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                            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

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         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

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         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

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         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

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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.

         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

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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

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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

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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

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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.

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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

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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

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         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      DeChambeau Creek on the meadow?

        22            MR. BELLOMO:  I believe it is.

        23            MS. BELLOMO:  And the purpose of this is just to show

        24      you how much sort of complicated vegetation there is, and

        25      there's so much habitat there.  I've seen bobcats.  We

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         1      don't see porcupines very often anymore, but I've seen

         2      porcupines in there and, you know, deer and whatnot.

         3            This is another picture of Thompson Meadow and

         4      basically you can see -- where the green line in this

         5      picture is was water was traveling there.  That was a very

         6      small kind of ditch.

         7            Another picture of Thompson Meadow and a beautiful

         8      stand of trees that's over to the west -- excuse me, east

         9      side of the meadow.

        10            This is another area where they're irrigating and, as

        11      you can see, there's quite a bit -- quite a bit of water

        12      was flowing in the ditch that day.

        13            This is a picture standing in the upper part of the

        14      meadow looking down towards Mono Lake, and you can

        15      basically just see what a lovely vista it is.

        16            Again, we're in the upper part of the meadow looking

        17      down towards the lake and you can see there are quite a

        18      number of old trees on the meadow.

        19            This is a picture of the meadow close to the Cemetery

        20      Road which lies between the County Park and Thompson

        21      Meadow, and it's quite green all the way down to this

        22      County Road.  It's called Cemetery Road.

        23            Here we're standing on Thompson Meadow and if you

        24      look in the right of the picture between the two tallest

        25      trees, you see some structures.  That is the County Park

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         1      building where there are restrooms and some interpretive

         2      material, and so that's on the County Park there.

         3            This is directly across from the County Park and I

         4      wanted just to include these.  You can see that this is the

         5      remnants of an historic orchard and these are apple trees.

         6      People go, including many tourists who never have seen

         7      apples growing on trees, go and get apples off the trees

         8      there.

         9            This is standing on Thompson Meadow looking at the

        10      Cemetery Road directly across at the County Park.  You see

        11      the County Park building on the right and you see how on

        12      the other side of the road there's very dense vegetation,

        13      lots of willows and bushes and whatnot.

        14            Here is a picture of I guess what we wouldn't call

        15      state-of-the-art irrigation on Thompson Meadow.  The

        16      sheepherders are very creative in the way they do it and

        17      spend as little money as possible and this was one of

        18      their -- I'm assuming that's their motive.  This was one of

        19      their diversion techniques.  They were diverting water from

        20      one ditch to another.  They just block it and when they

        21      want it to go in the other one they block the other one and

        22      then, you know, shift it back and forth.

        23            Again, this is one of the areas where they have some

        24      of their materials for shifting the water around.  They use

        25      these pipes and whatnot.

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         1            This is -- correct me if I'm wrong.  This is

         2      DeChambeau Creek, correct?

         3            MR. BELLOMO:  This is on the creek, yeah.

         4            MS. BELLOMO:  Okay.  This is on the creek, DeChambeau

         5      Creek where the irrigators at Thompson Meadow take the

         6      water out of this for the meadow.  And that pipe we're

         7      seeing -- am I correct, Joe, that that was a diversion of

         8      water off into the meadow?

         9            MR. BELLOMO:  Yeah.

        10            MS. BELLOMO:  Okay.  So that's where they're

        11      diverting -- okay, here we go.  They're diverting water off

        12      DeChambeau Creek onto the meadow.  So you can see what

        13      they're diverting off is a large amount of water into --

        14      when they first divert it off, it's looking like another

        15      small creek right there.

        16            And this is another picture of that same pipe in the

        17      water as it's being diverted.

        18            This is a picture on the meadow to give you an idea

        19      of what the flood irrigation produces in some areas, and

        20      this is essentially a wetland.  You'd want to wear some

        21      good rubber boots if you were going to walk in there.  It's

        22      just extremely lush, and there are lots of birds.  I don't

        23      know anything about bird types, but this is the kind of

        24      area where you see a lot of birds that hang out in wet,

        25      grassy areas.

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         1            Here is another picture on the meadow, and I thought

         2      this was interesting because we have these beautiful Indian

         3      paintbrush growing.  We have the green grass and you have

         4      willow but you also have -- if you can see where this is up

         5      in the middle sort of left of the picture, we have some

         6      sagebrush that are trying to make their way into the meadow

         7      and that's because -- my empirical explanation would be

         8      that's because that was a high spot in the meadow and it

         9      wasn't getting the same amount of water, and the sagebrush

        10      is so tenacious and determined to take over in Mono County

        11      that if you don't have sufficient water and sagebrush can

        12      get a foothold, it does and the sagebrush is trying to make

        13      its way right there.

        14            This is a picture obviously of Mono Lake under the

        15      craters, and we put this in just to let you know that we

        16      are not blind to the beauty of the desert environment and

        17      we value it highly.  It's obviously extremely beautiful,

        18      and our love of the meadows is not to diminish our love of

        19      the desert environment.

        20            This is another picture of the desert environment

        21      looking out towards Black Point.

        22            And this is a picture of another of the really most

        23      beautiful trees probably in the world on Thompson Meadow

        24      and, as you can see, it's not very far from the sagebrush,

        25      which is not being irrigated, and the green area is all

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         1      being irrigated.

         2            And that concludes our slide presentation.  Can you

         3      tell me how many more minutes I have?

         4            CHAIRMAN CAFFREY:  You have 25 minutes.

         5            MS. BELLOMO:  Great, okay.  Well, let's move on to

         6      our direct testimony then.

