1365
01 STATE WATER RESOURCES CONTROL BOARD
02
03 PUBLIC HEARING
04
05
06 REGARDING STREAM AND WATERFOWL HABITAT RESTORATION
PLANS
06 AND GRANT LAKE OPERATIONS AND MANAGEMENT PLAN
SUBMITTED BY
07 THE LOS ANGELES DEPARTMENT OF WATER AND POWER
PURSUANT TO
07 THE REQUIREMENTS OF WATER RIGHT DECISION 1631
08
09
10
11
12
13 HELD AT:
14 STATE WATER RESOURCES CONTROL BOARD
14 PAUL BONDERSON BUILDING
15 901 P STREET, FIRST FLOOR HEARING ROOM
15 SACRAMENTO, CALIFORNIA
16
16
17
17
18 TUESDAY, MAY 6, 1997
18 10:30 A.M.
19
19
20
20
21
21
22
22
23
23
24 Reported by: ESTHER F. WIATRE
24 CSR NO. 1564
25
25
1366
01 APPEARANCES
01 BOARD MEMBERS:
02
02 JOHN CAFFREY, CHAIRMAN
03 JOHN W. BROWN
03 JAMES STUBCHAER
04 MARY JANE FORSTER
04 MARC DEL PIERO
05
05 STAFF MEMBERS:
06
06 JAMES CANADAY, ENVIRONMENTAL SPECIALIST
07 GERALD E. JOHNS, ASSISTANT DIVISION CHIEF
07
08 COUNSEL:
08
09 DAN FRINK
09
10 LOS ANGELES DEPARTMENT OF WATER AND POWER:
10
11 KRONICK MOSKOVITZ TIEDEMANN & GIRARD
11 400 Capitol Mall, 27th Floor
12 Sacramento, California 95814
12 BY: THOMAS W. BIRMINGHAM, ESQ.
13 and
13 JANET GOLDSMITH, ESQ.
14
14 UNITED STATES FOREST SERVICE: (Not present.)
15
15 UNITED STATES DEPARTMENT OF AGRICULTURE
16 OFFICE OF GENERAL COUNSEL
16 33 New Montgomery, 17th Floor
17 San Francisco, California 94105
17 BY: JACK GIPSMAN, ESQ.
18
18 BUREAU OF LAND MANAGEMENT: (Not present.)
19
19 UNITED STATES DEPARTMENT OF THE INTERIOR
20 BUREAU OF LAND MANAGEMENT
20 BISHOP RESOURCE AREA
21 785 North Main Street, Suite E
21 Bishop, California 93514
22 BY: TERRY L. RUSSI
22
23
23
24
24
25
25
1367
01
01 APPEARANCES
02
02 PEOPLE FOR MONO BASIN PRESERVATION:
03
03 KATHLEEN MALONEY BELLOMO
04 P.O. Box 201
04 Lee Vining, California 93541
05
05 POLICY STATEMENT PANEL:
06
06 FLOYD GRIFFIN
07 BONNIE NOLES
07 JOHN FREDERICKSON
08
08 ARNOLD BECKMAN: (Not present.)
09
09 DeCUIR & SOMACH
10 400 Capitol Mall, Suite 1900
10 Sacramento, California 95814
11 BY: DONALD MOONEY, ESQ.
11
12 ARCULARIUS RANCH: (Not present.)
12
13 FRANK HASELTON, LSA
13 1 Park Plaza, Suite 500
14 Irvine, California 92610
14
15 RICHARD RIDENHOUR: (Not present.)
15
16 RICHARD RIDENHOUR
16
17 CALIFORNIA TROUT, INC.:
17
18 NATURAL HERITAGE INSTITUTE
18 114 Sansome Street, Suite 1200
19 San Francisco, California 94014
19 BY: RICHARD ROOS-COLLINS, ESQ.
20
20
21
21
22
22
23
23
24
24
25
25
1368
01
01 APPEARANCES
02
02 CALIFORNIA DEPARTMENT OF FISH AND GAME:
03
03 NANCEE MURRAY, ESQ.
04 1416 Ninth Street
04 Sacramento, California 95814
05
05 McDONOUGH HOLLAND & ALLEN
06 555 Capitol Mall, Ninth Floor
06 Sacramento, California 95814
07 BY: VIRGINIA A. CAHILL, ESQ.
07
08
08 PANEL MEMBERS:
09
09 RONALD THOMAS
10
10 CALIFORNIA STATE LANDS COMMISSION:
11 CALIFORNIA DEPARTMENT OF PARKS AND RECREATION:
11
12 MARY J. SCOONOVER, ESQ.
12 1300 I Street
13 Sacramento, California 95814
13
14 MICHAEL VALENTINE
14
15 PANEL MEMBERS:
15
16 DIANA F. JACOBS
16 W. JAMES BARRY
17 SCOTT STINE
17
18 NATIONAL AUDUBON SOCIETY:
18 MONO LAKE COMMITTEE:
19
19 MORRISON & FOERSTER
20 425 Market Street
20 San Francisco, California
21 BY: F. BRUCE DODGE, ESQ.
21
22
22 ---oOo---
23
23
24
24
25
25
1369
01 INDEX
01
02 PAGE
02
03 STATES LAND COMMISSION & DEPARTMENT OF PARKS
AND RECREATION
03
04 DIRECT EXAMINATION
04
05 BY MS. SCOONOVER 1378
05
06 CROSS-EXAMINATION
06
07 BY MS. BELLOMO 1382
07 BY MR. ROOS-COLLINS
08 BY BOARD STAFF 1429
08
09 REDIRECT EXAMINATION
09
10 BY MS. SCOONOVER 1436
10
11 RECROSS EXAMINATION
11
12 BY MS. BELLOMO 1459
12
13 DEPARTMENT OF FISH AND GAME
13
14 DIRECT EXAMINATION
14
15 BY MS. CAHILL 1463
15
16 CROSS EXAMINATION
16
17 BY MS. BELLOMO 1464
17 BY BOARD STAFF 1504
18
18
19 PEOPLE FOR MONO BASIN PRESERVATION
19
20 POLICY STATEMENT PANEL 1550
20
21 AFTERNOON SESSION 1429
21
22 ---oOo---
23
24
25
1370
01 SACRAMENTO, CALIFORNIA
02 TUESDAY, MAY 6, 1997
03 ---oOo---
04 CHAIRMAN CAFFREY: Good morning to you all, and
05 welcome back to these proceedings on Mono Lake,
after what I
06 think what was about a two and a half month hiatus,
as
07 parties attempted to come to some resolution.
08 I am John Caffrey, Chairman of State Water
Resources
09 Control Board. You certainly all know who we are.
10 I would like to give special recognition to the
fact we
11 have been rejoined by Mr. Del Piero, who has been
12 recuperating for the last couple of months from
rather
13 significant back surgery.
14 Welcome back, Marc. Glad to see you.
15 MEMBER DEL PIERO: Thank you.
16 CHAIRMAN CAFFREY: Let me read a brief statement
into
17 the record. Hopefully, it's brief by your
definition.
18 This is a continuation of the State Water Resources
19 Control Board hearing on Mono Basin Stream and
Waterfowl
20 Habitat Restoration Plans that were required by
Water Right
21 Decision 1631. At the request of several parties to
the
22 proceeding, the hearing was recessed on February
25th, 1997
23 to allow the requesting parties time to prepare a
proposed
24 settlement agreement to submit for the Board's
consideration
25 Based on correspondence from the parties, the Board
1371
01 understands that some, but not all, of the parties
have
02 agreed on a proposed settlement. There will be an
03 opportunity for the parties to address the proposed
04 settlement later on in the hearing. I want to note
for the
05 record that in this matter, as in many high profile
06 disputes, the Board has received correspondence
from
07 interested persons who are not parties to the
hearing
08 process. The recent letters, which the Board has
received
09 on Mono Basin restoration proposals are included in
a file
10 available from Mr. Johns, who is sitting here at
the front
11 table, of course.
12 Letters from outside parties are not considered
part of
13 the evidentiary record, unless introduced and
accepted as an
14 exhibit. The procedures we will follow in today's
hearing
15 were addressed at the close of the hearing on
February 25th
16 and in three subsequent notices. In accordance with
those
17 procedures, the Board's first item of business will
be to
18 accept into evidence the remaining exhibits and
written
19 testimony which were previously submitted by
parties and
20 which were not subject of a written objection or
request
21 for cross-examination by April 25th.
22 Following that, we will provide an opportunity for
23 cross-examination of those witnesses who were
designated by
24 other parties by April 25th. After the oath has
been
25 administered, counsel for the party presenting the
witnesses
1372
01 should have the witnesses identify themselves and
their
02 previously submitted written testimony before
making the
03 witnesses available for cross-examination.
04 We expect to begin with witnesses Scott Stine,
James
05 Barry, and Diana Jacobs, who submitted written
testimony on
06 behalf of the State Lands Commission and the
Department of
07 Parks and Recreation. When the testimony and
08 cross-examination of these witnesses is complete,
we will
09 then proceed to the identification of the written
testimony
10 and the cross-examination of Ronald Thomas, who
submitted
11 written testimony on behalf of the Department of
Fish and
12 Game.
13 The previous request to have witnesses Ted Beedy
and
14 Gary Smith available for cross-examination has been
15 withdrawn.
16 Following completion of all testimony and
17 cross-examination regarding previously submitted
exhibits
18 and written testimony, we will provide an
opportunity for
19 presentation and questions regarding the proposed
settlement
20 agreement. Following that, the Board will provide
an
21 opportunity for rebuttal testimony. I want to
remind all
22 parties that the rebuttal portion of the hearing is
23 restricted to presentation of testimony or other
evidence
24 which is intended to rebut evidence presented by
another
25 party.
1373
01 Before proceeding further, I want to remind all the
02 participants that this hearing has already been
continued
03 three times at the request of various parties. The
Board
04 appreciates the efforts of the parties to reduce
areas of
05 disagreement, and we expect that those efforts will
shorten
06 the time needed for completion of this hearing. We
believe
07 that, if we follow the previously announced
procedures, we
08 should be able to complete the hearing in the two
days which
09 have been scheduled. If it looks like completing
the
10 hearing will require evening sessions, then we may
hold an
11 evening session either today, tomorrow, or on both
days.
12 Hopefully, that won't be necessary. That is
certainly our
13 intention to avoid that if we can.
14 Are there any questions up to that point, of what I
15 just stated?
16 Thank you.
17 Mr. Birmingham, did I see your hand go up? Yes,
sir.
18 MR. BIRMINGHAM: Mr. Caffrey, you referred to a
number
19 of letters which the Board has received from
interested
20 parties that are actually not parties to the
proceedings. I
21 wonder if we can obtain copies of those letters?
22 CHAIRMAN CAFFREY: Certainly.
23 Mr. Frink, would you like to comment on that? I
know
24 you have a file. Was it your intention to just make
the
25 file available or to provide actual copies to
anyone who
1374
01 might want them? What was the intent here?
02 MR. FRINK: All we have done so far is include them
in
03 a file. I wonder if he can get a count on the
number of
04 parties who would like copies, and we can get them
at the
05 break and have them this afternoon.
06 CHAIRMAN CAFFREY: How many don't want it?
07 MEMBER DEL PIERO: Assume everyone wants it.
08 MR. FRINK: We will have them available this
09 afternoon.
