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18 TUESDAY, MAY 6, 1997

18 10:30 A.M.











24 Reported by: ESTHER F. WIATRE

24 CSR NO. 1564

























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12 Sacramento, California 95814


13 and







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08 ARNOLD BECKMAN: (Not present.)



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12 ARCULARIUS RANCH: (Not present.)



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15 RICHARD RIDENHOUR: (Not present.)







18 114 Sansome Street, Suite 1200

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22 ---oOo---




















07 BY MS. BELLOMO 1382










12 BY MS. BELLOMO 1459






15 BY MS. CAHILL 1463




17 BY MS. BELLOMO 1464










22 ---oOo---






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


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


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.


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?


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


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


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


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


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,


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---





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


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


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.


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


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.




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


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?


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.


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,


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


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


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


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


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


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,


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


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,


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


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.


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


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


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.


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.


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


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


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.


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


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


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


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


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


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.


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?


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


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?


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.


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


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


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?


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


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


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?


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


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


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


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 --


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?


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


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


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?


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?


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


01 and come back at 1:00.

02 Thank you all very much.

03 (Luncheon break taken.)

04 ---oOo---
























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.



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.


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


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.


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


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.


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.


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.


01 Is there any redirect, Ms. Scoonover?

02 MS. SCOONOVER: Yes, Mr. Caffrey.

03 I promise to be brief.





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.


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


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


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, is sufficient to proceed, if taken in that way.

08 MS. SCOONOVER: Can you briefly explain for me whether

09 you are concerned or why the State Lands commissioned you as

10 their spokesperson concerned with activities occurring above

11 state-owned land, above the elevation of state-owned land?

12 DR. JACOBS: As the Board recognized the target

13 elevation, although we restore a lot of public trust values

14 to the lake, we'll still be short for waterfowl. That is

15 why we are here, to come up with some ideas of better ways

16 to restore them. And, again, the waterfowl use was

17 recognized as a public trust use and a value of the lake.

18 The other thing, of course, the ducks don't necessarily

19 know which is state-owned habitat and which is not. So, in

20 order to restore waterfowl, we have to be concerned with any

21 kind of habitat that would be beneficial.

22 Further than that, we are here to figure out how to

23 restore habitat. The TAG group, the Technical Advisory

24 Group, came up with a series of ten guidelines or goals on

25 how to come up with restoration plans, and State Lands


01 Commission and also State Parks endorsed those. And looking

02 at those and reviewing those, you know, we feel, I feel,

03 that the Mill Creek restoration and agree with the

04 waterfowl, that those are the best ways to meet most of

05 those habitat restoration goals: for example, multi-species,

06 self-sustaining. They tend to restore a habitat that was

07 there and not create an artificial one, those sorts of

08 goals. That was why we were considering rewatering Mill

09 Creek. It is the whole, big picture. It's not just creek

10 issues.

11 MS. SCOONOVER: Thank you, Dr. Jacobs.

12 I would like to direct your attention now to a series

13 of questions that Ms. Bellomo asked you concerning testimony

14 on Page 3 of your testimony, as to why you believe there is

15 abundantly evidence today, both on the ground and in

16 neighboring streams to support your predictions about what

17 will happen on Lower Mill Creek if it is rewatered as

18 proposed.

19 Can you explain to me what the basis of those

20 predictions are? What is it on the ground that leads you to

21 believe these predictions or projections will come true?

22 DR. JACOBS: I wonder if it might be helpful if we can

23 refer to some of my exhibits, starting with 305. As you go

24 into the area of Lower Mill Creek that we call the

25 bottomlands, we have described this being littered with a


01 lot of this woody debris. So, you can be in a fairly dry

02 area. You can see the sagebrush around it, and you will see

03 that there has been riparian growth there in the past. That

04 is one point.

05 Looking at 306 and 307, these are pictures of the

06 lower depression areas, that are clearly evident. They are

07 sort of bowl areas that would be affected. They were green

08 at the time I visited in the late fall. The grasses were

09 still green. There was riparian willows in these areas.

10 And they are still surrounded by rabbitbrush and sagebrush.

11 That indicates there is a lot of potential that the

12 groundwater is already pretty high there. Multiple channels

13 are visible on the ground, as Dr. Stine described.

14 I saw these areas that kind of expanded out into areas

15 that would probably be variously either wet meadow or ponded

16 areas, given enough water.

17 And lastly, on Exhibits 308 and 309, sort of an

18 upstream view and downstream view, there already is a

19 riparian corridor or kind of hanging in there right

20 now. There is sort of intermittent water that is allowed to

21 go down or flows down Mill Creek, and already there is

22 cottonwood and willow established there. There is riparian

23 corridor there now.

24 I think with more water that will just be even wider

25 and especially watering the multiple channels. So, one


01 reason I think cottonwoods will grow there is that they are

02 growing there now. That is the biggest reason.

03 MS. SCOONOVER: Exhibits 306 and 307 that you referred

04 to, these are all Lower Mill Creek?

05 DR. JACOBS: These are what we are calling the

06 bottomlands reach, which is just above the County Road up to

07 the big bend.

08 MS. SCOONOVER: You are referring to SLC and DPR

09 Exhibit 4 --

10 DR. JACOBS: Exhibit 424.

11 So just below the County Road to this bend in the creek

12 is where we have been, and Dr. Stine has called the

13 bottomlands reach.

14 MS. SCOONOVER: Is there comparable growth along that

15 section of Wilson Creek now?

16 DR. JACOBS: No. That has been nicknamed the Grand

17 Canyon Reach. It's varied in size and pretty devoid of

18 vegetation, although there may be some intermittent things

19 growing.

20 I have a picture of similar geographic reach to the

21 bottomlands, Exhibit 314. Looking upstream. It's in the

22 similar place to the bottomlands reach of Mill Creek, but,

23 obviously, it isn't the bottomlands.

24 MS. SCOONOVER: This is Wilson Creek?

25 DR. JACOBS: This is Lower Wilson.


01 MS. SCOONOVER: Can you locate it on the map for us,

02 please?

03 DR. JACOBS: That is a quarry road crossing. That is

04 Exhibit 424 I am indicating on.

05 MS. SCOONOVER: In terms of the significance of why the

06 stretch along Mill Creek that you referred to is similar to

07 Rush and Lee Vining, can you explain that to me, why is that

08 so significant, that you believe the Rush and Lee Vining

09 Creek habitats are similar to this stretch of Mill Creek?

10 DR. JACOBS: Well, I guess it goes back to why we are

11 here. We are here -- there are two reasons. One is we are

12 here to restore waterfowl habitat, and it's not my field of

13 expertise, but I understand that that is -- these have been

14 shown to be part of the former waterfowl habitat. Rush

15 Creek Bottomlands can never be restored to its full

16 condition because of its incision.

17 So, in a sense, the basin is going to be short

18 bottomlands. This is an opportunity to restore those.

19 Again, the second part of my answer is the restoration

20 of Mill Creek Bottomlands is really a part of the rewatering

21 of Mill Creek. The bigger purpose probably -- well, I would

22 leave that to the waterfowl experts, is the whole system of

23 hypopycnal layer and the lake and flooding the rias and

24 creating hypopycnal embayments there, and the delta area and

25 the bottomlands, all in combination.


01 MS. SCOONOVER: Is the vegetation along Lower Lee

02 Vining and Lower Rush Creek similar to what you would expect

03 the vegetation to look like along Rush --

04 DR. JACOBS: In the historic conditions, and it is

05 recovering now. I also listened to the testimony and I have

06 also seen it is in recovering condition of willows and

07 cottonwoods, as well. And there I have said it, that the

08 cottonwoods are coming in on those creeks as well. They

09 were there before. They are coming back.

10 MS. SCOONOVER: It is your belief that we would not

11 have to reseed cottonwoods along Mill Creek if it were to be

12 rewatered?

13 DR. JACOBS: As I said, they are there now.

14 MS. BELLOMO: I would object. I think we are getting

15 -- kind of biding my time. I think we are getting beyond

16 the scope of my cross-examination now.

17 MS. SCOONOVER: Chairman Caffrey, there was a

18 significant amount of questioning from Ms. Bellomo of Dr.

19 Jacobs concerning cottonwoods and why cottonwoods would be

20 would be restored along Mill Creek, as well as discussions

21 about Rush and Lee Vining comparisons. I am almost

22 finished.

23 CHAIRMAN CAFFREY: Mr. Frink. I just I wanted to check

24 my understanding of the situation with Mr. Frink before I

25 ruled on Ms. Bellomo's objection.


01 There is no limitation on redirect. There is

02 limitation on recross. We would like -- we prefer,

03 obviously, that redirect stay reasonably on the subject, the

04 limitation comes in the recross. Recross has to be limited

05 to what was discussed in redirect. At least that is the

06 procedure we have always followed here.

07 Thank you for bringing that question to our attention.

08 It required me to do a little thinking. Thank you, Ms.

09 Bellomo.

10 MS. BELLOMO: Could I make sure I understand, so I

11 don't make improper objections?

12 Redirect, there is no limit on the scope of redirect?

13 CHAIRMAN CAFFREY: It has to be reasonably on the

14 subject area. It does not have to be specifically confined

15 to what was brought out in the cross-examination.

16 MS. BELLOMO: Thank you.

17 MS. SCOONOVER: Dr. Jacobs, one more. I promise.

18 You also stated, in response to a question from Ms.

19 Bellomo, you have revisited Mono Basin in 1997 on your way

20 home from a field trip to Owens Valley.

21 Do you recall that?

22 DR. JACOBS: Yes.

23 MS. SCOONOVER: Did your observations on that day

24 confirm your previous conclusions, or did it raise any

25 concerns in your mind about your previous conclusions?


01 DR. JACOBS: No. I was happy that I was -- I was very

02 happy with my conclusions. I stopped at a number of

03 overlook places. As I said, I had binoculars and a

04 telephoto lens, took some more pictures, was able to view

05 while my state car was overheating, while cooling off, I had

06 some time.

07 MS. SCOONOVER: Thank you, Dr. Jacobs.

08 Dr. Barry, I wonder if you might elaborate more on your

09 experience in the Mono Basin. I believed you began to

10 discuss some experiences on the Dana Plateau with Ms.

11 Bellomo. I don't think you were finished with your

12 explanation of your local experience.

13 DR. BARRY: No. I worked in the Mono Basin on several

14 projects in the 1980s. 1983, Dr. John DeMartini and I dove

15 in the lake and took photographs to document the formation

16 of tufas. And at this -- these slides that we did take have

17 been used for a number of years for interpretation at the

18 visitors center.

19 In 1984, I spent some time out at Simons Springs where

20 I established permanent vegetation plots in the wetlands and

21 the wet meadow areas around Simon Springs. These plots are

22 read periodically.

23 I looked at species composition in the spring, and I

24 looked at the biomass accumulation in the fall. So, each

25 year since 1994, with some exceptions, I have gone out and


01 monitored these permanent plots to assess ecological changes

02 in the wetlands.

03 My experience beyond that has been starting with the

04 TAG groups, I believe in 1995. And I was involved in both

05 wetlands and the stream Technical Advisory Groups

06 established by L.A. Water and Power. At that period of

07 time, there was a lot of open discussion of waterfowl

08 habitat requirements at Mono Lake and how we can restore

09 these areas, which has come to the report that we have

10 finally ended up with.

11 And I must say, it's always been an open forum, that

12 all who were interested could attend those technical

13 advisory groups.

14 MS. SCOONOVER: Thank you, Dr. Barry.

15 Can you explain to me why you did not review the Soils

16 Conservation Service maps of this area?

17 DR. BARRY: Well, the Soils Conservation Maps are

18 normally mapped 1- to 40-acre scale. That scale is much top

19 gross for the kind of work we were doing, site specific

20 work. So the normal procedure that I find when I am looking

21 at soils anywhere is to go out and look at the profile and

22 try and determine what kind of community these soils were

23 formed under. That is our normal, standard procedure toward

24 ecosystem management in the state park system, is to

25 determine what ecosystems were natural at a particular


01 site.

02 MS. SCOONOVER: I would like to talk a little bit now

03 about the observations on Thompson Ranch. Ms. Bellomo

04 talked to you a little about that.

05 You stated both in your written testimony and response

06 to questions from Ms. Bellomo that you believed the water

07 table on Thompson Ranch was very high. Can you explain to

08 me how you reached this conclusion?

09 DR. BARRY: Well, the permanent water table of an area,

10 that is, such as meadows and wetlands and so forth, there is

11 a layer formed, called a gley layer, which is reducing.

12 Below that layer you get an oxygen deficient area, an

13 anaerobic area. Above that set layer is normal oxygen and

14 not essentially under water all the time, as in

15 groundwater.

16 So by looking at the gley layer, the depth of the gley

17 layer, you can pretty well tell what kind of community would

18 be in a particular area for thousands of years,

19 essentially. It takes a long, long period of time for these

20 layers to form. So, it is really a tracer of the water

21 table. So you can, with this layer you can tell where the

22 permanent water table is. Then by looking at some iron

23 conglomerates above that, you can determine what the

24 seasonal water table is also.

25 This iron modeling is pretty characteristic of metal


01 soils or gley. So, when I looked at these, I looked at the

02 depth of that layer to try to determine whether this was a

03 permanent meadow or whether it was a caused by

04 irrigation. And both parts of Thompson Ranch that I looked

05 at were certainly permanent, had a permanent high water

06 table, and irrigation had essentially shifted what would

07 have been a dry meadow to a mesic and a mesic meadow to a

08 wet meadow. And that shifts the species composition.

09 So, when you look at the species composition of these

10 meadows, you can pretty well tell how much water is there by

11 what the species are, Juncus and Carex for example, or wet

12 meadows species, and Poa and Deschampsia are mesic meadow

13 species. And then you go into more dry acres, you get Elena

14 [phon] and other native growth.

15 MS. SCOONOVER: I believe in response to a question

16 that Ms. Bellomo asked you noted that you had actually

17 observed water running across the road down towards the

18 County Park.

19 Do you recall that question and answer?

20 DR. BARRY: Yes, I do.

21 MS. SCOONOVER: Is that your opinion, that the water

22 that is running across the road was from irrigation?

23 DR. BARRY: I'd like to clarify that. I was told that

24 water runs across the road. I did not observe, actually.

25 And, obviously, yes, it was because of irrigation. It's the


01 ditch irrigation of very inefficient means of irrigation

02 there. Essentially, you open a portion of the ditch up and

03 let the water surface flow. If the ditch tenderer isn't

04 around, you get a lot more water maybe than if he is around

05 doing his job, I guess.

06 As a child, I did this, and it didn't seem very

07 logical to me to always have to be at a given place at a

08 given time to change the water.

09 Since that time, I have been at a number of irrigation

10 systems, design and supervised installation, both

11 commercial, recreational, and ranch facilities, including my

12 own, trying to use irrigation water more efficiently. By,

13 in my case, going from aluminum pipe, high volume sprinklers

14 to PVC plastic varied, low volume sprinklers, more efficient

15 ways to utilize water.

16 MS. SCOONOVER: Is the high water application on

17 Thompson Ranch necessary in order to retain the green

18 appearance of the ranch?

19 DR. BARRY: No, it's really not. Around the periphery

20 of the meadows that were probably at one time under

21 sagebrush, then, yes, you would need to have supplemental

22 irrigation in the peripheries, but essentially not wet

23 meadows system. A much more efficient irrigation system

24 could be installed there.

25 MS. SCOONOVER: With a more efficient irrigation


01 system, I assume that means less water would be necessary to

02 be applied?

03 DR. BARRY: Yes.

04 MS. SCOONOVER: How much less water? Do you have an

05 estimate?

06 DR. BARRY: I can only go on what figures that Dr.

07 Vorster and Dr. Stine. My -- Dr. Vorster's

08 evapotranspiration data indicates that about 380 acre-feet

09 for Thompson Ranch would be adequate.

10 Evapotranspiration takes in both groundwater and

11 irrigation water. A portion of that would be, essentially,

12 groundwater, so I would think that less than that would be

13 possible at the Thompson Ranch. This would be fairly easily

14 designed. It would take some looking at the soils and so

15 forth, but I think an irrigation system could be designed

16 that would be much, much more efficient than current.

17 CHAIRMAN CAFFREY: Let me interrupt there, assuming

18 that is the end of that question. We are tending to run on

19 a bit on our answers. We are all here to be as concise as

20 possible. I don't want to stifle you either, Ms. Scoonover.

21 You indicated that you would be just a few minutes or

22 something to that effect. Maybe not that --

23 MS. SCOONOVER: Brief.

24 CHAIRMAN CAFFREY: You have been at it 25. Perhaps I

25 should have asked you more precisely how much time you need.


01 How much more time do you think you need?

02 MS. SCOONOVER: Just a few more questions for Dr. Barry

03 and a couple for Dr. Stine.

04 CHAIRMAN CAFFREY: That would be five more minutes?

05 Half an hour? I do intend to offer the same amount of time

06 to anybody else wishing to recross, hopefully.

07 Proceed.

08 MS. SCOONOVER: Dr. Barry, there was some discussion

09 earlier about archeological assessments of the Conway Ranch

10 and of the other State Parks' procedures or policies. Can

11 you explain to me, or perhaps briefly clarify, the

12 distinction between prehistoric and historic archeological

13 or cultural patterns?

14 DR. BARRY: Well, essentially, the archeological sites

15 that I mentioned are just that. They are indigenous people

16 sites. And historical sites are, essentially, handled a bit

17 differently. If you need to -- if there is a project in a

18 historically significant area, then the Office of State

19 Historic Preservation must be contacted, and they will

20 determine if there is an impact of your project on that

21 site.

