
16 MR. DODGE: If
you don't mind. One thing that we all
17 agree to -- all of the so-called settling parties agree to
18 is that this is a fairly complicated matter and we would
19 like from the Board 30 days to try to reduce it to writing,
20 and I think by inadvertence Tom neglected to say that.
21 The other thing I want to say just on behalf of my
22 client and not on behalf of the group is that in one respect
23 we agree with what the Bellomos are saying and, that is, the
24 CREWG process which is ongoing, as it's called the CREWG
25 process I guess, is a valuable method, in our view, of
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1 gathering information and resolving issues that relate to
2 the north end of Mono Lake and the various water courses
3 there; and so we do want to proceed with that process and at
4 some point if there's an EIR that's done on those issues, we
5 would want to integrate the results of the CREWG process
6 into that EIR and we think that would be a valuable
7 exercise. Thank you.
8 CHAIRMAN CAFFREY:
All right, thank you.
9 Mr. Birmingham.
10 MR. BIRMINGHAM:
The only point that I wanted to make
11 in response to what Ms. Bellomo just stated is I am left
12 with the impression that Ms. Bellomo is laboring under the
13 mistaken impression that if the parties agree, we will
14 present the settlement to the Board and the Board will
15 rubber stamp it.
16 I've been before the Board enough to know that the
17 parties can reach an agreement and the Board will make a
18 decision based upon the evidence and it may or may not
19 accept the agreement of the parties --
20 CHAIRMAN CAFFREY:
Or we can pick and choose the
21 things in the settlement that you've acquiesced to and hate
22 the most and not agree with the things that you like.
23 MR. BIRMINGHAM:
That's correct.
24 MS. BELLOMO:
Let me just clarify, Mr. Caffrey, excuse
25 me. I practiced
before the Public Utilities Commission and
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1 am an employee of the State of California before the Public
2 Utilities Commission for 11 years and I understand very
3 clearly the administrative process --
4 CHAIRMAN CAFFREY:
I don't doubt that.
5 MS. BELLOMO: --
and I would never insult this process
6 by assuming that there was any rubber stamping that was
7 going on, and I've participated in many proceedings where
8 we've had settlement of all the parties and we have
9 settlement rules there that govern settlement processes
10 where you have all party settlements or partial party
11 settlements. That's
why I asked yesterday. And I
12 understand very well what the issues are and I know that
13 you're doing a very -- are going to deliberate fairly.
14 CHAIRMAN CAFFREY:
I know your background,
15 Ms. Bellomo, and I don't think Mr. Birmingham meant it that
16 way, although it's not my job to interpret that; but I think
17 he was talking more to the likelihood of what this Board
18 would do and of what our past performance has been.
19 So let me say that one way to proceed here -- I don't
20 know how you feel about the situation, but let me ask a
21 question. Let's say
that -- let me give a hypothetical
22 here. I want to see
if I understand this and I'd like to
23 hear from Mr. Frink, too, if he has any thoughts, or my
24 fellow Board Members for that matter, but we don't want to
25 belabor it.
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1 One way to proceed in the hypothetical would be to cut
2 off the hearing at some reasonable point, which is today,
3 and perhaps Ms. Bellomo would want to go ahead and put her
4 testimony in the record.
We temporarily close the record at
5 that point, leave it in abeyance and you folks come back,
6 say, in 30 days, if that's what we agree to give you.
7 Let's say your process works and you have a settlement
8 agreement. Now you
have before us a settlement agreement.
9 I assume it's probably going to take us another 30 days in
10 fairness to the parties that are not within the agreement to
11 take a look at it so that they have due process. So that's
12 60 days out.
13 I don't want this record to get stale. I want it to
14
be understood that -- you
know, that this record is very
15 important and what we have garnered up to now is critical.
16 I'm just wondering what kind of a rule we would have for
17 cross-examination at that point? I think it's fair to
18 obviously -- and it's due process to allow Ms. Bellomo to
19 cross-examine some of the parties, but maybe this -- maybe
20 I'm stating the obvious, but shouldn't it just be limited to
21 that? I mean, if
you're all in agreement that would be
22 really the only thing that would occur. Then you might have
23 some redirect and we would go through the process and that
24 would be the end
of the hearing.
25 Anybody have any -- now, on the other hand -- before
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1 you answer that, on the other hand, if most of you agree and
2 some of you don't, then we're back to something a little bit
3 more complicated with the settlement agreement offered as a
4 new exhibit by those that have signed on; but we're back
5 into a regular kind of hearing with that one new piece of
6 evidence.
7 MR. BIRMINGHAM:
I think what Mr. Dodge stated earlier
8 is absolutely
consistent with what you've just stated and,
9 that is, if we come back with a settlement agreement, the
10 Board at that time could make a determination as to whether
11 or not Ms. Bellomo's due process rights require that she be
12 given the opportunity to examine -- or cross-examine the
13 witnesses of some of the parties and we would certainly be
14 willing to stipulate that the proceedings be limited in that
15 circumstance to the cross-examination of those witnesses.
16 CHAIRMAN CAFFREY:
Well, there's also a variety of
17 possibilities for those people that are not signatory to an
18 agreement. If they're
given 30 days to review it, they
19 might like it and decide that they have no objection to it
20 and might want to sign on.