10 MR. BIRMINGHAM: Thank you.
11 CHAIRMAN CAFFREY: All right. Any other questions?
12 I will rely on you, Mr. Frink, and certainly the
other
13 attorneys in the room to make sure that I stay on
track
14 here. I am trying to focus, but I spent this
morning
15 testifying on the State Water Board's budget on the
Assembly
16 side. Someone at the State is shocked because they
doubled
17 one of our more significant water quality areas,
which is a
18 little bit different kind of experience than what
we are
19 used to. Please bear with me. It's very good news,
by the
20 way.
21 All right then, I believe that we are at the point
22 where we can accept, if offered into evidence, into
the
23 evidentiary record, the exhibits of Bureau of Land
24 Management, Mono Lake Committee and National
Audubon
25 Society, and California Trout, Inc. I see Mr. Dodge
at the
1375
01 podium.
02 Mr. Dodge.
03 MR. DODGE: Ready to offer Exhibits R-NAS/MLC 1
through
04 7, Mr. Chairman. We will offer those exhibits into
05 evidence.
06 THE COURT: Thank you, sir.
07 MR. DODGE: I would also offer BLM's exhibits into
08 evidence. I don't think they are here today.
09 CHAIRMAN CAFFREY: I believe that is the case, and I
10 appreciate your doing that.
11 Is there any objection from anyone as to the Board
12 accepting those exhibits into the evidentiary
record?
13 Very good. Seeing none, they are accepted.
14 I am sorry, Mr. Johns, did you have a
clarification?
15 MR. JOHNS: We have a Exhibit 7A which is
corrections
16 to Mr. Vorster's testimony. I am assuming you
wanted that
17 into evidence, as well?
18 MR. DODGE: Yes, and also there was an amendment to
the
19 STE testimony, which I believe is Exhibit 3A.
20 MR. JOHNS: That is correct.
21 MR. DODGE: I offer both of those.
22 CHAIRMAN CAFFREY: I assume that is on a
modification
23 of the exhibits; that is just a clarification?
24 MR. JOHNS: That is correct. We have three exhibits
25 from the Bureau of Land Management, Exhibits 1, 2,
and 3 for
1376
01 the record.
02 CHAIRMAN CAFFREY: Those are accepted without
03 objection.
04 That takes us to the evidentiary exhibits for
05 California Trout. Mr. Roos-Collins, good morning,
sir.
06 MR. ROOS-COLLINS: Morning, Mr. Caffrey. On behalf
of
07 California Trout, I ask that our Exhibits R-CT-1
through 5
08 be accepted into evidence.
09 CHAIRMAN CAFFREY: Thank you, sir.
10 At this time I will give Mr. Johns a chance to make
11 sure he synchronizes with you.
12 MR. JOHNS: We got it.
13 CHAIRMAN CAFFREY: Does that meet with your
14 understanding of the enumeration of the exhibits?
15 MR. JOHNS: Yes, it does. It is CT-1 through --
16 actually, I have two Exhibits 5s. One is Scott
Stine's
17 testimony and another one is a supplemental direct
testimony
18 from Carl Mesick, which is also identified as 5.
Should
19 that be 6?
20 MR. ROOS-COLLINS: Dr. Mesick's testimony is R-CT-2.
21 MR. JOHNS: I have a supplemental direct testimony
22 from him that we received on February 20th, and it
is
23 CT-6. I am sorry, I got it wrong. So, if you want
to
24 correct that to include his supplemental testimony
or not?
25 MR. ROOS-COLLINS: Yes, I do. Thank you for the
1377
01 correction.
02 MR. JOHNS: Now, I'm okay.
03 CHAIRMAN CAFFREY: Thank you, Mr. Johns.
04 Is there any objection from any of the parties or
any
05 one on the Board from accepting these exhibits into
the
06 evidentiary record?
07 Seeing and hearing none, they are accepted.
08 Thank you very much, Mr. Roos-Collins.
09 There were a number of exhibits offered by the
10 Department of Fish and game and the State Lands
11 Commission and the Department of Parks and
Recreation, which
12 were not subject to objection or request for
13 cross-examination by the April 25th date. However,
in the
14 interest of time, I think probably, procedurally,
it would
15 be better after the cross-examination of the
certain
16 exhibits, that we take it all up at that time.
17 So, if that is agreeable with you and Ms. Cahill,
18 thank you very much.
19 Let's administer the oath to those who are here to
20 testify or feel that they might some time during
the course
21 of this proceeding.
22 (Oath administered by Chairman Caffrey.)
23 CHAIRMAN CAFFREY: Thank you very much. You may be
24 seated.
25 I believe we will start with the panel of Scott
Stine,
1378
01 James Barry and Diana Jacobs.
02 Ms. Scoonover, do you wish to present your panel?
03 MS. SCOONOVER: Good morning.
04 CHAIRMAN CAFFREY: Good morning, Ms. Scoonover. Good
05 morning to the panel.
06 MS. SCOONOVER: This morning I would like to present
07 Drs. Stine, Barry, and Jacobs on behalf of the
State Lands
08 Commission and the Department of Parks and
Recreation, take
09 just a few minutes to ask each witness to identify
his or
10 her testimony, and then make this panel available
for
11 cross-examination.
12 CHAIRMAN CAFFREY: Thank you, Ms. Scoonover.
13 ---oOo---
14 DIRECT EXAMINATION BY
15 STATE LANDS COMMISSION and
16 DEPARTMENT OF PARKS AND RECREATION
17 BY MS. SCOONOVER
18 MS. SCOONOVER: Dr. Barry, would you please spell
your
19 name for the record?
20 DR. BARRY: B-a-r-r-y.
21 MS. SCOONOVER: Dr. Barry, is R-SLC/DPR-1 a true and
22 accurate copy of your Curriculum Vitae?
23 DR. BARRY: Yes, it is.
24 MS. SCOONOVER: Dr. Barry, is R-SCL/DPR 100 and
25 following exhibits a true and accurate statement of
your
1379
01 testimony before this Board?
02 DR. BARRY: Yes, it is.
03 MS. SCOONOVER: Dr. Jacobs, I will ask you to spell
04 your last name for the record.
05 DR. JACOBS: J-a-c-o-b-s.
06 MS. SCOONOVER: Dr. Jacobs, is R-SLC/DPR-3 a true
and
07 accurate copy of your resume?
08 DR. JACOBS: Yes.
09 MS. SCOONOVER: Dr. Jacobs, is R-SLC/DPR-300 and
10 following a true and accurate statement of your
testimony
11 and exhibits before this Board?
12 DR. JACOBS: Yes.
13 MS. SCOONOVER: Dr. Stine, would you please spell
your
14 last name for the record?
15 DR. STINE: Yes. S-t-i-n-e.
16 MS. SCOONOVER: And is R-SLC/DPR-4 a true and
accurate
17 statement of your Curriculum Vitae?
18 DR. STINE: Yes, it is.
19 MS. SCOONOVER: Is R-SLC/DPR-400 and following a
true
20 and accurate statement of your testimony and
exhibits?
21 DR. STINE: Yes, it is.
22 MS. SCOONOVER: Do you have any corrections you
would
23 like to make to that statement, Dr. Stine?
24 DR. STINE: Yes. One minor clarification on the
25 testimony on Page 12, of the testimony. Second full
1380
01 paragraph at the end, there is a sentence which
currently
02 reads:
03 This has been particularly true during the
04 past ten years when water earmarked for the
05 Upper Conway Ditch, largest of the Conway
06 ditches, has been diverted instead into
07 Wilson Creek. (Reading.)
08 I would like to cross out the words "Upper
Conway
09 Ditch, largest of the Conway ditches" and
replace that with
10 "upper portions of the Conway lands."
11 MS. BELLOMO: Would it be possible to ask the
witness
12 to read the sentence as it now reads? I am slightly
13 confused.
14 CHAIRMAN CAFFREY: Yes. Could you do that, please,
Dr.
15 Stine?
16 DR. STINE: Certainly. The last sentence of that
17 second paragraph now reads:
18 This is has been particularly true during the
19 past ten years when water earmarked for the
20 upper portions of the Conway lands has been
21 diverted instead into "Wilson Creek."
22 (Reading.)
23 MR. DODGE: The language "largest of the Conway
24 ditches" is gone?
25 DR. STINE: Yes.
1381
01 MS. BELLOMO: And Upper Conway Ditch is gone, as
well?
02 DR. STINE: That's correct.
03 MS. SCOONOVER: I would also like to note for the
04 record that Dr. Ted Beedy is here and present today
and has
05 been sworn as a witness. If any of the
cross-examination
06 questions are specifically waterfowl related, the
responses
07 of the birds or waterfowl, I will ask that Dr.
Beedy be
08 allowed to join this panel to respond to the
questions.
09 As the Water Board requested, we split up your
10 testimony by area of expertise, obviously, and
present them
11 as a panel. All of them are necessary in order to
get the
12 entire picture for the waterfowl habitat
restoration
13 efforts.
14 If they're no questions for Dr. Beedy, that is
fine.
15 He will remain in the audience. However, he has
been sworn
16 and is available, should either the Board staff or
Board
17 Members themselves have questions of Dr. Beedy.
18 CHAIRMAN CAFFREY: Thank you, Ms. Scoonover. We
19 appreciate your letting us know that is the case if
the need
20 presents itself.
21 MS. SCOONOVER: Likewise, Dr. Barry is qualified to
22 answer questions on Dave Carls' testimony that was
23 presented. His is primarily prescribed burns, and
there is
24 overlap. If the Board Members or Board staff have
questions
25 on David Carls' testimony, Dr. Beedy is prepared to
respond
1382
01 to those as well.
02 If there is nothing further from the Board, I
request
03 to make these witnesses available for
cross-examination.
04 CHAIRMAN CAFFREY: Thank you very much, Ms.
Scoonover.
05 Ms. Bellomo, representing the People for Mono Basin
06 Preservation, are you ready to cross-examine the
witnesses?
07 MS. BELLOMO: Yes, I am.
08 CHAIRMAN CAFFREY: I will remind you that you have
up
09 to one hour to cross-examine this panel, as it was
the
10 previous procedure that we had established at the
beginning
11 of this hearing.
12 MS. BELLOMO: Thank you.
13 CHAIRMAN CAFFREY: Good morning and welcome.
14 MS. BELLOMO: Good morning. Morning, Board Members.
15 CROSS EXAMINATION BY
16 PEOPLE FOR MONO BASIN PRESERVATION
17 BY MS. BELLOMO
18 MS. BELLOMO: Morning, Drs. Jacobs, Barry, and
Stine.
19 I want to ask at the outset if you could tell me,
Dr.
20 Jacobs, what is your area of expertise? What is
your
21 professional field?
22 DR. JACOBS: My original academic background was
what
23 I call applied ecology with a specialization in
plant
24 ecology and more particularly ecology of woody
plants,
25 trees. When I started State service ten years ago,
I began
1383
01 with the Department of Water Resources and have
been with
02 State Lands Commission. And I have been
concentrating on
03 areas under those two agencies' authority and
jurisdiction,
04 so more particularly the ecology of riparian areas,
although
05 I am called upon to address wetland, aquatic
issues, and
06 upland as well, upland terrestrial ecology.
07 MS. BELLOMO: What is the purpose of your testimony
in
08 this proceeding?