22 I frankly don't see an impact of wetland restoration

23 being, certainly not removing buildings or anything.

24 MS. SCOONOVER: Finally, Dr. Barry, why aren't you

25 surprised that a tree with shallow roots could survive


01 upright for 60 to a hundred years?

02 DR. BARRY: I was trying to point out that with this

03 gley layer and so forth, you get shallow root systems and

04 with that, essentially, these shallow root systems are

05 subject to windfall. It is not surprising that it lasts a

06 hundred years or whatever.

07 Trees in the -- trees often last a thousand years on

08 the summits of mountains without blowing over. That is

09 because they have deep root systems, not shallow roots.

10 MS. SCOONOVER: Again, the shallow root system is an

11 indication of?

12 DR. BARRY: High water table.

13 MS. SCOONOVER: Thank you.

14 Dr. Stine, I want to ask a couple brief questions about

15 your expertise, specifically with respect to this ongoing

16 Mono Basin water rights process. Can you explain to me, Dr.

17 Stine, how many of the technical appendices to the EIR that

18 was prepared by the State Water Resources Control Board and

19 the Department of Water and Power you participated in

20 preparing?

21 DR. STINE: I was the sole author on either five or six

22 of the auxiliary reports.

23 MS. SCOONOVER: Can you briefly describe the range of

24 subject areas?

25 DR. STINE: One of them was on historical assessment of


01 the riparian vegetation along the stream system in the Mono

02 Basin. That was auxiliary report number one. I don't

03 remember the numbers of the other ones. Another one was on

04 tufa tower toppling on the Mono Basin, and I think there was

05 some visual things in that one as well.

06 The third one was on the growth and shrinkage and

07 peninsularization of islands and islets in Mono Lake with

08 lake level fluctuations. A fourth was on the shore land

09 vegetation.

10 MS. SCOONOVER: Thank you; that is fine, Dr.

11 Stine.

12 Would you say that all of these reports, all the

13 subject matters of these reports are clearly within your

14 area of expertise?

15 DR. STINE: Yes, they are.

16 MS. SCOONOVER: Did you respond to questions during the

17 previous hearing before the Water Board on waterfowl habitat

18 restoration?

19 DR. STINE: The previous hearing being back in 1993?

20 MS. SCOONOVER: That's correct.

21 DR. STINE: Yes, I did.

22 MS. SCOONOVER: Were those discussions with Hugh Smith

23 of the State Water Board staff?

24 DR. STINE: In part, Hugh Smith was one of the people

25 asking questions.


01 MS. SCOONOVER: To the best of your knowledge, were

02 those conversations recorded and made part of the

03 transcripts and, therefore, part of the official records of

04 the State Water Board records?

05 DR. STINE: Yes, they were.

06 MS. SCOONOVER: I would like to ask a couple questions

07 about the Wilson Creek marsh lands that was raised by Mr.

08 Canaday.

09 Can you explain to me why allowing water to continue

10 running down Wilson Creek would not sustain the marshland at

11 the mouth of Wilson Creek? That is seems counterintuitive.

12 DR. STINE: It does seem counterintuitive. Here is the

13 predicament. The marshland at the mouth of Wilson Creek is

14 ancient. It's been there for a long, long time. It has

15 been underneath the lake from time to time, but that is an

16 area of marshland down there. We know that on the basis of

17 looking at the soils that are there, some of the same

18 evidence that Dr. Barry was referring to a few seconds ago.

19 Also, tufa towers we know formed at the sites of springs.

20 And those tufa towers down there, I have been able to date

21 at about 900 years old because they have 900-year-old wood

22 in them. So, it has been an area of high spring flow for a

23 long, long time, 900 years plus.

24 Thirdly, in 1857, when Von Schmidt, Alexus Valadimire

25 Von Schmidt first surveyed the basin, he produced a plat


01 that shows the very springs that are there today in that

02 site. That was 1857, and that was before any water had been

03 diverted over to Wilson Creek.

04 In other words, the marshland there at the mouth of

05 present day Wilson Creek is natural. What has happened in

06 the intervening century and a half here is that water has

07 been diverted from Mill Creek into Wilson Creek and Wilson

08 Creek now flows down to that marshland, that previously

09 existing marshland. In the process of flowing down there,

10 it has done a huge amount of erosion, and the sediment that

11 has been excavated and transported in the course of that

12 erosion has been dumped on top of the marsh. So roughly

13 half, maybe a little bit more than half of the marsh that

14 would be down there today under natural conditions, is now

15 under sediment that is much too coarse and much too thick to

16 support marsh. In other words, Wilson Creek doesn't support

17 the marshland down there. Wilson Creek is destroying that

18 marshland down there.

19 Does that answer the question 'cause I kind of forget

20 what the question was?

21 MS. SCOONOVER: I believe so.

22 Is there an exhibit in your testimony that would show

23 this damage to the marshland?

24 DR. STINE: Yes. Exhibit R-SLC/DPR-405, which is, I

25 think, probably the first of the photographs that are shown


01 in that packet of mine, is an aerial oblique photograph of

02 the mouths of the Mill Creek, which is off to the left

03 there, and Wilson Creek, which was in the center of the

04 photograph.

05 You can see, concentrating on Wilson Creek right in

06 through here, we can see off to both the right and to the

07 left; that is, to the east in and to the west of the Wilson

08 Creek mouth. The green area in here, that is the naturally

09 existing marshland. You can also see the white sort of

10 splay deposits that have been laid down overlying that

11 marsh. That is the sediment that is today covering up that

12 marsh, in some cases to a thickness of four, five, even six

13 feet deep.

14 MS. SCOONOVER: Thank you, Dr. Stine.

15 That is all I have.

16 CHAIRMAN CAFFREY: Thank you, Ms. Scoonover.

17 That was about 35 minutes.

18 Ms. Bellomo, do you wish to recross?

19 MR. BIRMINGHAM: Mr. Caffrey, in one of the earlier

20 notices that the Board sent out after we had recessed in

21 order to give the parties an opportunity to reach a

22 settlement, the Board noted that if the hearings were to

23 resume we would not spend a lot of time covering information

24 which is in the written testimony of the witnesses.

25 CHAIRMAN CAFFREY: That is correct.


01 MR. BIRMINGHAM: Significant portions of the testimony

02 that were elicited by the redirect of Ms. Scoonover was

03 simply a restatement of the written testimony that had been

04 submitted. And I would like to ask the Board to reaffirm or

05 reiterate that we don't need to take time simply restating

06 what is in the written record.

07 CHAIRMAN CAFFREY: Well, Mr. Birmingham, I do very much

08 appreciate your concern. It's one that I share. Perhaps, I

09 can answer the issue in this fashion: that this is a full

10 time Board. We read everything. What you say in direct

11 only gets separate weight if it is anything different than

12 what is in the submitted exhibits.

13 I will stipulate to that right now on behalf of myself

14 and every Board member here. I do very much want to foster

15 and encourage the spirit in which those three memos were

16 sent and signed by this Hearing Officer and Chair, and I

17 would like very much for us to be able to move with all

18 possible dispatch. I was reluctant and reticent at first to

19 limit people, because I am concerned about the basic right

20 of being able to stand up and ask or an exception. I must

21 admit without that without any criticism of Ms. Scoonover,

22 her definition of a few short questions might be different

23 than mine. It turned out to be 35 minutes. Again, that is

24 not a criticism because you get into these things and

25 sometimes they take a little bit longer.


01 Another part of this to please ask the witnesses to be,

02 I am talking directly to the witnesses now, please be very,

03 very concise. We don't want dissertations in your answers.

04 If you can say yes or no, that is perfect. If you have to

05 go a little beyond that, okay. But we don't need the

06 repetition and the dissertations.

07 Ms. Bellomo, while I feel you have a right to 35

08 minutes, could you get by with less?

09 MS. BELLOMO: I only have two questions.

10 CHAIRMAN CAFFREY: That is wonderful. Thank you very

11 much.




15 MS. BELLOMO: Dr. Barry, you had indicated that you had

16 heard about irrigation water flowing off Thompson Ranch,

17 across the County Road, correct?

18 DR. BARRY: Yes.

19 MS. BELLOMO: I want to ask you: Are you aware that

20 last summer the sheep herders dug a ditch parallel to the

21 County Road to prevent that water from crossing the road in

22 the future?

23 DR. BARRY: I have seen the ditch.

24 MS. BELLOMO: You are aware of that.

25 DR. BARRY: Yes.


01 MS. BELLOMO: I just want to understand your proposal

02 here. Are you proposing that while the State Reserves

03 should remain in a natural condition that at Thompson Ranch

04 pipes and sprinklers should be installed in the part of the

05 scenic area?

06 DR. BARRY: I am saying that this is a more efficient

07 way of irrigating.

08 MS. BELLOMO: Are you suggesting that that should be

09 done?

10 DR. BARRY: I think that should be an option that

11 should be investigated. I am not saying that is the only

12 answer.

13 MS. BELLOMO: In your mind is there any

14 incompatibility between having pipes and sprinkler systems

15 in what is attempting to be a very natural scenic area?

16 DR. BARRY: Well, County Park has irrigation

17 installed, and I haven't noticed it detracts from the scene

18 there.

19 MS. BELLOMO: What size would you say there is of

20 sprinkled grass?

21 DR. BARRY: I don't know.

22 MS. BELLOMO: Very small, isn't it?

23 DR. BARRY: Could be.

24 MS. BELLOMO: Thank you. No further questions.

25 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo.


01 Reminding ourselves of the spirit of the memos and the

02 wonderful goodwill and euphoria that permeates this meeting,

03 is there anybody else wishing to recross?

04 Hearing and seeing none, I think we have now reached the

05 point where we ask staff, again, if they have any clarifying

06 questions.

07 Anything clarifying from the staff?

08 MR. CANADAY: No, sir.

09 CHAIRMAN CAFFREY: Thank you, gentlemen of the staff.

10 Anything from the Board Members?

11 Ms. Scoonover, do you wish to offer your exhibits, all

12 of your exhibits, I should add, into the record?

13 MS. SCOONOVER: I do, Mr. Caffrey. Would staff prefer

14 that we read through the list. The exhibits are as they

15 were noted in our original testimony submitted to the Board.

16 So, if you don't need me to read the list, I just as soon

17 not.

18 MR. JOHNS: We have seven pages.

19 MS. SCOONOVER: Yes, we do. I would offer the State

20 Lands Commission and Department of Parks and Recreation's

21 exhibits as identified in our submittal to the Board for

22 acceptance into the record.

23 CHAIRMAN CAFFREY: We thank Mr. Johns for not insisting

24 that you not read them all.

25 Is there any objection to accepting all of those


01 exhibits into record?

02 Hearing and seeing none, they are so accepted.

03 Thank you very much, and thank you to the panel.

04 Appreciate your taking the time to be here, to provide us

05 and the cross-examining parties with the information they

06 required.

07 That will then take us to the witnesses to be presented

08 -- I should say the witness to be presented by the

09 Department of Fish and Game for cross-examination.

10 Are you ready with your witness, Ms. Cahill?

11 MS. CAHILL: Yes, we are. Thank you.

12 MS. BELLOMO: Excuse me, Mr. Caffrey, I am the only one

13 doing cross-examination; I wonder if we could take a

14 five-minute break.

15 CHAIRMAN CAFFREY: We most certainly can, may, and

16 will.

17 MS. BELLOMO: Thank you.

18 CHAIRMAN CAFFREY: Five-minute break.

19 (Break taken.)

20 CHAIRMAN CAFFREY: We shall resume the hearing, and

21 good afternoon again, Ms. Cahill.

22 MS. CAHILL: Good afternoon.

23 The Department of Fish and Game calls Ronald Thomas.

24 ---oOo---

25 //





04 MS. CAHILL: Mr. Thomas, would you state your name for

05 the record, please?

06 MR. THOMAS: Ronald Thomas.

07 MS. CAHILL: Are you familiar with the Exhibit R-DFG-4?

08 Is that a true statement of your qualifications?

09 MR. THOMAS: Yes, it is, but I would like to add two

10 points I didn't include there. My participation in the

11 Intermountain West Joint Venture, which is attempting to

12 implement the North American Waterfowl Plan. I think that

13 is pertinent recent experience. I also had a helicopter

14 survey flight of Mono Lake in March of this year that I

15 would like to add.

16 MS. CAHILL: With regard to the exhibit that is marked

17 R-DFG-3, is that your testimony?

18 MR. THOMAS: Yes, it is.

19 MS. CAHILL: Do you believe that that testimony is

20 still accurate?

21 MR. THOMAS: Yes, it is, but I would like to make one

22 minor change on Page 3.

23 CHAIRMAN CAFFREY: Mr. Thomas, excuse me for

24 interrupting you. Could you draw that mike a little closer?

25 We are having a little trouble picking you up.


01 Please go on. Thank you, sir.

02 MR. THOMAS: It was on Page 3 at Point 10. I would

03 like to remove that last sentence.

04 MS. CAHILL: That is the sentence that reads: "The

05 development of the ponds should not be dependent on surface

06 water from Mill or Wilson Creek"?

07 MR. THOMAS: That is correct. I would like to strike

08 that sentence.

09 MS. CAHILL: We are ready for cross-examination.

10 CHAIRMAN CAFFREY: Thank you very much, Ms. Cahill.

11 Ms. Bellomo, do you wish to cross-examine?




15 MS. BELLOMO: Good afternoon, Mr. Thomas.

16 MR. THOMAS: Good after, Ms. Bellomo.

17 MS. BELLOMO: What is you current job with Department

18 of Fish and Game?

19 MR. THOMAS: My title is Associate Wildlife Biologist,

20 and I am assigned to what we call the Mono County Wildlife

21 Unit. That is a geographical area that I am assigned to.

22 MS. BELLOMO: Are you the witness offered by the

23 Department of Fish and Game in this proceeding regarding

24 waterfowl restoration in the Mono Basin?

25 MR. THOMAS: Yes, I am.


01 MS. BELLOMO: For that purpose -- because of that, I

02 would like to explore with you, briefly, your experience

03 with waterfowl and waterfowl habitat. And, again, let's do

04 this briefly.

05 Turning to your resume that is part of your testimony,

06 that is Exhibit R-DFG-4, between 1970 and 1978, was any of

07 the work that you itemized here related to waterfowl?

08 MR. THOMAS: I am not sure that I am on the same

09 edition of my resume that you have. But, yes, during that

10 period of time I was in the Southern San Joaquin Valley and

11 had extensive experience with waterfowl.

12 MS. BELLOMO: I noted that, I believe, did wetland

13 evaluation; is that correct?

14 MR. THOMAS: Among other things.

15 MS. BELLOMO: You indicate that you did work related to

16 petroleum, effective petroleum habitat I assume?

17 MR. THOMAS: Very briefly, there was a major pollution

18 problem resulting in the loss of a lot of water birds at

19 that time, and that was one of the major focuses of the job

20 at that time.

21 MS. BELLOMO: Did this cause you to study ducks and

22 their habits and movements?

23 MR. THOMAS: Yes.

24 MS. BELLOMO: Between January 1978 and 1981, did your

25 work as the management unit wildlife biologist in Tulare and


01 Kings County involve any work with waterfowl?

02 MR. THOMAS: Yes, it did, probably more so than the

03 previous job.

04 MS. BELLOMO: Did you do any consulting, as a

05 Department of Fish and Game employee, on duck operations?

06 MR. THOMAS: I provided information on habitat work and

07 improvement to various private duck clubs, as well as some

08 efforts on the federal wildlife areas, yes.

09 MS. BELLOMO: Did you do any work with irrigation

10 districts regarding waterfowl?

11 MR. THOMAS: To a more limited extent, but yes.

12 MS. BELLOMO: From 1981 to the present, I understand

13 from people in Mono county you have been involved in doing

14 aerial survey work. Can you tell us what that work

15 consisted of?

16 MR. THOMAS: The focus of our helicopter surveys has

17 always been deer counts. But we also look at other things

18 when we are in the air. And I always would make an effort

19 to take a look of waterfowl, at least on Bridgeport and

20 often on Mono, as well.

21 MS. BELLOMO: That includes ducks?

22 MR. THOMAS: Yes.

23 MS. BELLOMO: When you refer on Page 3 of your resume

24 to habitat project conception and implementation, has that

25 related to waterfowl?


01 MR. THOMAS: Yes. Wetlands in general, I would say,

02 would be the accurate way to put that.

03 MS. BELLOMO: You also mention, I think, in here

04 somewhere about -- I know you mentioned it during your

05 direct examination -- about working on joint ventures. Can

06 you explain what the nature of your work on that has been

07 with North American Waterfowl Management Plan?

08 MR. THOMAS: The joint venture is a group of different

09 agencies and private individuals put together to formulate,

10 and hopefully execute, waterfowl wetland projects to improve

11 habitat conditions.

12 MS. BELLOMO: Have you been involved -- well, actually

13 I see you have here in your resume you have been involved in

14 waterfowl nesting surveys. Have those been in the Mono

15 Basin?

16 MR. THOMAS: No. Crowley.

17 MS. BELLOMO: For what kind of birds?

18 MR. THOMAS: Ducks. It was mostly mallards and

19 gadwalls, but some teals, as well.

20 MS. BELLOMO: I understand from Roger Porter, our local

21 scenic area manager, that you were part of the most recent

22 survey flight with the Forest Service on March 17 in 1997;

23 is that correct?