I mean, there's a spectrum of
21 possibilities.
22 MR. DODGE: I
agree with that, Mr. Chairman, and I
23 again express my surprise that this settlement, the terms of
24 which I can't disclose to you right now, is unacceptable to
25 the People for the Mono Basin Preservation; and I think with
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1 some more thought about it it wouldn't surprise me at all if
2 they signed on.
3 CHAIRMAN CAFFREY:
Ms. Bellomo, do you have something
4 else?
5 MS. BELLOMO: I
was just going to say I feel
6 comfortable with your proposal that we would go forward and
7 put in our evidence today since we're here and maybe
8 wouldn't be able to get both witnesses back at the same time
9 in the future and
that then the hearing be recessed or
10 continued for the settlement process with the understanding
11 that when we came back if, in fact, we felt that we needed
12 to conduct cross-examination and you were convinced that we
13 had the right to do so, that we'd be allowed to do that,
14 that would be fine.
We don't have to go forward with that
15 today.
16 CHAIRMAN CAFFREY:
I think -- you know, we've
17 convenienced the other parties when they had problems with
18 witnesses and I certainly have no problem. You're granted
19 an hour to give your direct and then if the other parties
20 wish to cross-examine you, they can do that and then that
21 would be as far as we would go today.
22 Mr. Frink, do you have anything that you'd like to add
23 to the way it appears we are heading as I have described it?
24 MR. FRINK: It
appears that we're heading in a
25 direction that everybody's in agreement with. If you'd
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1 like, I could attempt to summarize that or if you'd prefer,
2 we can just go ahead.
3 CHAIRMAN CAFFREY:
I think that would be very helpful,
4 Mr. Frink, if you would summarize it in an appropriate legal
5 fashion so that we all understand it.
6 MR. FRINK: I
don't know that this is in either
7 appropriate or legal fashion, but my understanding is that
8 the Bellomos intend to go ahead and present their evidence
9 today, that there would then be a recess of the hearing.
10 The third
step would be that the parties would attempt
11 to come up with a proposed written settlement agreement
12 within 30 days.
13 The fourth step would be that the parties -- if an
14 agreement is reached, the parties to the agreement would
15 stipulate to the admission of all remaining exhibits.
16 The fifth understanding would be that the Board would
17 make its decision based on the proposed settlement agreement
18 and evidence in the record.
19 The sixth understanding would be if no settlement is
20 reached amongst most of the parties, the Board would
21 complete the hearing and we would resume where the Board
22 left off.
23 And the seventh item is that at this point the Board
24 would withhold a decision on what sort of cross-examination
25 would be appropriate if a majority of the parties reach a
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1 decision, but one or more of the parties still wishes to
2 cross-examine other witnesses, a party who's not involved in
3 the proposed settlement.
4 CHAIRMAN CAFFREY:
I think that is a good summary in
5 terms of my understanding.
6 Is that everybody else's understanding assumed by a
7 nod? Okay, nobody
objecting --
8 MS. SCOONOVER:
Mr. Caffrey.
9 CHAIRMAN CAFFREY:
Ms. Scoonover.
10 MS. SCOONOVER:
My only question is if the Bellomos go
11 forward to testify today, is the Board then proposing
12 cross-examination of those witnesses?
13 CHAIRMAN CAFFREY:
Yes, if you wish to.
14 MS. SCOONOVER:
And Mr. Russi's testimony, I assume,
15 since he's one of the settling parties then would be delayed
16 to some future time?
17 CHAIRMAN
CAFFREY: That is correct. That is correct.
18 Now, let me ask one other question with regard to
19 timing. This means
that we would not be back in this
20 room -- yeah, we would be back in this room perhaps for the
21 purpose of allowing Ms. Bellomo to cross-examine and if that
22 were to be the case, assuming that she did not find the
23 agreement acceptable, then that wouldn't be happening for
24 about 60 days.
25 Does that present any kind of a problem with the Court
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1 or anybody else, because then a decision would not be
2 forthcoming after that perhaps for another 30 or 60 if we're
3 lucky.
4 MR. DODGE: It
presents no problem with respect to the
5 Court that I'm aware of.
6 CHAIRMAN CAFFREY:
Might it present a problem, dare I
7 be so bold to ask, with the Courts?
8 MR.
DODGE: No.
9 MR. BIRMINGHAM:
No, no.
10 CHAIRMAN CAFFREY:
Not that we know the answer to
11 that, but I have my confidence in you officers of the court.
12 MR. BIRMINGHAM:
Mr. Dodge and I are intimately
13 familiar with Judge Finney's position on this and Judge
14 Finney would love to have the Board take the time necessary
15 to make the appropriate decision.
16 CHAIRMAN CAFFREY:
Well, one thing that I want to make
17 sure that all the parties understand is the dedication and
18 diligence to this issue of this Board and I know that that
19 is shared by Mr. Del Piero who, bless his heart, can't be
20 here with us today; but we really do want this to work. We
21 want the protections to be put in place, and I know that's
22 what we all want to do.
23 So you can look at this thing whether it's a long time
24 or a short time. We
are adding extra time to it but -- all
25 right, then. That
appears to be the way that we will
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1 proceed. There is no
objection --
2 MS. BELLOMO: I
just needed a point of clarification,
3 if I could do so.