09 DR. JACOBS: I don't understand the purpose.
10 MS. BELLOMO: Were you given some mission when you
went
11 out and prepared testimony?
12 MR. BIRMINGHAM: Objection. Vague and ambiguous.
13 MS. BELLOMO: I will rephrase the question.
14 What is the scope of your testimony? I am trying to
15 get at: What is the purpose of you presenting
testimony to
16 the Board, here?
17 DR. JACOBS: To present in the team format, I guess
18 you would say, to support the waterfowl scientists
19 recommendations for waterfowl restoration at Mono
Lake.
20 MS. BELLOMO: I assume that you are qualified to
21 address some areas that your two fellow panelists
are not;
22 is that correct?
23 DR. JACOBS: Yes.
24 MS. BELLOMO: What are the areas that you are
qualified
25 that they are not?
1384
01 DR. JACOBS: My testimony addresses the riparian
02 bottomland of Mill Creek and the some of the issues
on
03 Wilson Creek and the ditches as riparian systems.
04 MS. BELLOMO: Thank you.
05 Dr. Barry, I am trying to get, elicit, the same
answers
06 from you. For starters, what is your field or area
of
07 expertise?
08 DR. BARRY: Well, I have several. I have Bachelor's
09 degree in soil science from the University of
Nevada, a
10 Master's degree in environmental horticultural from
the
11 University of California at Davis, and a Ph.D. in
plant
12 ecology from the University of California at Davis.
13 I was the first State Parks' plant ecologist with
14 statewide responsibility in vegetation management
and
15 protection for about a decade. I am now a Senior
State Park
16 ecologist, and I deal with ecological oversight,
policy
17 formulation for the department, dealing with
natural and
18 cultural heritage values, and research, park
science
19 technology, and also a California Resource Agency
University
20 of California fellow, which deals with research in
the
21 Sierra Nevada. And I have duties that require both
field
22 work throughout the state and looking at impacts
and trying
23 to understand natural systems and manage them in an
24 ecological and sound fashion.
25 MS. BELLOMO: Thank you.
1385
01 What is the purpose of your testimony in this
02 proceeding?
03 DR. BARRY: The purpose is to make sure that the
04 Department's mission is fulfilled as it pertains to
Mono
05 Lake State Reserves.
06 MS. BELLOMO: What is that mission? How does that
07 pertain to this proceeding?
08 DR. BARRY: Lately, it is to maintain the natural,
09 native ecological associations of the reserve
itself.
10 MS. BELLOMO: When you say "the reserve
itself," you
11 are referring to State lands?
12 DR. BARRY: The reserve, the relicted lands, as well
13 as the lake bottom.
14 MS. BELLOMO: In this proceeding, what are you
offering
15 in terms of expertise that is distinct from your
two fellow
16 panelists and Dr. Beedy?
17 DR. BARRY: Well, I'm offering some applied ecology
18 like Dr. Jacobs, especially in the field of fire
ecology and
19 as well as some restoration ecology, which I have
done a
20 considerable amount throughout the state, and also
my own
21 experiences in ranching and irrigation.
22 MS. BELLOMO: Thank you.
23 Dr. Stine, I actually have been looking forward to
have
24 an opportunity to ask you this question because I
have
25 never, myself, met anyone nor known anyone who has
a BA, MA,
1386
01 or Ph.D. in physical geography. I wanted you to
explain
02 what that is, please.
03 DR. STINE: Physical geography is a discipline that
04 incorporates a number of other disciplines,
primarily
05 science. There is also a large component of history
in
06 physical geography. So that what I do is to
incorporate in
07 a multi-disciplinary, interdisciplinary way,
biological
08 phenomena, soils, hydrology, geomorphology, and
climatology,
09 paleoclimatology, as well as a number of other
things. What
10 I have ultimately trying to do is piece together
landscape
11 history, so that we can make predictions as to how
those
12 landscapes will function in the future under
certain
13 conditions.
14 MS. BELLOMO: Is that what physical geographers are
15 specialized in doing?
16 DR. STINE: Yes. If one goes on to graduate work in
17 physical geography, typically, that is what is
going to go
18 on. Typically, there will be some emphasis within
physical
19 geography, but it is going to be incorporative; it
is going
20 to take all of these different subdisciplines into
21 consideration.
22 CHAIRMAN CAFFREY: Excuse me, before you ask your
next
23 question, Ms. Bellomo, I was going to ask Dr. Stine
if he
24 could pull that mike over. We don't have the
world's
25 greatest sound system here, but we need to try and
use it as
1387
01 best we can.
02 I am a little concerned that some of the folks in
the
03 back of the room might not be able hear.
04 Ms. Bellomo, thank you. Please proceed.
05 MS. BELLOMO: Am I correct in assuming that you rely
06 on experts in other disciplines when you want to
get into
07 details, for instance, on biology? You brought Dr.
Jacobs
08 for that reason; is that correct?
09 DR. STINE: I didn't bring Dr. Jacobs. Dr. Jacobs'
10 expertise lies in the physiology of riparian
systems, and
11 she knows a great deal about it. If I have
questions on
12 riparian system's physiology, I would ask someone
like Dr.
13 Jacobs or Dr. Jacobs that particular question.
14 In terms of other elements of the biology, there
are
15 many elements of, for instance, riparian ecology
that I am
16 familiar with; indeed, that I have published on in
the
17 scientific literature. I teach a class, for
instance, in
18 the biology department at Cal State called
biogeography,
19 where we deal with a lot of different biological
phenomena.
20 If we wanted to know the timing of the second post
nuptial
21 molt of the Northern Pintail, I would probably go
to someone
22 like Dr. Beedy to figure out those psychological
questions.
23 MS. BELLOMO: Am I correct that you are not a
24 hydrologist?
25 DR. STINE: No, you are not correct. In part what I
1388
01 do as part of my science, as part of my research,
is to
02 study and report on in the scientific literature
elements of
03 hydrology.
04 MS. BELLOMO: Do you consider yourself an expert in
the
05 field of hydrology?
06 DR. STINE: I consider myself to be an expert on
07 certain elements of hydrology, particularly as they
interact
08 with other elements of the landscape.
09 MS. BELLOMO: Do you consider yourself to be a soils
10 expert?
11 DR. STINE: I consider myself to be on who uses soil
12 science as part of my landscape reconstructions. I
have
13 used it a great deal.
14 MS. BELLOMO: Are you qualified to be sworn as an
15 expert witness in soils?
16 DR. STINE: Yes. I am, insofar as the Mono Basin is
17 concerned, yes.
18 MS. BELLOMO: In your opinion?
19 MR. BIRMINGHAM: I am going to object to the
question
20 as calling for a legal conclusion.
21 CHAIRMAN CAFFREY: I don't think, with clarification
by
22 counsel, is necessary. He's answered the question.
23 MS. BELLOMO: Do you consider yourself to be an
expert
24 biologist?
25 DR. STINE: My answer is the same insofar as
biological
1389
01 phenomena and their interaction at, say, the
habitat level
02 in the Mono Basin goes, yes, I would say so. And I
always
03 defer to other experts in those areas that I don't
04 understand.
05 MS. BELLOMO: Would you defer to other experts on
06 hydrology?
07 DR. STINE: Depending upon the question, yes.
08 MS. BELLOMO: Would you defer to other experts on
09 soils?
10 DR. STINE: Depending upon the question, yes.
Although
11 I brought my doctoral dissertation along, 615
pages, and
12 I've made thousands of soil analyses in the Mono
Basin. And
13 I suspect that is factors of hundreds more than
anybody
14 else has ever done. So, I do a lot of soils work.
15 MS. BELLOMO: Would you defer to other expert
16 biologists on biology questions?
17 DR. STINE: Yes. As other biologists would rely on
yet
18 other biologists.
19 MS. BELLOMO: You consider yourself a biologist?
20 DR. STINE: I think I've answered that question. I
do
21 biology as part of my landscape reconstructions.
Yes, so I
22 consider myself, in part, a biologist, yes.
23 MS. BELLOMO: Do you consider yourself to be an
expert
24 plant ecologist?
25 DR. STINE: No. But as far as habitats go, yes. But
1390
01 plant ecology itself, I would say, is getting
pretty
02 physiological, so that does go beyond my expertise.
03 MS. BELLOMO: Do you consider yourself to be a
04 fisheries expert?
05 DR. STINE: Not in terms of the fish physiology. In
06 terms of fish habitat, yes, and stream systems and
their
07 support of fish, yes.
08 MS. BELLOMO: Do you consider yourself to be a
09 waterfowl expert?
10 DR. STINE: My answer would be the same. In terms of
11 studying the physiology of waterfowl, no; I would
defer to
12 other experts. In terms of waterfowl habitat, for
instance,
13 what kinds of habitat existed in the Mono Basin
14 historically, as well as what kinds of habitats
didn't exist
15 in the Mono Basin historically, yes, I would
consider myself
16 an expert.
17 MS. BELLOMO: Do you consider that Dr. Reid, Dr.
18 Drewien, and Dr. Ratcliff who prepared the report
for DWP
19 are more qualified as experts in the field of
waterfowl than
20 you are?
21 DR. STINE: The field of waterfowl is awfully broad.
22 They realized early on that Mono Lake is a peculiar
place
23 for waterfowl. So they relied on me to provide
information
24 on waterfowl habitats.
25 So, do I consider them to be more qualified than me
as
1391
01 waterfowl experts? Certainly on matters of
physiology,
02 certainly on matters of migration, for instance,
the timing
03 of waterfowl activities, things like that. But in
terms of
04 habitat and how they were used in the Mono Basin,
they
05 actually relied on me.
06 MS. BELLOMO: In terms of proposing to the Water
Board
07 suitable waterfowl habitat restoration measures, do
you
08 believe that you are as qualified to make those
09 recommendations as Drs. Reid, Drewien, and
Ratcliff?
10 MR. DODGE: Objection. Asked and answered.
11 MS. BELLOMO: No, it is a more specific question.
12 CHAIRMAN CAFFREY: I am sorry, what is the
objection?
13 Was there an objection?
14 MR. DODGE: I object on the basis that the question
has
15 been asked and answered.
16 MS. BELLOMO: It has not been asked and answered.
Dr.
17 Stine --
18 CHAIRMAN CAFFREY: Can you read back the question,
or
19 maybe you could just repeat it?
20 MS. BELLOMO: My question was with regard -- Dr.
Stine
21 qualified areas that he felt he was equally
knowledgeable as
22 the other three waterfowl -- as not the other, as
the three
23 waterfowl scientists in this proceeding. My
question to him
24 was with regard to making recommendations to the
Water Board
25 regarding suitable waterfowl habitat restoration
measures,
1392
01 does he think he is as qualified as those three
waterfowl
02 scientists who made recommendations to you. Is that
an area
03 that he feels equally qualified?
04 CHAIRMAN CAFFREY: That sounds to me like the same
05 question in a slightly different form, because now
it is
06 directed to answering questions to the Board; it is
a little
07 bit more specific, but I think it is completely
already
08 covered.
09 MS. BELLOMO: It is a different question. The
10 question, the first question I asked that Dr. Stine
answered
11 was whether he considered himself a waterfowl
expert, and he
12 said that he knew about the history of waterfowl in
the
13 basin and something else about waterfowl in the
basin. I am
14 asking him: Does he feel qualified to make
recommendations
15 as to what should be done to create waterfowl
habitat?