         7            CHAIRMAN CAFFREY:  Your direct testimony.

         8                               ---oOo---

         9                           DIRECT TESTIMONY

        10            BY PEOPLE FOR MONO BASIN PRESERVATION:

        11            MS. BELLOMO:  Would you state your full name for the

        12      record, please?

        13            MR. BELLOMO:  I'm Joe Bellomo.

        14            MS. BELLOMO:  And by whom are you employed?

        15            MR. BELLOMO:  I'm employed by Southern California

        16      Edison Company.

        17            MS. BELLOMO:  Can you tell the Water Board for how

        18      many years you have been employed by Edison?

        19            MR. BELLOMO:  I've been employed by Edison for almost

        20      20 years.

        21            MS. BELLOMO:  And how long have you lived in Mono

        22      Basin?

        23            MR. BELLOMO:  I moved to the Basin in 1979.

        24            MR. FRINK:  Excuse me, Ms. Bellomo.  I just wanted to

        25      clarify has the witness been sworn?

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         1            MR. BELLOMO:  Yes, I have.

         2            MS. BELLOMO:  Yes, he has.  Oh, and I should just

         3      clarify we're commencing our evidentiary portion of our

         4      testimony.

         5            CHAIRMAN CAFFREY:  We noted that and we understand,

         6      thank you.

         7            MS. BELLOMO:  What is your job title?

         8            MR. BELLOMO:  I'm chief hydro operator in the Mono

         9      Basin.

        10            MS. BELLOMO:  Does Exhibit 1 -- Exhibit R-PMBP-1

        11      contain a statement of your qualifications?

        12            MR. BELLOMO:  Yes, it does.

        13            MS. BELLOMO:  Are you appearing here today as a

        14      representative of Southern California Edison?

        15            MR. BELLOMO:  No, I am not.

        16            MS. BELLOMO:  Are any of the opinions or statements

        17      made by you in this proceeding made on behalf of Southern

        18      California Edison Company?

        19            MR. BELLOMO:  No, they are not.

        20            MS. BELLOMO:  Did you prepare or supervise the

        21      preparation of your testimony in this proceeding?

        22            MR. BELLOMO:  Yes, I did.

        23            MS. BELLOMO:  At this time I noted when I sent out

        24      the exhibit list I didn't give the written testimony of

        25      Mr. Bellomo or my testimony a number, and maybe we need to

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         1      do that at this time.

         2            CHAIRMAN CAFFREY:  We certainly can.  Have you

         3      assigned a number?

         4            MR. JOHNS:  We've assigned that 29 and 30.  Yours

         5      would be 29 and Joseph Bellomo's would be 30, if that's

         6      acceptable to you.

         7            MS. BELLOMO:  That's fine, thank you.

         8            CHAIRMAN CAFFREY:  Thank you, Mr. Johns.

         9            MS. BELLOMO:  Excuse me, I just need to get a copy of

        10      the testimony.

        11            Do you have any corrections to make to your testimony

        12      in Exhibit PMBP-30 at this time?

        13            MR. BELLOMO:  Which one is that?

        14            MS. BELLOMO:  Your direct testimony.

        15            MR. BELLOMO:  Yes, I do.

        16            MS. BELLOMO:  And can you direct us to the location

        17      of the first correction?

        18            MR. BELLOMO:  On page 15 where I'm speaking about the

        19      photos down -- it would be in the third answer and in the

        20      second paragraph I've got it in here as Cemetery Road and

        21      Mono Lake.  Okay, it's (reading) the second page of photos

        22      illustrate the location on Wilson Creek between the

        23      Cemetery Road and Mono Lake.

        24            MS. BELLOMO:  And how should that read?

        25            MR. BELLOMO:  And it should be -- where I have "Mono

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         1      Lake" it should be just "Cemetery Road."  Between Wilson --

         2      on Wilson Creek between the Cemetery Road --

         3            MS. BELLOMO:  And Conway Ranch, was that the

         4      correction?

         5            MR. BELLOMO:  I need to look at the picture here to

         6      see what I've done wrong.

         7            MS. BELLOMO:  The pictures are in the middle

         8      envelope, Exhibit 7.

         9            MR. BELLOMO:  These photos are between Conway Ranch

        10      and -- wait a minute, it's between Pole Line Road and

        11      Cemetery Road.

        12            MS. BELLOMO:  Pole Line Road is highway what?

        13            MR. BELLOMO:  167.

        14            MS. BELLOMO:  So would you substitute "Highway 167"

        15      for the words "Mono Lake"?

        16            MR. BELLOMO:  Yes.

        17            MS. BELLOMO:  And what is the other correction to

        18      your testimony?

        19            MR. BELLOMO:  I'm missing it right now.

        20            MR. DODGE:  I have no objection to Ms. Bellomo

        21      leading the witness.

        22            MS. BELLOMO:  I wish I could.  He has the marked set.

        23            MR. BIRMINGHAM:  We have no objection of them

        24      submitting the corrections after the oral summary of the

        25      testimony.

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         1            MR. BELLOMO:  It's another photo problem exactly

         2      where the photo was taken.

         3            CHAIRMAN CAFFREY:  Ms. Bellomo, did you --

         4            BOARD MEMBER FORSTER:  Since I have a time

         5      constraint, I'd like to just hear the verbal and you can do

         6      this later.

         7            MR. BELLOMO:  Thank you.

         8            CHAIRMAN CAFFREY:  You were just paid deference by at

         9      least one of the parties, possibly two.  That is, if you

        10      want to make the corrections after you're finished, we'll

        11      stipulate to that.  Go ahead.

        12            MS. BELLOMO:  Fine, thank you.

        13            Are the facts in your testimony Exhibit 30 true and

        14      correct to the best of your knowledge and the statements to

        15      the extent that you make statements of opinion based upon

        16      your best judgment?