4 CHAIRMAN CAFFREY:
Yes, Ms. Bellomo.
5 MS. BELLOMO:
With the settlement if it's proposed --
6 the parties go forward and present a settlement. Would
7 there be cross-examination on the settlement document?
8 Would that be presented by a witness and cross-examination
9 if we wanted to do so?
10 CHAIRMAN CAFFREY:
The settlement document will be
11 entered into the record as an exhibit by the joint parties
12 that have signed it and if after you have had whatever
13 amount of time we give you as another party to review it, if
14 you have a problem with it and wish to cross-examine, then
15 you would be given that opportunity as we move to closure in
16 this hearing.
17 MS. BELLOMO:
Fine, thank you.
18 CHAIRMAN
CAFFREY: All right. Now, do you wish to --
19 Ms. Bellomo, do you wish to give oral summary of your direct
20 today? I'm offering
you that opportunity. It's already in
21 the record. You do
not have to do that but --
22 MS. BELLOMO: We
had intended and would like to do
23 oral summary of our testimony, which is fairly brief, and we
24 had about 20 or -- I forget how many slides that are
25 exhibits that we've marked that we wanted to show.
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1 CHAIRMAN CAFFREY:
All right.
2 MS. BELLOMO:
And I had -- in our Notice of Intention
3 to Appear I had indicated that I was going to make a policy
4 statement on behalf of the PMBP, our group. So what I had
5 intended to do was to use the hour to make the policy
6 statement, which would be clearly designated as that and not
7 evidence, and then introduce Mr. Bellomo's testimony and my
8 testimony and the slides, which are part of the evidence.
9 CHAIRMAN CAFFREY:
And as I believe our written
10 instructions stated, if you make a policy statement after
11 the fact, so to speak, and not at the very beginning of the
12 hearing, then it has to be part of your hour.
13 MS. BELLOMO:
Yes.
14 CHAIRMAN CAFFREY:
But obviously you are not subject
15 to cross-examination on the policy statement.
16 MS. BELLOMO:
Right, and I was intending that it would
17 be part of the hour
18 CHAIRMAN CAFFREY:
I'm just -- I'm repeating what I'm
19 sure you know. I just
want to have it on the record to make
20 sure we all understand it.
21 MS. BELLOMO:
And at the commencement of our
22 presentation -- I discussed this with Mr. Frink this morning
23 if that would be the appropriate time -- the secretary of
24 our organization is here to present a letter to the Board
25 indicating that the group endorses our testimony, and she
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1 also has a request to make to the Board for a public witness
2 hearing in Mono County at some point.
3 CHAIRMAN CAFFREY:
Mr. Frink, can we do that as part
4 of Ms. Bellomo's policy statement or do we have a procedural
5 due process problem with that?
6 MR. FRINK: I
think you could do it as part of her
7 policy statement. We
already received the letter indicating
8 that the Bellomos are speaking on behalf of their
9 organization. But if
the secretary wishes to state
10 something to that effect, that's fine.
11 CHAIRMAN CAFFREY:
All right. She will join you at
12 the podium, I take it, then?
13 MS. BELLOMO:
Yes.
14 CHAIRMAN CAFFREY:
Are you going to give your policy
15 statement as the first part of your hour and then present
16 Mr. Bellomo as your witness?
17 MS. BELLOMO:
Yes. And I'm a witness, also.
18 CHAIRMAN CAFFREY:
All right. Here's what we'll do
19 today: We'll have
your direct -- we'll have your policy
20 statement, we'll have your direct, we'll provide an
21 opportunity to the rest of the parties to cross-examine your
22 witness. We will then
give you an opportunity for redirect.
23 We will have recross and that will be the completion of
24 today's exercise.
25 Mr. Haselton.
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1 MR. HASELTON:
Mr. Caffrey, Members of the Board, not
2 wanting to kick this dead horse one more time, but I want --
3 I feel the need on behalf of my client to voice for the
4 record our thoughts on this settlement issue.
5 We are agreeing to go along, albeit very cautiously,
6 and with the understanding that there is no settlement and
7 that we will have a voice and influence on it, as we've had
8 the opportunity afforded to us by this Board, on any issues
9 concerning it and we are the other party I think as
10 Mr. Birmingham was referring to and that we would be treated
11 with the same degree of acknowledgment that we have been by
12 the Board.
13 So I just want to make it real clear that we're part
14 of the group. We
recognize our unique position that we're
15 not part of the aligned parties for the City of LA and we
16 are cautiously going along because we haven't seen anything
17 yet, per se.
18 CHAIRMAN CAFFREY:
We understand that, Mr. Haselton.
19 MR. HASELTON:
Okay.
20 CHAIRMAN CAFFREY:
That's why we were so cautious in
21 our discussion reaching our understanding of how we would
22 proceed if somebody other than the Bellomos -- another way
23 of saying it, if someone other than the Bellomos fall off
24 the agreement wagon, so to speak. Then we're going to have
25 to make a judgment as to how we handle all that
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1 cross-examination and due process.
2 MR. HASELTON:
Okay. And basically you voiced --
our
3
only avenue is this microphone
between this Board and myself
4 representing my parties and we want to make sure that avenue
5 remains real clear and loud and so thank you.