16 That is a different question.
17 CHAIRMAN CAFFREY: I will allow him to answer the
18 question. To me, the difference, and I am having
trouble
19 discerning the difference from what I heard before.
20 But go ahead and answer it.
21 DR. STINE: I'm sorry, I apologize. I am a little
bit
22 lost. I got a little bogged down in the
paraphrasing of
23 the answers that I gave to certain questions, which
seemed
24 to me quite different than the answers that I gave.
25 MS. BELLOMO: The record will speak for itself. Let
me
1393
01 just ask the question that Chairman Caffrey said
that I
02 could ask which is: Do you consider yourself as
qualified
03 as Drs. Reid, Drewien, and Ratcliff to make
recommendations
04 regarding appropriate waterfowl habitat restoration
measures
05 to be performed in the Mono Basin?
06 DR. STINE: I think that they are qualified to do it
07 after having conferred with me on what types of
things will
08 take care of themselves out there, what will
naturally
09 re-establish itself. So having taken that into
10 consideration, then, they have taken their
knowledge of
11 waterfowl and their new-found knowledge of Mono
Basin and
12 made what, I think, are some sound judgments about
what
13 should be done in the future.
14 MS. BELLOMO: If I hear you correctly, you are
saying
15 they took an area of expertise that you don't have
and added
16 it to your area of expertise to come up with their
17 recommendations. Is that correct?
18 DR. STINE: I would say that they took their
knowledge
19 and their expertise and their experience. They
conferred
20 with me on the history of the Mono Basin, what used
to be
21 out there, as well as the future of the Mono Basin,
what
22 will be there when the lake goes up, and based on
that they
23 made, what I think are, very solid recommendations
as to
24 what should go on in the future.
25 MS. BELLOMO: Is it fair to say that, in your mind,
1394
01 with your expertise as a physical geographer that
hydrology,
02 soil expertise, biology, botany, plant ecology, and
03 waterfowl expertise are subdisciplines of your
discipline?
04 DR. STINE: My discipline is composed only of
05 subdisciplines. So, it is tough for me to answer
that
06 question. It is though -- I get the sense that you
are
07 talking about some entity that exists independent
of all of
08 these subdisciplines. My discipline does not exist
09 independent of these subdisciplines. It is the
interaction
10 of these subdisciplines.
11 MS. BELLOMO: So, it sounds like if a person wanted
to
12 save money, would you agree, in hiring a
consultant, then
13 you just get a physical geographer and you don't
have to get
14 a biologist and a botanist and waterfowl expert? Is
that
15 correct?
16 MR. BIRMINGHAM: Objection. Argumentative.
17 CHAIRMAN CAFFREY: Overruled. I mean, sustained. I
18 was into the question. I was overruling the
question.
19 MS. BELLOMO: Dr. Jacobs, turning to your testimony,
20 you say on Page 1 that you've made three field
trips to the
21 Mono Basin; one in 1990, one in '94, and in '96. In
1990
22 and 1994, did you visit Mill and Wilson Creeks?
23 DR. JACOBS: No.
24 MS. BELLOMO: In 1996 when you visited Mono Basin,
was
25 it for the purpose of doing your evaluation for the
1395
01 testimony in this proceeding?
02 DR. JACOBS: Yes.
03 MS. BELLOMO: Can you tell me how --
04 DR. JACOBS: May I add one thing just to be
perfectly
05 accurate?
06 MS. BELLOMO: Yes.
07 DR. JACOBS: Since I swore to be totally honest, is
08 that I did stop by on my way back from Owens Valley
a month
09 ago, in late March, and I spent a few hours looking
again at
10 the upper Wilson system. I just wanted that to be
on the
11 record.
12 MS. BELLOMO: Thank you.
13 Can you tell me how long you were in the Mono Basin
in
14 1996 when you performed your evaluation for this
15 proceeding?
16 DR. JACOBS: Just one day, one-day field trip.
17 MS. BELLOMO: Can you describe what parts of Mill
18 Creek you visited?
19 DR. JACOBS: Perhaps we can look at Exhibit
20 R-SLC/DPR-424, which is a map.
21 MS. BELLOMO: While Dr. Stine is putting the map up,
I
22 would like to proceed with my question.
23 Can you describe where those areas are located?
24 DR. JACOBS: What I visited?
25 MS. BELLOMO: On Mill Creek.
1396
01 DR. JACOBS: We drove by, quickly, on Highway 95,
02 looked a little bit at the upper area of Mill Creek
below
03 395, but in passing. Mostly we went in on the
County
04 Road, and examined this portion.
05 MS. BELLOMO: What was the total amount of time that
06 you spent examining that portion?
07 DR. JACOBS: That I can't remember, to be honest
with
08 you. We spent a whole day looking at, visiting,
these
09 portions and these portions of Wilson. But no more
than a
10 few hours, shall we say that.
11 MS. BELLOMO: By "a few hours" you mean --
is a few
12 hours two hours?
13 DR. JACOBS: I don't know. You can help me here?
14 CHAIRMAN CAFFREY: Dr. Jacobs, just answer the
15 question. That is your testimony.
16 DR. JACOBS: I can't recall any more precisely.
17 MS. BELLOMO: Did you visit any other portions of
Mill
18 Creek?
19 DR. JACOBS: No.
20 MS. BELLOMO: What portions of Wilson Creek did you
21 visit?
22 DR. JACOBS: This the viewpoint right here, looking
23 out over the ditches. These portions in here. In
here,
24 there is a kind of a dirt road on this portion.
25 MR. JOHNS: Excuse me, I wonder if the witness could
be
1397
01 a little more specific in identifying the location.
02 DR. JACOBS: I am sorry. Below the Lundy powerhouse
03 and its intersection with the return ditch. We also
stopped
04 and overlooked some of the upper ditch areas where
there is
05 a meadow below the penstock to the north.
06 Portions along -- there is a dirt road north of
167.
07 So, had some access in there. Stopped along 395.
Examined
08 this. Drove down the County Road and examined
portions in
09 this area.
10 MS. BELLOMO: You are indicating?
11 DR. JACOBS: Wilson Creek. The County Road that is
12 below Highway 167, where it cuts off to DeChambeau
Ditch.
13 And then down on the quarry road area looking up,
and walked
14 down the Wilson all the way to the edge and along
the
15 shoreline and back up to the Mill Creek area.
16 MS. BELLOMO: What was the total amount of time you
17 spent examining or looking at Wilson Creek?
18 DR. JACOBS: Just because of logistics, I would
assume
19 it probably took more time than the examination of
Mill.
20 So, four to six hours, something like that.
21 MS. BELLOMO: When you say "logistics,"
what you are
22 saying, sounds like, some of that time was spent in
the car
23 driving around, correct?
24 DR. JACOBS: That's correct.
25 MS. BELLOMO: How much time of that four to six
hours
1398
01 did you spend looking at the creek, being at the
creek?
02 DR. JACOBS: I don't know. Four hours, let's say.
03 That's as good as I can recall.
04 MS. BELLOMO: Am I correct that you, at no time,
have
05 walked Wilson Creek on the Conway Ranch?
06 DR. JACOBS: That's correct.
07 MS. BELLOMO: Am I also correct that you have, at no
08 time, walked the length of Wilson Creek from the
powerhouse
09 down to the lake?
10 DR. JACOBS: Wilson? No.
11 MS. BELLOMO: Have you walked the length of Mill
Creek
12 from Highway 395 down to the lake?
13 DR. JACOBS: No.
14 MS. BELLOMO: Have you looked at Mill Creek below
Mono
15 City?
16 DR. JACOBS: No.
17 MS. BELLOMO: You haven't even gone to the bluffs
and
18 overlooked it?
19 MR. BIRMINGHAM: Objection. Argumentative.
20 CHAIRMAN CAFFREY: Sustained.
21 MS. BELLOMO: Did you go to a bluff and overlook it?
22 I am not trying to trip you up. I'm trying to
understand
23 what you did.
24 DR. JACOBS: I have a picture that will show the
25 overlook that I did have, which is Exhibit 308.
1399
01 MS. BELLOMO: Did you take all the photographs that
are
02 exhibit attachments to your testimony?
03 DR. JACOBS: Yes, actually, that is true. I am
04 sorry, I was citing a map, a historic map that I
did not
05 take. But all the color photos of the habitats were
mine.
06 MS. BELLOMO: Thank you.
07 Will you describe for me all the studies that you
08 performed at Mill Creek?
09 DR. JACOBS: As far as scientific research with
10 hypothesis testing, I have not done any of that.
11 MS. BELLOMO: Could you describe all of the
scientific
12 studies, as you have described research and
hypotheses, that
13 you performed at Wilson Creek?
14 DR. JACOBS: I have done none.
15 MS. BELLOMO: Did you collect any field data during
the
16 couple of hours that you spent at each of these
creeks?
17 DR. JACOBS: No.
18 MS. BELLOMO: Do you have any field notes of your
19 visits?
20 DR. JACOBS: I have very rough notes, but primarily
21 photos.
22 MS. BELLOMO: Did you perform any measurements while
23 you were at either of these creeks?
24 DR. JACOBS: No.
25 MS. BELLOMO: Are you qualified to testify regarding
1400
01 soil types present at various parts of Mill Creek?
02 DR. JACOBS: Soil types in the classic sense of a
soil
03 scientists, no. But as substrats upon which
riparian
04 habitat grows and part of the riparian
geomorphology, I
05 believe so, yes.
06 MS. BELLOMO: Am I correct that all you would know
07 about soils would be what you could see from the
surface
08 while you were looking at the surface, correct?
09 DR. JACOBS: Yes.
10 MS. BELLOMO: You did not take any soil samples?
11 DR. JACOBS: Correct.
12 MS. BELLOMO: Am I correct that different types of
13 plants require different types of soils to grow?
14 DR. JACOBS: True.
15 MS. BELLOMO: Can you tell me what lands you looked
at
16 while you were in the Mono Basin on this day in
1996, that
17 is State land?
18 DR. JACOBS: You mean -- are you getting at the
lake?
19 MS. BELLOMO: Let me say this: Was any part of your
20 Mill Creek visit on State lands?
21 DR. JACOBS: The Mill Creek Bottomland, below the
22 County Road. Eventually it will hit the elevation
that
23 becomes State land. Primarily, my visits were above
State
24 lands elevation.
25 MS. BELLOMO: On Page 3 of your testimony you
indicate
1401
01 in the second to bottom paragraph that your
photographs and
02 Exhibit 304 shows woody debris is scattered over
the
03 bottomland, attesting to the presence of the
abundant woody
04 riparian vegetation in the past. You are referring
to Mill
05 Creek, correct?
06 DR. JACOBS: Yes.
07 MS. BELLOMO: Let's turn to Exhibit 403 then, that
08 photograph, please.
09 DR. JACOBS: I believe we have an error in the
10 numbering.
11 MS. BELLOMO: Let's look at Exhibit 304 and see what
it
12 shows. What would you say that this woody debris
is? What
13 was that type of vegetation?
14 DR. JACOBS: Excuse me, the sentence -- the
testimony
15 is woody debris, Exhibit 305?
16 MS. BELLOMO: Did I misspeak? I am asking you to
look
17 at Exhibit 305.