24 MR. THOMAS: Yeah. I think I added that to my resume.

25 MS. BELLOMO: While you were doing that aerial work,


01 did you have an opportunity to look at the Mill and Wilson

02 drainages?

03 MR. THOMAS: Yes.

04 MS. BELLOMO: As part of your job, do you do annual

05 flyovers of Mono Lake?

06 MR. THOMAS: I won't say annual, but it's on an

07 opportunity basis. Most years we take a quick look at Mono

08 because it is on the way.

09 MS. BELLOMO: How long have you worked in Mono County?

10 MR. THOMAS: Almost 18 years.

11 MS. BELLOMO: Have you had on-the-ground observation

12 experience of waterfowl at Mono Lake?

13 MR. THOMAS: Yes.

14 MS. BELLOMO: Have you talked over the years, in your

15 capacity as the local Fish and Game biologist, have you

16 talked over the years with local people about waterfowl on

17 Mono Lake?

18 MR. THOMAS: Yes.

19 MS. BELLOMO: Have you had occasion to talk to duck

20 hunters?

21 MR. THOMAS: Yes.

22 MS. BELLOMO: In the local community?

23 MR. THOMAS: Yes.

24 MS. BELLOMO: As the local field biologist for the

25 Department of Fish and Game, do you know how the local


01 community feels about the proposal to rewater Mill Creek to

02 create waterfowl habitat restoration?

03 MR. BIRMINGHAM: Objection. Relevance.

04 CHAIRMAN CAFFREY: I didn't hear the objection, sorry.

05 MR. BIRMINGHAM: Relevance.

06 CHAIRMAN CAFFREY: Would you ask the question again.

07 MS. BELLOMO: My question was: As the local field

08 biologist for Fish and Game, does he know how the local

09 community feels about the proposal to rewater Mill Creek for

10 waterfowl habitat restoration? I think it is relevant

11 because he is making a recommendation to the Board, and, if

12 he knows, I think he should be telling you what his

13 perceptions are, as the local field biologist.

14 MS. CAHILL: I don't believe that his testimony in any

15 way --

16 CHAIRMAN CAFFREY: I would sustain the objection.

17 MS. BELLOMO: Do you think it relevant, Mr. Thomas,

18 what the local community, the local hunting community, feels

19 about the waterfowl habitat restoration?

20 MR. BIRMINGHAM: Objection.

21 MS. CAHILL: She is asking the witness for a legal

22 conclusion.


24 MS. BELLOMO: I am asking is it relevant for him in

25 forming his opinion, which, no doubt, he shared with the


01 Department of Fish and Game. I need to know; he is the

02 biologist. Does he, when he tells Fish and Game what he

03 thinks they should, does he tell them what the community

04 tells him, or does he think it is not relevant and did he

05 convey that to the higher-ups?

06 MS. CAHILL: She can ask him if he did consider local

07 viewpoint in formulating his testimony.

08 CHAIRMAN CAFFREY: Sounds like --

09 MS. BELLOMO: I am happy to do it that way.

10 CHAIRMAN CAFFREY: Why don't you do it that way.

11 MS. BELLOMO: Did you consider local viewpoints on

12 waterfowl habitat restoration measures in making your

13 recommendation to Fish and Game management?

14 MR. THOMAS: I recently informed my supervisor of my

15 impressions and knowledge regarding that and other subjects,

16 concerning this process in general.

17 MS. CAHILL: I object. The question here is not what

18 Mr. Thomas has recommended to Fish and Game management, but

19 what his testimony is in this hearing.

20 CHAIRMAN CAFFREY: I think that is more of an

21 instruction to the witness than it is to the questionnaire.

22 MS. BELLOMO: I can get at this in another way. I will

23 just proceed, Chairman Caffrey.

24 MR. FRINK: I wonder if I can comment.



01 MR. FRINK: I think some of the problem here may be Mr.

02 Thomas is appearing as witness under cross-examination. I

03 know Ms. Bellomo also subpoenaed him.

04 Is that correct?

05 MS. BELLOMO: Yes.

06 MR. FRINK: He could answer just the question now that

07 he would normally answer under cross-examination, or he

08 could answer those questions as well as the questions that

09 Ms. Bellomo wanted to ask on rebuttal if the parties

10 stipulate. If we try and have a clear break, then he would

11 have to come back. If the parties are in agreement, that

12 maybe she could go beyond the normal scope of

13 cross-examination, and he might only have to appear a single

14 time.

15 That is a little bit of the dilemma we face.

16 CHAIRMAN CAFFREY: Can you determine what the scope of

17 rebuttal might likely be at this point in time, that we

18 haven't heard other items yet that are going to be brought

19 before, another item that is going to be brought before this

20 Board. That could be a problem.

21 MS. BELLOMO: I am happy to do it as rebuttal. We

22 subpoenaed Mr. Thomas. We paid our 150 fees, so we

23 certainly can call him back as a rebuttal witness.

24 CHAIRMAN CAFFREY: All right. Let's proceed in that

25 fashion then.


01 MS. BELLOMO: On Page 47 -- well, let me back up.

02 Do you have with you a copy of the Mono Basin Waterfowl

03 Habitat Restoration Plan prepared by the Los Angeles

04 Department of Water and Power?

05 MR. THOMAS: Yes.

06 MS. BELLOMO: Can I ask you to turn to Page 47 of the

07 report of the three waterfowl scientists? Can I ask you --

08 for clarification in the future during my questioning, when

09 I refer to the three waterfowl habitat scientists or the

10 three waterfowl scientists, will you understand my question

11 as referring or my reference as referring to Drs. Drewien,

12 Reid, and Ratcliff as being the three waterfowl scientists?

13 MR. THOMAS: Yes.

14 MS. BELLOMO: Turning to Page 47 of the three waterfowl

15 scientists' report, on the last line, they say, "Testimony

16 by several waterfowl experts (P. Beedy, Jones and Stokes, R.

17 Thomas, et cetera) pointed out that," and then they go on.

18 Are you the R. Thomas that they refer to as being the

19 waterfowl expert that they are referencing here?

20 MR. THOMAS: Yes.

21 MS. BELLOMO: I note that they state that they

22 concurred with the opinion of you and several others, and

23 I'm reading here, that the current waterfowl use is severely

24 restricted by minimal acreage of fresh and brackish open

25 water wetlands and the decline in the quantity and quality


01 of hypopycnal environment.

02 You see where I am reading?

03 MR. THOMAS: I am with you on the page. I didn't get

04 the question.

05 MS. BELLOMO: My question is: They say that their

06 assessment -- sorry, that was poorly worded. The waterfowl

07 report states on Page 48, "Our assessment of Mono Lake

08 wetlands habitat concurs with their testimony in that

09 current waterfowl use is severely restricted by the minimal

10 acreage of fresh and brackish open water wetlands and the

11 decline in the quantity and quality of the hypopycnal

12 environment."

13 My question is: Does that accurately reflect the

14 opinion that you shared with the three scientists?

15 MR. THOMAS: Yes.

16 MS. BELLOMO: Turning to your testimony at Page 3, you

17 state, "It is my opinion that restoration measures relying

18 solely on natural process are unlikely to restore lost

19 waterfowl habitat capability."

20 What do you mean by natural processes?

21 MR. THOMAS: Probably the best way I would define that,

22 at least in my terms, would be letting nature take its

23 course.

24 MS. BELLOMO: As contrasted -- maybe it would help if

25 you give an example of what restoration measure would be


01 that doesn't rely solely on natural processes.

02 MR. THOMAS: Could be any form of human intervention,

03 from something very minimal with a shovel, to something very

04 extreme as in wildlife areas, anything that would involve

05 human intervention.

06 MS. BELLOMO: In your opinion, then, using that

07 definition that you have given us, does rewatering Mill

08 Creek as a restoration project fall into the category of

09 relying solely on natural processes?

10 MR. THOMAS: Rewatering of Mill Creek is an example of

11 restoring a natural process, I believe. But that, in and of

12 itself, is not solely a natural process because there are

13 other options as well.

14 MS. BELLOMO: Are you saying -- I am trying to

15 understand your answer. Is rewatering Mill Creek relying on

16 -- let me rephrase.

17 When you say, in your opinion, that restoration

18 measures rely solely on natural process are unlikely to

19 restore lost waterfowl, are you referring to Mill Creek in

20 that sentence, rewatering of Mill Creek?

21 MR. THOMAS: Mill Creek is one example of what I view

22 as a natural process. The rewatering of Mill Creek would

23 restore natural process, yeah.

24 MS. BELLOMO: As I noted earlier in my questioning, you

25 are one of the experts that the three waterfowl scientists


01 conferred with. My question is: Did you discuss the report

02 with any of them after it was finalized?

03 MR. THOMAS: Yes.

04 MS. BELLOMO: With which of them?

05 MR. THOMAS: Dr. Drewien has been out of the country,

06 but I have talked with both Dr. Reid and Mr. Ratcliff.

07 MS. BELLOMO: Is it your understanding that the three

08 scientists, when they prepared their February '96 report,

09 gave a preference to restoration that would be by natural

10 processes as you have defined it?

11 MR. THOMAS: No. Because I believe they provided a

12 wide range of optional restoration projects, relying on both

13 natural processes and others, as well as other projects

14 involving human intervention, as I recall it.

15 MS. BELLOMO: When it came to prioritizing the

16 projects, in terms of order of importance to be done, did

17 they give a preference to projects that would be restoration

18 by natural processes?

19 MR. THOMAS: I believe that's -- I believe the answer

20 to that is yes.

21 MS. BELLOMO: Did you talk with Dr. Reid about whether

22 the distinction between pursuing waterfowl habitat

23 restoration measures -- excuse me for a moment. I want to

24 rephrase my question here.

25 Did you discuss at any time with any of the three


01 waterfowl scientists the distinction between pursuing

02 waterfowl habitat restoration measures that rely solely on

03 natural processes versus pursuing restoration measures that

04 would be focused on bringing back the greatest number of

05 ducks?

06 MR. THOMAS: Yes.

07 MS. BELLOMO: Which of them did you talk to about this

08 distinction?

09 MR. THOMAS: I talked to all three of them on those and

10 many other subjects from the very start of the process, from

11 our first field trips throughout the process.

12 MS. BELLOMO: Did Dr. Reid at any time indicate to you

13 that it was not his personal choice to pursue restoration by

14 natural processes as the preferred alternative?

15 MR. THOMAS: I don't recall him ever having said that

16 in those words.

17 MS. BELLOMO: Did he ever tell you that there was

18 political pressure, quote-unquote, placed on the scientists

19 to take that approach?

20 MR. THOMAS: I was told that by one of the three

21 scientists, and I don't recall which one now.

22 MS. BELLOMO: Did you ever discuss that with Dr.

23 Stine?

24 MR. THOMAS: I believe we did discuss that.

25 MS. BELLOMO: What did you discuss with Dr. Stine in


01 that regard?

02 MR. THOMAS: It has been some time ago. It was a windy

03 afternoon walking the shores of Mono Lake. I don't remember

04 the exact words, but we did talk about the prioritization of

05 the projects and the history of the formulation of the duck

06 plan, our perceptions of the various projects in the plan

07 and other subjects.

08 MS. BELLOMO: Did he mention political pressure, or did

09 you mention it to him?

10 MR. BIRMINGHAM: Objection. Compound.

11 MR. THOMAS: It was discussed.

12 MS. BELLOMO: Did you at any time express your concern

13 to any of the three waterfowl scientists before they

14 prepared the report that you were uncomfortable, that

15 political pressure might be dictating the outcome of the

16 report?

17 MR. THOMAS: I discussed, in general terms, that

18 subject and others with the scientists during that process.

19 MS. BELLOMO: Would it be accurate to say that Fritz

20 Reid told you that it was the preference for waterfowl

21 habitat restoration by natural processes that made Mill

22 Creek the second most important recommendation after raising

23 the lake?

24 MR. THOMAS: Yes.

25 MS. BELLOMO: Did you discuss with him what other


01 restoration by natural processes could be pursued in the

02 Mono Basin?

03 MR. THOMAS: Would you repeat that again?

04 MS. BELLOMO: Did you talk with Fritz Reid or either of

05 the other two waterfowl scientists about, other than Mill

06 Creek, what restoration by natural processes could be

07 pursued in the Mono Basin?

08 MR. THOMAS: The answer to that would have to be, yes,

09 because we talked about, I think, I would have to say as

10 wide range of proposals which pretty much included all

11 possibilities.

12 MS. BELLOMO: What other opportunities for,

13 quote-unquote, natural processes restoration did you

14 discuss?

15 MR. THOMAS: We talked about rewatering distributary

16 channels, and, I believe, that would recreate natural

17 conditions.

18 MS. BELLOMO: In your opinion, are there any other

19 actions that could be taken for waterfowl habitat

20 restoration by natural process in the Mono Basin other than

21 Mill Creek and rewatering the distributaries that you just

22 identified?

23 MR. THOMAS: In my opinion, the burn program could be

24 termed at least mimicking natural process, because,

25 certainly, there were burns in the past. So, that would be


01 included in that broad definition.

02 MS. BELLOMO: Would you agree that restoration by

03 natural processes, as you defined it, is not necessarily the

04 method that would bring back the greatest number of ducks?

05 MR. THOMAS: That is my opinion.

06 MS. BELLOMO: When you say on Page 3, Paragraph 8 of

07 your testimony, that the amount of water DWP, that the DWP

08 plan would put in Mill Creek is inadequate to obtain desired

09 waterfowl habitat restoration -- do you see where I am

10 looking?

11 MR. THOMAS: Yes.

12 MS. BELLOMO: Are you voicing a preference for

13 rewatering Mill Creek or are you saying, if Mill Creek is

14 chosen as a restoration project, then -- if you're basically

15 going to do it, you have to do it right, and put more water

16 in than DWP is proposing?

17 MR. THOMAS: The second of those two scenarios is my

18 meaning, yes. Largely based on Dr. Stine's work, I concur

19 that to get habitat restoration, nearly natural flows would

20 probably be needed.

21 MS. BELLOMO: On Page 3, Paragraph 10, you have

22 eliminated the sentence I was going to ask you about, this

23 regarding DeChambeau and where you said the pond should not

24 be dependent upon surface water from Mill or Wilson.

25 What I want to ask you, however, is: Do you believe


01 that the DeChambeau -- let me restate that.

02 Are you -- do you have a preference for restoring

03 DeChambeau Ponds, County Ponds through the use of well water

04 or pumped water, as contrasted with surface, irrigation flow

05 water?

06 MR. THOMAS: I have no preference on that. I would add

07 that I concur with the scientists that it is an important --

08 costly waterfowl habitat.

09 MS. BELLOMO: Costly, you are relying on drilling wells

10 and pumping, is that what you mean?

11 MR. THOMAS: Projections were based on different

12 scenarios and I am just quoting the scientists' plan. I

13 forget what that was based on exactly.

14 MS. BELLOMO: In that Paragraph 10 you refer to the

15 Black Point Project, on Page 3, Paragraph 10.

16 MR. THOMAS: Yes.

17 MS. BELLOMO: What project are you referring to? What

18 is the Black Point Project you refer to?

19 MR. THOMAS: The scientists talk about putting in a

20 shallow pond there, using an apparently adequate or

21 perceived to be adequate artesian flow.

22 MS. BELLOMO: That would never be dependent on Mill or

23 Wilson Creek water, would it?

24 MR. THOMAS: Not the way it is described in the plan,

25 no. And to my knowledge it would not be, no.


01 MS. BELLOMO: In your opinion, why are the DeChambeau

02 and County Ponds important as part of the waterfowl habitat

03 restoration efforts in the basin?

04 MR. THOMAS: The reports of residents that were there

05 for years indicate that it was good duck habitat. The

06 project is already well under way. I think those would be

07 my two major reasons.

08 MS. BELLOMO: You state on Page 4, Paragraph 13, that

09 you believe that the creation of shallow, open water ponds,

10 fresh or brackish, is the most critical element of waterfowl

11 habitat.

12 Do you see where I am reading?

13 MR. THOMAS: Thirteen at the top, yes.

14 MS. BELLOMO: Is it your opinion, as you state, that

15 improvement in the quantity and quality of these shallow

16 open water habitats should be the guiding principle of

17 waterfowl habitat restoration in the basin?

18 MR. THOMAS: I agree with the scientists on that

19 point.

20 MS. BELLOMO: Please turn to Page 47 of the scientists'

21 report, the first full paragraph. They state, "Many

22 ecological changes have resulted from the declining lake

23 level. For waterfowl the losses and quantity and quality of

24 most open, fresh and brackish open water habitat were

25 especially detrimental. These habitats and the open lake


01 were previously used by up to a million waterfowl during

02 fall migration periods in the 1960s. Available evidence and

03 our own habitat surveys indicate that the losses of these

04 habitats were the primary cause for the large and

05 precipitant decline of fall waterfowl populations after the

06 mid 1960s."

07 Do you agree with that statement by the scientists?

08 MR. THOMAS: Yes, I do.

09 MS. BELLOMO: They go on to state, "The combined losses

10 of fresh and brackish open water areas greatly reduce the

11 diversity of habitat available to the various waterfowl

12 species and left mainly a hypersaline and hyperalkaline lake

13 habitat that was primarily attractive to salt tolerant

14 waterfowl species, such as the Ruddy duck and Northern

15 Shoveler."

16 Do you agree with that statement?

17 MR. THOMAS: Yes, I do.

18 MS. BELLOMO: Can you explain what is so critical about

19 having shallow, open water habitats in the basin?