6 CHAIRMAN CAFFREY:
All right, sir. We appreciate
your
7 comment. All right,
then. With that I believe it will be
8 appropriate then for Ms. Bellomo to present her policy
9 statement and we can then go to your direct.
10 Ms. Bellomo.
11 MS. BELLOMO:
Chairman Caffrey, I wonder if we could
12 take about a 10-minute break just so I could organize our
13 materials and we need a slide projector.
14 CHAIRMAN CAFFREY:
That's fine. I just realized the
15 hour. Let's break
until, say, 10:30 and we can set
16 everything up for you.
17 MS. BELLOMO:
Thank you.
18 (Whereupon a recess was taken.)
19 CHAIRMAN CAFFREY:
I presume we're all ready to go.
20 Ms. Bellomo, you're welcome to begin.
21 MS. BELLOMO:
Thank you. If we could commence,
22 Chairman Caffrey, with Heidi Hess-Griffin, who is going to
23 make a couple of statements on behalf of the People for Mono
24 Basin Preservation.
25 CHAIRMAN CAFFREY:
All right, and the understanding is
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1 this is part of your policy statement.
2 MS. BELLOMO: Correct.
3 CHAIRMAN CAFFREY:
All right, thank you.
4 Good morning and welcome.
5 MS. HESS-GRIFFIN:
Good morning, thank you.
6 CHAIRMAN CAFFREY:
Do we need to spell your name for
7 the record? I guess
we're okay.
8 MS. HESS-GRIFFIN:
I'm Heidi Hess-Griffin, Secretary
9 of the People for Mono Basin Preservation.
10 The first letter is dated January 27th, 1996, and it's
11 addressed to the Water Resources Control Board.
12 (Reading) The People for Mono Basin Preservation
13 is a group consisting of residents and property
14 owners of the Mono Basin concerned about the
15 water issues preservation of the environment,
16 historic and cultural resources in the Basin.
17 Due to the travel distance and time constraints,
18 all of our members cannot testify at the
19 hearing. It
was the consensus of our group at
20 the meeting of January 4th, 1997, that Joseph
21 Bellomo and Katie Maloney Bellomo represent our
22 group in testimony before the State Water
23 Resources Control Board. Any consideration and
24 courtesies shown to our representatives would be
25 appreciated.
Heidi Hess-Griffin.
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1 The second
letter is dated February 22nd addressed to
2 John Caffrey, Chairman.
3 (Reading) Dear Chairman Caffrey: The
4 People for Mono Basin Preservation respectfully
5 request that the members of the State Water
6 Resources Control Board hold a public hearing in
7 the Mono Basin.
The community feels that prior
8 to reaching any decisions on the restoration
9 plans the Board should get firsthand testimonies
10 from the public.
The Board has received
11 testimonies from people with expertise in
12 various fields and now needs to hear from the
13 general public of the Basin who live in the area
14 and have in-depth knowledge and experience with
15 the environment, culture and history of the
16 area.
17 In addition to hearing from the general
18 public, it is essential that the Board tour the
19 affected areas including Conway, Thompson, Cain,
20 DeChambeau and Mattly Ranches, Mill and Wilson
21 Creeks. We
recommend a tour be conducted with
22 representatives of all active parties enabling
23 the Board to ask questions and perform its own
24 firsthand evaluation of these crucial issues.
25 The restoration should not be based solely
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1 on science, but must also take into
2 consideration the cultural, historical and
3 aesthetic values that are enjoyed by and
4 important to all the people of the State of
5 California.
6 Your decision will permanently affect the
7 people and the land of the Basin, as well as our
8 future visitors to the area.
9 We sincerely appreciate all the time and
10 effort you've put into the proceedings so far,
11 and our group will be happy to facilitate the
12 tour and arrange the hearing location.
13 Sincerely Heidi Hess-Griffin.
14 CHAIRMAN CAFFREY:
Thank you very much, Ms. Griffin.
15 Appreciate your taking the time to be here.
16 Ms. Bellomo, did you --
17 MS. BELLOMO:
Yes, I just wanted to actually ask
18 Ms. Griffin to deliver the original letter to the Board. I
19 don't know to whom she should hand it but --
20 CHAIRMAN CAFFREY:
She should hand it to our
21 attorney, Mr. Frink.
22 MS. BELLOMO:
Okay, thank you.
23 CHAIRMAN CAFFREY:
Thank, you ma'am.
24 MS. BELLOMO:
Does this have a counter on it that
25 tells you --
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1 CHAIRMAN CAFFREY:
Yes, it does. Well, not where
you
2 can see it.
3 MS. BELLOMO:
Oh.
4 CHAIRMAN CAFFREY:
It's 56 minutes and 27 seconds
5 remaining.
6 MS. BELLOMO:
Thank you. You'll have to excuse
me if
7 my statement is a little disjointed because as I go through
8 it I'm going to try to shorten it. So there may be some
9 pauses.