18 DR. JACOBS: 305 is the woody debris and it goes
with
19 the sentence pertaining the woody debris.
20 MS. BELLOMO: I am asking you: What kind of woody
21 debris is that.
22 DR. JACOBS: I am sorry, I misheard.
23 MS. BELLOMO: Would you agree that that is dead
willow?
24 DR. JACOBS: I don't know whether that is dead
willow
25 or dead cottonwood.
1402
01 MS. BELLOMO: You couldn't tell by looking?
02 DR. JACOBS: No, I can't. I can't walking along,
03 looking at it casually.
04 MS. BELLOMO: Going back to your testimony on Page
3,
05 you say:
06 In addition, woody debris is scattered over
07 the bottomlands attesting to the presence of
08 abundant woody riparian vegetation in the
09 past. (Reading.)
10 Then you refer to Exhibit 305, which you say you
can't
11 tell if it is dead willow or dead cottonwood.
12 DR. JACOBS: That is why I called it "woody
riparian,"
13 to be more generic.
14 MS. BELLOMO: Are you telling us that that is
15 hundred-year-old woody debris?
16 DR. JACOBS: Yeah.
17 MS. BELLOMO: So you think that that could be a
18 hundred-year-old willow?
19 DR. JACOBS: Uh-huh.
20 MS. BELLOMO: Okay, very good.
21 So, if it was cottonwood, it would be a
22 hundred-year-old cottonwood?
23 DR. JACOBS: Yes.
24 MS. BELLOMO: So, now I understand somewhere in your
25 testimony, I don't want to take the time to find
it, I think
1403
01 you testified that it is your opinion that in the
past there
02 was -- that the Mill Creek Bottomlands supported a
lot of
03 cottonwood trees. Is that correct?
04 DR. JACOBS: That is correct.
05 MS. BELLOMO: Did you see a lot of evidence of a lot
of
06 woody debris of cottonwoods in the Mill Creek
bottomland?
07 DR. JACOBS: I didn't do probably enough of a survey
to
08 see how much was cottonwood. I saw even a dead
standing
09 tree, although I don't know how old that was. But
walking
10 through, what I remember, was occasional some big
snags to
11 step over and a lot of little ones, which I would
assume to
12 be willows.
13 MS. BELLOMO: If, in fact, when Wilson Creek -- let
me
14 restate that.
15 If, in fact, in the past when Mill Creek was
flowing
16 its natural channel, it was full of, heavily wooded
with
17 cottonwood, you would expect, if you went back and
inspected
18 it today, you would expect to see evidence of those
trees
19 then, wouldn't you?
20 DR. JACOBS: Right. Part of the problem is also due
to
21 the way the water has been managed on Mill Creek.
There is
22 a bit of a dry wash. It's been, the bottomland
topography
23 has been disturbed. And, you know, that could have
been
24 mobilized in those periods. But, again, I didn't do
a
25 transect by transect evaluation of how many stumps
there
1404
01 are. This is more of spot evaluation. This is what
I see.
02 MS. BELLOMO: What you were last saying about Mill
03 Creek and the way the water is managed, are you
suggesting
04 that, possibly due to high flows, these dead,
05 hundred-year-old trees would have washed down to
the lake?
06 DR. JACOBS: It could have been in some of the main
07 areas where I was looking where the biggest ones
might have
08 been. I don't know.
09 MS. BELLOMO: If that were the case, wouldn't you
10 expect to hear some anecdotal evidence from the
community
11 that large trees had been washed down, were
floating down to
12 the lake?
13 DR. JACOBS: Perhaps so.
14 MS. BELLOMO: Have you ever learned that that's the
15 case?
16 DR. JACOBS: No.
17 MS. BELLOMO: Again, on Page 3 of your testimony,
you
18 state that large -- you state that black
cottonwoods can
19 live to be a hundred or 200 years old.
20 DR. JACOBS: Right, correct.
21 MS. BELLOMO: Am I correct that you are predicting
that
22 in the future the bottomlands will have very old
and large
23 hundred-year-old trees?
24 DR. JACOBS: I would think so, yes.
25 MS. BELLOMO: And you're basing that on these, the
fact
1405
01 that you saw some unidentifiable woody debris?
02 DR. JACOBS: There is actually some remnant, large
03 cottonwood still existing. Particularly right on
the County
04 Road, there is a very large one there. The fact
that in the
05 Mono Basin black cottonwoods can grow to these
heights. In
06 fact, there is some on Upper Wilson. Obviously,
they thrive
07 in this climate okay.
08 MS. BELLOMO: What makes you think that if we
rewatered
09 Mill Creek would have so many when you didn't see
that kind
10 of evidence of them yourself?
11 DR. JACOBS: Partly because of the analogy with
Lower
12 Rush and Lower Lee Vining being similar bottomland
systems
13 and partly because there is a lot of cottonwood,
black
14 cottonwood, young ones, that are coming in right
now. They
15 are already growing.
16 MS. BELLOMO: You haven't studied the soils to
compare
17 Rush Creek Bottomlands and Mill Creek, correct?
18 DR. JACOBS: Correct.
19 MS. BELLOMO: You testified on Page 3 that, in the
20 middle of the second to last paragraph, after that
Exhibit
21 305, you say, "as Dr. Stine's testimony."
You see where I
22 am reading?
23 DR. JACOBS: Yes.
24 MS. BELLOMO: You state:
25 As Dr. Stine's testimony has reviewed, old
1406
01 multiple channels are still present, as are
02 low areas which appear to have the potential
03 for being ponds, pools or wet meadows.
04 (Reading.)
05 DR. JACOBS: Correct.
06 MS. BELLOMO: My question is: What are your
07 qualifications for concluding that any area has the
08 potential for becoming a pond or a pool?
09 MS. SCOONOVER: Objection. Argumentative. I think it
10 misstates Dr. Jacobs' testimony on this matter.
11 CHAIRMAN CAFFREY: I am not sure that it does.
12 MS. BELLOMO: It doesn't misstate it; I just read
it.
13 CHAIRMAN CAFFREY: I am going to allow the question.
14 You may answer the question.
15 DR. JACOBS: On reviewing, again, using Lower Rush
and
16 Lower Lee Vining as models of what this probably
will be
17 like in the future, but on a smaller scale, I have
reviewed
18 Dr. Dean Taylor's monograph on Mono Lake Basin
vegetation
19 and Dr. Stine's historical reviews and looked at
the
20 descriptions of the bottomlands.
21 I am testifying here primarily on the riparian, but
I
22 believe I am qualified generally on the ecology to
make
23 those kinds of comparisons, that I believe that
would result
24 in similar habitat.
25 MS. BELLOMO: Would you agree that in order to
conclude
1407
01 that you were going to have pools and ponds in the
areas
02 that you looked at, you would have to know the
gradient,
03 correct?
04 DR. JACOBS: That's correct.
05 MS. BELLOMO: Do you know the gradient of Mill
Creek?
06 DR. JACOBS: I do not.
07 MS. BELLOMO: Was there water flowing down Mill
Creek
08 to the lake when you were there?
09 DR. JACOBS: I don't know if it was getting all the
10 way. There was some water in some of the channels
that I
11 saw on the day.
12 MS. BELLOMO: Do you know the velocity of the water
13 that you did observe in the bottomlands?
14 DR. JACOBS: No, I do not.
15 MS. BELLOMO: Dr. Barry, if you can turn to your
16 testimony, can you tell me how much time, total,
you have
17 spent in the Mono Basin?
18 DR. BARRY: A little difficult. I lived in that part
19 of world in the early forties, Bishop, Tonopah and
Gold
20 Field; and I started working, actually in the
basin,
21 probably in the seventies. We had a research
project up on
22 the Dana Plateau, looking at the climatic effects
upon the
23 alpine and subalpine vegetation.
24 MS. BELLOMO: Excuse me, I am just focusing on the
Mono
25 Basin.
1408
01 DR. BARRY: The Dana Plateau is in the Mono Basin.
02 MS. BELLOMO: I didn't understand that.
03 DR. BARRY: So, that was probably my first work in
the
04 Mono Basin as an ecologist.
05 Later on, I did do some work on Populus tremuloides
and
06 quaking aspens for my Ph.D. thesis in the late
sixties.
07 MS. BELLOMO: Where was that in?
08 DR. BARRY: Where?
09 MS. BELLOMO: Yes.
10 DR. BARRY: I looked at the streams going into the
11 lake.
12 MS. BELLOMO: Which streams?
13 DR. BARRY: I didn't look at Mill Creek. I looked at
14 Lee Vining mainly, and this was more of an overall
view
15 because I did a distribution map with quaking aspen
in
16 California and Nevada as part of my work.
17 MS. BELLOMO: Let me get focused on what we are
doing
18 here. It sounds like you have generally been in the
area.
19 How much time have you spent on Mill Creek, looking
at
20 Mill Creek?
21 DR. BARRY: My first visit in Mill Creek in 1995 and
22 probably have been there five or six times, and I
can show
23 where I have been, if you would like.
24 MS. BELLOMO: Have you walked the full length of
Mill
25 Creek?
1409
01 DR. BARRY: I have not walked the full length of
Mill
02 Creek. I have walked the upper portions above Mono
City. I
03 have looked down into the canyon at Mono City. At
the big
04 bend, I have walked from the big bend in the creek
down to
05 the delta, to the lake, and over to Wilson Creek.
06 MS. BELLOMO: Have you walked the full length of
Wilson
07 Creek?
08 DR. BARRY: I have only walked the upper portion of
the
09 Wilson Creek Ditch, I believe it is, above 395, and
I have
10 observed only from the Conway Ranch Road the area
below
11 that. I have looked at the area along, what is,
Highway
12 167, both sides of the 167, for maybe a hundred
yards. And
13 I have walked up and downstream there, as well as
Cemetery
14 Road where I have walked on down to the delta.
15 MS. BELLOMO: Dr. Jacobs, there was one question I
16 forgot to ask you that I meant to ask it. Do you
feel the
17 study that you did of Mill and Wilson Creeks is
adequate, in
18 your professional opinion, from a scientific
standpoint, for
19 the State Water Resources Control Board to rely
upon in
20 making their decisions in this case?
21 DR. JACOBS: Let me -- I don't want to argue back.
22 But the investigation and my conclusions are not
just based
23 upon my field time, but I also examined aerial
photos and
24 probably 40 referee journal articles as well as the
EIR and
25 auxiliary reports. As far as a resource management
decision
1410
01 and picking a proposed alternative to go forward
with, yup.
02 MS. BELLOMO: Thank you.
03 Dr. Barry, back your to testimony. Sorry for the
04 interruption.
05 Have you told me how much time total you spent in
06 Thompson Meadow in preparation for our testimony in
this
07 case.
08 DR. BARRY: Thompson Meadow wasn't an issue until
09 relatively recently. So, I spent probably three
different
10 occasions at Thompson Meadow. I spent about two to
three
11 hours on each occasion, mainly looking at the soil
profiles
12 to kind of get an idea of what part was meadow
under natural
13 conditions and what part was meadow because of
irrigation.
14 MS. BELLOMO: Did you consult with the maps -- they
15 used to be called the Soil Conservation Service, I
believe.
16 I know they have another name now.
17 DR. BARRY: No. I saw no real reason to consult with
18 the Soil Conservation Service maps.
