May 7, 1997 Restoration Hearing

1560

01 STATE WATER RESOURCES CONTROL BOARD

03 PUBLIC HEARING

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

13 HELD AT:

14 STATE WATER RESOURCES CONTROL BOARD

14 PAUL BONDERSON BUILDING

15 901 P STREET, FIRST FLOOR HEARING ROOM

15 SACRAMENTO, CALIFORNIA

18 WEDNESDAY, MAY 7, 1997

18 9:00 A.M.

24 Reported by: ESTHER F. WIATRE

24 CSR NO. 1564

1561

01 APPEARANCES

01 BOARD MEMBERS:

02 JOHN CAFFREY, CHAIRMAN

03 JOHN W. BROWN (a.m. only)

03 MARC DEL PIERO

04 STAFF MEMBERS:

05 JAMES CANADAY, ENVIRONMENTAL SPECIALIST

06 GERALD E. JOHNS, ASSISTANT DIVISION CHIEF

07 COUNSEL:

08 DAN FRINK

09 LOS ANGELES DEPARTMENT OF WATER AND POWER:

10 KRONICK MOSKOVITZ TIEDEMANN & GIRARD

10 400 Capitol Mall, 27th Floor

11 Sacramento, California 95814

11 BY: THOMAS W. BIRMINGHAM, ESQ.

12 and

12 JANET GOLDSMITH, ESQ.

13 UNITED STATES FOREST SERVICE: (Not present.)

14 UNITED STATES DEPARTMENT OF AGRICULTURE

15 OFFICE OF GENERAL COUNSEL

15 33 New Montgomery, 17th Floor

16 San Francisco, California 94105

16 BY: JACK GIPSMAN, ESQ.

17 BUREAU OF LAND MANAGEMENT: (Not present.)

18 UNITED STATES DEPARTMENT OF THE INTERIOR

19 BUREAU OF LAND MANAGEMENT

19 BISHOP RESOURCE AREA

20 785 North Main Street, Suite E

20 Bishop, California 93514

21 BY: TERRY L. RUSSI

1562

01 APPEARANCES

02 PEOPLE FOR MONO BASIN PRESERVATION:

03 KATHLEEN MALONEY BELLOMO

03 P.O. Box 201

04 Lee Vining, California 93541

05 FIRST PANEL:

06 JOHN TURNER

06 DONALD THOMAS

07 SECOND PANEL:

08 JOHN FREDERICKSON

09 JOE BELLOMO

09 KATHLEEN MALONEY BELLOMO

10 ARNOLD BECKMAN: (Not present.)

11 DeCUIR & SOMACH

12 400 Capitol Mall, Suite 1900

12 Sacramento, California 95814

13 BY: DONALD MOONEY, ESQ.

14 ARCULARIUS RANCH: (Not present.)

15 FRANK HASELTON, LSA

15 1 Park Plaza, Suite 500

16 Irvine, California 92610

17 RICHARD RIDENHOUR: (Not present.)

18 RICHARD RIDENHOUR

19 CALIFORNIA TROUT, INC.:

20 NATURAL HERITAGE INSTITUTE

20 114 Sansome Street, Suite 1200

21 San Francisco, California 94014

21 BY: RICHARD ROOS-COLLINS, ESQ.

1563

01 APPEARANCES

02 CALIFORNIA DEPARTMENT OF FISH AND GAME:

03 NANCEE MURRAY, ESQ.

03 1416 Ninth Street

04 Sacramento, California 95814

05 McDONOUGH HOLLAND & ALLEN

05 555 Capitol Mall, Ninth Floor

06 Sacramento, California 95814

06 BY: VIRGINIA A. CAHILL, ESQ.

07 CALIFORNIA STATE LANDS COMMISSION:

08 CALIFORNIA DEPARTMENT OF PARKS AND RECREATION:

09 MARY J. SCOONOVER, ESQ.

09 1300 I Street

10 Sacramento, California 95814

11 MICHAEL VALENTINE

12 NATIONAL AUDUBON SOCIETY:

12 MONO LAKE COMMITTEE:

13 MORRISON & FOERSTER

14 425 Market Street

14 San Francisco, California

15 BY: F. BRUCE DODGE, ESQ.

16 ---oOo---

1564

01 INDEX

02 PAGE

03 PEOPLE FOR MONO BASIN PRESERVATION

04 FIRST PANEL

05 DIRECT EXAMINATION

06 BY MS. BELLOMO 1566

07 CROSS-EXAMINATION

08 BY MR. BIRMINGHAM 1622

08 BY MR. ROOS-COLLINS 1640

09 BY MS. CAHILL 1644

09 BY MR. DODGE 1663

10 BY BOARD STAFF 1668

11 SECOND PANEL

12 DIRECT EXAMINATION

13 BY MS. BELLOMO 1684

14 CROSS-EXAMINATION

15 BY MR. BIRMINGHAM 1766

15 BY MS. CAHILL 1799

16 BY MR. DODGE 1803

16 BY BOARD STAFF 1805

17 REBUTTAL TESTIMONY

18 DIRECT EXAMINATION

19 BY MR. DODGE 1815

20 CROSS-EXAMINATION

21 BY MS. SCOONOVER 1832

22 BY BOARD STAFF 1840

23 AFTERNOON SESSION 1661

24 ---oOo---

1565

01 SACRAMENTO, CALIFORNIA

02 TUESDAY, MAY 6, 1997

03 ---oOo---

04 CHAIRMAN CAFFREY: Good morning and welcome back to

05 these proceedings. I hope everybody got a good night's rest

06 and are ready with smiles on their faces. I know I am. I

07 apologize for being grumpy. I got a good five hours of

08 sleep. For me that is a record.

09 Mr. Del Piero will not be docked half a day's pay for

10 his outfit this morning.

11 MEMBER DEL PIERO: I told a couple of you, this is the

12 only shirt I could find to go with the tie.

13 THE COURT: We find ourselves at the point in the

14 hearing where we are within the rebuttal portion. If memory

15 and my record keeping serves me correctly, we were going to

16 now hear from Ms. Bellomo. And you have, if I understand

17 correctly, Ms. Bellomo, two panels that you want to present.

18 MS. BELLOMO: Yes, that is correct.

19 CHAIRMAN CAFFREY: And we will, after yesterday's

20 discussion, allow you one hour for direct within rebuttal

21 for each of those panels.

22 Are you ready to begin?

23 MS. BELLOMO: Yes, I am. The first panel is Mr. Turner

24 and Mr. Thomas of Department of Fish and Game, and Mr.

25 Thomas is out of the room, I think. He is in the building.

1566

01 CHAIRMAN CAFFREY: I did just see him in the coffee

02 shop. We will take a moment while you round them up.

03 CHAIRMAN CAFFREY: Again, I just want to remind the

04 parties that we restrict the rebuttal portion of the hearing

05 to presentation of testimony or other evidence which is

06 intended to rebut evidence presented by another party.

07 Hopefully, we will all be able to keep track of that.

08 I am going to certainly rely on everybody's goodwill.

09 MS. BELLOMO: I tried to consciously prepare an

10 explanation for every point I am putting in with regard to

11 what it is rebutting. That should be a question I should be

12 able to answer.

13 CHAIRMAN CAFFREY: That would be very helpful and we

14 appreciate that.

15 ---oOo---

16 DIRECT EXAMINATION BY

17 PEOPLE FOR MONO BASIN PRESERVATION

18 BY MS. BELLOMO

19 MS. BELLOMO: Good morning, Mr. Turner and Mr. Thomas.

20 MR. TURNER: Good morning.

21 MR. THOMAS: Good morning.

22 MS. BELLOMO: I am going to begin by directing my

23 questions to you, Mr. Turner. Can I ask you to state your

24 name for the record, please?

25 MR. TURNER: Yes. My name is John Turner.

1567

01 MS. BELLOMO: By whom are your employed?

02 MR. TURNER: I am employed by the Department of Fish

03 and Game and Division Chief of Environmental Services

04 Division.

05 MS. BELLOMO: Did you receive a subpoena from the

06 People from Mono Basin Preservation requesting your presence

07 here today?

08 MR. TURNER: Yes, I did. For the record, I would like

09 to thank Jerry very much for the written invitation.

10 MS. JOHNS: Any time.

11 MS. BELLOMO: What is your current job with the

12 Department of Fish and Game?

13 MR. TURNER: I am chief of the Environmental Services

14 Division, which is in charge of review and evaluation of

15 lots and lots of developmental-type projects, CEQA process,

16 also a lot of the federal projects dealing with things like

17 FERC, Federal Energy Regulation Commission, and private

18 department projects.

19 MS. BELLOMO: Are you an expert in CEQA?

20 MR. TURNER: Yes.

21 MS. BELLOMO: Just to clarify, does your job involve

22 having responsibility for the review of environmental impact

23 documents and mitigation measures?

24 MR. TURNER: Yes, it does.

25 MS. BELLOMO: Can you just explain what mitigation

1568

01 measures means or refers to?

02 MR. TURNER: We can go back a long way. Peter Bear

03 sort of listed mitigation measures as the runner-up's prize

04 for losing. I prefer to look at mitigation as reducing the

05 kinds of adverse impacts that show up on projects. We sort

06 that out from compensation-type projects which would be

07 fully mitigating or fully compensating for an environmental

08 impact. And part of the CEQA process is also try to avoid

09 impacts by, maybe, choosing a different alternative or

10 designing projects a different way.

11 MS. BELLOMO: Thank you.

12 I am going to direct your attention, Mr. Turner, to a

13 document that has been marked as -- it's actually in

14 evidence as R-PMBP-18. I know you weren't part of the

15 proceedings up to now. I have a copy for you of the

16 document, and I have some additional copies if the Board

17 Members would like to see it today.

18 CHAIRMAN CAFFREY: Thank you.

19 MS. BELLOMO: Mr. Turner, have you seen this document

20 any time since June 1st of 1993?

21 MR. TURNER: Yes, I have.

22 MS. BELLOMO: Did you review it prior to coming here

23 today?

24 MR. TURNER: Yes, I did. Not on your hint. It was on

25 case of -- it was part of the record we were looking

1569

01 through.

02 MS. BELLOMO: Turning to the last page of Exhibit 18,

03 where it's originally signed by John L. Turner. Are you

04 the John L. Turner that signed this document?

05 MR. TURNER: Yes, I am.

06 MS. BELLOMO: I would like to ask you very briefly to

07 explain what the Paoha Project was.

08 MR. TURNER: The Paoha Project was a project proposed

09 by Joseph Keating. Joseph Keating was a small hydro

10 developer who probably, for a good portion of the early

11 '80s, proposed projects all over the State of California, of

12 which this is one.

13 MS. BELLOMO: Was the Paoha Project proposed to be

14 placed on Wilson Creek below the Lundy Powerhouse?