10 By now you know who I am and the group so I won't go
11 ahead and introduce myself but, as we indicated, we are
12 going to begin with my public policy statement, which will
13 include a slide
show, and we've decided we're going to have
14 the slide show as part of the public policy statement. It
15 makes it easier in terms of dealing with the evidence, and
16 then I will go ahead with the direct examination of
17 Mr. Bellomo and of myself.
18 CHAIRMAN CAFFREY:
But the slides are exhibits and
19 they'll be subject to cross-examination; is that correct?
20 MS. BELLOMO:
Well, I guess we just need to resolve
21 that. I was talking
with the staff during the break and --
22 MR. JOHNS: Part
of the problem is the slides were
23 not pre-submitted --
24 CHAIRMAN CAFFREY:
Stop the clock for a moment.
25 MR. JOHNS:
Okay. Part of the problem is the
slides
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1 were not pre-submitted.
2 CHAIRMAN CAFFREY:
Oh, they were not?
3 MR. BIRMINGHAM:
We have no objection if Ms. Bellomo
4 would like to include slides in her policy statement.
5 CHAIRMAN CAFFREY:
All right, thank you. I just got
6 a little confused about the pictures versus the slides.
7 MS. BELLOMO: Oh,
thank you.
8 CHAIRMAN CAFFREY:
Thank you, go ahead.
9 MR. JOHNS: Are
you going to show your slides now?
10 MS. BELLOMO:
No, I'm going to speak.
11 MR. JOHNS:
Okay.
12 CHAIRMAN
CAFFREY: You're very honest reminding
him.
13 Go ahead, thank you.
14 MS. BELLOMO: I
want to express again that our group
15 has a great deal of respect for this process and for the
16 effort the Water Board is engaged in, and for this reason
17 we feel that it's very important that you have all the best
18 information possible to make -- base your decision upon.
19
You have a lot of
access through witnesses in the
20 hearing room here to the testimony of people who have a
21 great deal of education and professional accomplishment and
22 what we have -- view has to some extent been lacking thus
23 far -- well, I have to say to a great extent lacking thus
24 far in what our group has to offer, among other things, is
25 that we have a great deal of experience and familiarity
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1 with the north end of the Basin. Now I'm talking about
2 waterfowl habitat here, and that basically there's no
3 substitute for actually knowing the area at a certain
4 point.
5 With the exception of BLM, we haven't been -- this
6 may sound harsh to say, but we haven't been too pleased
7 with the degree of scientific analysis that has been
8 presented in support of the proposals thus far and we think
9 that this will improve as we go through a fact-finding
10 process.
11 We think that there are a lot of issues that need to
12 be sorted out that affect the north end of the Basin that
13 haven't been made primary issues in the testimony of other
14 parties. For
instance, the DeChambeau Ponds Complex
15 problem where the Phase 1 project has not been successful
16 to date, and these are things that we think have to be
17 worked out and worked on as part of the process to resolve
18 all the waterfowl habitat issues in the north end of the
19 Basin.
20 We are troubled by something that's happening in this
21 proceeding that I
guess often can happen when things become
22 too abstract, which is that we have heard a significant
23 amount of testimony about large amounts of money being
24 spent at Lee Vining and Rush Creeks to attempt to create a
25 self-sustaining brown trout fishery and, yet, we have not
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1 seen in people's testimony, other than our own, objections
2 to the proposal to destroy the fishery at Wilson Creek if
3 that creek is dewatered.
4 Wilson Creek already has a self-sustaining wild brown
5 trout fishery. So we,
as members of the community, are
6 concerned about the lack of logic in this and question if
7 this is actually sensible and feel this is the sort of
8
thing that has to be brought
to the Board's attention.
9 The People for Mono Basin Preservation I would want
10 to point out so that you understand a little bit more about
11 us is a very diverse group of people composed of people of
12 all ages, political backgrounds, interests, religions,
13 whatever, and the one thing that we have in common is a
14 deep respect for the area and a recognition that this
15 process needs our participation in order for the Water
16 Board to be able to fully understand the whole array of
17 interest that you have to protect here. Not just
18 environmental, but historical values, cultural values,
19 recreational values.
20 We are very adamantly opposed to any plan that, in
21 our view, would destroy more in terms of environment,
22 habitat, recreational value, historical value than it
23 promises to create.
We cannot support a plan that even if
24 it is successful, and here I'm speaking of rewatering Mill
25 Creek, would take many many decades to come to fruition and
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1 displace so much wildlife in the process without addressing
2 that fact.
3 We can't support a plan that threatens the meadows
4 where grazing waterfowl eat in the Basin, because as people
5 who live there we are very aware that waterfowl come to the
6 Basin and look for the areas where they can graze and find
7 food. In fact, it's
ironic, but I always see more geese in
8 Reno on the golf courses and in the parks than I ever see
9 on the Mono Basin because they need something to eat; and
10 we don't want to see Conway Meadow and Thompson Meadow and
11 DeChambeau Meadow and Mattly Meadow devastated by proposals
12 that have the intention of creating waterfowl habitat but
13 eliminate their feeding grounds or greatly reduce the
14 feeding grounds. So
we have a real problem with that.
15 We have a problem with a plan that forecasts the
16 creation of meadows in Mill Creek when we know it to be a
17 very gravelly area and, in fact, one of our local members
18 who works in the construction business has stated that Mill
19 Creek to him looked like it would make a good gravel pit.
20 We're concerned about the forecast of ponding of water on
21 Mill Creek where the slope of the creek is such that we see
22 the water flowing very swiftly down towards the lake, and
23 that just doesn't fit with our empirical observations of
24 what we normally -- where we normally see ponding
25 happening.