19 MS. BELLOMO: Fine. Thank you.
20 How much time did you spend on Conway Ranch in
21 preparation of your report in this proceeding?
22 DR. BARRY: I spent no time on Conway Ranch, as I
23 mentioned.
24 MS. BELLOMO: How much time did you spend on Mattly
25 Ranch in preparation of your report in this
proceeding?
1411
01 DR. BARRY: Mattly Ranch being above?
02 MS. BELLOMO: Above the Conway Ranch, below the
03 powerhouse.
04 DR. BARRY: I was up there on one occasion and
walked
05 from the powerhouse down to the 395.
06 MS. BELLOMO: How much time --
07 DR. BARRY: Along the creek.
08 MS. BELLOMO: So you spent the amount of time that
09 there is to do a walk of the creek?
10 DR. BARRY: Correct, and make observations and come
11 back.
12 MS. BELLOMO: How much time did you spend at
DeChambeau
13 Ranch in preparation of your testimony in this
proceeding?
14 DR. BARRY: I spent no time at DeChambeau.
15 MS. BELLOMO: Did you spend any time at the springs
16 area below DeChambeau Ponds in preparation of your
testimony?
17 DR. BARRY: Yes. I have spent some time. I think we
18 made two different field trips with Technical
Advisory Group
19 looking at those areas. But I spent no time
actually trying
20 to make detailed observations.
21 MS. BELLOMO: I noticed when you were explaining
what
22 your background is that you said that part of your
work
23 involves something along the lines of doing
assessments of
24 natural and cultural heritage values; is that
correct?
25 DR. BARRY: Correct.
1412
01 MS. BELLOMO: Did you perform such an assessment in
02 evaluating the proposal to rewater Mill Creek and
what
03 effect it might have on natural or cultural
heritage values
04 in the Mono Basin?
05 DR. BARRY: Yes. I really looked at the assessment
of
06 the natural values more than cultural. It takes a
good
07 archeological survey to really nail down the
cultural
08 aspects. So, as my job called for, I assessed the
two
09 streams as I could see what, say, the best for
waterfowl
10 habitat restoration which was --
11 MS. BELLOMO: What your job was?
12 DR. BARRY: Well, what certainly the charge is here,
13 yes.
14 MS. BELLOMO: Now I am confused. When you say you
have
15 to do an archeological study to do a cultural
heritage, to
16 really look at the cultural heritage values. Are
you only
17 interested in values that will show up on an
archeological
18 study?
19 DR. BARRY: When we are dealing with natural
20 ecosystems, we do archeological investigations to
make sure
21 that we don't disturb archeological sites. So if we
are
22 doing prescribed burns, for example, we would make
or have
23 our archeologists essentially do investigations.
24 MS. BELLOMO: Let me just clarify; perhaps my
question
25 wasn't clear. What I am trying to get at is, is it
part of
1413
01 your job to do an assessment of cultural heritage
values
02 that are not of prehistoric nature?
03 DR. BARRY: No. Historic values are not normally
what
04 I deal with as far as policy. Only occasionally do
I get
05 into describing zones for cultural protection and
so forth
06 that deal with historical value. Actually, also
historical
07 as far as horticultural, for example.
08 MS. BELLOMO: Maybe I am confused now. Is it part of
09 the charge of the State Park and Recreation
Department to
10 consider historical/cultural values?
11 DR. BARRY: Yes, it is.
12 MS. BELLOMO: Do you feel that should be considered
in
13 this proceeding when the Water Board makes its
decision?
14 DR. BARRY: I don't believe that we have any
15 historical values that are affected, at least in
the state
16 park system, by these restoration projects.
17 MS. BELLOMO: That is an important clarification. I
am
18 glad you said that because, perhaps, this line of
19 questioning isn't fair if your job is only to look
at the
20 historical values that would impact the state park
21 properties.
22 Are you limited to looking at that?
23 DR. BARRY: That is not entirely correct. But from
24 our mission, it's mainly within our lands and,
therefore, if
25 there was a historical site, say Navy Beach or
something had
1414
01 historical value, then we would be looking at that
to
02 protect those values in the state park.
03 MS. BELLOMO: Because it is on state property?
04 DR. BARRY: Yes.
05 MS. BELLOMO: I have a document that I would like to
06 have marked as R-PMBP next in order.
07 MR. JOHNS: That will be 33.
08 MS. BELLOMO: Dr. Barry, I would like --
09 MS. SCOONOVER: Excuse me, I would like to see the
10 exhibit before you question.
11 Thank you.
12 MEMBER DEL PIERO: I would like to see it, too.
13 CHAIRMAN CAFFREY: Do all the Board Members have
14 copies?
15 MS. SCOONOVER: Chairman Caffrey, if I might, I am
not
16 certain the purpose for this document being
introduced, but
17 I am somewhat skeptical that a document from 1988,
not
18 written by this -- not signed by this witness, is
19 appropriate basis for cross-examination. This issue
was
20 never discussed in the witness' testimony. I am
willing to
21 allow some latitude, but I have to give you my
hesitations
22 up front and forewarn you that there will probably
be an
23 objection very quickly.
24 MS. BELLOMO: Can we hear the question, Chairman
25 Caffrey?
1415
01 CHAIRMAN CAFFREY: I am not sure either, Ms.
Scoonover,
02 but I am going to allow Ms. Bellomo to proceed.
She's
03 marked the item. It is not an exhibit as yet. It
hasn't
04 been accepted. I don't know if she is going to
introduce it
05 as part of her rebuttal or what. Let's see where
this takes
06 us.
07 MS. BELLOMO: Dr. Barry --
08 CHAIRMAN CAFFREY: Your concern is noted.
09 Please proceed.
10 MS. BELLOMO: Dr. Barry, have you ever seen this
11 document before today?
12 DR. BARRY: Well, my memory is a little short
13 sometimes. 1988, I may have seen it, but I can't
say for
14 sure.
15 MS. BELLOMO: As you can see, this is written by the
16 Department of Parks and Recreation, signed by
Robert
17 Macomber.
18 Are you familiar with who Robert Macomber is?
19 DR. BARRY: Yes, I am.
20 MS. BELLOMO: In the subject, as the document
states,
21 is Environmental Impact Report - Conway Ranch. My
question
22 is, turning to point three in Mr. Macomber's
letter, where
23 he says:
24 Other areas of concern involve: disturbance
25 of historic Conway Ranch. Conway family
1416
01 history goes back to the 1880's in Bodie.
02 Bob Conway was one of the last residents in
03 Bodie at the beginning of World War II.
04 (Reading.)
05 My question to you is: Do you believe that it is
06 appropriate to consider this, for the Water Board
to
07 consider this information of cultural heritage
value when it
08 makes its determination in this proceeding?
09 MR. BIRMINGHAM: Objection. Lacks foundation.
10 CHAIRMAN CAFFREY: Mr. Frink, why don't you give me
a
11 little help on this.
12 MR. FRINK: I don't know if the witness has seen it
or
13 not. But he testified earlier that often in making
his
14 recommendations he looks at archeological impacts
of a
15 project. I think asking if he thinks that should be
looked
16 at in this instance, in particular at Conway Ranch,
is a
17 relevant question.
18 CHAIRMAN CAFFREY: You say is a relevant question?
19 MR. FRINK: Yes, it is a relevant question.
20 MR. BIRMINGHAM: Ms. Bellomo's question is based
upon a
21 document for which there is absolutely no
foundation. If
22 she wants to ask him a hypothetical question,
without
23 reference to the document, I have absolutely no
objection.
24 But there is no foundation for this document.
25 In fact, the witness has testified that he may have
1417
01 seen the document; he may not have seen it. He
can't
02 recall.
03 CHAIRMAN CAFFREY: He testified that he can't
recall.
04 That is correct. Anything else?
05 Mr. Frink, I have a further question. Sorry to
belabor
06 it. Apologize to everybody for the colloquy between
Mr.
07 Frink and myself. I thought Dr. Barry's earlier
testimony
08 was -- I thought he was using archaeology
synonymously with
09 prehistoric. I am not sure. Is that correct?
10 DR. BARRY: That was my intent, versus historical,
11 yes.
12 MR. FRINK: Maybe the question could just be
rephrased
13 and avoid the issue on whether or not there is a
foundation
14 for this letter, as to whether the witness believes
that
15 Conway Ranch and its historical value should be
considered
16 by the Board.
17 MS. BELLOMO: I would adopt that.
18 CHAIRMAN CAFFREY: I think I would like to respect
the
19 concerns of the two attorneys, and I would ask you
to, if
20 you could, please rephrase your question in that
regard.
21 MS. BELLOMO: That is fine; thank you. I can
introduce
22 this through rebuttal myself and lay the
foundation.
23 Dr. Barry, my question is: Do you believe that the
24 historical values at Conway Ranch should be
considered by
25 the Water Board in reaching its decision in this
proceeding?
1418
01 DR. BARRY: I believe that these historical aspects
02 should be covered in the EIR/EIS process.
03 MS. BELLOMO: So your answer is?
04 DR. BARRY: It should be considered during that
05 process, not now.
06 MS. BELLOMO: Not now, okay. Thank you.
07 CHAIRMAN CAFFREY: Just for all of our general
08 information, I believe you have, what, about 13
minutes
09 remaining.
10 MS. BELLOMO: Thank you.
11 I would like to ask you to turn to your testimony
at
12 Page 20. I am trying to find the picture of a blown
over
13 tree. Maybe you can help me with the number.
14 DR. BARRY: I think it was near the end.
15 MS. BELLOMO: Turning to the testimony at Page 20,
and
16 then I am going to be referring to the photograph,
you
17 indicate that you have noted windfall cottonwoods
along the
18 irrigation ditches at Thompson Ranch, and then you
refer to
19 the photograph in Exhibit 113. You say it shows an
20 irrigation ditch at Thompson Ranch on November 8,
1996, note
21 the wind-throw cottonwood.
22 By wind-throw do you mean blown over by wind?
23 DR. BARRY: Yes.
24 MS. BELLOMO: Am I correct that your purpose in
putting
25 this in the testimony was to support your
hypothesis that
1419
01 the meadow was over irrigated?
02 DR. BARRY: It is not a hypothesis.
03 MS. BELLOMO: Your opinion that the meadow is over
04 irrigated and, therefore, trees are susceptible to
blowing
05 over; is that what the purpose of putting this in
here?
06 DR. BARRY: The purpose was to show that when you
have
07 a high water table that you get shallow root
systems, even
08 with cottonwood trees, and these trees will be
subject to
09 wind and other forces and easily be toppled.
10 What Exhibit Number 114 shows is a very shallow
root
11 system of one the cottonwoods. This root systems
goes to
12 the water table in this meadow and pretty much
stops at the
13 gley layer. The gley layer is an area where the
water table
14 is a permanent area, which is about, around two
feet in this
15 particular instance.
16 The reason that I show these is pretty much that,
if
17 you bring the water table close to the surface, you
are
18 going to have shallow root systems; and if you
gradually
19 lower on the water table, then the root systems
will grow
20 down to the water and you won't have quite the
21 susceptibility of this sort of problem.
22 MS. BELLOMO: The problem being blowing over in the
23 wind?
24 DR. BARRY: Yes.
25 MS. BELLOMO: How many trees have you seen blown
over
1420
01 on Thompson Ranch where they were blown over and
the roots
02 came out?