15 MR. TURNER: Yes. The water was to be diverted out of

16 the tailrace for the Lundy project, would go through Mr.

17 Keating's project, and then be shuttled back into Wilson

18 Creek or Wilson Ditch leading to Wilson Creek.

19 MS. BELLOMO: If I could ask you to turn to Page 2 of

20 R-PMBP-18. Do you see the paragraph beginning, "It is

21 important," where I, for convenience, marked with an

22 asterisk?

23 MR. TURNER: Yes.

24 MS. BELLOMO: If I could direct your attention to the

25 last sentence in this paragraph where it states:

1570

01 Instream flows necessary to maintain --

02 (Reading.)

03 Let me back up for a moment.

04 I would like to avoid the time of reading this whole

05 paragraph. Were you addressing the fish population in

06 Wilson Creek in this paragraph?

07 MR. TURNER: Yes.

08 MS. BELLOMO: Directing your attention to the last

09 sentence in this paragraph, where you state, "Instream flows

10 necessary to maintain this population in good condition are

11 required by law." Is this population phrase referring to

12 the brown trout in Wilson Creek?

13 MR. TURNER: Yes, it is.

14 MS. BELLOMO: What law were you referring to in that

15 sentence?

16 MR. TURNER: Section 5937 of the Fish and Game Code.

17 MS. BELLOMO: Has Section 5937 of the Fish and Game

18 Code changed since January 1st, 1993?

19 MR. TURNER: No.

20 MS. BELLOMO: Can you tell me what Section 5937 of the

21 Fish and Game Code provides, with regard to fisheries?

22 MR. DODGE: Objection. Calls for legal conclusion. No

23 foundation that this witness can give a legal conclusion.

24 CHAIRMAN CAFFREY: Well, in view of the fact that he

25 works with this code, I think, as a professional, maybe

1571

01 there is a way you can get to asking him the question

02 another way. Why don't you try it again?

03 MS. BELLOMO: Mr. Turner, could you tell me what your

04 understanding is of the requirements of Section 5937?

05 MR. TURNER: Yes. Section 5937 requires the Department

06 to ensure that we maintain fish below a dam in good

07 condition, and that adequate flows are provided for.

08 MS. BELLOMO: With regard to your statement that we

09 just read, "in stream flows necessary to maintain this

10 population in good condition are required by law," does that

11 statement remain true today?

12 MR. TURNER: I think you have to talk about this in the

13 text of this letter and this project. Okay. In the text of

14 this project, this project had a dam or small barrier that

15 would be put up for diverting the water out of the tailrace,

16 that provided an obstruction or a dam that would require

17 that the fish be maintained in good condition down below.

18 MS. BELLOMO: If today someone wanted to put in a

19 project with the same design as the Paoha Project, would

20 your opinion continue to be that in stream flows necessary

21 to maintain the population in good condition are required by

22 law?

23 MR. TURNER: Yes.

24 MS. BELLOMO: Is there any other Fish and Game Code

25 section that you can refer us to that requires Fish and Game

1572

01 to protect fisheries in creeks in the State of California?

02 MR. TURNER: In District four and a half, which

03 includes Mono County, there is Section 5943, which requires

04 us to fully maintain fish in good condition below a dam.

05 MS. BELLOMO: Would that apply to this Wilson Creek,

06 below the Lundy Powerhouse, in your opinion?

07 MR. DODGE: Mr. Chairman, if I could just have a

08 continuing objection to this line of questioning, I won't

09 interrupt again. She's calling for legal conclusion.

10 CHAIRMAN CAFFREY: I certainly appreciate your

11 position, Mr. Dodge, but I suppose I could defer to Mr.

12 Frink. But I am of the opinion that these are statutes that

13 the gentleman has to work with and has to interpret them in

14 his normal course of work, sometimes without the advice of

15 counsel. And so I am inclined to, certainly, note your,

16 respectfully note your objection, but to allow the line of

17 questioning to continue.

18 Mr. Frink, do you have any other advice for me?

19 MR. FRINK: I don't have any other advice, and I don't

20 have a copy of Fish and Game Code here. I was unaware of

21 Section 5943.

22 MR. TURNER: 46, I am sorry.

23 MR. FRINK: You are referring to Section 5946.

24 MR. TURNER: Yes.

25 MR. DODGE: I understand you ruled against me. I don't

1573

01 want to keep popping up and objecting. I want a continuing

02 objection to this line of questioning, and I will sit down.

03 CHAIRMAN CAFFREY: I appreciate that, sir. I also want

04 you to know where I am coming from. I want to be very

05 careful, too. I want to give my counsel an opportunity to

06 correct me if he disagrees, or at least try and correct me.

07 MS. CAHILL: If I could join the already overruled

08 objection, I think that, to the extent the witness is being

09 asked for a legal conclusion --

10 MS. BELLOMO: Excuse me, could we stop the clock?

11 Thank you.

12 MS. CAHILL: I think she can ask how he implements.

13 Because when someone implements, they can seek advice of

14 counsel. We are asking him on the spot to make legal

15 conclusions without being able to.

16 CHAIRMAN CAFFREY: I have noted your objection.

17 Perhaps you can note the objection as well, Ms. Bellomo, and

18 try to characterize your questions in a way that, perhaps,

19 would not be construed as asking strictly for a legal

20 conclusion.

21 MS. BELLOMO: I tried to do that in the last question

22 when I stated "in Mr. Turner's opinion." I'll try to

23 emphasize that.

24 CHAIRMAN CAFFREY: Please.

25 MS. BELLOMO: Perhaps I should restate the question.

1574

01 Would that be helpful, Mr. Turner?

02 MR. TURNER: Okay.

03 MS. BELLOMO: My question is: Does Section 5946 of the

04 Fish and Game Code protect Wilson Creek, in your opinion,

05 below the Lundy Powerhouse?

06 MR. TURNER: I guess the answer to that is probably it

07 is kind of a no. This gets complex because the Lundy

08 Powerhouse or the Lundy project sits on Mill Creek, and

09 Wilson Creek is not part of Mill Creek. So, in terms of a

10 dam on Wilson Creek, there is no dam. So, I don't know how

11 to answer that.

12 MS. BELLOMO: Is there any -- either of the code

13 sections that you have referenced this morning or any other

14 code section that operates to protect, in your opinion,

15 Wilson Creek, a portion of Wilson Creek that flows through

16 Conway Ranch?

17 MR. TURNER: There are all kinds of code sections

18 dealing with protection of fish and maintaining fish. I am

19 not sure how to answer this because I am not sure exactly

20 what you are trying to get to.

21 I guess, if I was asked why this letter was written

22 this way, I would stipulate that I think that there are

23 important fisheries on Wilson Creek. I would also stipulate

24 there are important fisheries on Mill Creek.

25 There is a complexity of projects which have been state

1575

01 and continue to be federal projects that change which code

02 sections, federal and state, preempt which code sections.

03 It gets a little hard to sort out. When we made the

04 recommendation here on Keating project, this was a project

05 that affected, maybe, a 1500-foot stretch of Wilson Creek

06 and Wilson Ditch. Lundy was not a part of that decision.

07 We thought it was important to protect the fishery

08 under those kinds of conditions, and that was our

09 opportunity. And the case of the Lundy project, there have

10 been some things going on at the Lundy Powerhouse and

11 relicensing. There has been some things we proposed for

12 that under FERC and the federal project. Some of the things

13 we recommended there didn't come true, but they are in the

14 record.

15 Again, that is not taking a system as a whole; that is

16 taking a piece of the system and trying to solve more of a

17 whole problem from a piecemeal approach. If we ever get a

18 shot of the whole watershed, I would recommend we work on

19 the whole watershed together. It would be a good idea.

20 MS. BELLOMO: By together, do you mean Mill Creek and

21 Wilson Creek?

22 MR. TURNER: Yes.

23 MS. BELLOMO: In your opinion, if the Southern

24 California Edison Company were to shut off the water flowing

25 down Wilson Creek, would the Department of Fish and Game get

1576

01 involved in with regard to allegation that some

02 environmental wrong had been committed?

03 MR. TURNER: They've got some commitments under their

04 license, so we'd be in place to file a complaint with the

05 Federal Regulatory Energy Commission.

06 MS. BELLOMO: I guess what I am getting at is if the

07 power company shut off the water down Wilson Creek, would

08 you agree that the fish in the creek would die?

09 MR. TURNER: Anybody shuts the water off for Wilson

10 Creek or any other creek, sure.

11 MS. BELLOMO: In your opinion, if Edison engaged in

12 that behavior, would they have caused a, quote-unquote, fish

13 kill that would be pursued by Fish and Game for that

14 conduct?

15 MR. BIRMINGHAM: Objection. Calls for speculation.

16 MS. BELLOMO: Asking for his opinion.

17 MR. TURNER: In my opinion --

18 CHAIRMAN CAFFREY: Overruled, I might add. Go ahead.

19 MR. TURNER: Got to wait for everybody here.

20 There have been occasions when Edison has not made

21 releases and has caused fish problems on Mill Creek. I am

22 not up on all of the details of that. I have a field staff

23 throughout a region that deals with the day-to-day problems.

24 When they get to me, I deal with them in terms of

25 coordinating with water rights and coordinating some of

1577

01 these projects between regions. But I am not a person to

02 give you a lot of detail.

03 MS. BELLOMO: With regard to the comment that you just

04 made that there have been occasions where operation of the

05 powerhouse has resulted in shutting water off to Mill Creek

06 and Fish and Game has gotten involved, do you recall that

07 comment?

08 MR. TURNER: Yes.

09 MS. BELLOMO: If Fish and Game got involved because

10 there was an allegation that there had been some degree of

11 fish kill in Mill Creek, correct?

12 MR. TURNER: I don't know the details of that. I just

13 know that on occasions, and on rather regular occasions,

14 there have been fish losses on Mill Creek, and I assuming

15 that some of it is due to releases from the powerhouse at

16 Lundy.

17 MS. BELLOMO: Is that acceptable to the Department of

18 Fish and Game?

19 MR. TURNER: No. But it isn't subject to state law.

20 It is preempted by federal law, and we have to file

21 complaints for that.

22 MS. BELLOMO: Are you familiar with the settlement that

23 has been filed in this proceeding?

24 MR. TURNER: Yes.

25 MS. BELLOMO: And, specifically, have you reviewed the

1578

01 document that is the conceptual agreement related to

02 waterfowl habitat restoration?

03 MR. TURNER: Yes, I have.

04 MS. BELLOMO: Just for the record, Mr. Johns, could you

05 refresh my recollection what exhibit number that is?

06 MR. JOHNS: DWP-68.

07 MR. FRINK: The conceptual agreement relating to

08 waterfowl habitat is 68A.