20 MR. THOMAS: I believe, in general terms, that the

21 diversity of habitats is important, so that numbers and

22 variety of species have habitats that are suitable. I also

23 believe that due to the frequent and high winds in the

24 basin, that refuge habitats provided by these fresh and

25 brackish water open areas, whether lagoons or fresh water


01 ponds, is likely a critical habitat feature.

02 I believe that it may be that the migrating ducks can't

03 use the food source of Mono Lake for any length of time if

04 they don't have habitats such as that to get out of the big

05 winds that frequently blow.

06 MS. BELLOMO: I assume you are referring to the winds

07 when the lake becomes too rough for the ducks?

08 MR. THOMAS: Yes.

09 MS. BELLOMO: I would like to explore something with

10 you that confuses me, which is how do the ducks know not

11 come to the Mono Basin because there is a shortage of

12 habitat? Do they communicate among themselves? Or are they

13 flying along and they look down and they don't see what they

14 need and they keep going, or is it something else?

15 MR. THOMAS: In my opinion, and I just discussed this

16 with Dr. Reid and others, it is likely that at this point

17 now, presently, that that population of big number of birds

18 simply doesn't exist. Because over the years, without

19 appropriate habitat, that portion of the population would

20 have solely disappeared. The birds that do come, I believe,

21 likely can't stay long, for the reason I just stated. Also

22 because of the reduced diversity of habitat as stated by the

23 scientists. Various habitat needs would no longer be

24 supplied for certain species and large numbers.

25 MS. BELLOMO: You emphasized in an earlier answer the


01 importance of having refugee habitat, correct?

02 MR. THOMAS: Yes.

03 MS. BELLOMO: If a duck is flying along and it looks

04 down and the lake is very rough because it is windy, then

05 will that duck stop, in your expert opinion? Or does it

06 look down, and if it can't find refuge habitat, does it just

07 continue on and pass the basin?

08 MR. THOMAS: Most species of waterfowl are very

09 hesitant to land on very rough water. It is a hard question

10 to answer absolutely. I believe, if the lake surface has

11 very large waves, that most ducks would not land on it.

12 MS. BELLOMO: Do you believe that if they saw refuge

13 habitat that -- are you saying if they saw refuge habitat

14 then they could stop, but if the lake was too rough you

15 would expect that they wouldn't stop?

16 MR. THOMAS: That is what I believe, and I think that

17 is what makes the burn program and other projects that would

18 result in open water habitat so valuable.

19 MS. BELLOMO: I take it you are familiar with the wind

20 at Mono Lake?

21 MR. THOMAS: Yes.

22 MS. BELLOMO: How would you characterize the wind

23 there?

24 MR. BIRMINGHAM: Objection. Vague and ambiguous.

25 What period of time?


01 CHAIRMAN CAFFREY: Make your question a little more

02 specific.

03 MS. BELLOMO: Yes, I can break it down.

04 How often does the wind blow at the Mono Lake, in your

05 opinion?

06 MR. THOMAS: I don't live in the basin, so that is a

07 hard one to answer.

08 MS. BELLOMO: Do you believe that it blows frequently?

09 MR. THOMAS: Yes.

10 MS. BELLOMO: Have you experienced heavy winds?

11 MR. THOMAS: There are times when I would have liked to

12 look at the lake shore from the helicopter and didn't for

13 that reason.

14 MS. BELLOMO: When the wind blows, in your experience

15 or to your knowledge, does it sometimes blow for pretty

16 lengthy duration?

17 MR. THOMAS: Throughout the Eastern Sierra, that is

18 true.

19 MS. BELLOMO: Would you agree that that kind of wind

20 can happen, basically, at any time of year?

21 MR. THOMAS: Yes.

22 MS. BELLOMO: What happens if ducks are out on Mono

23 enjoying the lake and suddenly a big wind kicks up and it

24 becomes very rough, so it's too rough, as you said, for

25 ducks? Then what do they do?


01 MR. THOMAS: Not only at Mono Lake, but in many other

02 places I am familiar with, they get up off the big water and

03 head for shelter.

04 MS. BELLOMO: By shelter, do you mean calm water?

05 MR. THOMAS: Water that is protected or small enough to

06 be calm.

07 MS. BELLOMO: Ducks aren't likely to want to go sit in

08 the sagebrush?

09 MR. THOMAS: Not likely.

10 MS. BELLOMO: If they are at Mono Lake and they can't

11 find any sheltered water to go to, would you expect them to

12 stay on the lake in the really rough water, or would you

13 expect them to fly off and leave the basin?

14 MR. THOMAS: I would expect them to fly off and leave

15 the basin.

16 MS. BELLOMO: Is this one of the reasons you have for

17 saying that creating as part of our restoration effort

18 creating refuge habitat is critical?

19 MR. THOMAS: Yes.

20 MS. BELLOMO: The kind of refuge habitat you are

21 talking about, am I correct, that that is shallow, open

22 water ponded areas, such as the scientists refer to?

23 MR. THOMAS: Yes.

24 MS. BELLOMO: If DeChambeau Ponds were functioning as

25 they did in the past, is that a place that you would


01 consider to be refuge habitat?

02 MR. THOMAS: Yes.

03 MS. BELLOMO: Is that a place you would expect ducks to

04 go when they needed refuge habitat?

05 MR. THOMAS: Yes.

06 MS. BELLOMO: If Simon Springs were enlarged, is that a

07 place that you would consider refuge habitat?

08 MR. THOMAS: If open water areas could be created at

09 Simon Springs, I would agree it would become valuable

10 habitat.

11 MS. BELLOMO: What about at Warm Springs? Would your

12 answer be the same, that if open water habitat could be

13 created or enlarged on there, that that would become

14 valuable habitat?

15 MR. THOMAS: Yes. It should be pointed out, too, there

16 are small, open water areas at both of those locations now,

17 and they are heavily used.

18 MS. BELLOMO: In your opinion, would it be beneficial

19 to enlarge them?

20 MS. THOMAS: Yes.

21 MS. BELLOMO: Have you conducted any surveys that show

22 where ducks go to take refuge when it's windy at Mono Lake?

23 MR. THOMAS: No.

24 MS. BELLOMO: Have you, at any time, observed ducks

25 having trouble finding suitable refuge at Mono Lake when it


01 has been windy.

02 MR. THOMAS: No.

03 MS. BELLOMO: You never had any situation where you

04 observed ducks, let's say, crowding into an area of kind of

05 protected water where it was really too small for the

06 number of ducks in it?

07 MR. THOMAS: I have seen flights of ducks come off of

08 the lake and come in and landing on the available open water

09 spots at both Simons and Warm Springs. I can't say that I

10 have seen them crowded upon there. That would be a judgment

11 call or observation that I can't say that I have made.

12 MS. BELLOMO: Are you testifying that there is a

13 shortage of refuge habitat in the basin?

14 MR. THOMAS: Yes.

15 MS. BELLOMO: Could I just ask how much time I have?

16 CHAIRMAN CAFFREY: You have 30 minutes left.

17 MS. BELLOMO: Thank you.

18 I would like to explore with you the opportunity to

19 enhance as shallow open water habitats in the basin. And

20 would you agree that DeChambeau Ponds is one such area?

21 MR. THOMAS: Yes.

22 MS. BELLOMO: Would you agree that County Ponds is one

23 such area?

24 MR. THOMAS: Yes.

25 MS. BELLOMO: Would you agree that Simon Springs is one


01 such area?

02 MR. THOMAS: Yes.

03 MR. BELLOMO: Would you agree that Warm Springs is one

04 such area?

05 MR. THOMAS: Yes.

06 MS. BELLOMO: Would you agree that the creation of

07 additional ponds at Black Point is one such area?

08 MR. THOMAS: Yes.

09 MS. BELLOMO: Do you believe that rewatering of Mill

10 Creek is such an area?

11 MR. THOMAS: Based on what I have read and what I have

12 seen, especially recently from the air out there, my opinion

13 is that, although some open water would probably be

14 recreated there, I think it would be of not a great extent.

15 I want to emphasize the importance, in my opinion, is

16 not only that is open, also that it is shallow.

17 MS. BELLOMO: Thank you for that clarification.

18 Turning to Page 72 through 75 of the report of the

19 three waterfowl scientists --

20 MR. THOMAS: Page number again?

21 MS. BELLOMO: Actually, I am looking at 74 and 75.

22 Do you agree with them, that the creation of shallow,

23 fresh water ponds in lake fringing wetlands would be a cost

24 effective alternative?

25 That is top of Page 75 of their report.


01 MR. THOMAS: Yes, I agree with that.

02 MS. BELLOMO: Do you agree with their estimate that

03 approximately one acre pond could be created for about

04 $6,500?

05 MR. THOMAS: I would accept their estimate. I have no

06 personal knowledge of how valid those figures are.

07 MS. BELLOMO: Do you further agree with them where

08 they state that they recommend that the development of these

09 scrapes be reconsidered if monitoring indicates other

10 habitat development does not produce desired results?

11 MR. THOMAS: Could you do that again?

12 MS. BELLOMO: Maybe I will rephrase.

13 Do you believe that these scrapes should be done as a

14 first priority project, or do you believe, as they are

15 saying, that they should be considered if monitoring

16 indicates that other habitat development efforts haven't

17 produced the desired results?

18 MR. DODGE: Objection. Question is unintelligible.

19 CHAIRMAN CAFFREY: I am having a little trouble

20 understanding it. Could you try it again, Ms. Bellomo,

21 please?

22 MS. BELLOMO: Do you believe that scrapes should be

23 done at this time?

24 MR. THOMAS: I agree with the scientists on this point,

25 that scrapes, as they call them or other means of creating


01 shallow ponds, should be considered in the future as some

02 sort of adaptive management in response to monitoring. That

03 is what they said, and I agree with that.

04 MS. BELLOMO: On Page 72 where the scientists refer to

05 enhancements of the ponds at Diamond Springs, what is your

06 understanding of the modifications that they propose here?

07 They refer to them as minor. I would like to know what your

08 understanding of what the proposal is.

09 MR. THOMAS: I need a moment to review this.

10 These are the ponds that are existing, small and deep.

11 If you're asking me to explain their concept, is that --

12 MS. BELLOMO: In the interest of time, let me just ask

13 you this. I am going to find the right wording here.

14 Do you agree with them, that these modifications that

15 they are recommending would greatly improve the

16 attractiveness of these ponds to water birds?

17 The second to lasts --

18 MR. THOMAS: I agree. And, again, it because they are

19 deep now and they could be made larger and shallower, and

20 they could, therefore, provide more habitat of higher

21 quality, yes.

22 MS. BELLOMO: Would you characterize the modifications

23 that would be necessary, would you characterize them as

24 minor, which is what the waterfowl scientists characterize

25 them as?


01 MR. THOMAS: I would agree with the scientists on that

02 point.

03 MS. BELLOMO: How much do you estimate it could cost to

04 do that enhancement?

05 MR. THOMAS: Any estimate I would make would be

06 somewhat speculative, but I would think probably in the area

07 of a few thousand dollars for each pond.

08 MS. BELLOMO: Are you aware that there is a debate

09 that was discussed with the waterfowl scientists about the

10 interpretation of regulations governing state land as to

11 whether they would permit, those regulations would permit,

12 any enlarging of Simons Springs?

13 MR. THOMAS: The way I understand it is that the

14 current interpretation of the policies on state lands would

15 not allow that kind of project.

16 MS. BELLOMO: Are you basing that on a particular law

17 or regulation?

18 MR. THOMAS: I am intimately familiar with those

19 policies and regulations, so I can only say that is my

20 impression.

21 MS. BELLOMO: Is it your impression that that would

22 also prevent doing scrapes on state land?

23 MR. THOMAS: Yes.

24 MS. BELLOMO: So, it sounds like you are telling me

25 that, as you understand it, the state policies, as they are


01 being interpreted, would not allow any waterfowl restoration

02 work to be done on state lands; is that correct?

03 MR. DODGE: Calls for a legal conclusion.

04 MS. BELLOMO: I am asking for his understanding.

05 MR. BIRMINGHAM: I will object on the grounds of

06 materiality. His understanding about what the regulations

07 permit and don't permit is immaterial.

08 CHAIRMAN CAFFREY: I am going to sustain the

09 objection. Please proceed.

10 MS. BELLOMO: Do you believe if Mill Creek is

11 rewatered, as proposed by the State Lands Commission and

12 others, with most or all of the flow, we are going to

13 develop the kind of refuge habitat that you have testified

14 that there is a scarcity of?

15 MR. DODGE: Objection. Unintelligible.

16 CHAIRMAN CAFFREY: Could you restate the question a

17 little more succinctly, please?

18 MS. BELLOMO: What is unintelligible about that?

19 CHAIRMAN CAFFREY: I couldn't hear all, for one thing.

20 I apologize for that. Try it again.

21 MS. BELLOMO: Do you believe if Mill Creek is rewatered

22 with the kind of flows that the State Lands Commission is

23 asking for in this proceeding, that will develop the kind of

24 refuge habitat that you have testified that there is a

25 scarcity of?


01 MR. THOMAS: I agree with what I understand to be Dr.

02 Stine's testimony earlier, that it is going to be really

03 hard to know at this point. My impression is, flying the

04 drainage, both Rush and Mill, that areas of open ponds that

05 would provide that type of refuge habitat, would probably be

06 small.

07 MS. BELLOMO: Do you have any concern that the gradient

08 at Mill Creek is one of the reasons that it is not likely

09 that you would get the kind of refuge habitat that you are

10 looking for?

11 MR. THOMAS: In looking at it from the helicopter, I

12 believe that Mill Creek, the drainage is much steeper than

13 Rush; and from a waterfowl habitat perspective, I think the

14 two creeks are much different.

15 MS. BELLOMO: Have you discussed that with any of the

16 three waterfowl scientists?

17 MR. THOMAS: Yes, I have.

18 MS. BELLOMO: Can you tell me with which ones?

19 MR. THOMAS: I discussed this with Tom Ratcliff.

20 MS. BELLOMO: Did Dr. Ratcliff agree with you?

21 MR. THOMAS: Correct. Mr. Ratcliff and -- yes, he

22 did.

23 MS. BELLOMO: Did you discuss that with him after the

24 report was finalized?

25 MR. THOMAS: Yes.


01 MS. BELLOMO: Page 97 of the scientists' report, on the

02 last five lines, they refer to Dr. Stine's estimates about

03 14 acres of hypopycnal environment, 16 acres of riparian

04 wetlands, and 25 acres of riparian vegetation being

05 restored.

06 You see where I am reading?

07 MR. THOMAS: Yes.

08 MS. BELLOMO: My question is: Do you agree with Dr.

09 Stine's estimates?

10 MR. THOMAS: I have no basis to agree or disagree. I

11 would be more likely to concur with his early testimony

12 today that it would be difficult to know what these figures

13 might be. I really have no basis to know.

14 MS. BELLOMO: Let me ask you to assume hypothetically

15 that he is correct and that those numbers are correct that

16 we just read on the bottom of Page 97. In your opinion,

17 would this type of habitat be as valuable as the creation of

18 shallow, open water ponds that you have testified could be

19 created at DeChambeau, Warm Springs, Simon Springs, County

20 Ponds, and Black Point?

21 MR. THOMAS: I believe what is projected here on this

22 page could provide a small area of that beneficial type. I

23 believe if it was created in other areas we could know what

24 the results would be in terms of acreages, and I can't know

25 what will occur at Mill in terms of open water habitat.


01 MS. BELLOMO: If I understand your answer, are you

02 saying if the work was done at the ponding areas that I have

03 listed, that you would be able to know how much habitat you

04 were creating?

05 MR. THOMAS: Yes.

06 MS. BELLOMO: Maybe I am off base on this. You can

07 correct me if I am wrong. My understanding is that in

08 trying to create restored habitat, that you're looking to

09 restore an amount of habitat to support a quantity of birds

10 Boards; is that correct?

11 MR. THOMAS: My professional goal would be to make

12 efforts to get back to the numbers of birds. Certainly,

13 we'd never get back to a million. The scientists say that.

14 But if we had a million ducks, we could, to my mind, the

15 efforts could focus on quantity and quality of habitats to

16 substantially increase the capabilities to support larger

17 numbers of ducks, yes.

18 MS. BELLOMO: In your opinion, does rewatering Mill

19 Creek fit that criteria?

20 MR. THOMAS: My opinion is that the rewatering of Mill

21 Creek will recreate a natural ecosystem that will support

22 limited numbers and species of ducks.

23 MS. BELLOMO: At the current time, to your knowledge,

24 does Wilson Creek have waterfowl habitat value?

25 MR. THOMAS: I don't know of any ducks ever being in


01 the creek itself because I have only been there rarely. I

02 have never failed to see some numbers, varying numbers, of

03 ducks on the hypopycnal at the mouth of Wilson.

04 I might add that the shelter of the tufa towers there

05 probably improve the quality of that habitat by containing

06 that hypopycnal area at present.

07 MS. BELLOMO: Would you agree that if the mouth of

08 Wilson Creek is dried up, assuming hypothetically that there

09 is no flow down, all the way down to the lake, that this

10 would cause a loss of the waterfowl habitat at Wilson that

11 you just testified to?

12 MR. DODGE: Objection. The question is ambiguous as to

13 whether she means that the mouth of the Wilson is dry or she

14 means that is no continuous flow down Wilson.