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1 Put quite simply, I guess I would say collective
2 common sense of the local community has told us that the
3 proposal to rewater Mill Creek as it stands by DWP as well
4 as the State Lands Commission with more water -- with most
5 or all of the water that flows down Wilson Creek is simply
6 a poor environmental and societal trade-off.
7 We definitely support using the water from the Lundy
8 drainage as efficiently as possible. We support repairing
9 the old irrigation systems.
We support making the most of
10 what we have, and we have put forward a proposal that would
11 do that and would allow excess water, which at certain
12 times of the year there's quite a bit, to go down Mill
13 Creek without destroying the existing habitats that we
14 have. We simply don't
agree with a narrow focus that would
15 put all values in Mill Creek above everything and the devil
16 sort of take the hindmost in what happens to everything
17 else.
18 We certainly don't challenge the right of anyone to
19 present any proposal in this proceeding and if there are
20 those who think putting all the water down Mill Creek is
21 the highest use, then they're certainly entitled to say so.
22 However, we are very interested in participating in this
23 process. We feel that
the process demands that the adverse
24 environmental consequences and the societal consequences,
25 historical, recreational, whatnot, be clearly identified;
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1 and, thus far, they haven't been to our satisfaction
2 satisfactorily identified in the testimony of the other
3 parties.
4 We find it somewhat
ironic that in order to create a
5 quote unquote "natural" Mill Creek and return it to
its
6 natural condition the cost of doing so is to drill wells at
7 DeChambeau Pond, to install pumps and tamper with ground
8 water, to put irrigation water in pipes, to install
9 sprinkler systems, as some have suggested, on very large
10 meadow areas when at the current time the north end of the
11 Basin is largely free of human intervention other than
12 having the power plant and water that flows in ditches.
13 It's a very pristine area that has not changed very
14 much in the last century other than the few housing areas,
15 and we don't want to see this end of the Basin turned into
16 an expensive, high maintenance situation where we have
17 pipes and sprinklers and freezing pipe problems and all of
18 that. It's really
inconsistent with the very natural
19 nature and rural nature of that end of the county -- excuse
20 me, of the Basin.
21 I want to inform you that the level of community
22 concern over this issue is really extraordinary. I have
23 lived in Mono County on and off since I was four years old
24 and my family has a residence there and I have watched the
25 whole Mono Lake
proceeding as it unfolded in the past and,
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1 in fact, I and my family have been very strong supporters
2 of the Mono Lake Committee since its inception and I remain
3 a member of the Mono Lake Committee; and some members of
4 our group are members of Mono Lake Committee and there are
5 others that have not been supporters. That's not the issue
6 here for us.
7 The issue is that we love this area. We know the
8 area. We don't feel
that the people putting these
9 presentations before you so far, with the exception of BLM,
10 seem to really grasp how the north end of the Basin works
11 and functions; and this is where we spend our time. That's
12 where I grew up. I
spent every summer there. I've swam --
13 I probably with my sister have swum in Mono Lake more times
14 than any person on the face of the earth. We went swimming
15 every day.
16 I know the hypopycnal layer because we swam in it.
17 We watched it. We
played and we tried to see how it worked
18 and we tried to pull it up with our hands and everything.
19 So we know the area.
We watched the creeks. We know
how
20 they change from year to year with excess runoff. We know
21 over time culverts have blown out and Mill Creek changed
22 and some of the channels that people are saying now are
23 historic, people are remembering when culverts blew out and
24 those historic channels changed. We just cannot subscribe
25 to everything
being determined by some sort of scientific
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1 analysis when our common sense and our experience tells us
2 otherwise.
3 No one has commented on the recreational and
4 aesthetic values that are threatened if we damage or
5 destroy Conway Meadow, Thompson Meadow, the County Park
6 habitat and the marsh below the County Park. Literally
7 thousands -- and I'm really not exaggerating I'm sure.
8 Thousands of people enjoy these areas every year as they
9 drive by Highway 395, which is a scenic highway and which
10 as you drive down 395 and enter the Basin from the north
11 the first thing you see is Conway Meadow.
12 I worked my way through college at Nicely's
13 Restaurant in Lee Vining and I can't tell you how many
14 people come in and say what a glorious place this is and
15 the beautiful Conway Meadow, a thousand-acre meadow
16 stretching out ahead of them, and then they see the lake
17 and then they see the cinder cones, the craters and the
18 tufa down at the park, and as they go down 395 towards Lee
19 Vining they pass Thompson Meadow, which sometimes has sheep
20 grazing in it and it's just a beautiful rural scene for
21 people who live in cities and have not -- don't have the
22 experience of this kind of environment.
23 No one has -- well, let me back up for a moment.
24 Then they stop at the County Park, which is one of the most
25 highly visited areas in the Mono Basin where people are
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1 directed to go. Bus
loads of people go to the County Park.
2 It's right across from Thompson Meadow where -- one thing
3
local people have always been
grateful for is the
4 Department of Water and Power has just maintained that open
5 to day use to the public, as they do with most of their
6 property I understand, and it's just a beautiful extension
7 of the park basically.