09 MS. BELLOMO: For the record, I am referring to 68A.

10 Would you agree that under CEQA a project for waterfowl

11 habitat restoration could be defined as waterfowl habitat

12 restoration, not a specific project, whether it is Mill

13 Creek or any other project?

14 MR. DODGE: Objection. Unintelligible.

15 CHAIRMAN CAFFREY: I am sorry, I couldn't hear the

16 objection.

17 MR. DODGE: Unintelligible.

18 CHAIRMAN CAFFREY: Could you restate the question?

19 MS. BELLOMO: Could we ask the witness if he understood

20 it?

21 MR. BIRMINGHAM: I am going to voice the same

22 objection.

23 CHAIRMAN CAFFREY: Could you just restate the question,

24 Ms. Bellomo?

25 MS. BELLOMO: Mr. Turner, are you aware that when CEQA

1579

01 documents are prepared that there has to be a project

02 proposed? Is that correct? Some sort of proposal in the

03 CEQA document; is that correct?

04 MR. TURNER: You mean proposal subject to a CEQA

05 process?

06 MS. BELLOMO: Yes.

07 MR. TURNER: Yes.

08 MS. BELLOMO: In Exhibit 68A, the goal of the

09 Foundation, as it states, would be to seek the rewatering of

10 Mill Creek? Are you aware of that?

11 MR. TURNER: That is one of the projects that is listed

12 in there, yes.

13 MS. BELLOMO: Would it be possible to prepare a CEQA

14 document where the project was specified as rewatering of

15 Mill Creek?

16 MR. TURNER: It could probably be stated a number of

17 ways. Let me say something that might shorten this. We

18 bought into the waterfowl restoration process as a list of

19 potential projects that would benefit waterfowl. I don't

20 believe we have bought into the approval of any of those

21 processes at that point or any of those projects.

22 I think at this point in time, they are all subject to

23 CEQA compliance and review, including the one for Conway

24 Ranch. That is a public process, and I would value very

25 much all of the input that goes into that process before

1580

01 coming to a conclusion on a decision about that, or any

02 other project.

03 MR. BIRMINGHAM: May I ask the reporter to mark that

04 answer, please?

05 CHAIRMAN CAFFREY: You may, and she will.

06 MS. BELLOMO: Then is the Department of Fish and Game's

07 position that the CEQA review should be looking at waterfowl

08 habitat restoration alternatives, not a CEQA review that

09 specifies that the project is rewatering Mill Creek?

10 MR. TURNER: I think at this point in time we have

11 proposed -- one of the projects proposed in that document is

12 a proposal for improving the habitat for waterfowl on the

13 Conway Ranch. I think that the environmental document

14 should try and lay that out.

15 MS. CAHILL: Can we provide the witness with the copy

16 of the agreement?

17 CHAIRMAN CAFFREY: You certainly may.

18 MS. BELLOMO: Can you continue with your answer, or do

19 you need the document?

20 MR. TURNER: I will wait until she --

21 MS. BELLOMO: Sir, just so the record is clear, are

22 you referring to the Exhibit R-LADWP-68A?

23 MR. TURNER: Yes.

24 MS. BELLOMO: Thank you.

25 MR. TURNER: The project we were referring to in this

1581

01 restoration agreement is C-Mill Creek; it's been labeled.

02 The discussion that went on on this agreement was the

03 parties will analyze this proposed project, including its

04 impacts in the north basin consistent with California

05 Environmental Quality Act and the National Environmental

06 Policy Act.

07 I would assume that it would be developed as a

08 waterfowl kind of project, and that that would couch how

09 the project environmental document goes together. It would

10 obviously, probably, include a discussion on water, because

11 the important part of waterfowl habitat is water. As we

12 learned yesterday in testimony, is the lower end of Mill

13 Creek, which doesn't have a lot of water at sometimes. And

14 I would assume that all the impacts associated with that

15 proposal would be put together in a document, including all

16 various uses of water and all various uses of land as it

17 presently is.

18 MS. BELLOMO: Thank you.

19 Now, are you aware that the document, the settlement

20 document that you are referring to, 68A, provides for

21 payment of $3.6 million by the Los Angeles Department of

22 Water and Power to a fund?

23 MR. TURNER: Yes. Or escrow account.

24 MS. BELLOMO: My question to you is: Does the

25 Department of Fish and Game normally accept money for

1582

01 mitigation rather than requiring that mitigation itself be

02 performed?

03 MR. TURNER: No.

04 MS. BELLOMO: Are you aware of any instance in the past

05 where the Department of Fish and Game has accepted money for

06 mitigation rather than requiring mitigation itself be

07 performed?

08 MR. TURNER: There have been a couple of instances

09 where that has occurred.

10 MS. BELLOMO: Can you tell us what those instances are?

11 MR. TURNER: One of them had to do with a wetlands

12 project that was down Goleta Slough in Santa Barbara County,

13 in which money was proposed for increasing the lands that

14 were part of Goleta Slough. We worked with the project

15 developer and with the county for a long time to identify

16 various places to purchase as far as mitigation. The

17 commission saw fit to collect $650,000, put it into an

18 account for that purpose. And about the same time, we

19 purchased a piece of property, or the county actually

20 purchased a piece of property that ended up part of Goleta

21 Slough. Also, there was some pretty special things attached

22 to that, in that the County of Santa Barbara and the airport

23 at Santa Barbara had a very solid long-term plan in place

24 for restoration of Goleta Slough. The money never passed

25 through the department's hands. It was worked through the

1583

01 county. So, in a sense, we didn't take cash.

02 The only other one that I am aware of is on Kings

03 River, in which they took the money that would have been

04 used for a FERC project, screening, and they put it into a

05 management plan for endangered species. That, too, has been

06 run through a foundation-type of process and the money is

07 there to help manage that particular species. So, again,

08 the department didn't take cash.

09 MS. BELLOMO: Thank you.

10 MR. TURNER: Part of the discussion went into this

11 restoration plan that got us, I think, to the foundation

12 concept, was the concept that we voiced an opinion that we

13 did not wish to take cash as mitigation for this project,

14 either.

15 MS. BELLOMO: In your opinion, do you believe that the

16 settlement document 68A is flawed because it doesn't provide

17 goals for goals monitoring and adaptive management?

18 MR. TURNER: It would have been nicer to have a

19 settlement that went further. This is part of an overall

20 settlement, and it is a settlement with Los Angeles over

21 Mono Lake, Mono streams restoration. I think the overall

22 plan is an excellent plan. Like any settlement, it didn't

23 go as far as some of the things I would like to see. That

24 is kind of what a settle is about; it is a little bit of

25 compromise.

1584

01 What we agreed to in the waterfowl section was we

02 agreed to work with a list of projects and to work with a

03 process, which is the CEQA process, in terms of exercising

04 complete review of how it fits into the whole. The kind of

05 adverse impacts and good impacts that each individual

06 project would provide.

07 I think there is time to look at each individual

08 project, set up goals. I would think that part of what the

09 group could do, if they wished, would be to set up

10 long-term plans and then weave the projects into it as a

11 mosaic of how each individual plan fits into the overall

12 goal. It would have been nice to have it up front. I am

13 not sure that we had all of the information to put that kind

14 of plan together.

15 And I think that we have bought into a process, that I

16 am comfortable with, and I think that the process was also

17 offered to the county, and I don't know if you were part of

18 that, to be part of that process in terms of putting these

19 projects together.

20 MS. BELLOMO: Mr. Turner, do you recall your telephone

21 call to me on April 28, 1997, to my residence, which was an

22 unsolicited telephone call to me that you placed?

23 MR. TURNER: Yes, I do. I am not sure it was

24 unsolicited. I was about to get subpoenaed, or was

25 subpoenaed. I received a subpoena from Jerry.

1585

01 MS. BELLOMO: And then you contacted me?

02 MR. TURNER: Yes, because, as your rebuttal witness, I

03 was kind of looking for what you would like to talk about.

04 MS. BELLOMO: Do you recall telling me during that

05 conversation that, in your words, "it wouldn't break my

06 heart if the whole settlement fell apart"?

07 MR. TURNER: No. I said it wouldn't break my heart if

08 the settlement fell apart, if it didn't get put together as

09 a whole. My feeling is right now, that the fishery part of

10 this is excellent. And it has some shortcomings. And the

11 restoration process, I am uncomfortable with the fact that

12 we didn't nail down everything as hard as we could.

13 But my feeling is at this point in time that process

14 can still be put together and needs to be put together.

15 MS. BELLOMO: Do you also recall during that

16 conversation telling me that, in your opinion, you saw the

17 waterfowl portion of the settlement as being the Mono Lake

18 Committee Full Employment Act and that you didn't want to be

19 any part of it?

20 MR. TURNER: That part I do kind of agree with. That

21 part I was uncomfortable with because my feeling was that we

22 were being pulled into a process in terms of this Foundation

23 that might have prevented us from being able to review and

24 evaluate each project as it was put together.

25 MS. BELLOMO: Thank you, Mr. Turner.

1586

01 MR. TURNER: I would like to finish my answer.

02 MS. BELLOMO: I'm sorry.

03 MR. TURNER: I have since had a chance to talk with

04 Peter Bontadelli who is my direct boss and represents our

05 directorate. He felt that we were in place with this

06 process where we could still do a fair and impartial, full

07 review and evaluation, and that we shouldn't feel that,

08 because we sit on this Foundation and we are only one of

09 five votes, that we are going to get over voted each time

10 and that we couldn't clearly put together our comments on

11 each project as it is put together.

12 MS. BELLOMO: Does that complete your answer?

13 MR. TURNER: Yes.

14 MS. BELLOMO: Mr. Thomas, I questioned you yesterday,

15 so I don't know if I need to go into this on the record.

16 Could I just confirm that you are employed by the

17 Department of Fish and Game?

18 MR. THOMAS: That's correct.

19 MS. BELLOMO: What is your job title.

20 MR. THOMAS: Associate Wildlife Biologist.

21 MS. BELLOMO: Are you here today testifying as a

22 rebuttal witness because you were served with a subpoena by

23 the People From Mono Basin Preservation?

24 MR. THOMAS: Yes.

25 MS. BELLOMO: Are you the Department of Fish and Game

1587

01 employee who the Department of Fish and Game has been

02 relying on for a biological opinion regarding waterfowl

03 habitat proposals in this case, restoration proposals in

04 this case?

05 MR. THOMAS: Yes.

06 MS. BELLOMO: Is there any other Department of Fish and

07 Game employee who the Department of Fish and Game has been

08 relying on for biological opinions regarding the waterfowl

09 habitat restoration proposal in this case?

10 MR. THOMAS: The answer is no.

11 MS. BELLOMO: Are you acquainted with Bill Banta who

12 lives in Lee Vining?