15 CHAIRMAN CAFFREY: Could you clarify?

16 MS. BELLOMO: Thank you for the clarifying question.

17 My question is: If there is no continuous flow down

18 Wilson Creek to the lake, would that, in your opinion,

19 eliminate the hypopycnal habitat that you just testified to

20 at the mouth of Wilson?

21 MR. THOMAS: I can't know that. I think further study,

22 further analysis would have to be completed to know what the

23 effects would be.

24 MS. BELLOMO: Do you think there might by a hypopycnal

25 layer at the mouth of Wilson Creek, even if there is no


01 water flowing down Wilson into the lake there?

02 MR. BIRMINGHAM: I am going to object on the basis that

03 the question calls for an opinion that this witness is not

04 qualified to express.

05 MS. BELLOMO: I think all the waterfowl scientists --

06 CHAIRMAN CAFFREY: Does the witness feel he is

07 qualified to answer that question? Let me ask the witness

08 because I am not sure.

09 MS. BELLOMO: Maybe we should clarify what he thinks

10 causes a hypopycnal layer. If he doesn't know, then, fine.

11 CHAIRMAN CAFFREY: Why don't you ask him that.

12 MS. BELLOMO: Mr. Thomas, to your knowledge, what is

13 your understanding of what causes a hypopycnal layer to form

14 at the mouth of the creek?

15 MR. THOMAS: To my understanding, it is either the

16 stream flows or spring flows, which may be fed by the

17 springs. So, I'd guess I'd have to say I don't know and I

18 believe that to get a firm, objective answer to that

19 question, further analysis is needed.

20 MS. BELLOMO: The reason you don't know is that you

21 don't know if there are springs there contributing to the

22 hypopycnal layer at the mouth of --

23 MR. THOMAS: I believe there are springs contributing.

24 I don't know what the source of those springs is.

25 MS. BELLOMO: Do you support a burn program to enhance


01 waterfowl habitat?

02 MR. THOMAS: Yes, I do.

03 MS. BELLOMO: Do you believe it will be of great

04 benefit for the ducks?

05 MR. THOMAS: I believe it could be very substantial to

06 the ducks. Unfortunately, the early experiments are not

07 very encouraging yet, and I think that it may require

08 extensive effort to achieve benefits. But I think it is

09 certainly a valuable program worth pursuing.

10 MS. BELLOMO: It is not a substitute for creating

11 shallow, open water ponds, in your opinion?

12 MR. THOMAS: If it is effective, it will create

13 shallow, open water ponds. My concern is how effective it

14 might be, based on the early experimental burns.

15 MS. BELLOMO: Where will it create shallow, open water

16 ponds?

17 MR. THOMAS: Any place where the amount of surface

18 water is sufficient to grow dense vegetation, in theory at

19 least, could be opened up by burning to create those open

20 ponds. The water is already there. So, eliminating the

21 vegetation in the mosaic of open areas is the goal.

22 MS. BELLOMO: Do you have any estimates of acreage that

23 will be created?

24 MR. THOMAS: Again, there is no way to know a stated

25 goal -- no, that can't be known, as far as I believe.


01 MS. BELLOMO: On Page 4, Paragraph 14, of your

02 testimony, you criticize the Department of Water and Power

03 plan for not stating quantified goals of restoration

04 action, and you state that the monitoring program cannot be

05 meaningful because of the lack of program goals.

06 Do you see where I am looking?

07 MR. THOMAS: Yes.

08 MS. BELLOMO: Do you agree that whatever waterfowl

09 habitat restoration plan the Board adopts, that it is very

10 important that quantified goals be stated in the plan?

11 MR. THOMAS: That is my conviction.

12 MS. BELLOMO: Can you please explain why?

13 MR. THOMAS: It is my belief to have a measure of

14 assurance that restoration of waterfowl habitat will occur,

15 that a reasonable plan should contain a performance standard

16 or goal or target figure in terms of open water habitat

17 acreages because, without that sort of a measure, I can't

18 understand how a plan could ever, or the reviewers or the

19 public could ever know if a plan has been successful or if

20 it is making progress or failing. I also believe that

21 monitoring, it doesn't have much value if we are not

22 measuring progress based on some stated target.

23 MS. BELLOMO: Do you have a problem with regard to

24 rewatering Mill Creek, that there haven't been quantitative

25 goals stated by anyone?


01 MR. THOMAS: I am concerned with most of the projects

02 proposed because they have what I consider to be a fault.

03 MS. BELLOMO: Do you know if any of the three waterfowl

04 scientists agree with you on that?

05 MR. THOMAS: Yes.

06 MS. BELLOMO: Which of them?

07 MR. THOMAS: Again, Mr. Ratcliff and I have discussed

08 this.

09 MS. BELLOMO: Was that after the preparation of the

10 report?

11 MR. THOMAS: Yes.

12 MS. BELLOMO: You refer to adaptive management a little

13 earlier in your testimony. Can you explain what you mean by

14 adaptive management?

15 MR. THOMAS: My meaning of adaptive management is the

16 stipulations for adaptive management would be project

17 proposals in the plan that would be initiated as adaptive

18 measures in response to monitoring if monitoring showed that

19 progress toward the stated goal was not being achieved, or

20 was not being achieved on some agreed upon schedule, or in

21 an extreme case, I suppose, in the event of failure of any

22 progress and no movement toward the stated target.

23 MS. BELLOMO: Does Paragraph 15 of your testimony on

24 Page 4 set forth your recommendation of how restoration

25 goals and a monitoring plan should be established for


01 waterfowl restoration in the basin?

02 MR. THOMAS: I need to reread this. It's been some

03 time.

04 MS. BELLOMO: You state a realistic program to restore

05 quantifiable waterfowl habitats in the Mono Basin would be

06 based on goals clearly stated in terms of acreages and

07 habitat types, specified monitoring actions to objectively

08 assess progress and result and appropriate optional measures

09 to be pursued in the event of inadequate progress as

10 determined by monitoring.

11 Does that continue to be your opinion today?

12 MR. THOMAS: Yes. In fact, I think this says it

13 better that I just tried to ad-lib it.

14 MS. BELLOMO: Do you believe that the projects that

15 could be done do create shallow, open water ponding could be

16 done at a cost of less than $3.6 million?

17 MR. THOMAS: Yes, I believe that.

18 MS. BELLOMO: Will you please identify what you

19 recommend that the Water Board order be done for waterfowl

20 habitat restoration in the basin?

21 MR. THOMAS: I would recommend that any plan adopted,

22 first, contain measurable quantified goals with an

23 appropriate, pertinent monitoring program to assess progress

24 toward the goals. I would state those goals in terms of

25 acreages of fresh water habitat, especially focusing on


01 refuge areas that would shelter ducks from inclement

02 weather.

03 CHAIRMAN CAFFREY: I think you have about five minutes

04 left, Ms. Bellomo. Mr. Johns?

05 MR. JOHNS: That is correct.

06 CHAIRMAN CAFFREY: Five minutes.

07 MS. BELLOMO: Thank you.

08 I remind you that you're under oath and the seriousness

09 of this proceeding. I ask you, Mr. Thomas, did Mr.

10 Ratcliff at any time tell you that he was not happy that the

11 Waterfowl Restoration Plan that was finalized put Mill Creek

12 as the number one restoration priority project after raising

13 the lake level?

14 MR. BIRMINGHAM: That question is terribly

15 argumentative.

16 MS. BELLOMO: I can certainly say it again without the

17 preface.

18 Did Mr. Ratcliff ever tell you that he was not happy

19 that the Waterfowl Restoration Plan, as finalized, had the

20 restoration of Mill Creek as the second most important thing

21 to do after raising the lake level?

22 MR. THOMAS: In specific terms, no. What he said, he

23 said, "Just get out there start doing something on the

24 ground, is I remember one quote that that particular

25 scientist stated.


01 MS. BELLOMO: What did he mean by that?

02 MR. BIRMINGHAM: Objection. Calls for speculation.


04 MS. BELLOMO: Did he clarify what that meant?

05 MR. THOMAS: I understood it to mean the other projects

06 in the plan. But I don't know that he clarified that, no.

07 MS. BELLOMO: Thank you very much. I have no further

08 questions.

09 CHAIRMAN CAFFREY: Thank you, Mr. Bellomo.

10 Ms. Bellomo was the only party asking to cross-examine

11 this witness. I assume that is still the case.

12 Is there any desire for redirect, Ms. Cahill?

13 MS. CAHILL: No redirect.

14 CHAIRMAN CAFFREY: Then there is no recross. I think I

15 skipped staff, didn't I? I apologize.

16 MR. FRINK: I believe staff has a few, brief

17 questions.

18 CHAIRMAN CAFFREY: Have at it, gentlemen.



21 MR. FRINK: Mr. Thomas, you indicated some uncertainty

22 about the effectiveness of a burn frame in restoring

23 waterfowl habitat. I wonder if you can explain the cause of

24 your uncertainty about the benefits of a burn program.

25 MR. THOMAS: In looking at the results of the


01 experimental burns with others in the room, including Dr.

02 Barry who I considered to be an expert, my impression was,

03 and I think it was shared by others, that there was less

04 open water and the persistence of the open water created was

05 less than what was hoped for. What I am saying is that the

06 area of open water did not persist over time. It regrew

07 very quickly and we didn't get open water for much period of

08 time.

09 In that case, then my concern was that it would either

10 take very intensive and repetitive efforts and/or much

11 greater financial investment. The cost could go up a great

12 deal.

13 MR. FRINK: There was a great deal of testimony in the

14 earlier hearings about the importance of the hypopycnal

15 areas at the mouth of Lee Vining and Rush Creek, and I also

16 believe it was discussed in the three waterfowl scientists'

17 report.

18 From flying over the Mono Basin, have you noticed that

19 those hypopycnal areas have been restored with the

20 resumption of flow in Rush and Lee Vining Creek in recent

21 years?

22 MR. THOMAS: I am not able to make that judgment. My

23 flights are too infrequent and are not focused on the

24 particular areas, so I am afraid I am not capable because I

25 don't have the information.


01 MR. FRINK: Have you noticed if ducks are inhabiting

02 areas around the mouth of --

03 MR. THOMAS: Ducks definitely choose those areas.

04 MR. FRINK: That is all at this time.

05 CHAIRMAN CAFFREY: Go ahead, Mr. Johns.

06 MR. JOHNS: Mr. Thomas, in your testimony you stated

07 that you have experience with a joint venture program?

08 MR. THOMAS: Yes, I do. In fact, I was one of the few

09 agency people that worked on forming the Intermountain West

10 Joint Venture group over there.

11 MR. JOHNS: You worked with that program for how long?

12 MR. THOMAS: We started our efforts to get up and

13 going about five years ago.

14 MR. JOHNS: Is one of the purposes of that program to

15 create additional waterfowl habitat, to support increased

16 waterfowl populations?

17 MR. THOMAS: Yes, it is under. Under the direction, I

18 might add, of the North American Waterfowl Management Plan,

19 which is an international treaty.

20 MR. JOHNS: In that effort, do you also seek additional

21 water supplies to create that habitat or to support that

22 habitat?

23 MR. THOMAS: Well, the joint venture is formed with a

24 goal and a result in sight, so mostly method that will get

25 us there in cooperation with the other parties is fair game,


01 as far as the group is concerned. I might add, too, we work

02 with -- we incorporate a variety of other bodies and private

03 landowners and citizens and work on a concurrence basis. So

04 we must think project potentially is doable under that

05 group.

06 MR. JOHNS: So when you are out there looking at

07 creating waterfowl habitat, does that include water supplies

08 to support that waterfowl habitat?

09 MR. THOMAS: It would have to. In most cases we have

10 quite a list of, I think, very worthy projects in the

11 Eastern Sierra now. And in most cases what those involve is

12 either managing water a little differently, say on a private

13 cattle ranch, which is one of our projects, or opening up

14 through control burning. We have a proposal to do that on

15 one location. Usually places where the water already is

16 present, but habitat could be improved through different

17 management techniques.

18 MR. JOHNS: Are you familiar with any proposal that you

19 have been through with a joint venture where you've looked

20 at, perhaps, dewatering a stream or taking waterfowl

21 benefits from one area and creating waterfowl benefits in

22 another as a proposal for a joint venture program?

23 MR. THOMAS: We don't have any project that would

24 involve that now on the table. I suppose it is possible,

25 but we don't have one like that.


01 MR. JOHNS: You haven't done any of those in the last

02 five years for the joint venture program?

03 MR. THOMAS: Unfortunately, we haven't received any

04 grants yet, so we have a bunch of good projects on the

05 table, but no money.

06 MR. JOHNS: Do any of those projects on the table

07 include that type of language or habitat conversion from

08 stream habitat conditions, say, to waterfowl habitat or --

09 MR. THOMAS: We have a large enough number on the

10 table; I am not sure I can answer that with full knowledge.

11 We probably have 25 projects, and I don't know the details

12 of every one of them. I don't know of one like that at

13 present.


15 MR. CANADAY: Thank you.

16 Mr. Thomas, to carry on with what Mr. Johns was talking

17 about. In your experience with the waterfowl in the east

18 side of the Sierras, what kinds of projects are being done,

19 let's say, around Crowley Lake and around Bridgeport

20 Reservoir?

21 MR. THOMAS: Both of those locations in years past we

22 did, and this before the joint venture, we did goose nesting

23 boxes, and those have been used as much by great blue herons

24 and other water birds as they have been by geese. That is

25 kind of -- that is in the past.


01 We created new ponds at Crowley. I don't know of any

02 ever at Bridgeport. We did create new ponds at Crowley. In

03 fact, that is where the nesting surveys are that we did at

04 Crowley. This was some work in cooperation with DWP back

05 then, I believe. It was just about the time I started over

06 there, so I am not sure about that, but open water ponds

07 created there. In addition to that, on our own wildlife

08 area up at Walker where I am stationed, we blasted ponds and

09 had quite a lot of duck and goose use now, nesting use on

10 those ponds up there.

11 MR. CANADAY: It's been your experience that some of

12 this manmade created, shallow, fresh water, open fresh water

13 areas do attract ducks?

14 MR. THOMAS: Oh, yes.

15 MR. CANADAY: Are you familiar with the Dombroski

16 Report?

17 MR. THOMAS: Yes, I am.

18 MR. CANADAY: In that report is one of the reports that

19 was referred to by the waterfowl scientists, that indicates

20 the potential numbers that have been identified to use in

21 Mono Lake; is that correct?

22 MR. THOMAS: That's correct.

23 MR. CANADAY: What were the predominant species, as far

24 as number?

25 MR. THOMAS: At one point, I don't think it was at the


01 time of the greatest number of birds surveyed, but at one

02 point I know Dombroski said he had 80 percent shovelers and

03 ruddies. There is still a lot of other species, of course,

04 a lot of other numbers.

05 MR. CANADAY: Would you expect that to be unusual

06 finding?

07 MR. THOMAS: No, I don't think so, depending on how

08 much habitat diversity. The number of species would vary

09 depending on how much diversity of habitat. And I would

10 think that, as the diversity of habitat decrease, you would

11 get more shovelers and ruddies because they would tend to be

12 more open lake birds that would feed on those feed

13 organisms. But, no, I am not too surprised by that result.

14 MR. CANADAY: You just stated that the shovelers were

15 more open water, open lake species. Are those the kinds of

16 species that would expect to use the bottomlands areas?

17 MR. THOMAS: Definitely. Especially the shovelers. To

18 be clear, I would -- shovelers would use the lake. They are

19 species that would utilize the shrimp and the flies. They

20 would use the lake, to a large degree, for that reason.

21 They would still need refuge habitats, say, of the Rush

22 Creek bottomlands. They also have a variety -- it is known

23 that the eat seeds and other things, as well. So, the

24 bottomlands would be important especially for the shovelers,

25 and the ruddies, too, to a lesser degree.


01 MR. CANADAY: In your testimony you had some problems

02 with proposed monitoring program. A hypothetical would be

03 that you could design a monitoring program, you would be the

04 lone person to design it.

05 What would you have in a monitoring program?

06 MR. THOMAS: Considering my focus, my conviction about

07 the importance of the shallow water habitats, the first

08 thing I would want to do would be to have baseline data on

09 how much there is there, and varying efforts to increase

10 that habitat component; measure the acreage of what you have

11 on an annual basis and see where you are going. Because,

12 again, I want to emphasize that habitat component, I

13 believe, is vital for both numbers and variety of species on

14 the lake, to be able to use the lake.

15 MR. CANADAY: What about some other things that you

16 would like?

17 MR. THOMAS: I would certainly monitor the shrimp and

18 fly, the trends in the shrimp and the fly abundance,

19 salinity along with that, although I am not well versed on

20 that aspect, particularly.

21 I would want to do aerial photos as a means to assess

22 the acreage that I referred to earlier.

23 MR. CANADAY: What kind of frequency?

24 MR. THOMAS: At least annual. I would also, during the

25 aerial surveys, I would also want to make careful


01 assessments of numbers of ducks and where they are using. I

02 would also want to look, and the scientists referred to

03 this, I believe, I would also want to look at Crowley and

04 Bridgeport nearby in an effort to assess relative benefits

05 at Mono, in comparison to what is going on with the other

06 birds in the immediate flyway.

07 MR. CANADAY: That would be a simultaneous assessment?

08 MR. THOMAS: Yes.

09 MR. CANADAY: Anything else?

10 MR. THOMAS: I can't recall. I agreed with the list

11 that the scientists proposed. I think I've touched on all

12 of those.