03 DR. BARRY: I would say, maybe, half a dozen.
04 MS. BELLOMO: During what time period?
05 DR. BARRY: Last year, I would say.
06 MS. BELLOMO: How many have you seen where they
07 cracked off and the roots remained in the ground?
08 DR. BARRY: Probably a good 10 or 15.
09 MS. BELLOMO: Let's look at your photograph, 113.
10 113 and 114, incidentally, show the same tree,
correct?
11 DR. BARRY: No, they don't.
12 MS. BELLOMO: Excuse me?
13 DR. BARRY: No, that is not the same tree.
14 MS. BELLOMO: Can you tell me when you took the
15 photograph?
16 DR. BARRY: I can't without going to my testimony. I
17 think it says the date somewhere in here. 113 was
taken
18 November 8, 1996.
19 MS. BELLOMO: It was taken January 13, 1996?
20 DR. BARRY: No, November 8, 1996.
21 MS. BELLOMO: Would it surprise you if I told you
that
22 after we got your testimony we went and inspected
this area,
23 and we didn't see two trees, which leads me to
believe that
24 113 and 114 depict the same tree?
25 DR. BARRY: If you look at the photographs, if you
look
1421
01 at 113, you will see the ditch doesn't have water
in it, or
02 has water in it. But 114 that is no water. So I
don't see
03 how they could the same tree.
04 MS. BELLOMO: Unless you didn't take them on the
same
05 date, possibly.
06 Turning to the photographs again, would you agree
--
07 MR. BIRMINGHAM: Excuse me, I am going to ask that
the
08 last comment be stricken from the record. If it is
a
09 question, he should be given an opportunity to
respond to it.
10 CHAIRMAN CAFFREY: It sounded like testimony. So we
11 will strike that.
12 MS. BELLOMO: Thank you.
13 Turning to the photograph in Exhibit 114, would you
14 agree that this blew over fairly recently as
evidenced by
15 the grass still being on the roots?
16 DR. BARRY: That makes sense, yes.
17 MS. BELLOMO: And am I correct that you didn't
provide
18 us with a picture of any other portion of the tree
other
19 than the root?
20 DR. BARRY: Correct.
21 MS. BELLOMO: How old would you estimate that this
22 tree was when it blew over?
23 DR. BARRY: I didn't really -- I didn't do a coring.
24 You can easily tell by doing a coring, but I
didn't. I
25 can't make an accurate estimate without doing --
1422
01 MS. BELLOMO: You have no estimate for us?
02 DR. BARRY: It would be off the top of my head.
03 MS. BELLOMO: Would this be a ten-year-old tree?
04 DR. BARRY: Obviously not.
05 MS. BELLOMO: Would it be a 50-year-old tree?
06 DR. BARRY: Not likely. It is more like a 75,
hundred,
07 but --
08 MS. BELLOMO: Have you gathered any information
09 regarding the wind in the Mono Basin and the
velocities?
10 DR. BARRY: Yes. We gathered that kind of
information
11 prior to any described burning that we do. And so I
spent
12 several days going through records of the winds and
looking
13 at, for example, the window for prescribed burning,
the
14 safest window and so forth.
15 MS. BELLOMO: Do you look at wind record for every
16 month of the year?
17 DR. BARRY: Yes.
18 MS. BELLOMO: What were the highest velocities? What
19 time periods do you look at?
20 DR. BARRY: I don't recall the highest velocity. The
21 time period was over several years' record, and I
can't tell
22 you exactly what that period was without going to
my files.
23 MS. BELLOMO: Would you agree that your
investigation
24 showed that there are frequently winds in the Mono
Basin of
25 60 miles per hour?
1423
01 DR. BARRY: I know that there are winds that high,
02 and, I guess, up to 110 lately. So, yes.
03 MS. BELLOMO: Do you know how often in one year, on
04 average, we have winds of, let's say, the
60-mile-per-hour
05 range?
06 DR. BARRY: No, I don't. I don't recall that.
07 MS. BELLOMO: Do you know how often we have winds
that
08 reach over a hundred miles per hour?
09 DR. BARRY: No, I haven't. I know it's probably
10 rare.
11 MS. BELLOMO: From your evaluation or
investigations,
12 would you agree that there are 60-mile-per-hour
winds at
13 least once per year?
14 DR. BARRY: I would think so, yes.
15 MS. BELLOMO: You said this tree is approximately,
you
16 were estimating, about 75 years old?
17 DR. BARRY: Give or take, 50 years.
18 MS. BELLOMO: I thought you said it was definitely
was
19 not in the 20-to-30-year range. So now I am
confused.
20 DR. BARRY: I thought you said -- you said 60. I
21 thought you said 160. I am sorry. You said 60?
22 MS. BELLOMO: Your estimate was 60 to 75 years for
this
23 tree?
24 Let's be conservative, a 60-year old tree?
25 DR. BARRY: I would say that is probably close. But
1424
01 like I told you before, I am really not positive. I
could
02 go out there and find out with an increment core
exactly how
03 old.
04 MS. BELLOMO: Let me put it this way. Given that you
05 say that this over irrigation makes trees
susceptible to
06 blowing over, does it surprise you that this tree,
assuming
07 conservatively that it is 50 years old, survived at
least
08 50, 60 mile per hour winds and other hundred mile
per hour
09 winds before it blew over?
10 DR. BARRY: No, it doesn't surprise me.
11 MS. BELLOMO: Would you agree that this tree, in
fact,
12 was dead when it blew over?
13 DR. BARRY: No, I can't say that it was dead when it
14 blew over, no.
15 MS. BELLOMO: Would it surprise you if I told you
that
16 we went out and looked at it and that it was dead?
17 DR. BARRY: Certainly dead when I saw it, but I
don't
18 know exactly when it fell over.
19 MS. BELLOMO: When trees die and are standing, I
assume
20 their roots atrophy in some respect, don't they,
shrink up
21 somehow?
22 DR. BARRY: No, I don't think that you would find
root
23 shrinking up, not exposed to the air like that,
like the
24 ones in the photograph are.
25 MS. BELLOMO: My question is: When a dead tree is
1425
01 standing, as we often see, at Thompson Ranch -- let
me back
02 up.
03 Have you seen dead trees standing at Thompson
Ranch?
04 DR. BARRY: Yes.
05 MS. BELLOMO: When a dead tree is standing,
sometimes
06 for a couple of years, correct?
07 DR. BARRY: Yes, that is possible.
08 MS. BELLOMO: Does the root shrink?
09 DR. BARRY: The roots can decay. I doubt if they
10 essentially shrink.
11 MS. BELLOMO: When it decays, it becomes smaller,
12 correct?
13 DR. BARRY: I suppose. I've seen roots 5,000 years
14 old that haven't shrunk, so I --
15 MS. BELLOMO: In your evaluation, did you go down to
16 the state property below Thompson Ranch below the
County
17 Park?
18 DR. BARRY: Yes, I have.
19 MS. BELLOMO: In your evaluation for this testimony?
20 DR. BARRY: I'm sorry, would you repeat that?
21 MS. BELLOMO: In preparing your report, did you go
and
22 look at the State Reserve below the County Park?
23 DR. BARRY: Yes, I did.
24 MS. BELLOMO: Did you discuss that anywhere in your
25 testimony?
1426
01 DR. BARRY: No, I don't.
02 MS. BELLOMO: Do you have any concerns that changing
03 irrigation at Thompson Meadow could affect the
water table
04 at the State Tufa Reserve?
05 DR. BARRY: No. On the contrary, I am more concerned
06 with the unnatural condition of water flowing over
the road
07 that would potentially cause contamination to that
wetland.
08 The wetland itself is from a deep aquifer that is
indicated
09 by tufas in the area. So, certainly, irrigation was
not the
10 major factor in maintenance of that wetlands.
11 CHAIRMAN CAFFREY: Ms. Bellomo, that alarm you heard
12 means that you have exhausted your hour. We did
stop the
13 clock and add extra time for the objections.
14 MS. BELLOMO: May I just finish this line of
15 questioning? Then I will --
16 CHAIRMAN CAFFREY: How much more time?
17 MS. BELLOMO: Just a couple more questions.
18 CHAIRMAN CAFFREY: Two more questions; I will allow
a
19 couple more questions, very briefly.
20 MS. BELLOMO: Thank you.
21 Didn't you, Dr. Barry, in comments in this
proceeding
22 or in documents regarding irrigation at DeChambeau
Ranch and
23 County Ponds and Conway Meadow, express concern
that this
24 could upset, that cutting back irrigation could
affect
25 springs around tufas?
1427
01 DR. BARRY: No, I don't believe I said that. What I
02 did say was that there was a proposal to put a well
in, and
03 I don't -- I believe that a deep well could cause
some
04 problems to the wetlands around tufas. Because if
it
05 happened to hit the fault zone where the springs
are
06 located, then a well could essentially cause
problems.
07 MS. BELLOMO: These are deep wells on DeChambeau you
08 are speaking of?
09 DR. BARRY: Yes.
10 MS. BELLOMO: Thank you.
11 Thank for your indulgence in letting me ask
additional
12 questions.
13 CHAIRMAN CAFFREY: Your very welcome, Ms. Bellomo.
14 Let me then ask -- first of all, it is my
understanding
15 that there were no other parties that had written
back and
16 indicated that they wish to cross-examine these
witnesses.
17 Am I correct on that understanding?
18 I see that I am. We will then go to the Board
staff.
19 Do the Board staff have any clarifying questions to
ask
20 these witnesses?
21 Mr. Canaday, let me just ask you, sir, how much
time
22 you think you need, just in the interest in
breaking for
23 lunch. How long do you think you are going to need.
24 MR. CANADAY: Twenty minutes.
25 CHAIRMAN CAFFREY: I guess we better break for lunch
1428
01 and come back at 1:00.
02 Thank you all very much.
03 (Luncheon break taken.)
04 ---oOo---
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1429
01 AFTERNOON SESSION
02 ---oOo---
03 CHAIRMAN CAFFREY: Why don't we take our seats, and
we
04 can resume.
05 Welcome back, ladies and gentlemen. We will resume
06 with clarifying questions from the State Board
staff of this
07 panel, and I believe Mr. Canaday is going to ask
the
08 questions.
09 Is that right, sir?
10 MR. CANADAY: Yes. Thank you, Chairman Caffrey.
11 CROSS-EXAMINATION
12 BY BOARD STAFF
13 MR. CANADAY: This is for Dr. Jacobs.
14 In your 1996 evaluation of Mill Creek and Wilson
Creek,
15 did you evaluate existing wetlands at all, near the
streams?
16 DR. JACOBS: On the Mill Creek Bottomlands area I
have
17 pictures of grassy depressions that were moist,
even in the
18 fall, as I described. Whether or not those would be
19 considered wetlands, I don't know.
20 I did consider those areas, as far as on Wilson
Creek,
21 the portions that I visited were very creek-like,
and I
22 would consider those more woody riparian systems or
stream
23 systems. I am not sure how you are defining
wetlands.
24 MR. CANADAY: The definition of a wetland would be
the
25 definition of the 1987 Code Manual.
1430
01 DR. JACOBS: I didn't do any core delineation,
02 no.
03 MR. CANADAY: You are not aware of existence or
04 nonexistence of wetlands on the --
05 DR. JACOBS: Of federal core jurisdiction? No, I am
06 not.