13 MR. THOMAS: Yes.

14 MS. BELLOMO: Is he the son of Don Banta?

15 MR. THOMAS: Affirmative.

16 MS. BELLOMO: You know Don Banta as well?

17 MR. THOMAS: Yes.

18 MS. BELLOMO: Do you know them both to be avid duck

19 hunters?

20 MR. THOMAS: Yes.

21 MS. BELLOMO: Is Don Banta the same Don Banta who's

22 been referred to throughout the course of this proceedings,

23 including Mono Lake level decisions regarding waterfowl in

24 the Mono Basin?

25 MR. THOMAS: Yes.

1588

01 MS. BELLOMO: Are you aware that Bill Banta is

02 currently or was recently on the county commission, the Mono

03 County Commission, wildlife commission?

04 MR. THOMAS: I am aware of that.

05 MS. BELLOMO: Is it your understanding that the purpose

06 of or the charge of that commission is to dispense fine

07 moneys collected by Fish and Game wardens in the county?

08 MR. THOMAS: That's correct.

09 MS. BELLOMO: Thank you.

10 I have two documents that I am going to distribute at

11 this time. I would like to have them marked for

12 identification as next in order, PMBP next in order, if I

13 may do so.

14 CHAIRMAN CAFFREY: Two documents, you say Ms. Bellomo?

15 MS. BELLOMO: Yes.

16 MR. BIRMINGHAM: It is generally my experience, maybe

17 my experience is not consistent with other lawyer's

18 experience, but generally it is my experience when an

19 attorney distributes a proposed exhibit that it is given to

20 counsel before it is given to the trier-of-fact, so that

21 counsel may have an opportunity to review it to determine

22 whether or not they want to make objections.

23 I wonder if, as a courtesy, in the remainder of this

24 proceeding if we can follow that process.

25 MS. BELLOMO: Chairman Caffrey, that has not been the

1589

01 process thus far in this proceeding. I feel that that is

02 trying to change the procedural rules during the course of

03 my examination.

04 CHAIRMAN CAFFREY: Even --

05 MS. CAHILL: Chairman Caffrey, I have just seen one of

06 these documents. We do vehemently object to it.

07 MS. BELLOMO: The Chairman will have to see -- the

08 Chair has to see the documents before he can rule on it.

09 MS. CAHILL: I can describe this document as an

10 internal Fish and Game document dealing with the decision

11 making of the department as to whether to accept a

12 settlement agreement. This was a -- this is a confidential

13 internal protected by the evidence code for privilege that

14 extends to settlement agreements which --

15 CHAIRMAN CAFFREY: Which document are you referring to?

16 MS. BELLOMO: Chairman Caffrey, may I at least

17 introduce these documents and lay a foundation so we can

18 have an argument about their admissibility? They need to be

19 marked.

20 CHAIRMAN CAFFREY: All right.

21 Mr. Frink, don't we need to at least have her indicate

22 what this is and then we will have to decide what we are

23 going to do with it?

24 MR. FRINK: At this point it is not even clear what the

25 objections are to.

1590

01 CHAIRMAN CAFFREY: Right.

02 MEMBER DEL PIERO: Mr. Chairman.

03 CHAIRMAN CAFFREY: Mr. Del Piero.

04 MEMBER DEL PIERO: My recommendation at this point is

05 to take a five-minute break so everybody can review these

06 and be prepared, rather than shoot from the hip, to make any

07 type of intelligible argument on this.

08 CHAIRMAN CAFFREY: You mean after we get them

09 introduced or at least described?

10 MEMBER DEL PIERO: At least get them described and then

11 take a five-minute break to afford counsel for all the other

12 parties an opportunity to review, and they can decide

13 whether or not they have an objection or not.

14 MS. CAHILL: We absolutely do not want it read by the

15 Members of the Board.

16 CHAIRMAN CAFFREY: You don't want them read by the

17 Members of the Board before that occurs, is that the point?

18 MS. BELLOMO: May we mark them and number them? And

19 you can keep them under seal if you choose not to read

20 them. To at least have some identification of these

21 documents.

22 CHAIRMAN CAFFREY: Mark them. Careful how you describe

23 them to us so you don't tell us what they are.

24 MS. BELLOMO: The first document -- if you can tell me,

25 Mr. Johns, what the next in order number is.

1591

01 MR. JOHNS: Next in order is going to be 34, your

02 Exhibit 34.

03 MR. DODGE: Which one is 34?

04 MS. BELLOMO: I am going to get a number and tell you

05 what the document is. The document that I have handed you,

06 Mr. Thomas, has a facsimile cover sheet from the Best

07 Western Lakeview Lodge, attention Bill Banta, and attached

08 to it has a memorandum, which the contents I will not

09 discuss, a memorandum from you to Vern Bleich and Alice

10 Pickard, dated April 21, 1997. The subject is called State

11 Water Resources Control Board Mono Basin Proceeding: The

12 Mono Basin Waterfowl Habitat Restoration Plan and Proposed

13 Conceptual Settlement Agreement. This document has been

14 marked as R-PMBP-34.

15 The second document that I have handed you is a

16 document that I would state for the record, so it is clear,

17 on the top there is a Post-it fax note sent to Joe Bellomo

18 care of Dan Frink from Ed Inwood, who is the supervisor in

19 Mono County for the Bridgeport District. He faxed this

20 document -- he called, spoke with us this morning, asked

21 where he could fax this to us. I asked him to fax it to Mr.

22 Frink, care of Mr. Frink, without asking Mr. Frink's

23 permission. It was sent care of Mr. Frink to us.

24 It was Mr. Inwood's request that we put this document

25 into the record today.

1592

01 MR. FRINK: Excuse me, Ms. Bellomo. It looks like the

02 two documents are the same. One has a cover sheet, a

03 facsimile cover sheet. The other one was the one that you

04 mentioned that was faxed to Joe Bellomo in care of me, but

05 it looks like they are the same document.

06 MS. BELLOMO: I have not had a chance to compare them.

07 However, I believe they are the same document, and I think

08 that because there are questions being raised of privilege

09 and confidentiality, that it is important that the Board

10 know how we came into possession of these documents. And it

11 certainly relates to what kind of distribution these

12 documents have had.

13 Therefore, I am offering both of these documents, or,

14 at this point, asking that they be marked for

15 identification. And this is R-PMBP-35; it appears to be,

16 maybe Mr. Thomas could confirm this after the break, if this

17 is the same document, that these are both the same

18 document.

19 Would that be possible to ask Mr. Thomas?

20 CHAIRMAN CAFFREY: I am sorry, I was interrupted and I

21 didn't hear your question. I apologize.

22 MS. BELLOMO: Perhaps Mr. Thomas could confirm after

23 the break whether 34 and 35 are copies of the same

24 document. I have not had a chance to see that comparison.

25 CHAIRMAN CAFFREY: We can do that to the extent that we

1593

01 don't tread on anybody's rights. We are going to take a

02 break now and try to figure out what all this is, and how we

03 can deal with it in an inappropriate and adjudicatory

04 setting.

05 Let's take about a ten-minute break. Let's try to

06 start again at 10:00.

07 MS. BELLOMO: Thank you.

08 (Break taken.)

09 CHAIRMAN CAFFREY: We are resuming the hearing and, at

10 this point, we will hear from the various protesting

11 counsels as regards the two items that were marked.

12 Ms. Cahill, do you wish to begin?

13 MS. CAHILL: Yes.

14 MS. BELLOMO: Chairman Caffrey, will I be allowed to

15 respond after they object?

16 CHAIRMAN CAFFREY: Yes. We will first hear from the

17 concerned parties, and then allow you to respond and then we

18 will ask Mr. Frink for his wisdom on his research, also,

19 taking into consideration what he hears in the next few

20 moments. Try not to distract him. And we are off the

21 clock. That is correct, we are off the clock.

22 Please proceed, Ms. Cahill.

23 MS. CAHILL: Chairman Caffrey and Members of the Board,

24 the documents that have been proffered as an internal

25 Department of Fish and Game memorandum dealing with the

1594

01 settlement agreements. The settlement discussions, both

02 among the parties and within a party deciding whether to

03 sign that agreement or not, are privileged. The Evidence

04 Code 1152 is the standard statement that there is privilege

05 for settlement discussions.

06 In this particular case, there was further a written

07 stipulation signed by the parties that was filed with this

08 Board in a earlier time that made it clear that anything

09 related to those settlement negotiations was to be

10 confidential and would not be revealed. Ron Thomas is not

11 authorized to release this document, either by the

12 department or by the other parties to that settlement

13 agreement. He does not have the authority to waive any

14 confidentiality that is held by the department.

15 In addition to being concerned with settlement

16 discussions and negotiations, this document gets to the

17 deliberative process of the Department of Fish and Game.

18 The decision of whether to sign this settlement agreement

19 was made by the Director of the Department. It is improper

20 to probe into his motives or the evidence that he considered

21 in reaching his decision.

22 I would cite the case of Gilbert v. Regents of

23 California, 93 Cal.App. 3rd, 233, 1979. In that case the

24 court determined that mental processes of an administrator

25 in the evidence that he considered in reaching his decision

1595

01 was not discoverable. The theory being that the decision

02 made by an administrative agency stands for itself. All

03 that is relevant is what that decision is. The process of

04 reaching that decision is absolutely protected.

05 In addition, there is case authority to the effect that

06 staff cannot be questioned with regard to the decision made

07 ultimately by the agency. This document simply is not

08 properly before the board. It is not relevant to the

09 issues. It is relevant to internal decision making. And,

10 inasmuch as it relates to the settlement agreements and to

11 internal agency decision making, it should not be admitted

12 in this proceeding and, furthermore, we should recollect all

13 of those copies that have been distributed.

14 If we need -- If Mr. Frink would like a cite with

15 regard to the fact that staff may not be required to answer

16 questions regarding their own mental processes in arriving

17 at a decision, we have Mobil Oil Corporation versus Superior

18 Court, 59, Cal. App. 3rd, 293, 1976; Board of Administration

19 v. Superior Court, 50, Cal. App. 3rd, 314, 1975.

20 Again, it is apparent this document has left the

21 department, but I reiterate that the privilege is held by

22 the department. Mr. Thomas was not authorized to release

23 that document or to waive the privilege. And it would be

24 wholly improper of this Board to take this document into

25 evidence.

1596

01 CHAIRMAN CAFFREY: Thank you, Ms. Cahill.

02 I want to say for the record that the Board members

03 have not looked at this document and are generally unaware

04 of what they are.

05 Mr. Birmingham.

06 MR. BIRMINGHAM: The Department of Water and Power and

07 the City of Los Angeles joins in the objection that was made

08 by the Department of Fish and Game. We do have that

09 pursuant to the stipulation that we signed and discussions

10 that are confidential. I think Ms. Cahill made all the

11 points very eloquently, and I won't add anything.