        17            MR. BELLOMO:  Yes, they are.

        18            MS. BELLOMO:  Have you ever been a witness in any

        19      proceeding before?

        20            MR. BELLOMO:  No, I have not.

        21            MS. BELLOMO:  Can you tell the Water Board where we

        22      live in relationship to Mill Creek?

        23            MR. BELLOMO:  We live on a bluff overlooking Mill

        24      Creek in Mono City.

        25            MS. BELLOMO:  And if all the water were put back in

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         1      Mill Creek, would we be at risk for flood in our home?

         2            MR. BELLOMO:  No, we would not.

         3            MS. BELLOMO:  And why is that?

         4            MR. BELLOMO:  We're a long ways above the creek.

         5            MS. BELLOMO:  Do we stand to gain financially if the

         6      water remains in Wilson Creek unchanged?

         7            MR. BELLOMO:  No, we do not.

         8            MS. BELLOMO:  Do we stand to gain financially if the

         9      bulk of the water were returned to Mill Creek?

        10            MR. BELLOMO:  It would probably add to property

        11      values in Mono City.

        12            MS. BELLOMO:  Are you proposing to put the bulk of

        13      the water back in Mill Creek?

        14            MR. BELLOMO:  No, I'm not.

        15            MS. BELLOMO:  And have you explained in your

        16      testimony why not?

        17            MR. BELLOMO:  Yes.

        18            MS. BELLOMO:  And why is that?

        19            MR. BELLOMO:  I don't think it would be the

        20      environmentally sound thing to do.

        21            MS. BELLOMO:  Does your testimony provide an

        22      alternative plan for waterfowl habitat restoration in the

        23      north end of the Basin?

        24            MR. BELLOMO:  Yes, it does.

        25            MS. BELLOMO:  And for the sake of brevity maybe we

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         1      won't go into that.  We'll assume everyone has read that if

         2      it's agreeable.

         3            Mr. Frink, am I correct that we don't need to go

         4      through each of the photographs and lay a foundation for

         5      it?

         6            MR. FRINK:  If the foundation is laid in the written

         7      statement, that would be fine.

         8            MS. BELLOMO:  They're described, but we don't have a

         9      foundation like we took them -- you know, Mr. Bellomo took

        10      the pictures --

        11            MR. BIRMINGHAM:  We'll stipulate to their admission.

        12            CHAIRMAN CAFFREY:  This is a summary.  So you don't

        13      have to --

        14            MS. BELLOMO:  Right.  I just don't want to have

        15      evidentiary objections when I try to move exhibits into

        16      evidence.  I don't know what your rules are here.

        17            CHAIRMAN CAFFREY:  I see, thank you.

        18            MS. BELLOMO:  Lastly, then, I have a statement that I

        19      would like to -- a document that I would like to have

        20      marked as an exhibit for identification that you refer to

        21      in your testimony regarding a statement of Dr. Stine that

        22      you relied upon in your testimony.

        23            How many copies do you need?

        24            MR. FRINK:  Three's fine.

        25            MS. BELLOMO:  So this is marked as exhibit --

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         1            MR. JOHNS:  Thirty-one.

         2            MS. BELLOMO:  Thirty-one, thank you.

         3            I'd like to read this statement to you, Mr. Bellomo,

         4      and ask you if this is an accurate transcription of the

         5      videotape that you viewed of a meeting in Lee Vining on

         6      November 8, 1996.

         7            The statement reads:  "I want to make one other thing

         8             by way of context clear here, and that is that,

         9             and I guess it was raised perhaps a couple of

        10             times here already -- the matter of ducks is

        11             continually discussed here and I think assumed

        12             that rewatering Mill Creek is because of ducks.

        13             The reason that this is being discussed in terms

        14             of ducks is that the waterfowl issue has been

        15             raised by the State Water Board.  There are lots

        16             of us who for a long long time have been seeing

        17             that in terms of an environmental issue.  In

        18             terms of a species issue, in terms of a nature

        19             issue, Mill Creek is the big issue left in the

        20             Mono Basin not just because of waterfowl but for

        21             lots and lots and lots of reasons.  So I would

        22             just want to make it clear that by putting water

        23             back into Mill Creek is not being suggested

        24             simply because of waterfowl.  I would say that

        25             that's a relatively, one of, perhaps even one

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         1             minor element of a whole bunch of different

         2             elements of why to water Mill Creek, why to put

         3             Mill Creek back to the way it has been for the

         4             last 10,000 years."

         5            Is this an accurate transcription of the videotape

         6      that you watched of Scott Stine's presentation on November

         7      8th?

         8            MR. BELLOMO:  Yes, it is.

         9            MS. BELLOMO:  And did you prepare this transcription

        10      yourself?

        11            MR. BELLOMO:  No, I did not.

        12            MS. BELLOMO:  Who did?

        13            MR. BELLOMO:  You did.

        14            MS. BELLOMO:  And was that under your supervision and

        15      with your review?

        16            MR. BELLOMO:  Yes, it was.

        17            MR. BIRMINGHAM:  This is Exhibit 31?

        18            CHAIRMAN CAFFREY:  That's correct, marked 31 by

        19      Mr. Johns.

        20            MS. BELLOMO:  Thank you.  I have no further questions

        21      of Mr. Bellomo.  Shall I proceed with my own presentation

        22      then?

        23            CHAIRMAN CAFFREY:  All right.

        24            MS. BELLOMO:  How many minutes do I have left?

        25            CHAIRMAN CAFFREY:  You have 14 minutes and 30 seconds

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         1      left.

         2            MS. BELLOMO:  Okay.

         3            CHAIRMAN CAFFREY:  Would you like to make it from the

         4      podium?  You don't have to.  Mr. Dodge.