13 MR. CANADAY: That is all I have.

14 CHAIRMAN CAFFREY: Thank you, Mr. Canaday.

15 Any questions from the Board Members?

16 MEMBER DEL PIERO: I have one question.


18 MEMBER DEL PIERO: You may not be able to answer this.

19 In terms of the quantification of the magnitude of expansion

20 of hypopycnal areas, do you have a recommendation as to how

21 that can be quantified at this point? Is there a technique

22 by which you can judge that in relationship to a value for

23 ducks?

24 MR. THOMAS: Well, certainly in the course of surveys

25 you could measure duck use, in terms of numbers of duck on


01 the hypopycnals. It is not too difficult under certain

02 circumstances to assess the area of the hypopycnals. You

03 can see the wave line where the salt water breaks against

04 the fresh. I've wondered, and maybe -- Dr. Stine and I

05 never talked about this, if it won't be possible to measure

06 the size of hypopycnals during the extreme cold periods in

07 the winter when they freeze, and assess changes that way.

08 Just a thought. I don't know if it is doable or not.

09 MEMBER DEL PIERO: You have something that should be

10 evaluated as part of the ongoing monitoring program?

11 MR. THOMAS: It certainly could be.

12 MEMBER DEL PIERO: Whether it is possible to be done,

13 set that issue aside. If it is possible, would that be

14 something that would be appropriate in terms of evaluating

15 the incremental impact on habitat?

16 MR. THOMAS: I think from the duck habitat standpoint,

17 it would be good to know of the trends in the hypopycnal

18 areas, yes.

19 MEMBER DEL PIERO: Thank you.

20 CHAIRMAN CAFFREY: Thank you, Mr. Del Piero.

21 Ms. Cahill, do you wish to offer your exhibits into

22 evidence at this time?

23 MS. CAHILL: Yes, I would. That would be DF&G Exhibits

24 1 through 10.

25 CHAIRMAN CAFFREY: Any objection?


01 Does that meet with your approval, Mr. Johns, in terms

02 of the accuracy of the enumeration?

03 MR. JOHNS: Okay with me.

04 CHAIRMAN CAFFREY: The exhibits are accepted into the

05 record.

06 Thank you very much, Ms. Cahill.

07 Thank you very much, Mr. Thomas, for your time and

08 trouble. We appreciate your being here.

09 I believe, and I will look to Mr. Frink to correct me

10 if I err, but I believe we have reached that point in the

11 proceeding where we will hear an explanation or presentation

12 on the settlement agreement by some of the parties. Is that

13 correct?

14 MR. FRINK: Yes. I think that is the next item on the

15 agenda.

16 CHAIRMAN CAFFREY: Why don't we take about a

17 five-minute break before we do that. And is Mr. Dodge going

18 to be the presenter in that regard?

19 MR. BIRMINGHAM: Maybe we can discuss that during the

20 five-minute break.

21 CHAIRMAN CAFFREY: Thank you very much. What is your

22 pleasure, gentlemen. Lets give it ten minutes.

23 (Break taken.)

24 CHAIRMAN CAFFREY: We are back.

25 This is time in the hearing for presentation or


01 submittal. If you will, Mr. Dodge.

02 MR. DODGE: I may suggest before we get on to the

03 settlement, Mr. Roos-Collins will address the Board on his

04 letter where he expressed a concern of the termination

05 criteria on the Stream Monitoring Plan.

06 I understand those concerns have been alleviated, but I

07 think we ought to make that clear on the record.

08 CHAIRMAN CAFFREY: Is that part of the presentation?

09 MR. BIRMINGHAM: Yes, it is.

10 CHAIRMAN CAFFREY: Mr. Roos-Collins.

11 We are in the beginning of the presentation on the

12 settlement agreement among some of the parties.

13 MR. ROOS-COLLINS: Mr. Chairman and other Members of

14 the Board, California Trout submitted a letter on April

15 25th, reserving our right to conduct further examination of

16 our witnesses and to make them available for

17 cross-examination. At that time, California Trout and the

18 other signatories to the March 28th settlement agreement had

19 not reached agreement on quantified termination criteria.

20 Since California Trout submitted that letter, we have

21 reached agreement on quantified termination criteria as

22 provided on Pages 8 and 9 of the underlying settlement

23 agreement. I have the mutually agreeable termination

24 criteria with me for submittal, along with the settlement

25 agreement itself, to this Board.


01 MEMBER DEL PIERO: That is good Mr. Roos-Collins. I

02 asked for it this morning. I was wondering when it was

03 going to show up.

04 MR. DODGE: Mr. Johns, did you assign an exhibit number

05 to this?

06 MR. FRINK: I think we have a question, as to whether

07 the settlement agreement is considered an exhibit.

08 CHAIRMAN CAFFREY: You are not presenting witnesses on

09 this agreement; is that correct?

10 MR. DODGE: That is correct.

11 CHAIRMAN CAFFREY: If that is the case, it does not

12 need a number.

13 MR. DODGE: It needs a number. It shouldn't be

14 introduced into evidence, but it should have a number, I

15 believe.

16 CHAIRMAN CAFFREY: This is a semantically point. We

17 can certainly give it a number for ease of identification.

18 It will not be a part of the evidentiary record, per se. It

19 will be part of the hearing record.

20 With that understanding, we can assign a number.

21 Mr. Johns, do you wish to do that?

22 MS. BELLOMO: Can I ask for clarification?

23 The settlement documents of these parties haven't been

24 given numbers yet? The settlement documents themselves do

25 not have numbers, do they, yet?


01 CHAIRMAN CAFFREY: I am not aware that the settlement

02 document has.

03 Am I wrong, Mr. Dodge?

04 MR. DODGE: I believe that one of the correspondence I

05 got from you assigned numbers to the two settlement

06 documents.

07 CHAIRMAN CAFFREY: Mr. Johns; is that correct?

08 MR. JOHNS: That's correct.

09 CHAIRMAN CAFFREY: There are numbers assigned. And Mr.

10 Johns will now assign one in some sequential order, if that

11 is not a redundancy, to this document.

12 MR. FRINK: It will be identified for identification

13 purposes only as LADWP-68B. The proposed settlement

14 agreement --

15 CHAIRMAN CAFFREY: I am sorry, LADWP-68?

16 MR. FRINK: 68B. The proposed settlement agreement

17 itself was identified for identification only as LADWP

18 Exhibit 68. The conceptual agreement regarding waterfowl

19 habitat, the Waterfowl Habitat Restoration Foundation,

20 again, was identified for identification only at LADWP-68A.

21 CHAIRMAN CAFFREY: Thank you, Mr. Roos-Collins.

22 Is there anything else?

23 Mr. Birmingham.

24 MR. BIRMINGHAM: I would like to make a couple comments

25 about the settlement agreement, if I may.


01 CHAIRMAN CAFFREY: Please, sir.

02 MR. BIRMINGHAM: We are here this afternoon. We are

03 not going to present any witnesses on the proposed

04 settlement agreement. But we are here and available to

05 answer any questions that the Board might have, Board staff

06 might have, concerning the settlement agreement or any other

07 party might have concerning clarification of the settlement

08 agreement.

09 It is our view, when I say "our," I am speaking

10 collectively for the State Lands Commission, Los Angeles

11 Department Water and Power, the Mono Lake Committee,

12 National Audubon Society, California Trout, the Department

13 of Fish and Game, and the United States Forest Service, that

14 this document can be adopted by the Board as a proposed

15 modification of the DWP restoration plans based upon the

16 evidence that is currently in the Board's record.

17 It is being submitted for the Board's approval, and it

18 is in that context in which it is being presented. We will

19 submit a closing brief, which refers to the evidence in the

20 record which supports the elements of the settlement

21 proposal.

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

23 Mr. Birmingham.

24 Anything else on the presentation?

25 Mr. Dodge, do you have something?


01 MR. DODGE: I agree with everything that Tom said. The

02 one point I would want to add is that we all believe at this

03 point, that it is not a matter of further testimony, in

04 terms of the settlement agreement, but it is a matter for

05 argument as to whether the settlement agreement is or is not

06 a good idea. We think that once any questions are responded

07 to, that it is just a matter of post hearing briefing and

08 argument as to whether this Board should or should not adopt

09 the agreement.

10 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.

11 MS. BELLOMO: Chairman Caffrey.


13 MS. BELLOMO: I just wanted to ask for clarification as

14 I am not familiar with your rules here. Since the

15 settlement documents are not in evidence, I just don't

16 understand what status they have for purposes of briefing or

17 whatever. I don't understand. Are they just presentation

18 made -- perhaps Mr. Birmingham was addressing that. And

19 because I wasn't involved in early parts of the proceeding,

20 I don't understand what he is saying.

21 CHAIRMAN CAFFREY: Mr. Birmingham has arisen, so we

22 will hear from him, and then I am going to turn to Mr. Frink

23 for explanation of what perhaps the Board's, let's call it,

24 options might be with regard to such a document.

25 Please, Mr. Birmingham.


01 MR. BIRMINGHAM: Again, I would just like to present

02 our perspective. The issue that was presented in the notice

03 of this hearing was whether or not the restoration ambulance

04 plans of the City of Los Angeles Department of Water and

05 Power were adequate, and if they were not adequate, how they

06 should be modified.

07 The settlement agreed represents the view of signatory

08 parties concerning what should be done in order to make the

09 plans comply with D-1631. As Mr. Dodge stated, the parties

10 will argue as to whether or not this is an appropriate

11 document for the Board to adopt as part of an order. But it

12 is a proposal that would be made through argument and,

13 although it has been given an exhibit number, what the

14 parties will do is, the parties that have signed it will

15 submit to the Board that this should be adopted as the

16 Board's order concerning the modification of DWP's plans as

17 described in the settlement documents themselves.

18 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.

19 Mr. Frink, could you give us a little dissertation on

20 the relationship to this document to both our procedure and

21 what the Board's alternatives are to use it as an instrument

22 in its decision process?

23 MR. FRINK: I would agree with the parties submitting

24 the agreement that if they are submitting it as evidence in

25 the hearing, that it is not a part of the evidentiary


01 record, per se. Rather, it is a suggested modification of

02 the restoration plans that Los Angeles previously submitted,

03 that they believe is supported by the evidence in the

04 record.

05 I think the Board can take the proposed settlement

06 agreement into consideration, just as it would take the

07 proposal of a party or joint proposal of several parties

08 into consideration if the proposal were set forth in legal

09 briefs at the conclusion of this hearing.

10 CHAIRMAN CAFFREY: What about the use of the rebuttal

11 argument process? I suppose that is an appropriate place

12 for the non signatory parties to raise concerns about the

13 settlement agreement.

14 Is that correct?

15 MR. FRINK: Yes. My understanding is that the proposed

16 settlement is submitted as a suggested modification of the

17 original restoration plans. To the extent that anyone has

18 rebuttal evidence that they still wish to present, in view

19 of proposal settlement, or that they would have presented

20 with regard to other aspects of the restoration plans, I

21 think that rebuttal evidence is still appropriate.

22 CHAIRMAN CAFFREY: Thank you, Mr. Frink.

23 Anybody else have any further comments?

24 Questions or clarifications?

25 Let me ask the Board staff if they have any clarifying


01 questions with regard to the settlement agreement documents

02 as proposed?

03 They are going to confer for a moment.

04 MR. FRINK: Staff does have a few questions.

05 MR. CANADAY: I don't know who I am addressing this to,

06 cast of thousands.

07 CHAIRMAN CAFFREY: This is the portion of the

08 proceeding where we ask clarifying questions.

09 Mr. Frink, the staff in the rebuttal process would have

10 an opportunity to question, to raise questions of the

11 various witnesses as well; is that not our procedure?

12 MR. FRINK: Any witnesses or exhibits that are put on

13 rebuttal, staff could ask questions. I think these

14 questions just go to try to determine some ambiguities in

15 the agreement, just trying to clarify what was intended.

16 CHAIRMAN CAFFREY: I will look to you to be the guide

17 of that.

18 Please proceed, Mr. Canaday.

19 MR. CANADAY: Referring to the Mono Lake Settlement

20 Agreement, the main document, Page 2, where it talks about

21 Item H, channel maintenance flows, refers to a copy of

22 attached Exhibit A. We do not have that copy of Exhibit A.

23 It was never provided.

24 MR. DODGE: Exhibit A is Exhibit 1 to the testimony of

25 William J. Trush, our Exhibit 6; and that is the addendum to


01 the document. Someone can provide you with a copy of that.

02 It is in evidence in various places.

03 MR. CANADAY: The question that we had relative to

04 that, though, was which flow scenario were you talking

05 about? My recollection of that particular exhibit, there

06 are three recommendations, and which recommendation is the

07 one that is being represented in that document?

08 MR. DODGE: It is the one at the top of Page 4 for Rush

09 Creek and then for Lee Vining Creek.

10 MR. CANADAY: It would be instructive, I think, if the

11 parties could provide us a copy of that, that would identify

12 which one it is.

13 MR. BIRMINGHAM: We will do that.

14 MR. CANADAY: I would appreciate it. That is a lot

15 easier to follow then.

16 MR. BIRMINGHAM: I wonder, Mr. Chairman, if it would be

17 appropriate for us to respond in writing to the questions

18 that they have or to submit a written document to supplement

19 the agreement, to respond to the questions the Board staff

20 may have?

21 MR. DODGE: Mr. Chairman, I think that is an excellent

22 suggestion.

23 CHAIRMAN CAFFREY: I would like the suggestion, just so

24 -- maybe I am the only person in the room with this problem,

25 but I am just wondering if the very next thing on our order


01 of proceeding is rebuttal testimony, and if that is an

02 opportunity for non signatory parties to ask questions.

03 It seems to me that what you are asked, this

04 clarification that Mr. Canaday is asking for, needs to be

05 available to the non signatory parties. Tomorrow is our

06 last day for this hearing.

07 Have I missed something?

08 MR. DODGE: I would agree that the clarification should

09 come before the post hearing briefs, so that the matter

10 could be argued. I don't think you need clarification in

11 order to rebut.

12 CHAIRMAN CAFFREY: Do you agree with that Mr. Frink?

13 MR. FRINK: I think it depends in part on the views of

14 the other parties. Do you feel you need clarification on

15 these alternative stream flow scenarios?

16 MS. BELLOMO: We did not on this Exhibit A.

17 MR. FRINK: I think submitting it within five days of

18 the close of the hearing would be adequate and people could

19 then address it in any briefs that they have.


21 Mr. Canaday, please proceed.

22 MR. CANADAY: Bottom of Page 3, Point 4, where it

23 states DWP will not irrigate for Parker and Walker Creeks

24 during the channel maintenance flows at Rush Creek.

25 Is that above or below the points of diversion on


01 Parker and Walker Creek, or -- I am trying to understand

02 where this is going to occur.

03 MR. BIRMINGHAM: DWP will not irrigate creeks during

04 the period from which it is attempting to maximize channel

05 maintenance flows, either above or below the conduit.

06 MS. BELLOMO: Could I ask a question, Mr. Caffrey?

07 CHAIRMAN CAFFREY: Yes, for clarification?

08 MS. BELLOMO: Yes.


10 MS. BELLOMO: I think it would give Mr. Canaday a

11 chance to look. My question is whether the parties have

12 actually provided signed versions of the settlement

13 agreement yet? Last I knew there was no signed version and

14 there was possibility that some parties might not sign.

15 Has it now been signed and presented to the Board?

16 CHAIRMAN CAFFREY: Mr. Frink, do we have signed copies

17 in hand?

18 MR. FRINK: I don't believe we have received a signed

19 copy.

20 Are the parties intending to present a signed copy and

21 when would that be?

22 MR. DODGE: Mr. Birmingham has sent me a copy for

23 signature, and I gave it to my client today to get it

24 signed. The Mono Committee and National Audubon Society

25 intend to sign the document and provide it the Board.


01 MR. BIRMINGHAM: The agreement has been approved by the

02 Board of Water and Power Commissioners of the City of Los

03 Angeles, and it's been approved by the City Council of the

04 City of Los Angeles, and it will be executed by the

05 appropriate city officials.

06 MS. BELLOMO: Could I also just ask for clarification,

07 whether what has been signed and approved is the same

08 document as we have as Exhibit 68 and 68A, as I understood

09 there was as some subsequent version that was circulated

10 around a few days ago. I would like to know we have --

11 before we write the briefs, do we have the settlement?

12 MR. DODGE: There is no subsequent version. You were

13 misinformed.

14 MR. FRINK: When do the parties believe that they could

15 get a signed copy of the agreement into the Board and served

16 on the other parties?

17 MR. BIRMINGHAM: The State Lands Commission will

18 consider the agreement at its May 12, 1997 meeting in Los

19 Angeles, and it would be shortly after that date, presuming

20 that the State Lands Commission approves the document.

21 CHAIRMAN CAFFREY: It goes before the Lands Commission

22 itself? It is not the Executive Officer's purview to

23 approve it? Is it required to go to the Lands Commission?

24 MR. VALENTINE: Yes. Michael Valentine, staff counsel

25 for the State Lands Commission.


01 It does require a vote of the State Lands Commission.

02 They have not delegated to the Executive Officer the

03 signator of accepting the settlement agreement. That is the

04 purpose of our request to them to delegate for this purpose,

05 for this agreement.

06 CHAIRMAN CAFFREY: You are asking them to delegate that

07 authority to the Executive Officer for the purpose of this

08 agreement?

09 MR. VALENTINE: Yes. As we do in every other

10 settlement agreement.

11 MEMBER DEL PIERO: They have to act on it.

12 MR. VALENTINE: They have to act on it. They have to

13 approve it and they have to authorize the Executive Officer

14 to sign it on their behalf.