12 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.

13 Mr. Dodge.

14 MR. DODGE: Very briefly, Mr. Chairman. We join in

15 that position, too. I would add, I have read the document

16 and most of it is a critique of the settlement agreement

17 where Mr. Thomas sets out criticisms that he has. And if

18 she wants to ask questions critiquing the settlement

19 agreement of Mr. Thomas, that is fine. Presumably he will

20 give the same answers to her that he gave in the internal

21 memorandum.

22 The point is, simply, she need not admit this

23 privileged document in order to ask those questions.

24 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.

25 Ms. Scoonover.

1597

01 MS. SCOONOVER: Mr. Chairman, the State Lands

02 Commission and the Department of Parks and Recreation join

03 the Department of Fish and Game's objection to acceptance of

04 this document, and note that there are conversations with an

05 attorney that referenced in this letter that clearly is an

06 attempt to waive attorney-client privilege by an employee

07 who is not able to do so.

08 CHAIRMAN CAFFREY: Thank you, Ms. Scoonover.

09 Mr. Roos-Collins.

10 MR. ROOS-COLLINS: California Trout joins in the

11 objection.

12 CHAIRMAN CAFFREY: Thank you, sir.

13 Anybody else joining in the objection.

14 Ms. Bellomo, you wish to respond.

15 MS. BELLOMO: Thank you.

16 For starters, I would say that this document, which you

17 haven't read -- I guess Mr. Frink has read it -- is not

18 exclusively dealing with the settlement agreement and the

19 title of the document indicates so. It deals with waterfowl

20 habitat restoration and recommendations that Mr. Thomas

21 makes to not the attorneys but to Vern Bleich, senior

22 wildlife biologist in Bishop and Allen Pickard, senior

23 fisheries biologist in Bishop, California.

24 It is also a memo to the file, and the document

25 indicates, again without me stating the contents of what the

1598

01 opinions are, that Mr. Thomas created this document because

02 he wanted the record to be clear in their file as to what

03 his positions were. So, for starters, it is not a document

04 that's simply critiquing the settlement. It was not

05 addressing the thought processes of Mr. whatever their

06 director's name is. And I have no reason to believe that

07 man has even seen this document, frankly.

08 Furthermore, I, myself, do not know how this document

09 came to be in the hands of Supervisor Ed Inwood, how it

10 became to be in the hands of Bill Banta, how it came to be

11 in the hands, I am told, of Rick Rockel, who has the

12 sporting goods store in Bridgeport, California, which means

13 it is in the hands of a lot of other people who are

14 interested in waterfowl habitat restoration. There's no

15 reason that I have to assume that Mr. Thomas is the person,

16 or the only person, who has distributed this document. It

17 went to Mr. Pickard in Bishop. It went Vern Bleich in

18 Bishop. Other people in the Bishop office have seen it, it

19 is in the file, which means that other people of the public

20 can go to their offices and legally ask to see their files.

21 So, for all I know, the People for the West have gone

22 down there, who wrote you a letter, and looked at the Fish

23 and Game file and gotten it. We were not the people that

24 got this document. We were not the people that distributed

25 it around Mono County. But, clearly, any kind of privilege

1599

01 that attaches to this has been waived. Until I hear that

02 Mr. Thomas is the person who did it, I am not going to

03 accept that he didn't have the authority to do it. Perhaps

04 his supervisors sent this to Mr. Inwood. Perhaps they have

05 the authority to waive the privilege.

06 So I think that that is a very important point. The

07 second fact, by the way, that I don't see this as a

08 privilege document. This is a memo to supervisors and a

09 memo to file. This is not to attorneys; this is a memo to

10 file. To my understanding, that makes this a public

11 document. If somebody wanted to go to Fish and Game in

12 Bishop and say, "I want to look at your public files," they

13 would be shown this document. That is the way, at least, we

14 have been told that the local field people construe things.

15 That concludes my argument.

16 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo.

17 Mr. Frink, would you join me for a moment?

18 MR. BIRMINGHAM: Excuse me, Mr. Caffrey, may I address

19 one point that Ms. Bellomo made?

20 CHAIRMAN CAFFREY: Yes, briefly.

21 MR. BIRMINGHAM: This is a document that clearly

22 pertains to litigation. And Ms. Bellomo has suggested that

23 it is public record. There is an expressed exception to the

24 Public Record Act for documents pertaining to litigation.

25 CHAIRMAN CAFFREY: Thank you, sir.

1600

01 (Break taken.)

02 CHAIRMAN CAFFREY: Mr. Frink, would you please.

03 MR. FRINK: Mr. Caffrey, I am ready to share whatever

04 advice I can.

05 CHAIRMAN CAFFREY: Please do so, and then I will make a

06 ruling.

07 MR. FRINK: I would begin with noting that the

08 proposed settlement agreement that has been discussed in

09 here and has been described as modification of the proposed

10 restoration plans, and, therefore, that settlement is

11 appropriate subject for this Board's inquiry. The opinion

12 of the Department of Fish and Game employee, who is most

13 familiar from a biological standpoint with the subject

14 matter of the agreement, is important evidence for this

15 Board to hear, as is the written memorandum in which he

16 states his opinion.

17 That memo was not between Mr. Thomas and the Department

18 of Fish and Game attorneys. It isn't marked confidential in

19 any way. There is no reason that I can see to conclude that

20 it is subject to the attorney-client privilege. I would

21 imagine, unless it has been removed, it is a file right now

22 in the Department of Fish and Game offices. It would be

23 subject to disclosure under the Public Records Act. It is

24 final signed memo which is subject to disclosure under the

25 Public Records Act, and it may be admitted into the record

1601

01 here.

02 There is no general exception under the Public Records

03 Act for internal documents. The majority of documents that

04 are generated within this Board are internal documents and

05 yet they are subject to disclosure. I believe the same

06 would apply to the Department of Fish and Game.

07 The stipulation between the parties on the issue of

08 confidentiality is not binding on a non-party to the

09 proceeding. If Ms. Bellomo and her group and others have

10 come across the document from the Department of Fish and

11 Game, that the Department of Fish and Game wishes had not

12 been prepared or wishes they did not come across, that does

13 not obligate a non-party to the confidentiality agreement,

14 to maintain the confidentiality of the document.

15 We are not interested in the mental processes of the

16 Director of the Department of Fish Game or how he reached

17 his decision. To the extent that this document is offered

18 to show that, I would agree that it should not be admitted

19 for that reason. To the extent that the document reflects

20 the opinion of the Department of Fish and Game biologist who

21 is familiar with the subject matter before the Board, I

22 think it is admissible.

23 Evidence Code Section 1152, which was mentioned, does

24 not apply in this situation. By its terms it has to do with

25 liability and offers to compromise in settling liability

1602

01 cases. In this instance, the Department of Fish and Game is

02 the agency that the Board relies on to get expertise on

03 fishery and wildlife issues, and to preclude the Board from

04 receiving that evidence would not be in accord with the

05 policy of the Public Records Act.

06 Excluding the document would result in an anomaly

07 situation of everybody else in the state who is interested

08 in this having the document but the Board, who is called

09 upon to make a decision, not being able to utilize the

10 information in that document. Any privilege that may once

11 have been claimed, I believe, is waived. I don't believe it

12 could have legitimately been claimed anyway. But, I

13 believe, it was waived by the release of this document,

14 however that occurred, through the Department of Fish and

15 Game.

16 The notion that the document should be excluded because

17 it somehow relates to litigation, I guess you can the make

18 that argument with regard to almost every document in this

19 proceeding since this proceeding has been subject to appeal

20 and so forth.

21 I don't believe that the fact that it somehow relates

22 to litigation, excepts it from being admitted into the

23 administrative proceeding. I think the document is

24 admissible, Mr. Chairman.

25 CHAIRMAN CAFFREY: Thank you very much, Mr. Frink.

1603

01 Appreciate everybody's arguments. I will now rule that

02 the documents are, in fact, admissible in any proceeding,

03 and we will proceed.

04 Ms. Bellomo, please continue with your questioning,

05 And, Mr. Johns, will you please tell us how much time

06 we have.

07 MR. JOHNS: We have 34 minutes left for this panel.

08 MS. BELLOMO: Thank you.

09 Mr. Thomas, when we left off at the break, I asked you

10 if you would look at Exhibit R-PMBP-34 and R-PBMP-35 and

11 tell us if the two memos that are contained in those

12 documents, dated April 21, 1997 are the copies of the same

13 memo prepared by you.

14 MR. THOMAS: I believe they are nearly identical.

15 MS. BELLOMO: Can you direct us to any differences?

16 Are they different versions or something?

17 MR. THOMAS: I am not sure. I haven't looked at these

18 two in detail. I probably would have to read both of them

19 entirely to see if they are exactly word-for-word. They are

20 essentially the same document.

21 MS. BELLOMO: Were both of the documents prepared by

22 you?

23 MR. THOMAS: Yes.

24 MS. BELLOMO: Did you sign both of these documents?

25 MR. THOMAS: Yes.

1604

01 MS. BELLOMO: I am going to assume that they are

02 essentially similar and work off --

03 MR. THOMAS. I see one difference. I would like to

04 make that correction. I have one copy here that is not

05 signed. So there is that difference, at least.

06 MS. BELLOMO: R-PMBP-35 is not signed; is that correct?

07 MR. THOMAS: I haven't numbered these. The one from

08 Supervisor Inwood is not signed.

09 MR. FRINK: Mr. Chairman.

10 CHAIRMAN CAFFREY: Yes, Mr. Frink.

11 MR. FRINK: With that additional information, if one of

12 the documents is not signed and could be viewed as a draft,

13 that would not be kept in the files of the department in the

14 normal course of business. It may be subject -- it may not

15 be subject to disclosure under the Public Records Act.

16 So, I think in order that our record is clear, it would

17 be better to limit ourselves to admission and discovery and

18 discussion of the final signed document.

19 MEMBER DEL PIERO: That is Best Western Lakeview Lodge?

20 CHAIRMAN CAFFREY: Trusting that the Board Members have

21 not had a chance to read these documents, we need to rerule,

22 is that what you are saying, Mr. Frink, and we will

23 eliminate from the record the one that is not signed. Is

24 that what you are telling me?

25 MR. FRINK: I think you ruled it was admissible. I

1605

01 don't think she had offered it yet. What I would suggest is

02 that she offer only the final document.

03 CHAIRMAN CAFFREY: We will treat it in that fashion.

04 Thank you.

05 MS. BELLOMO: Thank you.

06 From here on to the end, so the record is clear, my

07 questions will be, and I will try to continue to make

08 reference, my questions then will relate to the memo marked

09 for identification as R-PMBP-34, with the Best Western

10 Lakeview Lodge fax transmittal sheet.

11 With that said, Mr. Thomas, I would ask you to turn to

12 the document itself, the memorandum. Was it, in fact, your

13 opinion -- let me rephrase it.