         5            Stop the clock.

         6            MR. DODGE:  The only portion of the testimony I have

         7      trouble with so far is that he was supervising her.

         8            CHAIRMAN CAFFREY:  There are many roles in life.

         9            MR. DODGE:  I've never had such good fortune.

        10            CHAIRMAN CAFFREY:  I never critique a good team.

        11            Okay.

        12            MR. BIRMINGHAM:  I'm going to share that with

        13      Wendy -- Bruce's Wendy.

        14            CHAIRMAN CAFFREY:  Okay, please proceed.

        15            We'll start the clock again.

        16            MS. BELLOMO:  Okay.  My name is Kathleen Maloney

        17      Bellomo and I am a resident of Mono County.  I'm here as a

        18      representative of the People for Mono Basin Preservation,

        19      and I have lived in Mono County on and off since 1958 and

        20      my family has a place at Mono Lake and I now permanently

        21      reside there with my husband.

        22            The People for Mono Basin Preservation came about as

        23      a result of community concern over the waterfowl habitat

        24      restoration plans in this proceeding and the purpose of our

        25      group is to ensure that the environmental, historical,

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         1      cultural and aesthetic values of the area are fully

         2      understood and protected adequately.

         3            I prepared the testimony that appears in Exhibit --

         4            MR. JOHNS:  Twenty-nine.

         5            MS. BELLOMO:  -- 29 and the information contained in

         6      it is true and correct to the best of my knowledge.  To the

         7      extent that I state opinions in my testimony, they're based

         8      upon my best knowledge -- excuse me, my best judgment.

         9            The purpose of my testimony is to bring to attention

        10      the historical significance of the meadow and ranch areas

        11      that adversely -- would be adversely impacted by the

        12      proposals to rewater Mill Creek with most or all of the

        13      water.

        14            My testimony also is intended to express the

        15      opposition of the People for Mono Basin Preservation to the

        16      Department of Water and Power's proposal to cease

        17      irrigation of Thompson Meadow and to divert the quote

        18      unquote "winter water" off Conway Ranch.

        19            My testimony is also intended to present evidence

        20      that demonstrates that the Department of Water and Power

        21      plan to rewater Mill Creek raises serious environmental

        22      concerns, and I have attached to my testimony environmental

        23      review documents that I relied upon in reaching this

        24      opinion.  These are found in Exhibits PMBP 26 and 27 --

        25      yeah, excuse me, that's correct, Exhibits 26 and 27.

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         1            These are environmental review -- comments on

         2      environmental review that was being performed of the Conway

         3      Ranch Development Proposal back in the 1980's, and these

         4      comments in that environmental review process raised

         5      serious concerns about the environmental consequences of

         6      changing water on Conway Ranch.

         7            We also think that they're relevant in this

         8      proceeding because Thompson Meadow and Conway Ranch are

         9      very close in proximity and present much of the same

        10      habitat -- at least as a non-scientist it appears that way

        11      to me and we're concerned that many of the same habitat

        12      value issues that were of concern to people commenting on

        13      the Conway Ranch Development Proposal are also present at

        14      Thompson Ranch if water is changed there and the

        15      environment changes.

        16            For instance, there were rare butterflies observed.

        17      There's some rare birds.  There's a deer migration corridor

        18      where 25 percent of the Mono Basin herd goes through Conway

        19      Ranch, up through Wilson Creek on Conway property.  All of

        20      these are a great concern to us if there are going to be

        21      changes made.

        22            I've also attached as Exhibit 23 a filing made by

        23      Emily Strauss who, as I understand it, is an ornithologist

        24      who -- and this document was provided to me by Roger Porter

        25      of the Forest Service.  It was filed by Ms. Strauss in a

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         1      Forest Service proceeding protesting changes that the

         2      Forest Service was contemplating on water use.

         3            Fourth, I am here to express the People for Mono

         4      Basin Preservation's support for acquisition of the Conway

         5      Ranch property in order to preserve it, and we support a

         6      Waterfowl Habitat Restoration Plan that has Conway Ranch,

         7      DeChambeau Ranch, Thompson Ranch and Meadow as part of the

         8      restoration program in the north end of the Basin.

         9            We feel that with proper requirements and controls to

        10      protect the property and to ensure the Department of Water

        11      and Power's performance, that it would be appropriate for

        12      the Department of Water and Power to participate in the

        13      protection of the water in the north end of the Basin and

        14      its use for waterfowl habitat and that if money were

        15      spent -- Department of Water and Power money were spent

        16      towards the protection of these areas, that it would be

        17      suitable for them to receive credit for that.

        18            And we're certainly hopeful that in the review

        19      process that's going to be forthcoming that evidence is

        20      developed, for instance, of the significance of the meadow

        21      areas as waterfowl habitat since, as I've said, we observe

        22      birds grazing in those areas and Conway Ranch has

        23      ponding -- areas of ponding and whatnot.  I'm not saying

        24      they are ponds, but natural collection of water that might

        25      sometimes collect in areas on the meadow.

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         1            At a recent meeting the Department of Water and Power

         2      indicated Thompson Meadow might be put up for sale.  We

         3      don't know any of the details and we're not trying to

         4      expand the hearing on that point, but we just want to note

         5      that if Thompson Meadow actually could be going through

         6      some ownership change this could be an appropriate time for

         7      the Department of Water and Power to get credit for

         8      contributing towards the permanent protection of Thompson

         9      Ranch, which has lots of habitat and including helping

        10      sustain the marsh habitat down below Thompson Meadow, and

        11      they own the property and we'd be delighted to see them get

        12      credit for helping to preserve that.

        13            I have been asked to present petitions signed by

        14      numerous Mono County residents opposing the Department of

        15      Water and Power proposal and these petitions were

        16      circulated last fall.  They are attached as exhibits to my

        17      testimony.