15 CHAIRMAN CAFFREY: So it really is a two step matter.

16 They still are approving it?


18 MR. FRINK: Mr. Chairman.

19 CHAIRMAN CAFFREY: Yes, Mr. Frink.

20 MR. FRINK: I suggest that the Board request that the

21 parties to the proposal settlement agreement serve a signed

22 copy of the agreement on the Board if it is signed by the

23 15th of May and advise us of the status of it if it isn't

24 signed by that day, and serve a copy on the other parties to

25 the hearing as well.


01 CHAIRMAN CAFFREY: That will be the order.

02 Is that date acceptable, reasonable to the parties?



05 MR. DODGE: Yes.

06 CHAIRMAN CAFFREY: Where are we?

07 MR. CANADAY: Staff has no more request for

08 clarification.

09 CHAIRMAN CAFFREY: Please go ahead, Mr. Canaday.

10 MR. CANADAY: We are done.

11 CHAIRMAN CAFFREY: Are there questions from the Board

12 Members?

13 We will then --



16 MEMBER DEL PIERO: In regards to the termination

17 criteria for Rush Creek and Lee Vining Creek, the

18 quantitative estimate -- I guess the question is for Mr.

19 Roos-Collins, or whoever can answer it.

20 The quantitative estimates for Rush Creek are for the

21 main channel, length gradient as well as sinuosity? As part

22 of the discussions, does this include adequate water for

23 side channels that exist in lower reaches? Does this

24 include the areas for the side channels?

25 MR. BIRMINGHAM: The restoration plan contemplates that


01 side channels will be rewatered; and the answer to that

02 question is yes.

03 MEMBER DEL PIERO: So the acreages that I see here on

04 the various reaches of Rush Creek include the riparian

05 corridors for those side channels as well?

06 MR. BIRMINGHAM: That's correct. In fact, if you look

07 at Page 3 of the termination criteria, there is reference to

08 the recreation or restoration of specific acreages and what

09 will happen in the event those acreages are not achieved.

10 MEMBER DEL PIERO: I saw that, and I just wanted to

11 confirm that those acreages are not simply the riparian

12 acreages for the main channel; it includes the side

13 channels, as well.

14 MR. BIRMINGHAM: That is correct.

15 MEMBER DEL PIERO: Thank you.

16 CHAIRMAN CAFFREY: Thank you, Mr. Del Piero.

17 Any other questions from the Board?

18 All right. I believe then, the next step in our

19 proceedings would be to begin the presentation of rebuttal

20 witnesses.

21 Let's have some discussion about timing. Is that

22 something that we want to begin this afternoon? I have no

23 idea how much time this is going to take. I think we need

24 to -- let's put it this way, we intend to finish tomorrow

25 and to go until we are finished. I have no way of gauging


01 how long the rebuttal presentation may take.

02 Is it the desire of the parties to stop now and begin

03 fresh tomorrow. Or should Lee go for about another hour and

04 half?

05 Ms. Bellomo, and then Mr. Birmingham.

06 MS. BELLOMO: I know that I indicated in my letter to

07 the Board that we have rebuttal witnesses. I don't know if

08 anybody else does. Maybe we can start finding out if

09 anybody else does have rebuttal witnesses.

10 CHAIRMAN CAFFREY: Mr. Birmingham.

11 MR. BIRMINGHAM: We have one.

12 CHAIRMAN CAFFREY: You have one rebuttal witness?


14 CHAIRMAN CAFFREY: Mr. Roos-Collins.

15 MR. ROOS-COLLINS: California Trout has no rebuttal

16 witnesses. We do, however, intend to introduce three

17 exhibits as rebuttal evidence.


19 MR. DODGE: We may have one rebuttal witness, and I am

20 going to cogitate overnight on it. If we do, it will be

21 very brief.

22 CHAIRMAN CAFFREY: We haven't, or maybe we have and I

23 just don't know it, I am not sure we've talked about any

24 reasonable limitations on presentation of direct and

25 redirect within the rebuttal context.


01 Mr. Frink, do you have any comments on that?

02 MR. FRINK: I believe the notices from the Chair did

03 advise the parties that any rebuttal evidence should be

04 directed at other evidence of proposals that have been

05 specifically made to the Board, and that the party

06 presenting the rebuttal evidence should identify what it is

07 that they are responding to.

08 CHAIRMAN CAFFREY: I'm sorry, that wasn't clear. I was

09 talking in terms of timewise.

10 MR. FRINK: I'm sorry, no, we haven't stated any time.

11 CHAIRMAN CAFFREY: Let's talk a little bit about what

12 is reasonable.

13 MEMBER DEL PIERO: Mr. Chairman.


15 MEMBER DEL PIERO: Why don't we hear from State Lands

16 Commission and Fish and Game, whether or not they have any

17 rebuttal witnesses? Once we quantify the people that are

18 going to show up, we can figure out how much time.

19 CHAIRMAN CAFFREY: We can do that. They didn't stand

20 up. Maybe I wrongly assumed you didn't have any. Please --

21 MS. SCOONOVER: We may have a single rebuttal witness.

22 As with Mr. Dodge, we will contemplate overnight and there

23 is a chance we will present some.


25 MS. CAHILL: The Department of Fish and Game does not


01 intend to call rebuttal witnesses.

02 MEMBER DEL PIERO: That is three, if you include Dodge,

03 and I don't know about Ms. Bellomo.

04 CHAIRMAN CAFFREY: How many witnesses are you going to

05 present, Ms. Bellomo. Is it a panel? Is it a --

06 MS. BELLOMO: We subpoenaed Mr. Turner and Mr. Thomas,

07 and then we have a panel of three people who are Mono Basin

08 residents.

09 CHAIRMAN CAFFREY: So, two separate sets.

10 MS. BELLOMO: Right.

11 MR. BIRMINGHAM: May we inquire into the length of

12 time? The reason I ask, Mr. Caffrey, is, as the Board

13 knows, the ACWA Conference, the Association of California

14 Water Agencies is starting tomorrow. I have a meeting that

15 is scheduled at 10:00 in the morning, which, if this hearing

16 continues, I will reschedule. But because it involves

17 people who are in South Lake Tahoe for that conference, it

18 would be very convenient if we could do it tomorrow morning.

19 If they don't anticipate taking terribly long, we can

20 conclude this this evening.

21 CHAIRMAN CAFFREY: I was going to suggest the time.

22 Perhaps it is -- let's see how you all feel about it. One

23 could argue that rebuttal might be defined as not having to

24 be as lengthy as direct and redirect because it is more

25 specific. On the other hand, I am not sure that is always


01 the case. What about a half hour for each set of

02 witnesses?

03 MS. BELLOMO: We are going to need more than that,

04 Chairman Caffrey. Because the difference between direct

05 here is that the rest of the presentations have been put in

06 writing. That is why direct examination could be very

07 brief. Cross-examination, people have their choice on. But

08 we definitely need more time than that.

09 CHAIRMAN CAFFREY: How much time do you need?

10 MS. BELLOMO: I would propose, first of all, we not

11 start on ours until tomorrow morning. I will work now that

12 we have done what we have today. I can try to narrow down

13 some of my rebuttal. But a couple of hours to do all of the

14 witnesses. So, I couldn't do it in half an hour for each

15 panel.

16 CHAIRMAN CAFFREY: I think that is too long. Is there

17 some way that we can accommodate in the closing statements

18 or the briefs, Mr. Frink?

19 MR. FRINK: The arguments can be made in the closing

20 statements and the briefs. But to the extent that they have

21 witnesses who they had to subpoena and couldn't work with in

22 advance at all, I think it is very hard to restrict them to

23 a short amount of time. Essentially, you have the parties

24 who are still participating in the hearing; you have the

25 majority of them in support of a proposed settlement; and


01 you have another party who opposes it.

02 I am sure she can be brief as possible, but I don't

03 know that two hours is unreasonable.

04 CHAIRMAN CAFFREY: All right. Thank you, Mr. Frink.

05 MEMBER DEL PIERO: Mr. Chairman, it is 4:00. By my

06 count, there are not more than seven witnesses total, four

07 of whom, maybe five, you may have, Ms. Bellomo?

08 MS. BELLOMO: Yes, I think so.

09 MEMBER DEL PIERO: You know, I mean, I know some people

10 don't like going into evening. But it strikes me -- I

11 assume all of your witnesses are present?

12 MS. BELLOMO: Yes.

13 MS. CAHILL: In fact, we would prefer to have the Fish

14 and Game witnesses, in particular Mr. Turner, handled today

15 under subpoena. We would rather not make him come back

16 another day.

17 CHAIRMAN CAFFREY: Before everybody makes up their

18 mind, I should remind you that the order of direct testimony

19 within the rebuttal is different. There is not necessarily

20 -- it is what we have been following today with regard to

21 cross-examination. We would start with the City of Los

22 Angeles. That was the order in which we did the direct in

23 the beginning of these proceedings. The order would be the

24 City of Los Angeles. I realize that some of these parties

25 aren't here. The old order shows the U.S. Forest Service,


01 Bureau Of Land Management, then People for Mono Basin

02 Preservation, Arcularius Ranch, Richard Ridenhour,

03 California Trout, Department of Fish and Game, State Lands

04 and Parks and Rec, and the National Audubon Society and

05 Mono Lake Committee. In that order is what we could follow.

06 It sounds like the Board still wants to go for some

07 time this evening.

08 Mr. Brown.

09 MEMBER BROWN: I would, whatever we do this evening,

10 but we can figure that out, but I would like to start

11 earlier in the morning if that accommodates the parties, say

12 8:00.

13 CHAIRMAN CAFFREY: I don't think 8:00 is something that

14 I will be here for. 9:00 is --

15 MEMBER BROWN: I change my suggestion.

16 CHAIRMAN CAFFREY: Mr. Brown, I'd appreciate it. I was

17 up at the crack of dawn this morning for an 8:00 hearing and

18 others things, and, frankly, I am a little tired. I would

19 like not to start before nine.

20 Mr. Stubchaer.

21 MEMBER STUBCHAER: My two cents worth is I think we

22 ought to postpone the rebuttal till the morning.

23 MEMBER DEL PIERO: All of it?

24 MEMBER FORSTER: How about the person that is on

25 subpoena?


01 MEMBER STUBCHAER: What I was thinking, two hours

02 rebuttal Ms. Bellomo has and then the cross-examination.

03 MEMBER DEL PIERO: We have one witness. Get him out

04 of the way.

05 CHAIRMAN CAFFREY: I agree. Mr. Birmingham has a

06 difficulty. He says he needs a half hour. Could you have

07 Ms. Goldsmith here for you tomorrow if you present tonight?

08 MR. BIRMINGHAM: If the Board is include to go

09 tomorrow, then my schedule can certainly be rearranged to

10 accommodate that. My rebuttal should take no more than five

11 minutes, my examination of rebuttal witness.

12 MEMBER DEL PIERO: That is my opinion. Why don't get

13 started tonight. I appreciate you indicating that your

14 schedule will be flexible in regards to what we want to do,

15 but let's do it.

16 CHAIRMAN CAFFREY: Let's see how much we can do up to

17 about 5:30.

18 Ms. Bellomo.

19 MS. BELLOMO: One other thing, Chairman Caffrey, I know

20 in that Mr. Frink is aware of this, but several people have

21 traveled over from Mono County who did not have an

22 opportunity to -- no one has had an opportunity to comment

23 in a policy way, make policy comments on the settlement

24 itself. And two of the people that we have, two to three of

25 these people wanted to make a maximum of five minute policy


01 statements regarding the settlement.

02 CHAIRMAN CAFFREY: When do they want to do this?

03 MS. BELLOMO: They can do it now, or they can do it

04 tomorrow.

05 CHAIRMAN CAFFREY: Are you going to be here tomorrow,

06 ladies and gentlemen?

07 You are in any case going to be here tomorrow. That

08 gives us certain flexibility.

09 MS. BELLOMO: I want to give you that option.

10 CHAIRMAN CAFFREY: We will certainly allow you to do

11 that, probably tomorrow. So we can begin with the rebuttal

12 testimony.

13 That being the case, Mr. Birmingham, would you like to

14 begin.

15 MR. BIRMINGHAM: Sure. The Department of Water and

16 Power of the City of Los Angeles would like to call Katie

17 Bellomo.

18 CHAIRMAN CAFFREY: Ms. Bellomo, I believe I saw you

19 take the oath this morning. Is that correct?

20 MS. BELLOMO: Yes, it is.

21 MR. BIRMINGHAM: Ms. Bellomo --

22 MS. BELLOMO: Just one moment.

23 Am I entitled to require to be subpoenaed and get a

24 witness fee, because I've had to subpoena witnesses of other

25 parties and pay witnesses fees? I guess I am feeling like I


01 don't want to testify without a subpoena and a witness fee,

02 either.

03 CHAIRMAN CAFFREY: Mr. Frink, what do you think?

04 MR. BIRMINGHAM: She is here, Mr. Caffrey. She is

05 within the jurisdiction and scope of the Board's long

06 arm. And I don't -- I believe she is here; she is sworn. I

07 don't need a subpoena. I am glad to pay her the $150

08 witness fee if that is her concern.

09 MS. BELLOMO: It would be nice for our group to get our

10 fee back for Mr. Turner and Mr. Thomas. That was $300 right

11 there. You know, just, fair is fair.

12 Also, can Mr. Porter be required to testify from the

13 Forest Service when he wasn't subpoenaed, and we would want

14 to ask him questions, and he's been here and he's here? He

15 said, "Well, since I wasn't subpoenaed, I don't have to

16 testify."

17 CHAIRMAN CAFFREY: Are you willing to testify on the

18 basis of Mr. Birmingham's pledge to reimburse you $150 for

19 your testimony?

20 MS. BELLOMO: Only if other parties can be called as

21 witnesses without being subpoenaed, and I can call them and

22 make them testify tomorrow.

23 MR. BIRMINGHAM: I certainly do not want to act on

24 behalf of the United States. But there is a federal

25 statutory procedure which must be complied with before


01 either a state court or state agency can subpoena a federal

02 employee. That procedure would require the approval of the

03 Secretary of the Department of Agricultural for the Forest

04 Service before a federal employee could be asked or

05 compelled to testify before this Board or state court.

06 MS. BELLOMO: What is interesting, then, is, I guess

07 just for clarification, if I testify today, then tomorrow I

08 can ask Mr. Dodge and the attorney for Fish and Game, the

09 attorney for DWP, and any of these other signatories to the

10 settlement to sit up here and answer questions from me,

11 correct, without subpoena because they are parties and they

12 are present?

13 CHAIRMAN CAFFREY: Mr. Frink, is that correct or is

14 that not correct?

15 MR. FRINK: Since Ms. Bellomo was not subpoenaed, if

16 she wants to refuse to testify, I believe she can do so.

17 Mr. Birmingham could, however, ask her questions on

18 cross-examination tomorrow when she appears as a rebuttal

19 witness for People from Mono Basin Preservation.

20 MS. BELLOMO: Limited to the subject of my testimony,

21 correct, tomorrow?

22 MR. FRINK: Not necessarily under the Board

23 regulations. Limited to any relevant matter within your

24 knowledge.

25 MS. BELLOMO: I would prefer to go that route, then.


01 CHAIRMAN CAFFREY: All right. That would be the order

02 then.

03 MR. BIRMINGHAM: That is fine.

04 CHAIRMAN CAFFREY: Anything else, Mr. Birmingham?

05 MR. BIRMINGHAM: No, that is all.

06 CHAIRMAN CAFFREY: Thank you, sir.

07 MEMBER BROWN: Didn't take long, Mr. Chairman.

08 MEMBER DEL PIERO: It may take longer tomorrow.

09 CHAIRMAN CAFFREY: I think we will find tomorrow it

10 will take quite a bit longer.

11 Ms. Scoonover, I saw you stand. Was there something

12 you wished --

13 MS. SCOONOVER: I reconsidered.

14 MR. BIRMINGHAM: There is one point that I would like

15 to make with respect to a comment Ms. Bellomo made.

16 Ms. Bellomo at the beginning of this hearing made a

17 major effort to establish that she was not here acting as an

18 attorney on behalf of the People from Mono Basin

19 Preservation. I think if we go back and look at the

20 transcript, she made that observation a couple of times.

21 If she wants to call me as a witness, I will vigorously

22 oppose any effort, whether subpoenaed or not, that she makes

23 to have me testify. I am an attorney for the City of Los

24 Angeles, and, as an attorney, I cannot within the ethical

25 limitations imposed by the rules of professional conduct,


01 testify in a proceeding without first obtaining a written

02 approval, a written waiver, of the potential conflict that

03 could result from the city.

04 MS. BELLOMO: If I could just comment on that. I would

05 expect that you're a percipient witness to certain facts and

06 conversations that you didn't hear in your attorney-client

07 privileged relationship.

08 Secondly, I'd be just as happy to call Mr. Kavounas

09 tomorrow without a subpoena and ask him questions about the

10 settlement, possibly. The point being that, yes, I am an

11 attorney, I am not representing People from Mono Basin

12 Preservation as an attorney. You're calling me as a

13 percipient witness and many of you are percipient witnesses

14 to things that we would have liked to know about for quite a

15 while now. And it is no different.

16 MR. BIRMINGHAM: Mr. Caffrey, the People from Mono

17 Basin Preservation had every opportunity to participate in

18 the discussions which resulted in the settlement agreement

19 which has been marked for identification as LADWP Exhibit

20 68A and B. The People from Mono Basin Preservation declined

21 the invitation of the other parties to participate in those

22 discussions. And had they participated, perhaps Ms. Bellomo

23 would have the information that she is interested in having.