14 Is it, in fact, your opinion that you cannot support

15 the conceptual agreement, as written, and that you want the

16 record to be clear on this point?

17 MR. THOMAS: That is an accurate statement. I would

18 also like for the record to point out that this was written

19 at the request of my supervisor, Dr. Bleich, to bring him

20 up-to-date on what and where we were with this process, and

21 was written for his information.

22 MS. BELLOMO: Turning to Page 2 of the memorandum, the

23 second full paragraph, you state that pursuant to Decision

24 1631, the parties to the proceeding selected three waterfowl

25 scientists, et cetera, that sentence. Now moving to the

1606

01 sentence where you say:

02 The plan provides a good, but somewhat

03 general set of proposals conceived to attempt

04 habitat restoration, focusing on restored

05 diversity of fresh, brackish wetland habitat

06 required by various waterfowl species.

07 (Reading.)

08 Does that continues to be your opinion today?

09 MR. THOMAS: Yes.

10 MS. BELLOMO: Turning to the next paragraph on Page 2

11 of Exhibit R-PBMP-34, you state towards the bottom of that

12 paragraph:

13 The rocky substrates and steep gradient in

14 the lower reaches of Mill Creek cause me to

15 agree with T. Russi, BLM biologist, that

16 little or no ponding or soil formation can be

17 expected in a rewatered Mill Creek.

18 (Reading.)

19 Is that your opinion, sir.

20 MR. THOMAS: Yes.

21 MS. BELLOMO: And you go on to say:

22 I conclude that little restoration of

23 critical refuge habitat will result from

24 rewatering Mill Creek. (Reading.)

25 Is that opinion, sir?

1607

01 MR. THOMAS: Yes.

02 MS. BELLOMO: You state at the bottom of Page 2 in the

03 beginning of the last paragraph, you refer to political

04 pressures that resulted in the inclusion of the rewatering

05 of Mill Creek as plans second priority restoration measures,

06 second only to the raising of the lake level. And you

07 indicate that you were informed by one of the scientists and

08 Dr. Stine.

09 Who is the scientist that you were referring to?

10 MR. THOMAS: I believe, but I am not positive, that it

11 was Tom Ratcliff.

12 MS. BELLOMO: Do you --

13 MR. THOMAS: It has been some time ago and my memory is

14 not exact on that point, but I believe that is the case.

15 But I am certain that one of the three scientists told me

16 that.

17 MS. BELLOMO: Thank you.

18 Did Mr. Stein tell you that as well?

19 MR. THOMAS: Something to that effect. It has been

20 some time ago, and I don't know the exact words.

21 MS. BELLOMO: Turning to Page 3 of the memorandum,

22 R-PMBP-34, you state in the middle of the first full

23 paragraph:

24 However, a number of qualified biologists and

25 local citizens are convinced that this

1608

01 measure will provide little in terms of

02 increased habitat for substantial numbers of

03 ducks. (Reading.)

04 Are you referring to restoring the diverted flows of

05 Mill Creek?

06 MR. THOMAS: Yes.

07 MS. BELLOMO: And how do you know -- let me rephrase

08 that.

09 Is it in your capacity as the local field biologist

10 that you talked to a number of local citizens and got their

11 opinion on this point?

12 MR. THOMAS: That's correct.

13 MS. BELLOMO: When you say "a number of qualified

14 biologists hold this opinion," to whom are you referring?

15 MR. THOMAS: I have discussed this issue with several

16 waterfowl managers from around the state that work on our

17 Fish and Game wildlife areas.

18 MS. BELLOMO: May I ask for the names of those

19 individuals, please?

20 MR. THOMAS: I discussed this with Ron Thompson down on

21 Salton Sea. Specifically, with him because I believe that

22 the situations are similar. There is a large salt water

23 body and fresh water marshes adjacent. I believe I

24 discussed this with Pete Blake who manages our Upper Butte

25 Basin wildlife areas. I am sure I discussed this with Tom

1609

01 Blankenship, who is a senior biologist here in our downtown

02 office.

03 MS. BELLOMO: In Sacramento?

04 MR. THOMAS: Yes.

05 MS. BELLOMO: You are saying that those people you have

06 named shared the view that you have stated in this sentence

07 that we just read?

08 MR. THOMAS: In general terms, yes.

09 MS. BELLOMO: You go on to say:

10 Based on my experience with ducks and their

11 habitats, I share this conviction.

12 (Reading.)

13 Does that continue to be your opinion?

14 MR. THOMAS: Yes.

15 MS. BELLOMO: Are you concerned that the amount of

16 public opposition to the proposals to restore diverted flows

17 to Mill Creek makes it uncertain whether implementation of

18 the measure will actually occur or would actually occur?

19 Again, I am looking at the second to last sentence in

20 the first full paragraph on Page 3.

21 MR. THOMAS: I believe that public opposition makes it

22 uncertain if the project will be completed, yes.

23 MS. BELLOMO: Does that concern you, to the extent that

24 you testified yesterday, that you are desirous to see

25 waterfowl habitat restoration actually occur in Mono Basin?

1610

01 MR. THOMAS: Yes.

02 MS. BELLOMO: Turn to the second full paragraph on Page

03 3 of R-PMBP-34. Excuse me, I have no questions on that

04 paragraph.

05 You state in at the bottom of the page, the second to

06 the last full paragraph, you state:

07 My conviction is that much more could be done

08 for water bird habitat for much less money if

09 other projects were chosen. (Reading.)

10 Are you -- when you say much more, are you referring to

11 much more than could be done with restoring the diverted

12 flows of Mill Creek?

13 MR. THOMAS: Yes, and I want to clarify that that

14 sentence refers to much more in terms of habitat capacity

15 for numbers of ducks.

16 MS. BELLOMO: Does that continue to be your opinion

17 today?

18 MR. THOMAS: Yes.

19 MS. BELLOMO: Turning to Page 4 of your memo, Exhibit

20 R-PMBP-34, at the bottom of the first paragraph, you state:

21 The result is, in my opinion, a conceptual

22 settlement agreement which fails to include

23 language assuring effective waterfowl habitat

24 restoration. (Reading.)

25 Does that continue to be your opinion today?

1611

01 MR. THOMAS: Yes, and I want to stress "assuring."

02 MS. BELLOMO: I would like to clarify for the record,

03 do you object to the portion of the settlement that has been

04 proposed to the Board that relates to stream and fishery

05 restoration?

06 MR. THOMAS: I am not at all familiar with that aspect

07 of the settlement agreement. I have no opinion on that.

08 MS. BELLOMO: Just so we are clear for the record, your

09 criticism in this memorandum relates to the portion of the

10 settlement that pertains to waterfowl habitat restoration;

11 is that correct?

12 MR. THOMAS: The beliefs and opinions I express are

13 limited to the waterfowl portion.

14 MS. BELLOMO: Thank you.

15 You go on to state in the first full paragraph on Page

16 4:

17 I must emphasize that excellent opportunities

18 exist to provide habitat for large numbers of

19 ducks, such as existed before the effects of

20 diversion in the Eastern Sierra. (Reading.)

21 Do you continue to believe that statement?

22 MR. THOMAS: Yes. I believe we discussed this some

23 yesterday, as well.

24 MS. BELLOMO: Is it your opinion, as a waterfowl

25 expert, that a monetary settlement, lacking firmly stated

1612

01 project goals and assured implementation, is not the

02 appropriate remedy for the documented damage to fish,

03 wildlife, and other public trust resources of California?

04 I am reading in the second full paragraph on Page 4.

05 MR. THOMAS: I believe that the assurance of some

06 stated degree of restoration is the appropriate settlement

07 avenue.

08 MS. BELLOMO: Thank you.

09 Now, am I correct that comments at Page 4 and going

10 over to Pages 5 and 6 you have provided in your memo,

11 R-PMBP-34, a list of what you have termed, quote-unquote,

12 flaws of the conceptual agreement? This would be numbers

13 one through nine.

14 You need to answer audibly.

15 MR. THOMAS: I am sorry, I didn't hear the question.

16 MS. BELLOMO: My question is: Are points one through

17 nine on Pages 4 through 6 a list of what you have termed,

18 quote-unquote, flaws in the conceptual agreement?

19 MR. THOMAS: Yes. Again, limited to the waterfowl

20 portion.

21 MS. BELLOMO: I would like to very quickly go through

22 the flaws because I want -- what you have identified as,

23 quote-unquote, and I want to give you an opportunity to

24 explain yourself, if you need to, for the benefit of the

25 Board.

1613

01 With number one, you state that no quantified goal or

02 performance standard of any project proposal is stated or

03 implied.

04 Do you consider that to be a flaw in the conceptual

05 agreement on waterfowl habitat restoration?

06 MR. THOMAS: I do.

07 MS. BELLOMO: You state in number two, there is no

08 specified schedule of implementation for any habitat

09 restoration proposal.

10 Do you continue to believe that is a flaw in the

11 conceptual agreement?

12 MR. THOMAS: I do.

13 MS. BELLOMO: Can you explain why that is important to

14 -- why, in your opinion, it would be important to have

15 specified scheduled implementation for restoration

16 proposals?

17 MR. THOMAS: A major portion of my opinion on that

18 point relies on the testimony of Dr. Reid, where he

19 discussed the current high population levels of ducks in the

20 flyway and stated that this would be a good time for

21 restoration to begin, to encourage the rapid use of that

22 newly recreated habitat because of the abundance of birds in

23 the flyway at present.

24 MS. BELLOMO: Mr. Johns, could you tell me how much

25 time I have left?

1614

01 MR. JOHNS: Eighteen minutes.

02 MS. BELLOMO: On point four on Page 4 of your memo, you

03 state that, additionally, the lack of stated restoration

04 goals in the settlement language renders the monitoring

05 program pointless. No monitoring program can reveal success

06 or failure of effort with no restoration objective or target

07 exists.

08 Does that continue to be your opinion?

09 MR. THOMAS: Yes.

10 MS. BELLOMO: Point five, you state there is no

11 provision for adaptive management in response to monitoring

12 results.

13 Do you continue to view that as a flaw in the proposed

14 conceptual agreement?

15 MR. THOMAS: Yes.

16 MS. BELLOMO: Retract what sounded like the beginning

17 of a question. Moving to point six 6 on the bottom of Page

18 4, you state that:

19 Layers of bureaucracy -- (Reading.)

20 MR. THOMAS: I would like to clarify that last point,

21 if I may.

22 MS. BELLOMO: Please do.

23 MR. THOMAS: I believe the agreement, as written,

24 allows for adaptive management. I see no provision assuring

25 any implementation.