We're going to show you slides of
8 it. It's just a
lovely area and thousands of people enjoy
9 this, this location, and we are convinced that studies will
10 show that the water that is used to irrigate Thompson
11 Meadow does sustain the park -- help sustain the park and
12 the park's well on the other side of the County Road, and
13 down below the park there's a beautiful marsh that's very
14 important and unusual as you'll see from the photos --
15 actually, we have a photo in our testimony of the sign that
16 the State has put there indicating what an unusual habitat
17 this is, and all of this is dependent on water.
18 No one has discussed the fact that Mill Creek, if it
19 is rewatered as has been proposed, will not be an area that
20 will provide recreation or experience of any kind for most
21 of the people who come to the area. I think that's pretty
22 much indisputable.
It's not accessible -- particularly
23 accessible. You have
to get there by going out on a dirt
24 road and when you reach it, even if you can get to it or
25 you hike down to it from 395 or something, it's extremely
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1 hard to walk in.
2 This is not where most people will be going and
3 seeing and enjoying, and so we don't want to see the glory
4 of the possibility of that turning into a forested area in
5 a number of decades or a couple hundred years if we're
6 waiting for a canopied forest to grow, as has been
7 testified to by some of the witnesses, and in the meantime
8 all the areas that the people of the State of California
9 drive by and stop at and look at and wander in are
10 desiccated.
11 We basically feel that we're being asked to put all
12 of our eggs in one basket with this Mill Creek approach
13 that's before you, and in this particular case what it
14 really is is a great science experiment; and if there was
15 enough water to do it, we would be all for it because, of
16 course, the people in the Mono Basin don't have anything
17 against Mill Creek.
It's just simply that we recognize
18 that there is not enough water to do it all, and the water
19 has to be divided up and used wisely the way the pioneers
20 did back when they were first moving into that area.
21 They split up the water rights and they had some to
22 DeChambeau and some to Conway and some to Thompson and they
23 had Wilson Creek and they had some going down Mill Creek,
24 and we think some redistribution's appropriate by being
25 more efficient with the methods of, you know, repairing
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1 ditches and that sort of thing and increasing the return
2 ditch possibly on the Edison plant to carry some more water
3 over to Mill Creek; but this all or nothing approach we
4 just think is really terrible.
5 Another issue that has not been discussed adequately
6 is the history of the area.
I don't know how much
7 opportunity you've had to spend in the area, but
8 approximately ten miles north of the Mono Basin lies the
9 Bodie State Historic Park.
10 Bodie is one of the most wonderful ghost towns that
11 the State of California has from our Gold Rush era. It's
12 maintained in what they call a state of arrested decay.
13 There is no commercialization there and people travel from
14 all over the world it's fair to say to go to Bodie, because
15 it is really a special place.
16 Bodie is in a very harsh environment, in a sagebrush
17 kind of area. It's
hot, you know, horrible to take your
18 house guests to visit in the summer when they want to go
19 see Bodie because it's a very harsh environment and Bodie
20 did not live in isolation.
21 The Mono Basin supported Bodie for its agricultural
22 needs, for its livestock needs. There was a railroad where
23 they brought timber over from the Mono mills across the
24 lake and then on the railroad to Bodie, and this is all
25 part of our California history. And these ranches, the few
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1 remaining ranches that we have in the area -- and at one
2 time there were something -- it's in our testimony -- 30 or
3 40 ranches. We have a
couple of ranches left and these are
4 part of the history of the State of California and these
5 are part of the history of Bodie. These were the ranches
6 that served Bodie, and Conway Ranch still has some of the
7 historic buildings on it.
DeChambeau Ranch has the
8 historic ranch buildings on it which the Forest Service has
9 spent considerable money in renovating to stabilize, and
10 they recognize these as historic significance. So we think
11 that the history has to be taken into the full picture
12 here. That's a very
important value that should not be
13 obscured by -- simply by environmental considerations.
14 I'd just like to conclude by saying, as
15 Ms. Hess-Griffin indicated, we really would encourage you
16 to come to the Basin and hear from the public and go on
17 some sort of tour where everyone was able to participate so
18 that you had a fair and unbiased presentation; and I think
19 that your experience might be similar to Bill Reid, who you
20 may or may not know, who was the Chairman of the Board of
21 Supervisors in Mono County who was initially a proponent of
22 the Conway Ranch purchase by the County and rewatering Mill
23 Creek, putting the Conway Ranch water rights down Mill
24 Creek.
25 And the community was very upset when they learned
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1 about this and initially Mr. Reid went on a tour that was
2 led by Peter Vorster for the Mono Lake Committee and many
3 people were allowed to -- everyone was invited, in fact, to
4 go on it. So he heard
that point of view and subsequently
5 he went on a tour with our group; and at the time of our
6 tour John Martini, who's an aid for Congressman Doolittle's
7 office came on the tour with us, as well as some science
8 people. I believe BLM
had a representative present.
9 And at the conclusion of that tour Bill Reid --
10 Supervisor Bill Reid said to us, "I'm sorry. Now I
11 understand why you are so upset. I live here and I thought
12 I knew, but I didn't understand what we were
doing." And
13 he went back to the Board and they modified their position.