07 MR. CANADAY: Dr. Barry, are you aware of any?
08 DR. BARRY: No, I am not aware of any under core
09 jurisdictions.
10 MR. CANADAY: You mentioned in your testimony gley
11 soils on the Thompson Ranch. Would you agree with
me that
12 gley soils are, in fact, a primary indicator of
wetland
13 hydrology and wetland soil?
14 DR. BARRY: They are an indicator of a high water
15 table. And if that gley layer is at surface, then,
yes.
16 MR. CANADAY: Within 12 inches of the surface?
17 DR. BARRY: You would have a wetland or meadow
18 situation of, say, 12 inches. I would call that a
wet
19 meadow situation, if you have a wet area close to
the
20 surface.
21 MR. CANADAY: Dr. Barry, on the burning program
along
22 the shore lands of Mono Lake, what was the primary
purpose
23 of the experimental burn?
24 DR. BARRY: The primary purpose was to evaluate the
25 usefulness of prescribed burning in the restoration
of
1431
01 wetlands around the perimeter of the lake. The
reason that
02 we went to this experimental program was
essentially because
03 of the TAG process. We felt that this was probably
a very,
04 very important way to restore wetlands habitat.
05 So, we began a prescribed burn program in 19 --
06 November 7th and 8th of 1995, I guess it was, and
then we
07 did a winter burn just February 14, 1997. And it
will take
08 some time to evaluate the overall success of these
time
09 frames. What we have to do is not just -- we have
to have a
10 whole program, a series of prescribed burns with
different
11 times of the year and different frequencies, to
really
12 evaluate the success of that particular ecological
13 restoration.
14 MR. CANADAY: Would these types of programs -- and
15 these were on state lands, state park lands?
16 DR. BARRY: Yes, they were.
17 MR. CANADAY: Would this be considered a normal
18 practice in state park lands?
19 DR. BARRY: We do experimental burns, yes; and we
have
20 a prescribed burn program, which I actually wrote
the first
21 plan '73, I believe, and we have been burning,
ecologically
22 burning, since that time, all of the state.
23 MR. CANADAY: Not on the Mono Lake?
24 DR. BARRY: These were the first ones at Mono Lake,
25 yes.
1432
01 MR. CANADAY: Dr. Stine, in your proposal for
02 rewatering of Mill Creek, do you have an estimate
of what
03 the acreage of marshland that would be accrued at
the bottom
04 of Mill Creek?
05 DR. STINE: I believe I looked at that, but thought
06 that it would be fairly speculative. Given that
over time
07 we wouldn't know exactly where the spring sites
were going
08 to be, for instance. It would depend tremendously
on where
09 the lake is at any given time, and that is going to
be
10 changing for a time.
11 There is every reason to think that springs will
form
12 at the mouth of the Mill Creek like they have at
the mouths
13 of the other creeks. And so, if we look at that, I
believe,
14 I was coming up with something on the order of 10
acres, 15
15 acres, something like that. The reason that I was
doing
16 this, to kind of come full circle on it, is that
the
17 marshland at the mouth of Wilson Creek, which is a
natural
18 marshland, is being destroyed by flows down Wilson
Creek.
19 So, I was curious, if we are losing over there, how
much
20 would we gain someplace else?
21 There is a part of those numbers -- I would feel
22 comfortable giving sort of a number plus or minus
50
23 percent. I think that is going to be awfully,
awfully
24 difficult to predict until the lake is up and we
see just
25 what happens there in terms of the marshland. This
is the
1433
01 shore land marshland.
02 MR. CANADAY: What is the current extent of the
03 marshland at Wilson Creek?
04 DR. STINE: In terms of acreage now?
05 MR. CANADAY: Yes, sir.
06 DR. STINE: Again, I will tell you what, when you
ask
07 somebody else a question next time I will put out
-- pull
08 out an aerial photograph because I don't really
remember. I
09 can give you estimate off of an aerial photograph.
The
10 problem is -- it's not a problem. Because of the
Board
11 order, the lake is coming up, and marshland is
being
12 overtaken by the lake pretty quickly out there.
13 But I can give you plus or minus 25 percent what is
out
14 there now, if you are interested.
15 MR. CANADAY: Dr. Jacobs or Dr. Barry, did either
one
16 of you in your assessments of the Wilson and Mill
Creek
17 streams, did you evaluate waterfowl habitat at all?
18 DR. BARRY: I evaluated what I could see from aerial
19 photographs as being what appeared to be, at one
time,
20 wetlands. And then I did go in the field and looked
for
21 relic species of wetland communities. I did not,
22 essentially, try and evaluate whether it would be
good for
23 certain kinds of waterfowl. But on, essentially,
whether
24 these wetlands could, in fact, be restored and not
to what
25 extent kinds of waterfowl would occupy them.
1434
01 MR. CANADAY: Was that from Mill Creek and/or Wilson
02 Creek? Which creek did you do that?
03 DR. BARRY: Wilson Creek. There is a wetland at the
04 base of Wilson Creek now, which is being covered up
by
05 sediments coming down the channel. And that has
been
06 dissected, and Dr. Stine probably will give you the
figures
07 on that.
08 I looked at that, but I can't say that I evaluated
it
09 in any respect to what kind of waterfowl would be
there. I
10 could see that it was declining because of this
inundation
11 of sediment covering up the wetlands.
12 The Mill Creek Bottomland, obviously, was a very
13 diverse kind of environment. It had small channels,
large
14 channels, ponds, all kinds of variations. And it
appeared
15 to me that there was adequate water; it would make
extremely
16 valuable wetland habitat.
17 MR. CANADAY: You didn't evaluate Wilson Creek as
far
18 as adjacent wetlands to the existing channel by
aerial
19 photographs, did you?
20 DR. BARRY: By aerial photographs, and I also looked
at
21 those, both systems from the air.
22 MR. CANADAY: Were there wetlands on Wilson Creek
23 adjacent Wilson Creek?
24 DR. BARRY: They are adjacent to both sides. They
have
25 been dissected by the Wilson Creek outflow of
alluvium.
1435
01 Yes, on both sides there are tufa towers and
associated
02 wetlands.
03 MR. CANADAY: I am more interested farther up the
04 channels, say between County Road and Highway 167
or between
05 Highway 167 and Conway property.
06 DR. BARRY: I can speak for below 167. There is not
07 much wetland value in there. It is a pretty incised
08 channel, and I would expect a quite poor quality as
far as
09 wetlands is concerned.
10 Above the road, when I looked, maybe a hundred
yards
11 above 167.
12 DR. JACOBS: Do you want me to answer, too?
13 MR. CANADAY: If you have an answer, yes.
14 DR. JACOBS: I didn't do any wildlife because we had
15 Ted Beedy on our team who is handling, sort of, the
bird
16 watch and faunal aspects of this analysis. I do
wear two
17 hats. I am here as the riparian expert, but then as
sort of
18 a State Lands ecological advisor. I had to interact
enough
19 with Ted and I read the EIR section pertaining to
wildlife,
20 so I am generally familiar. But that was basically
left to
21 him.
22 MR. CANADAY: Chairman Caffrey, that is all I have.
23 CHAIRMAN CAFFREY: Thank you very much, Mr. Canaday.
24 Are there questions from the Board Members?
25 No questions from the Board Members.
1436
01 Is there any redirect, Ms. Scoonover?
02 MS. SCOONOVER: Yes, Mr. Caffrey.
03 I promise to be brief.
04 REDIRECT EXAMINATION BY
05 STATE LANDS COMMISSION AND
06 DEPARTMENT OF PARKS AND RECREATION
07 BY MS. SCOONOVER
08 MS. SCOONOVER: Dr. Jacobs, you made a statement in
09 response to a question from Ms. Bellomo that I
wanted to
10 probe a little bit because I wasn't sure that I
understood
11 your answer.
12 She asked if a single field trip to the Mill
13 Creek/Wilson Creek area was an adequate basis upon
which to
14 make your or the for the Board to make its
recommendation.
15 I'm interested to know the basis of your response.
You
16 said yes. Do you recall that exchange?
17 DR. JACOBS: Yes, I do. I'm glad you asked me to
18 clarify.
19 MS. SCOONOVER: Could you explain to me, first -- we
20 will take it in a couple steps.
21 First, the basis of your recommendation for
supporting
22 the waterfowl scientists plan?
23 DR. JACOBS: First of all, I guess like I told Mr.
24 Canaday, I wear two hats, so I have to take off my
riparian
25 hat for a moment and just be a State Lands hat.
1437
01 Is that we are here for waterfowl restoration. That
is
02 a public trust use that was dependent upon the
lake. But
03 like a lot of ecological functions, the waterfowl
doesn't
04 exactly coincide with state owned boundaries, and
so that
05 explains a little bit -- I am sorry.
06 DR. JACOBS: Start me again.
07 MS. SCOONOVER: We'll start again. You recall the
08 exchange with Ms. Bellomo?
09 DR. JACOBS: Right.
10 MS. SCOONOVER: What I am asking is: Aside from your
11 two field visits in the past year, on what other
information
12 did you base your recommendations in support of the
13 waterfowl scientists' recommendations?
14 DR. JACOBS: My background, as I mentioned to Ms.
15 Bellomo, is, my professional and academic, a lot on
woody
16 plant physiology. My professional background, as of
late,
17 has been a lot on river and stream restoration,
both
18 state-owned lands and because, again, the public
trust
19 values sort of don't necessarily coincide exactly
with
20 state-owned. It's became part of my job to,
basically,
21 understand riparian systems throughout the state,
even the
22 smaller ones since they do relate to the work that
we do at
23 State Lands Commission.
24 An example would be the State Lands Commission's
River
25 Report which did an overview of our state's rivers.
So, I
1438
01 had that background of, basically, a lot of
literature about
02 the state's rivers and riparian systems already
collected.
03 Even though I had been doing it, it was a very
intense
04 effort. Also, because the State Lands Commission
has been
05 involved in the Mono Lake proceeding and Owens
Valley
06 activities, I certainly take it upon myself to make
sure I'm
07 up on that literature. And I further went and did
more
08 investigation and collected a lot, as I said,
referred
09 publications and unpublished literature to review
in
10 preparation for this and discussing a lot with Dr.
Stine and
11 Dr. Barry and Dr. Beedy about what we saw out
there, and
12 made sure I understood a lot of what Dr. Stine was
13 describing as the physical system because that is
where I
14 would draw my conclusions about what plants would
grow
15 there. We had many, many discussions about that.
16 I, again, did some literature review on
geomorphology
17 and hydrology. So I was clear and understood those
kind of
18 systems. So that was my conclusion. So it's not
just,
19 basically, those few field days. Furthermore, I
guess the
20 question, way back when Ms. Bellomo asked, is that
am I
21 enough to propose to the Board that recommendation.
I think
22 I was getting at, originally in my misstart, was
that this
23 is in the context of waterfowl restoration. We are
really
24 not talking about restoring Mill Creek. We are
talking
25 about restoring waterfowl habitat. We really
haven't
1439
01 mentioned the lake shore hypopycnal layers and the
embayment
02 that would be in the rias and the trenches of Mill
Creek and
03 those things that Dr. Stine described, including
the delta
04 area and the bottomlands, all as a complex for the
benefit
05 of waterfowl.
06 So, in that context, my piece of the riparian, I
07 believe | 