        18            Finally, I am here to address the need for irrigation

        19      at Cain Ranch and I don't really know how that fits into

        20      this proceeding, but we would hope that since the changes

        21      in water management at Cain Ranch came out of the Water

        22      Board process that somehow that can get rolled into this

        23      process so something can be worked out to address the

        24      irrigation needs at Cain Meadow.

        25            I have one additional document that I'd like to mark

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         1      for identification.  In Mr. Bellomo's -- excuse me, perhaps

         2      we should -- I'll wait until you tell me what the number

         3      is.

         4            MR. JOHNS:  Be thirty-two.

         5            CHAIRMAN CAFFREY:  Thirty-two.

         6            MS. BELLOMO:  In Mr. Bellomo's testimony he

         7      references some major hearsay which is, "My wife told me

         8      that Mark Davis said such and such," and so I thought I

         9      should address this problem by getting a letter from

        10      Mr. Davis and putting it into the record so that would

        11      satisfy this double hearsay problem.

        12            Essentially what occurred was that in the fall of

        13      1996 the Mono Lake Committee contacted Mr. Davis of the

        14      Natural Resources Conservation Service asking if he would

        15      come up and look at Thompson Meadow and give ideas on

        16      irrigation in the area and, you know, if it could be

        17      irrigated more efficiently and just give us ideas.

        18            So Heide Hopkins of the Mono Lake Committee contacted

        19      our group and I and Kathy Hanson, who's a long-time

        20      resident of the area and who lives adjacent to -- basically

        21      adjacent to Thompson Meadow went on this field tour --

        22      brief field tour with Mr. Davis.  It certainly wasn't a

        23      study.  This was a walking around looking at the area, and

        24      as he indicates in his letter here it's not possible in his

        25      opinion to determine if the irrigation water in the meadow

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         1      above Thompson Ranch is, in fact, sustaining the habitat on

         2      the other side of the road without doing studies, but he

         3      indicated that it's possible that it could be.

         4            He also indicated to us that the way the meadow was

         5      being irrigated is basically the way irrigation is done.

         6      He didn't have any problem -- now, this obviously is

         7      hearsay, but he indicated he didn't have a problem with

         8      ditch irrigation and that if ditches are used over a period

         9      of time that they do tend to seal up with fines, as he

        10      referred to them, and he wasn't extremely concerned about

        11      that water loss.

        12            At any rate, the letter certainly sets forth his

        13      opinion on the source of the water and that we would need

        14      to do studies to determine the impact of cutting back on

        15      irrigation at Thompson Meadow.

        16            With that I will conclude my direct testimony.  Thank

        17      you.  We are available for cross-examination.

        18            CHAIRMAN CAFFREY:  All right.  Thank you very much,

        19      Ms. Bellomo.  Let me go through the list as we do.

        20            Is there someone here from the U.S. Forest Service

        21      who wishes to -- sir, do you wish to cross-exam?

        22            MR. GIPSMAN:  No, sir.

        23            CHAIRMAN CAFFREY:  Mr. Russi, do you wish to

        24      cross-examination these witnesses?

        25            MR. RUSSI:  We have no questions, Chairman Caffrey.

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         1            CHAIRMAN CAFFREY:  Thank you, sir.

         2            Mr. Haselton?  Did Mr. Haselton leave?  I believe he

         3      did.  No questions.  Mr. Ridenhour is not here.

         4            Mr. Roos-Collins, questions of these witnesses?

         5            MR. ROOS-COLLINS:  No questions, Mr. Chairman.

         6            CHAIRMAN CAFFREY:  All right.  Thank you, sir.

         7            Ms. Cahill, questions of these witnesses?

         8            MS. CAHILL:  No questions.

         9            CHAIRMAN CAFFREY:  No questions, all right.

        10            Ms. Scoonover?

        11            MS. SCOONOVER:  No questions.

        12            CHAIRMAN CAFFREY:  No questions.

        13            Mr. Dodge?

        14            MR. DODGE:  The Mono Lake Committee would like to

        15      join in the request of the People for the Mono Basin

        16      Preservation that the Board hear testimony from the public

        17      in the Mono Basin and that the Board tour the various areas

        18      of interest on the waterfowl habitat program.

        19            With that, Mr. Bellomo, I do have two questions for

        20      you.  Did you really supervise your wife and could you

        21      teach me how to supervise mine?  No further questions.

        22            CHAIRMAN CAFFREY:  I fear that the hearings for Mono

        23      Lake have become a culture in themselves and a little

        24      levity from time to time is certainly appreciated and

        25      perhaps even called for.

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         1            All right.  Let's see, Mr. Birmingham, do you have

         2      questions, sir?

         3            MR. BIRMINGHAM:  We have no questions.

         4            CHAIRMAN CAFFREY:  All right.  Thank you, sir.

         5            Do I have to give them the opportunity to redirect

         6      after that kind of a question from Mr. Dodge, Mr. Frink?

         7            MS. BELLOMO:  The first time being a witness and not

         8      a single question.

         9            CHAIRMAN CAFFREY:  I don't believe I have to offer

        10      redirect as an option with the question that Mr. Dodge

        11      asked, do I?

        12            MR. FRINK:  No, I don't believe so.

        13            Does staff get an opportunity to cross-examine the

        14      witnesses?

        15            CHAIRMAN CAFFREY:  You certainly may.  I hadn't

        16      gotten to that yet and I'm there now.  Please, proceed.

        17            MR. FRINK:  It will probably be a very brief set of

        18      questions.

        19                               ---oOo---

        20                           CROSS-EXAMINATION

        21            BY STAFF:

        22            MR. FRINK:  Ms. Bellomo, on page two of your

        23      testimony, the paragraph beginning in the middle of the

        24      page begins with "Thompson Ranch Lands and Conway Ranch..."