1615

01 MS. BELLOMO: Is it your opinion or that it would be

02 preferable to have some adaptive management be assured that

03 that occur in whatever the Board adopts?

04 MR. THOMAS: That is my opinion.

05 MS. BELLOMO: Thank you.

06 Turning to point six at the bottom of Page 4, you refer

07 to the "layers of bureaucracy" created by the conceptual

08 agreement, and you state this may seriously delay or prevent

09 implementation the program.

10 Are you -- do you continue to be concerned about this

11 aspect of the conceptual agreement?

12 MR. THOMAS: I do.

13 MS. BELLOMO: Turning to Page 5, in the first full

14 paragraph, you state there is substantial disagreement among

15 the parties regarding restoration projects.

16 Does it continue to be your opinion that there is

17 substantial disagreement among the parties regarding the

18 restoration projects?

19 MR. THOMAS: I would have to say yes.

20 MS. BELLOMO: Turning to point six on Page 5, you

21 critique two other points that you find in the conceptual

22 agreement that leave other aspects uncertain. A pertains to

23 a party being able to petition the Water Board to change the

24 program after five years, and B, parties to the Foundation

25 can be added by a vote at any time.

1616

01 Do you continue to view this as a flaw in the

02 agreement?

03 MR. THOMAS: I believe a certain amount of flexibility

04 is needed in a plan, and I believe that these aspects could

05 have benefits. I am concerned, again, about the timely

06 nature of restoration, if restoration could be conducted in

07 a timely manner, given these, as I believe, uncertainties.

08 MS. BELLOMO: Turn to point seven on Page 5 of Exhibit

09 R-PMBP-34 --

10 MR. THOMAS: Where are we?

11 MS. BELLOMO: Paragraph 7, point seven, paragraph seven.

12 You state in the middle of that paragraph:

13 I submit that a reasoned approach is to

14 analyze the restoration of waterfowl habitat

15 in the North Basin. Rewatering Mill Creek

16 logically then would be one of several

17 reasonable alternatives objectively analyzed.

18 (Reading.)

19 Does that continue to be your opinion today?

20 MR. THOMAS: Yes.

21 MS. BELLOMO: At point eight, turn to Paragraph 8 on

22 Page 5. You state:

23 A conceptual agreement language creates a

24 barrier to conducting restoration programs

25 outside the basin. (Reading.)

1617

01 Do you continue to hold that opinion?

02 MR. THOMAS: I would probably modify that statement to

03 say that projects outside the basin, which I believe could

04 be very important, are allowed by the conceptual agreement

05 in the future, but I believe not in a timely manner.

06 MS. BELLOMO: Are you referring to the provision that

07 says in ten years it would be considered restoration in

08 other areas?

09 MR. THOMAS: Yes.

10 MS. BELLOMO: Can you explain to the Board why, in your

11 opinion, it is important that a barrier not be placed in the

12 Board's plan, in whatever plan for restoration the Board

13 adopts, why it is important that the Board not place a

14 barrier to conducting restoration programs outside the

15 basin?

16 MR. THOMAS: I guess my major point of concern there is

17 that it is recognized, and I believe the scientists point

18 out, that the options for restoration in the basin are

19 limited and, for instance, those few options are not

20 successful, I believe the option to do waterfowl restoration

21 outside the basin should be considered on a timely manner.

22 It doesn't really matter to the ducks if a waterfowl habitat

23 is in Mono Basin or down Crowley.

24 MS. BELLOMO: Is that part of the adaptive management

25 approach that you have testified as being important?

1618

01 MR. THOMAS: That would be one aspect of it.

02 MS. BELLOMO: Turn to Paragraph 9 on Page 6 of

03 R-PMBP-34, you state the settlement would end the

04 jurisdiction of the El Dorado County Superior Court and

05 effectively removing outside oversight of performance.

06 I am not sure what to ask you about that. Why does

07 that concern you?

08 MR. THOMAS: I am not sure how to answer on that one,

09 either.

10 MR. FRINK: Mr. Chairman, I would object to the --

11 MR. THOMAS: I am not an attorney.

12 MR. FRINK: I would object to the witness expressing an

13 opinion on the extent of the El Dorado County Superior

14 Court's jurisdiction.

15 MR. BIRMINGHAM: I thought Mr. Frink said this was an

16 admissible document.

17 MR. FRINK: Got me there, Tom.

18 CHAIRMAN CAFFREY: I won't -- never mind. Keep going.

19 MR. BIRMINGHAM: I will very seriously state that the

20 it is the Department of Water and Power's view that this

21 Board is going to continue to have oversight with respect to

22 the implementation of the Waterfowl Habitat Restoration

23 Plan, and this Board will provide the assurances that are

24 needed in order to implement that plan.

25 CHAIRMAN CAFFREY: Thank you for that commentary, sir.

1619

01 MS. BELLOMO: Turn back to R-PMBP-34, Mr. Thomas, at

02 Page 6, you state in the middle of the page:

03 I also want to describe what I see as a

04 reasonable, meaningful and cost-effective

05 waterfowl restoration program. (Reading.)

06 Do you see where I am reading from?

07 MR. THOMAS: Yes.

08 MS. BELLOMO: You go on to state:

09 Much of what follows was developed with input

10 from Tom Ratcliff, one of the three

11 scientists who developed the waterfowl plan

12 pursuant to Decision 1631.

13 (Reading.)

14 When was this list of -- let me rephrase that.

15 When did you receive the input from Tom Ratcliff that

16 you were referring to?

17 MR. THOMAS: We discussed this on about the date that

18 is on the memo, but I don't know the exact date.

19 MS. BELLOMO: It was sometime after the proposed

20 settlement and conceptual agreement had become public

21 documents, that it had filed with the Board?

22 MR. THOMAS: I am unclear if any of the documents are

23 public or not. Again, I am not an attorney, so I would be

24 laboring under some misconceptions about what is public and

25 what is not.

1620

01 MS. BELLOMO: Just so the record is clear, your input

02 -- you received input from Mr. Ratcliff approximately around

03 April 21st, give or take a few days.

04 MR. THOMAS: Yes. Would have been before that date,

05 probably close to that date.

06 MS. BELLOMO: Now, what I would like to do is briefly

07 go through the list of recommendations that you developed

08 with Mr. Ratcliff. And just so the record is clear, do

09 those papers at Page 6 and 7 at point one through eight?

10 MR. FRINK: Ms. Bellomo, I wonder if it might expedite

11 matters you had him read those silently and then state if he

12 continues to agree that those are recommendations that he

13 support.

14 MS. BELLOMO: That would be fine.

15 MR. THOMAS: These continue to be my -- would be my

16 recommendations, or I believe these to be reasonable

17 recommendations. I would also say that much of what follows

18 Mr. Ratcliff and I discussed some of this, but not every

19 point. It was part of our discussion.

20 MS. BELLOMO: Can you tell us which points you did not

21 discuss with Mr. Ratcliff of points one through eight?

22 MR. THOMAS: I am afraid I can't at this point.

23 MS. BELLOMO: Do you recall any which you specifically

24 did discuss with Mr. Ratcliff?

25 MR. THOMAS: I can say that we specifically did discuss

1621

01 the adaptive management point, number five. The others, it

02 was a long conversation and I am not sure.

03 MS. BELLOMO: Did you -- turning to point three, did

04 you discuss with Mr. Ratcliff that a reasonable, overall

05 objective is to restore and maintain shallow, fresh or

06 brackish open water ponding to restore diversity?

07 MR. THOMAS: We did discuss that.

08 MS. BELLOMO: And did you discuss the fact with him

09 that goals relate directly to the scientists', of which he

10 was one, finding that the loss of fresh and brackish water

11 areas reduce the diversity of wetland habitat?

12 MR. THOMAS: I am not sure. If we discussed that in

13 particular or at that time, I am not sure.

14 MS. BELLOMO: Turning to point four, where you

15 recommend that the monitoring program be specified in

16 detail, did you discuss that with Mr. Ratcliff? Do you

17 recall?

18 MR. THOMAS: No, I don't recall on that point.

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

20 At this time I would like -- is it appropriate for me to

21 offer these into evidence or wait until the staff asks

22 questions?

23 CHAIRMAN CAFFREY: I think we have to go potential

24 cross-examination and then ask you if you have redirect,

25 and then I will call for it, the entry of exhibits at that

1622

01 time.

02 Mr. Birmingham, we had -- much earlier in these

03 proceedings, a couple months ago, you asked that you be at

04 the bottom of the order for cross-examination. Is that

05 still your desire?

06 MR. BIRMINGHAM: I am happy to go first.

07 CHAIRMAN CAFFREY: I thought you might. We will return

08 then to the originally established order, and we will start

09 with the City of Los Angeles.

10 Before you begin, Mr. Birmingham, I am not going to

11 single you out. I would like everybody to kind of let us

12 know how much time they are going to need. I believe, under

13 our rules, you are entitled to an hour for

14 cross-examination, but we do want to finish today. We are

15 going to go until we do. Just give me your estimate. I

16 won't hold you to it as long as --

17 MR. BIRMINGHAM: Fifteen minutes.

18 CHAIRMAN CAFFREY: I realize it depends on the length

19 of the answers as well. I appreciate that. Please begin.

20 CROSS-EXAMINATION BY

21 LOS ANGELES DEPARTMENT OF WATER AND POWER

22 BY MR. BIRMINGHAM

23 MR. BIRMINGHAM: I would like to turn to R-PBMP-34, Mr.

24 Thomas. Did you distribute this memorandum to anyone

25 outside the Department of Fish and Game?

1623

01 MR. THOMAS: I provided this memorandum to Bill Banta

02 and to Mr. Inwood.

03 MR. BIRMINGHAM: Did you do that with the approval of

04 any of your superiors in the Department of Fish and Game?

05 MR. THOMAS: I didn't discuss it with anybody else.

06 MR. BIRMINGHAM: You did it on your own initiative?

07 MR. THOMAS: I did it at the request of these two

08 members of the public over there.

09 MR. BIRMINGHAM: I would like to turn to the last page

10 of the Exhibit 34. It says:

11 In addition, the El Dorado County Superior

12 Court also retains jurisdiction to further

13 insure performance. (Reading.)

14 Is it your view that the State Water Resources Control

15 Board is incapable of assuring performance?

16 MR. THOMAS: No, it is not.

17 MR. BIRMINGHAM: It is not your view that the El Dorado

18 Superior Court needs to retain jurisdiction in order to

19 assure performance?

20 MR. THOMAS: I guess I have to say, based on my recent

21 experience with this legal process, I am not an attorney and

22 I would -- I don't have an opinion on that one now.

23 MR. BIRMINGHAM: I would like to turn to Page 3 of

24 Exhibit 34, towards the bottom of Page 3, it states that:

25 My conviction is that much more could be done

1624

01 for water bird habitat for much less money if

02 other projects were chosen. (Reading.)