14 He did not support that proposal after he went on that
15 tour.
16 So we really think that it's important that you -- at
17 least some of you, if you can't all make it, take the
18 opportunity to come over and see this firsthand because
19 we're talking about changes in the Mono Basin that I cannot
20 overemphasize how dramatic these changes would be to the
21 environment -- the human environment there, not to mention
22 the wildlife that enjoy these areas. But these would be
23 major changes in the human environment we're talking about.
24 So if we could proceed with our slide show.
25 CHAIRMAN CAFFREY:
All right.
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1 MS. BELLOMO: My
projectionist is at the ready.
2 CHAIRMAN CAFFREY:
Hit the light switch so we can see
3 a little better.
4 MR. DODGE: Mr.
Chairman, may I inquire as to whether
5 this is still the policy statement?
6 MS. BELLOMO:
Yes, this is part of the policy
7 statement.
8 CHAIRMAN CAFFREY:
That was our understanding. Just
9 for the record, you have a total of 37 minutes left and we
10 are very reticent to extend that time for direct because
11 direct is a
controllable summary.
12 MS. BELLOMO: I
understand, that's fine.
13 Essentially the purpose of our slide presentation
14 here is to give you a feel for what I've been trying to
15 describe to you about the environment in the area and
16 perhaps my husband can help me by just confirming where we
17 are looking at. Are
we looking --
18 MR. BELLOMO:
This is looking up DeChambeau Creek
19 basically from the 395 area.
20 MS. BELLOMO:
Okay. And the purpose of this is
21 essentially just to give you an idea of what the terrain
22 looks like in the area above the Thompson Ranch area.
23 This is -- why don't we go forward. This slide isn't
24 too good.
Unfortunately, these are kind of dark so we
25 might have trouble seeing them.
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1 CHAIRMAN CAFFREY:
We'll adjust the lights.
2 MS. BELLOMO:
This is a picture looking -- standing
3 on the west side of Highway 395. We see Highway 395 in the
4 foreground, and what we are looking at here is Lower
5 Thompson Meadow and then down towards the lake and you see
6 the historic trees and the meadow basically in this
7 picture.
8 This, again, is a picture taken from the west side of
9 Highway 395 looking at the upper part of Thompson Meadow.
10 And, as you can see, it's browning up in the upper
11 portions. You see a
sheep head there in the foreground, I
12 think. In fact, I
know that's a sheep head there and what
13 you're seeing
in the browning area is where the Caltrans
14 widened the highway and closed a culvert that had allowed
15 for irrigation in the very upper part of the meadow, and so
16 it's not getting irrigated fully up there and so the meadow
17 is not surviving in that part.
18 Here's another picture from the west side of Highway
19 395 heading towards Lee Vining. As you can see if you look
20 straight in the middle of the picture in the background
21 there, that's Lee Vining and off to the left is Thompson
22 Meadow and then the trees.
23 Here's another picture of Thompson Meadow, the
24 craters in the background; and as you can see a car driving
25 on the highway, that's the proximity the cars on the
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1 highway have to the meadow.
2 This is a picture as you turn off Highway 395 down
3 the County Road heading towards the County Park. This is
4 the area where the tufa towers off to the left are, the
5 area down below the County Park.
6 This is a picture of the County Cemetery, and our
7 purpose in putting this in is to show you this is --
8 basically overlooks Mill Creek and is adjacent to it and
9 it's a very sagebrushy area, as you can see, sage and
10 rabbitbrush and bitterbrush and they have access to water
11 from Mono Vista Spring, which they water with, but this is
12 not a soil where it's easy to get trees to flourish.
13 They've been trying to grow trees there since I was
14 fairly young. At
least for 25 years they've been trying to
15 grow these trees there and they're not towering yet. So,
16 anyway, that's what we wanted to illustrate to you. We're
17 not impressed with the rate of tree growth in this area.
18 This is a picture down on Thompson Meadow. These
19 were taken, by the way, in early September of 1996. This
20 is looking to the north and the trees that you see in the
21 line of trees -- the dark trees over to the right are
22 planted along an irrigation ditch.
23 This is another picture of trees in the Conway Meadow
24 along the irrigation ditch.
25 This is a picture of one of the irrigation ditches
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1 with these quite old trees growing along it and, as you can
2 see, some dead trees that have fallen through the years.
3 This is another picture of an irrigation ditch. Not
4 all the ditches have the same amount of water at all times
5 obviously. This was taken on the same day as the other
6 pictures you're seeing of Thompson Meadow. The
7 sheepherders are constantly adjusting the water in the
8 ditches to water one part of the meadow and then another as
9 needed because there are, we observed, to be different soil
10 types in the meadow.
So some take more water than others.
11 This is a picture of the upper part of Lower Thompson
12 Meadow looking
to the north, and what we wanted to point
13 out here is that Thompson Meadow is surrounded by
14 sagebrush/rabbitbrush terrain and what really is the
15 demarcation is where you have water.
16 This is a picture of just one of the most beautiful
17 trees that's in Thompson Meadow. It's just a beautiful,
18 old Black willow which, I understand, they take a fair
19 amount of water.
20 This is a picture -- am I correct this is looking at
21 |