        25            Do you see that?

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         1            MS. BELLOMO:  We're looking at my testimony or --

         2            MR. FRINK:  Yes.

         3            MS. BELLOMO:  Oh, where it's the "Thompson Ranch

         4      Lands and Conway Ranch (including the old Mattly

         5      Ranch)..."?

         6            MR. FRINK:  Yes, yes.

         7            MS. BELLOMO:  Yes, uh-huh.

         8            MR. FRINK:  The second sentence of that states

         9      (reading) DeChambeau Ranch now under U.S. Forest Service

        10      management may yet be salvaged but at the current time it

        11      is in the process of dying back from lack of irrigation.

        12      Cain Ranch Meadows are all but destroyed.

        13            I wonder if you or your husband could explain briefly

        14      when irrigation of DeChambeau Ranch stopped.

        15            MS. BELLOMO:  My recollection from my own memory is

        16      that it was when the Forest Service took over, but I

        17      believe that in my cross-examination of Mr. Porter he

        18      confirmed that the record will speak for itself on that,

        19      but I asked him when they stopped irrigating.

        20            MR. BELLOMO:  I believe it was about three years ago.

        21      I'm not positive of that.

        22            MR. FRINK:  Okay.  And then the statement that Cain

        23      Ranch Meadows are all but destroyed, do you know the reason

        24      for that?

        25            MS. BELLOMO:  It appears to be that they're not

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         1      irrigating.

         2            MR. FRINK:  And when did the irrigation there cease?

         3            MR. BELLOMO:  I'm really not sure on that.  You'd

         4      have to check with somebody from the Department of Water

         5      and Power.

         6            MR. BIRMINGHAM:  I can tell you precisely, but I'll

         7      do it outside -- off the record so I'm not a witness.

         8            MR. FRINK:  All right.

         9            MR. BIRMINGHAM:  It's on the day that Judge Finney

        10      ordered us to stop irrigating Cain Ranch.

        11            MR. DODGE:  You just promised you weren't going to

        12      put it on the record and you did.

        13            CHAIRMAN CAFFREY:  He's just clarifying.

        14            MR. DODGE:  Let me just say that I don't think that's

        15      the fact.

        16            CHAIRMAN CAFFREY:  All right.

        17            MR. FRINK:  Okay.  I don't want to go on any longer.

        18      I just didn't want you to be disappointed that no one had

        19      any questions.  Thank you.

        20            MS. BELLOMO:  Thank you.

        21            CHAIRMAN CAFFREY:  And there are no questions from

        22      the Board.  With that, Ms. Bellomo, do you wish to offer

        23      your exhibits into the record?

        24            MS. BELLOMO:  Yes, I would like to do that at this

        25      time, thank you, and I think that -- well, let's see, we're

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         1      not offering what we have identified as 28.  We're

         2      withdrawing them, because that's the slide presentation

         3      that wasn't part of the evidentiary presentation.

         4            CHAIRMAN CAFFREY:  All right.

         5            MS. BELLOMO:  And so I would be offering into

         6      evidence Exhibits 1 through 27 and then 29, 30, 31 and 32.

         7            CHAIRMAN CAFFREY:  All right.  Is there any objection

         8      to the acceptance of those exhibits?

         9            MR. BIRMINGHAM:  Yes, we have some objections.

        10            CHAIRMAN CAFFREY:  Mr. Birmingham.

        11            MR. BIRMINGHAM:  Thank you.  We have objections to

        12      the introduction of Exhibits 1 through 16, which are

        13      declarations submitted by residents or members of the

        14      People for Mono Basin Preservation.  Inasmuch as we're not

        15      given the opportunity to cross-examine those witnesses, we

        16      do object to their admission in evidence.  We would have no

        17      objection to their receipt as policy statements by the

        18      Board.

        19            MS. BELLOMO:  Before you respond, could we just

        20      clarify Exhibits 1 through 8 are photographs.  The

        21      declarations are 9 through 16.

        22            MR. BIRMINGHAM:  I beg your pardon.  If I said 1

        23      through 8, I'm referring to Exhibits 9 through 16.

        24            CHAIRMAN CAFFREY:  All right.  Thank you,

        25      Mr. Birmingham.  Thank you, Ms. Bellomo.

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         1            Mr. Frink, do you have a reaction?  You drew the mike

         2      forward.

         3            MR. FRINK:  My only reaction is our regulations allow

         4      for admission of hearsay evidence as long as it is the sort

         5      of evidence that responsible people rely on in the conduct

         6      of serious affairs.  There is a lot of hearsay evidence

         7      that has been admitted into the record.  These declarations

         8      would be regarded as hearsay evidence, but in my opinion

         9      they're admissible under our regulations.

        10            CHAIRMAN CAFFREY:  It goes to the Board to assign the

        11      weight of the evidence.  I agree with Mr. Frink and I will

        12      overrule the objection.

        13            MR. BIRMINGHAM:  I also have an objection to Exhibit

        14      No. 21 on the grounds that it is not relevant.  It is

        15      excerpts from an engineering report and it is irrelevant to

        16      any of the issues that are before the Board concerning the

        17      adequacy of the Department's plan and its consistency with

        18      D-1631.

        19            If ultimately the Board approved the plan and there

        20      are -- there is a water rights hearing in connection with

        21      the implementation of that plan, then the impact of an

        22      appropriated water right on other legal users' water would

        23      be an issue in that proceeding, but it's not an issue in

        24      this proceeding.

        25            CHAIRMAN CAFFREY:  So you're basically arguing that

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         1      it goes outside the scope of this proceeding and is more

         2      appropriately placed within the scope of a water rights

         3      proceeding should that occur?