03 Is that correct?

04 MR. THOMAS: Yes. And I believe I clarified that a bit.

05 MR. BIRMINGHAM: You clarified it by saying, when you

06 say "much more" you are talking about habitat capacity for

07 numbers of ducks?

08 MR. THOMAS: Correct.

09 MR. BIRMINGHAM: So, it is your view that the

10 Department of Water and Power of the City of Los Angeles

11 could implement waterfowl habitat restoration to satisfy its

12 obligation under Decision 1631 for less than $3.6 million?

13 MR. DODGE: Objection. Calls for a legal conclusion.

14 CHAIRMAN CAFFREY: I not sure that is a legal

15 conclusion.

16 MR. DODGE: Refers to L.A.'s obligation under D-1631.

17 MR. BIRMINGHAM: I will withdraw the question.

18 CHAIRMAN CAFFREY: All right. Mr. Birmingham, thank

19 you for rescuing me. Please go ahead.

20 MR. BIRMINGHAM: You say --

21 MEMBER DEL PIERO: Mr. Chairman, just for my -- are you

22 going rephrase the question?

23 CHAIRMAN CAFFREY: I assumed you were.

24 MEMBER DEL PIERO: One Board Member would like to hear

25 the answer to the question.

1625

01 CHAIRMAN CAFFREY: At least one.

02 MEMBER DEL PIERO: Be creative.

03 MR. BIRMINGHAM: I will explore it through a series of

04 questions.

05 MEMBER DEL PIERO: Okay.

06 MR. BIRMINGHAM: You said that the clarification was

07 that much more habitat capacity could be created for numbers

08 of ducks if other projects were chosen. Is that correct?

09 MR. THOMAS: Correct.

10 MR. BIRMINGHAM: Projects other than rewatering Mill

11 Creek?

12 MR. THOMAS: That was my meaning.

13 MR. BIRMINGHAM: Can you tell me, Mr. Thomas, where in

14 the settlement agreement, R-LADWP-68 or 68A, it states that

15 Mill Creek is going to be rewatered?

16 MR. THOMAS: I don't have a copy of that in front of

17 me at the moment; I am sorry to say. I believe the wording

18 is such that the Foundation will pursue the project, and,

19 as I recall, it doesn't say that it will occur.

20 MR. BIRMINGHAM: It says that is an alternative that is

21 going to be studied under the CEQA NEPA process; isn't that

22 correct?

23 MR. THOMAS: Understand that to be true.

24 MR. BIRMINGHAM: Let me lay a foundation for this. You

25 have been involved in the review of environmental impact

1626

01 reports; is that correct?

02 MR. THOMAS: Yes, I have.

03 MR. BIRMINGHAM: Have you been involved in the

04 preparation of environmental impact reports?

05 MR. THOMAS: No.

06 MR. BIRMINGHAM: Is it your understanding, based upon

07 the review of environmental impact reports prepared under

08 CEQA, that feasible alternatives to a proposed project are

09 considered as part of the review?

10 MR. THOMAS: Yes.

11 MR. BIRMINGHAM: So, you would expect, wouldn't you,

12 Mr. Thomas, that if the proposal to study Mill Creek were

13 studied under the CEQA process, that other alternatives

14 would be considered and ultimately might be chosen; is that

15 correct?

16 MR. THOMAS: That would be my expectation, based on my

17 experience with CEQA documents, yes.

18 MR. BIRMINGHAM: So, when you say that "my conviction

19 is that much more could be done for water bird habitat for

20 much less money if other projects were chosen," in fact, the

21 settlement agreement might identify and choose other

22 projects; is that right?

23 MR. THOMAS: I would hope that the CEQA process,

24 pursuant to the settlement agreement or whatever plan is

25 adopted by the Board, that that CEQA process would

1627

01 objectively assess a reasonable range of projects, yes, or

02 alternative, I should say.

03 MR. BIRMINGHAM: It is your conviction that those

04 reasonable range of projects could be implemented for less

05 than $3.6 million?

06 MR. THOMAS: I believe that more acres of the most

07 important types of water bird habitat could be created

08 utilizing projects other than Mill Creek, yes.

09 MR. BIRMINGHAM: The cost of those would be less than

10 $3.6 million?

11 MR. THOMAS: Yes.

12 MR. BIRMINGHAM: Now, Ms. Bellomo asked you a question

13 about Page 4 of R-PMBP-34, and specifically she quoted from

14 the document concerning your view that a monetary settlement

15 is not the appropriate remedy for the documented damage to

16 fish, wildlife, and other public trust resources of

17 California.

18 Do you recall her asking you that question?

19 MR. THOMAS: Yes.

20 MR. BIRMINGHAM: The settlement agreement involves

21 significantly more than a monetary settlement, doesn't it?

22 MS. BELLOMO: Chairman Caffrey, since I got Mr. Thomas

23 in this, can I hand him copies of the settlement agreement?

24 CHAIRMAN CAFFREY: Certainly.

25 MR. BIRMINGHAM: I believe he has a copy.

1628

01 MS. BELLOMO: He said he didn't have one.

02 MR. THOMAS: I do.

03 MS. BELLOMO: Do you have both documents?

04 MR. THOMAS: I have the waterfowl portion.

05 MS. BELLOMO: Here is the other agreement, as well.

06 MR. THOMAS: Thank you.

07 MR. BIRMINGHAM: The settlement agreement -- let me

08 restate the question.

09 The settlement agreement contains more than a monetary

10 settlement, doesn't it?

11 MR. THOMAS: Yes. The settlement agreement contains

12 monitoring and some allowance for possibility of waterfowl

13 habitat.

14 MR. BIRMINGHAM: Your paragraph here, refers to fish,

15 wildlife and other public trust resources. The settlement

16 agreement deals with fish restoration in a particular way.

17 Isn't that correct?

18 MR. THOMAS: I will state for the record that if I was

19 writing this document, I would take the word "fish" out of

20 there because I did not review the stream plans. That is

21 not my expertise.

22 MR. BIRMINGHAM: If you were rewriting this document,

23 this document refers to R-PBMP-34, you would delete

24 references to fish?

25 MR. THOMAS: Yes. Again, this document was for the

1629

01 purpose of explaining this complex process to my superior

02 and was never intended to be here under this situation.

03 MR. BIRMINGHAM: I appreciate that. We didn't intend

04 it to be here, either.

05 But let's focus, if we can, for a moment on the

06 waterfowl habitat restoration. The settlement agreement, in

07 fact, involves more than the payment of money by DWP,

08 doesn't it, for waterfowl?

09 MR. THOMAS: That is true.

10 MR. BIRMINGHAM: In fact, the settlement agreement with

11 respect to waterfowl says that the Department of Water and

12 Power is going to implement the recommendations of the three

13 scientists in terms of creating waterfowl habitat on Rush

14 Creek; isn't that correct?

15 MR. THOMAS: Maybe I can shorten this. I concede that

16 settlement agreement, as written, contains some important

17 general aspects and provides something of a template for

18 waterfowl restoration. I still believe that there are

19 serious flaws.

20 MR. BIRMINGHAM: Let me see if I can make the point

21 that I am trying to make.

22 Your memo, if read by itself, leaves an individual with

23 the impression that, with respect to restoring waterfowl

24 habitat, all the Department of Water and Power is going to

25 do is pay $3.6 million and walk away from the

1630

01 responsibility.

02 MS. BELLOMO: Objection. I think the question is

03 argument and also Mr. Birmingham is testifying.

04 CHAIRMAN CAFFREY: I don't know if it is even a

05 question yet. I just heard the statement part of it. I

06 don't know how it is going to conclude. But I will note

07 your objection and let me hear the rest of the question.

08 MR. BIRMINGHAM: Isn't it correct, Mr. Thomas, that

09 with respect to waterfowl habitat restoration the Department

10 of Water and Power, under the settlement agreement, is

11 expected to do more than merely pay $3.6 million?

12 CHAIRMAN CAFFREY: I am going to overrule the

13 objection because I think that is all one question, is it

14 not? All right.

15 MR. THOMAS: Yes. And I would clarify that I believe

16 my understanding, the settlement agreement reads that the

17 one project that would be undertaken by DWP is rewatering of

18 the distributaries in Rush Creek, I believe. And if there

19 are other requirements of DWP, then I am not aware of them.

20 MR. BIRMINGHAM: In fact, the Waterfowl Habitat

21 Restoration Plan, is in evidence as LADWP-20, contains a

22 proposal, does it not, that the channels on Rush Creek be

23 reopened for purpose of waterfowl habitat restoration?

24 MR. THOMAS: Yes.

25 MR. BIRMINGHAM: The settlement agreement provides that

1631

01 the Department of Water and Power will implement that

02 recommendation, does it not?

03 MR. THOMAS: Can you point to me that stipulation in

04 the conceptual agreement?

05 MR. BIRMINGHAM: The settlement agreement, I am looking

06 at R-PMBP-38, Page 12, Paragraph 3 (a) (1).

07 MR. THOMAS: Is that this one?

08 MR. BIRMINGHAM: Yes. Page 12, Paragraph 3 (a) (1).

09 Does it state on that page that the Department of Water

10 and Power will carry out the following activities with

11 respect to Waterfowl Plan; number one, reopen Rush Creek

12 channels?

13 MR. THOMAS: Yes, it does. I also believe that a goal

14 statement to provide an assurance of some degree of

15 restoration is an important aspect that is lacking, in terms

16 of acreage or linear channel to be restored or some goal.

17 MR. DODGE: Move to strike everything after, "yes,"

18 nonresponsive.

19 MR. BIRMINGHAM: I would join in that request.

20 CHAIRMAN CAFFREY: I will overrule it.

21 MR. BIRMINGHAM: Mr. Thomas, doesn't the Waterfowl

22 Habitat Restoration Plan that has been prepared by the

23 Department of Water and Power, R-LADWP-20, contain

24 monitoring that will assure that the channels on Rush Creek

25 are, indeed, open for waterfowl habitat restoration?

1632

01 MR. THOMAS: I am unaware of monitoring that will

02 assure that to happen.

03 MR. BIRMINGHAM: I would like to go to Page 12,

04 Paragraph 3 (a) (2).

05 Does the settlement agreement provide that upon the

06 recommendation of the Mono Basin waterfowl habitat

07 restoration that the Department of Water and Power will use

08 its Mill Creek water rights for waterfowl habitat

09 restoration pursuant to Water Code Section 1243 and will

10 petition the State Water Resource Control Board for a change

11 in purpose of use pursuant to Section 1707?

12 MR. THOMAS: Yes, it does. And as stated in the

13 waterfowl plan, that is an insufficient amount of water to

14 substantially restore waterfowl habitat.

15 MR. DODGE: Move to strike everything after