         4            MS. BELLOMO:  Could I just respond on why we thought

         5      it was relevant?

         6            CHAIRMAN CAFFREY:  Yes.

         7            MS. BELLOMO:  Correct me if I'm wrong, but my

         8      understanding of the Department of Water and Power's plan

         9      here is for approval of a conceptual plan and there would

        10      be environmental review after that but the conceptual plan,

        11      if I recall correctly, involved the quote unquote "winter

        12      water right," the unappropriated water right on Conway.

        13            And while it wasn't going to be decided in this

        14      proceeding if the water right could, in fact, be

        15      appropriated or not, that's part of their conceptual plan

        16      they're asking for approval of and we have a problem with

        17      that part of the conceptual plan because it jeopardizes --

        18      we think may jeopardize our water system in Mono City.  So

        19      it seems relevant for that reason to -- and you would have

        20      to decide what weight to give that, but you might find that

        21      that -- for instance, that that was enough reason to not

        22      adopt their plan, because it jeopardized our water system.

        23            CHAIRMAN CAFFREY:  Mr. Frink, did you have a comment?

        24      Did you find it?

        25            MR. FRINK:  Yes, I found it.  I haven't gone over it

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         1      closely, but I think arguably it is relevant and is

         2      admissible.

         3            CHAIRMAN CAFFREY:  Relevant and admissible, although

         4      it would have -- although it would be --

         5            MR. FRINK:  Well, the Board can determine the weight

         6      that it wants to accord it, but I don't -- I think

         7      Ms. Bellomo has explained the potential relevancy of it.

         8            MR. FRINK:  All right.  Thank you, Mr. Frink.  I'm

         9      going to overrule the objection, but the record does

        10      contain a note of Mr. Birmingham's strong objection and

        11      also notes that that's information in what was also

        12      appropriately placed in a succeeding water rights hearing.

        13            MR. BIRMINGHAM:  I have no objection to the remainder

        14      of the documents.

        15            CHAIRMAN CAFFREY:  Thank you very much,

        16      Mr. Birmingham.

        17            Then the exhibits are accepted into the record as

        18      proposed.  That completes the proceeding that we all agreed

        19      we would go through today.

        20            Let me make one other observation with regard to the

        21      schedule.  We probably -- Mr. Frink and Mr. Johns, help me

        22      with this, but I suspect that we should tell people today

        23      that they should be looking for two hearing dates from us,

        24      one within about 30 days in the event that there is not an

        25      agreement and we all come back here and complete the

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         1      current hearing, one probably in the neighborhood of 60

         2      days or whatever's appropriate in terms of due process to

         3      give the Bellomos and any others who may be interested time

         4      to review a settlement agreement if one does exist in 30

         5      days.  Does that seem appropriate, gentlemen?

         6            MR. FRINK:  Mr. Johns is wondering the reason that we

         7      would need the hearing in 60 days.  I'm not sure, would the

         8      Bellomos -- if the other parties reached a proposed

         9      settlement agreement and submitted that to the Board within

        10      30 days, is it your desire to nonetheless resume the

        11      hearing?

        12            MS. BELLOMO:  We wanted an opportunity depending on

        13      what the settlement was to cross-examine a witness or panel

        14      of witnesses that was presenting it to the Board.

        15            Perhaps what we could do is say that if there's a

        16      settlement at the time that it's submitted, that within a

        17      certain period of time after that we would let the Board

        18      know whether we wanted to have an opportunity to

        19      cross-examine or not.

        20            CHAIRMAN CAFFREY:  That is no reason not to schedule

        21      a hearing so we can all lock in.  That's my point.  That's

        22      all I'm trying to do here.  There's a lot of busy people in

        23      the room with other things going on in their lives, and it

        24      was my thought that if we zero it in right now it also

        25      helps the Board Members with their availability.  I'm not

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         1      going to settle on a date right now.  I'm just saying

         2      you'll see from us in the next couple of days will be a

         3      couple of dates.

         4            MR. JOHNS:  I just wanted to clarify how -- if the

         5      Bellomos were willing to participate in settlement

         6      discussions with the parties at this point in time.

         7            CHAIRMAN CAFFREY:  They already said "no."

         8            MS. BELLOMO:  Maybe their discussions are going to

         9      turn into something we'd be interested in, but it didn't

        10      look like that's the way it was headed.

        11            MR. JOHNS:  Are you saying that you're willing to

        12      talk to them about the possibility of settlement?  Even

        13      though you think right now you're not likely to settle,

        14      you're still willing to work with them in that process?

        15            MS. BELLOMO:  Sure, because they might change their

        16      proposal.

        17            MR. JOHNS:  Right, or you might be convinced that

        18      their proposal's acceptable.

        19            MS. BELLOMO:  Right, right.

        20            MR. JOHNS:  All right.

        21            CHAIRMAN CAFFREY:  That was my understanding all

        22      along.  What we can put in the hearing notice is that there

        23      are qualifications that state that it may not be necessary

        24      to proceed with these hearings, depending on the

        25      circumstances and what develops.

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         1            MR. JOHNS:  So we'll try to find a date sometime

         2      after 30 days to have another -- to basically all meet

         3      again and see where the parties are and decide how we

         4      proceed from there.

         5            MS. BELLOMO:  Was that if there's no settlement in 30

         6      days, but if there was a settlement then we don't need to

         7      meet?

         8            CHAIRMAN CAFFREY:  If there's no settlement, we might

         9      as well proceed with the current hearing in 30 days and

        10      just finish the testimony.  We have not yet heard from, I

        11      believe -- is it three parties?  I've got the list here,

        12      but we still have Ms. Scoonover and let's see --

        13            MR. FRINK:  Department of Fish and Game.

        14            CHAIRMAN CAFFREY:  Department of Fish and Game.

        15            MR. FRINK:  Cal Trout.

        16            CHAIRMAN CAFFREY:  Mr. Roos-Collins, right.

        17            MR. DODGE:  And a little bit of ours.

        18            CHAIRMAN CAFFREY:  And we still need to finish some

        19      of Mr. Dodge.

        20            MS. BELLOMO:  I guess what I was trying to say is if

        21      there is a settlement, do we all need to get together in 30

        22      days or would it only be that we would possibly get

        23      together in 60 days?

        24            CHAIRMAN CAFFREY:  If there is a settlement, that

        25      would be presented to the Board within 30 days.  That's

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         1      what the parties asked for.  Then that -- copies of the

         2      settlement would be provided to you all and whoever else

         3      may reasonably be interested and has a right to see it and

         4      then that second hearing date would be something that we

         5      would have out there in case we all have to come back and

         6      you have a problem with it and you wish to cross-examine,

         7      and then we'll obviously have to -- the Board will give

         8      some consideration to what constitutes -- if you do wish to

         9      cross-examine, then we'll deal -- the Board will deal with

        10      the question and put out some instructions as to how much

        11      time you have for that, whether you do it as a group, as

        12      individuals, what have you, but we obviously have to set

        13      some rules and guidelines so we're not here ad infinitum

        14      and we can get on with the record.  So we'll deal with that

        15      if it becomes necessary in the future.

        16            All right, then.  Is there anything else?

        17            Mr. Russi.

        18            MR. RUSSI:  Mr. Caffrey, I'd just like to make one

        19      statement.  I'm aware right now that I have other work

        20      duties very early in April and I physically would not be

        21      able to be here.  So just for your information --

        22            CHAIRMAN CAFFREY:  Well, I suspect -- I don't want to

        23      put words in its mouth, but I suspect the staff will try to

        24      pick dates that accommodate you all within reason.

        25            MR. RUSSI:  Thank you, sir.

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         1            CHAIRMAN CAFFREY:  Anything else, gentlemen?

         2            MR. JOHNS:  One thought would be to get an idea if

         3      other parties have questions for Mr. Russi or not and if we

         4      could establish that now, whether they do or they don't,

         5      then we could decide whether we need to have Mr. Russi come

         6      back or not.

         7            MS. SCOONOVER:  Mr. Caffrey.

         8            CHAIRMAN CAFFREY:  Yes, Ms. Scoonover.

         9            MS. SCOONOVER:  If we reach settlement, then clearly

        10      we do not have questions.  If we do not reach settlement,

        11      then "yes" we do have questions of Mr. Russi.

        12            MR. JOHNS:  Okay, that's fine.

        13            CHAIRMAN CAFFREY:  We're not going to iron everything

        14      out here today.  So we'll just do the best we can.  It may

        15      be necessary, Mr. Johns, for you and Mr. Frink to talk to

        16      some of the parties as we get this thing set up, much as

        17      you did when we were rearranging the schedule for direct

        18      testimony.  All right, I won't belabor it any further.

        19            Anything else from anybody?  All right, thank you all

        20      very much -- Mr. Frink, are you looking at --

        21            MR. FRINK:  Well, I just wonder if we should set a

        22      date certain that we would hope to have submission of a

        23      proposed settlement agreement from the parties.

        24            CHAIRMAN CAFFREY:  Yes, defining the 30 days.  It

        25      could conceivably be a slightly different date than the

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         1      hearing -- the hearing schedule, but today is the what?

         2            MR. FRINK:  The 25th.

         3            CHAIRMAN CAFFREY:  Today is the 25th.  Close of

         4      business on a Friday about 30 days from now would be what?

         5            MR. FRINK:  How about the close of business on

         6      Friday, the 28th of March?

         7            CHAIRMAN CAFFREY:  Does that sound okay to everybody?

         8            MR. BIRMINGHAM:  Yes, that's fine.

         9            CHAIRMAN CAFFREY:  Close of business Friday, March

        10      28th will be the final submittal date of a written signed

        11      agreement to the Board, not a draft.

        12            MR. DODGE:  It will be the close of business of a

        13      bar, though, not the State Water Resources Control Board.

        14            CHAIRMAN CAFFREY:  Could well be.  Could well be and

        15      that's perfectly all right.

        16            All right.  Thank you all very, very much for your

        17      patience and your attention.

        18            MR. BIRMINGHAM:  Thank you.

        19              (Whereupon the proceedings were adjourned.)

        20                               ---oOo---

        21

        22

        23

        24

        25

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         1                        REPORTER'S CERTIFICATE

         2                              ---oOo---

         3      STATE OF CALIFORNIA      )

                                         )  ss.

         4      COUNTY OF SACRAMENTO     )

         5

         6             I, TERI L. VERES, certify that I was the Official

         7      Court Reporter for the proceedings named herein, and that

         8      as such reporter I reported in verbatim shorthand writing

         9      those proceedings; that I thereafter caused my shorthand

        10      writing to be reduced to typewriting, and the pages

        11      numbered 1276 through 1363 herein constitute a complete,

        12      true and correct record of the proceedings:

        13             PRESIDING OFFICER:  JAMES CAFFREY, Chairman

                       CAUSE:  Mono Basin

        14             DATE OF PROCEEDINGS:  Tuesday, February 25, 1997

        15

        16             IN WITNESS WHEREOF, I have subscribed this

        17      certificate at Sacramento, California, on this 7th day

        18      of March, 1997.

        19

        20

        21

                                             ___________________________

        22                                   TERI L. VERES, CSR NO. 7522

        23

        24

        25

                              CAPITOL REPORTERS (916) 923-5447

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                            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

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         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

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         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

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         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

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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.

         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

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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

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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

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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

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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.

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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

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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