24 MS. BELLOMO: That is simply not true, and it must be

25 corrected, Chairman Caffrey. I can't permit that to go by.


01 That is simply not true. We were never allowed to

02 participate in any settlement negotiations. The day that

03 you were told there was a settlement and you all left the

04 room, and we were told in complete secrecy what the

05 settlement was. At that point in time, we were given a

06 take-it-or-leave-it offer. That was not a negotiation. We

07 were not told we could negotiate. We were told, "We, the

08 aligned parties, have arrived at a settlement. Would you

09 like to join?"

10 That is not being invited into negotiations. And in

11 the ensuing weeks now, after that hearing, even though Mr.

12 Johns, I think it was, asked me under oath if we were

13 willing to continue to discuss and negotiate, we never saw

14 another shred of paper and we weren't allowed to know

15 anything.

16 I talked to Mr. Haselton a few days ago. He told me

17 that he wasn't even supposed to be telling me what was in

18 the documents that were going back and forth between them.

19 We haven't been allowed to be in any negotiations. As soon

20 as we said, "We don't like the deal you've struck," we were

21 out of it again.

22 CHAIRMAN CAFFREY: I think we may be into semantics. I

23 don't want to further complicate things. I think you both

24 eloquently put your position on the record. I would

25 observe, if my memory serves me, and I am not looking at a


01 copy of the transcript, I would observe that my memory, at

02 least my recollection, is that when offered within the

03 record, within the discussion that we had, when offered to

04 be a party to the settlement, I thought that you had

05 indicated that you did not want to be part of those

06 discussions, Ms. Bellomo, and perhaps what you are

07 perceiving on the part of the others is that that was their

08 understanding and so did not invite you into the discussion

09 on that basis. I am just making an observation. Maybe I am

10 wrong.

11 MS. BELLOMO: I read the record on that point, Chairman

12 Caffrey, and it very clearly is not that point. Mr. Johns

13 asked me, would we still be open to discussions, and I said

14 something along the lines of, yes, if they were willing to

15 change their position. And he said, or if they are willing

16 to convince you to change your mind. I said, yes.

17 After that we were not allowed in on any discussions.

18 They continued to have meetings, et cetera. Didn't send us

19 anything. Didn't talk to us. Mr. Haselton told me

20 something was sent out just the other day and it was called,

21 quote-unquote, final settlement, which is why I had asked,

22 "Do we actually have the final version?"

23 Because Mr. Haselton looked through it and told me, "I

24 can't tell you what is in it, but there is some different

25 thing in here. And so, no, we weren't part of the


01 negotiations. We weren't asked if we like anything they

02 were talking about. They were having problems with Cal

03 Trout. Who knows about what? We weren't knowing what was

04 going or asked what our views were. No, we were not.


06 Mr. Dodge.

07 MR. DODGE: With all due respect to everyone, this is

08 disintegrating. It is really shedding more smoke than

09 light. Whether or not they were invited, and by the way,

10 they never asked to join our discussion. But whether or not

11 they were invited is quite beside the point. The basic

12 point here is we have a settlement agreement, which a lot of

13 parties have agreed to. Does it make sense to go forward on

14 that basis or does it not? I think the rest of this is not

15 helpful, Mr. Chairman.

16 CHAIRMAN CAFFREY: Your are quite right, Mr. Dodge. I

17 think we are going to conclude this discussion at this

18 point, and I am going to ask Mr. Birmingham, does he have

19 anything else that he would wish to offer as rebuttal

20 tomorrow?


22 CHAIRMAN CAFFREY: Thank you, sir.

23 I don't think anybody is here from U.S. Forest

24 Service. Is that correct?

25 Sir, do you wish to offer any rebuttal evidence?


01 MR. PORTER: No.

02 CHAIRMAN CAFFREY: Anyone here from the Bureau of Land

03 Management?

04 Nobody. All right.

05 People from Mono Basin Preservation.

06 Ms. Bellomo, you had said you wanted to present your

07 witnesses tomorrow morning?

08 MS. BELLOMO: Yes, I would prefer to do that.

09 Although, if Mr. Turner doesn't want to be here tomorrow, I

10 could do Mr. Turner today.

11 Are you going to be here tomorrow anyway?

12 CHAIRMAN CAFFREY: Without objection, why don't we hear

13 from you tomorrow.

14 No one has heard from Arcularius Ranch; is that correct?

15 MS. BELLOMO: Excuse me, you ask -- Mr. Thomas are you

16 indifferent? Are you going to be here tomorrow?

17 MR. THOMAS: Yes.

18 MR. FRINK: Ms. Bellomo, you indicated earlier that you

19 had some speakers on policy matters that you would prefer to

20 get through today. Is that still the case? Or do you want

21 to hold those till tomorrow?

22 MS. BELLOMO: I just thought if you wanted to make use

23 of time, they are here, and you can do that discreet, short

24 event.

25 CHAIRMAN CAFFREY: You do have -- you are talking about


01 the policy statement?

02 MS. BELLOMO: The five-minute policy statements could

03 occur. They are not part of the rebuttal presentation. It

04 seems like something you could get out of the way, if you

05 want.

06 CHAIRMAN CAFFREY: I understand, and they are going to

07 be available.

08 Let me continue down through the list here for a

09 moment.

10 Richard Ridenhour is not here.

11 Cal Trout, do you have some evidence you wish to

12 offer?

13 MR. ROOS-COLLINS: Yes, Mr. Chairman.

14 Mr. Chairman, California Trout has no rebuttal

15 witnesses. We do have three exhibits to introduce as

16 rebuttal evidence. I have marked these Exhibits CT-6, 7,

17 and 8. Before I go further, Mr. Chairman, I need to clarify

18 the identification of Dr. Mesick's supplemental testimony.

19 That is also marked as CT-6. I ask the Board' permission to

20 remark that as CT-1A. And, therefore, the rebuttal evidence

21 will be CT-6 through 8.

22 CHAIRMAN CAFFREY: Any objection?

23 You are going to describe the exhibits, I presume, Mr.

24 Roos-Collins?

25 MR. ROOS-COLLINS: Yes, Mr. Chairman.


01 CHAIRMAN CAFFREY: Please proceed.

02 MR. ROOS-COLLINS: CT-6 is an excerpt from the book

03 Better Trout Habitat, written by Christopher Hunter, who has

04 testified here before this Board. That exhibit discusses

05 monitoring protocols for fish population.

06 CT-7 is a 1988 article prepared by Dr. Platts regarding

07 fish populations in various streams in the western states.

08 Including Eastern Sierra. Dr. Platts has also testified in

09 this hearing.

10 CT-8 is a letter from Mark Hill, an employee of Don

11 Chapman Consultants to Jim Edmondson, the Executive Director

12 of California Trout, regarding the fish populations in Rush

13 and Lee Vining Creeks.

14 I offer these exhibits for the purpose of supporting

15 the settlement agreement including the amendment that we

16 provided to the Board today.

17 CHAIRMAN CAFFREY: All right. Is there any objection

18 to taking these exhibits into the record?

19 MR. BIRMINGHAM: No objection.

20 MS. BELLOMO: No objection.

21 CHAIRMAN CAFFREY: Hearing and seeing no objection, we

22 will accept these.

23 MR. ROOS-COLLINS: Thank you, Chairman Caffrey.

24 CHAIRMAN CAFFREY: Thank you, sir.

25 Department of Fish and Game.


01 MS. CAHILL: No rebuttal.

02 CHAIRMAN CAFFREY: State Lands Commission and

03 Department of Parks and Recreation, Ms. Scoonover.

04 MS. SCOONOVER: We have no rebuttal. At this time Mr.

05 Valentine is trying to ascertain whether we will have

06 rebuttal tomorrow.

07 CHAIRMAN CAFFREY: You would like to hold off until

08 tomorrow?

09 MS. SCOONOVER: I would.

10 CHAIRMAN CAFFREY: National Audubon and Mono Lake

11 Committee, Mr. Dodge, anything?

12 MR. DODGE: My position is the same as it was 15

13 minutes ago. I would like to think about it overnight. I

14 may have one witness. It won't take long if I do.

15 CHAIRMAN CAFFREY: If we are going to be accommodating

16 as ever, we have potentially two presentations of rebuttal

17 tomorrow, perhaps three when we find out from Ms.

18 Scoonover's contact.

19 Perhaps now we could, if there is no objection, maybe

20 we could go to some policy statements. Anybody have a

21 problem with that?

22 These are five minute limitation policy statements; is

23 that right, Ms. Bellomo?

24 MS. BELLOMO: That is correct.

25 CHAIRMAN CAFFREY: You have how many parties who wish


01 to?

02 MS. BELLOMO: Three, I believe.

03 CHAIRMAN CAFFREY: Three policy statements.

04 Mr. Johns you will time us. I would ask the parties to

05 please be cognizant of the time and respect our need to be

06 efficient. You each have five minutes. I have no name

07 cards, so I don't know who we are going to be hearing.

08 Perhaps, you could stand and introduce the individuals in

09 the order you would like to present them, Ms. Bellomo.

10 These are policy statements.

11 MS. BELLOMO: Actually, why don't I introduce the

12 people that have traveled over from Mono City. They are not

13 all giving policy statements. They wanted to consolidate to

14 save time for you.

15 We have here Floyd Griffin, Heidi S. Griffin, Bonnie

16 Noles, John Frederickson, and Tim Alpers, our illustrious

17 ex-supervisor of our district. I believe Mr. Griffin,

18 followed by Ms. Noles, and then Mr. Frederickson will make a

19 statement.

20 CHAIRMAN CAFFREY: You actually have three five-minute

21 presentations.

22 MS. BELLOMO: Yes.

23 CHAIRMAN CAFFREY: One of them being presented by more

24 than one person; is that right?

25 MS. BELLOMO: No. I just introduced them all, one


01 after another. They may take less than five minutes.

02 CHAIRMAN CAFFREY: Welcome to all of you.

03 Sir, are you first? Please come forward. Please

04 pronounce your name for the record and spell it.



07 MR. GRIFFIN: Floyd Griffin; F-l-o-y-d G-r-i-f-f-i-n.

08 Afternoon, Mr. Chairman and fellow Board Members. I

09 really appreciate the chance to be here and to be heard.

10 There hasn't been much public input on these plans, so it is

11 a real treat for me to be here. I have been a basin

12 resident for 29 years. I am a duck and goose hunter,

13 recreational duck and goose hunter. And I support Ducks

14 Unlimited and the creation of waterfowl habitat where it is

15 practical.

16 The settlement proposal and, in fact, the entire

17 concept of shifting stream restoration and waterfowl

18 enhancement to the North Basin is not practical. In the

19 first place, the city did not damage any streams in the

20 North Basin, so why the shift in the restoration plan?

21 The effected areas were Rush, Parker, Walker, and Lee

22 Vining Creeks. I know some scientist said nothing could be

23 done with the southern streams. They are too badly

24 damaged. But I heard a panel, the panel here this morning,

25 say that some black willow and cottonwoods are already


01 coming back in those stream beds.

02 Perhaps the damage in Rush and Lee Vining, the major

03 creeks, aren't as bad as were originally thought. It's just

04 not right to let the city fund this Foundation to the tune

05 of three point something million dollars and walk away from

06 the problems in the southern basin. It is pretty obvious

07 why they are in favor of this settlement agreement. I would

08 be, too, in their boat.

09 The proposal to rewater Mill Creek at the expense of

10 Wilson Creek is bizarre. Nobody with any common sense,

11 after seeing the effected areas, would agree with this grand

12 experiment. And after listening to the panel this morning,

13 it is pretty obvious to me that rewatering Mill Creek is an

14 experiment. They as much as said so. It is pretty obvious

15 that Dr. Stine's focus is what Mill Creek was 10,000 years

16 ago. I don't have the time to wait to see if that works

17 out.

18 The Wilson Creek drainage from Conway Ranch to

19 DeChambeau Ranch is a beautiful and diverse habitat. From

20 trout raising to waterfowl habitat is unique and

21 irreplaceable. The DeChambeau ponds and County Ponds could

22 be duck habitat, the envy of the Eastern Sierra if the

23 Forest Service would utilize to the fullest extent their

24 water rights, their existing water rights to Wilson Creek

25 water, and also apply for some winter water. That winter


01 water rights are up for grabs. I would like to see the

02 Forest Service apply for those and maintain the DeChambeau

03 and County Ponds.

04 The City of Los Angeles could be given restoration

05 credit for helping to restore the DeChambeau area instead of

06 along Mill Creek stream. Most of the residents of the Mono

07 Basin do not care what Mill Creek looked like 10,000 years

08 ago, or have the time to wait a hundred years to see if it

09 happens again. We like what we have now.

10 I would further urge the Water Board not to give up

11 control of water issues in the Mono Basin to a Foundation

12 with questionable motives.

13 Thank you very much.

14 CHAIRMAN CAFFREY: Thank you, sir, very much for your

15 being here. Appreciate your input.

16 Next speaker. Good afternoon, welcome. Please

17 identify yourself for the record, spell your name for the

18 stenographer.

19 MS. NOLES: My name is Bonnie Noles. B-o-n-n-i-e

20 N-o-l-e-s. I am a descendant of six generations that

21 originally settled in the Mono Basin in 1885. My family,

22 the Filosenas and LaBraques, along with the Conways and

23 DeChambeaus and other pioneer families worked on their

24 ranches to clear sagebrush and establish irrigation ditches

25 which created the green meadows we enjoy today in the north


01 end of the basin.

02 When I heard about the proposal to rewater Mill Creek

03 at the expense of Wilson Creek, I became greatly alarmed,

04 for I knew the destruction which would occur. I am enraged

05 to think that people who don't live in the area think they

06 have the authority to come into the basin and destroy my

07 heritage.

08 To dry up Wilson Creek, a self-sustaining brown trout

09 fishery and its entire ecosystem and cease irrigating the

10 meadows my ancestors helped create, really disturbs me.

11 For when these people have rerouted the water and dried up

12 our meadows, they have not lost their heritage. These

13 people have nothing to lose.

14 Those who claim to be residents will pick up their bed

15 rolls and leave with pay checks in their pockets and a gold

16 star for their resumes. While the local citizens remain,

17 living with the devastating results.

18 I have traveled here today to oppose the adoption of a

19 settlement that would create a Foundation whose purpose is

20 to rewater Mill Creek. Others in the community share my

21 feelings. With nearly 400 signatures on petitions which

22 oppose rewatering Mill Creek at the expense of Wilson Creek,

23 I can say there is large community outcry.

24 If this Foundation is created, it cuts the public,

25 including our county, out of the process. We, the local


01 citizens, are the ones who live here, which have to live

02 with the results. We should be a part of the decision

03 making process.

04 I am asking you, the Board Members, to travel over to

05 the Mono Basin and see for yourself the areas of concern

06 before you adopt restoration plans for the north end of the

07 basin. If you do, you will see for yourselves what you

08 would be destroying if you approved in the settlement the

09 rewatering of Mill Creek. You would understand why the

10 community is outraged. If you come to the Mono Basin, you

11 could go to DeChambeau Ranch and see what the citizens have

12 done there to bring water back to the ranch to support all

13 the habitat there.

14 When you see the ranch, you will agree that this is a

15 beneficial use of water for habitat, with water immediately

16 available for the ponds. We must remember the whole issue

17 we're addressing here is waterfowl restoration. This, you

18 will see, is a choice area for waterfowl restoration. While

19 you were here, you could also visit Cain Ranch. You would

20 see it dying, and you will know that you cannot approve a

21 plan that will create more of the same kind of environmental

22 devastation.

23 Please remember that thousands of people visit the

24 basin each year and enjoys these acres that will be ruined

25 if the settlement is approved and the Foundation gets its


01 way. The local residents will be left living with the

02 devastating results. I am asking you, the Water Board, to

03 retain our control over restoration decisions in the north

04 end of the basin. Please don't give your authority away to

05 the self-appointed group that has its own agenda, which has

06 been made clear - it is not waterfowl habitat or restoration

07 as its main focus.

08 Thank you for giving me the opportunity to oppose the

09 settlement agreement and the self-appointed Foundation which

10 is endangering the environment which I have lived in all my

11 life. I at least know that I have tried to convince you

12 that this is truly a destructive plan and that I have tried

13 to save the basin from another environmental nightmare.

14 CHAIRMAN CAFFREY: Thank you very much, Ms. Noles, for

15 being here and taking the time to share your strong concerns

16 with us. We appreciate that.

17 MEMBER DEL PIERO: Mr. Chairman.


19 MEMBER DEL PIERO: For Ms. Noles' information, I have

20 been at all the locations mentioned in your presentation.

21 MS. NOLES: I am glad to hear that.

22 MEMBER DEL PIERO: I can't say that I have walked the

23 entire length of the streams. That was the question Ms.

24 Bellomo was asking a number of people. I don't know that

25 there are many people in Mono City or Lee Vining that could


01 ever say they walked the entire length of those streams. I

02 have been on all of the property and along all the water

03 courses that you talked about.

04 CHAIRMAN CAFFREY: Thank you, Mr. Del Piero.

05 And we have one more presenter. Good afternoon, sir,

06 welcome. Please give us your name and spell it for the

07 stenographer.

08 MR. FREDERICKSON: My name is John Frederickson. It's

09 F-r-e-d-e-r-i-c-k-s-o-n.

10 I came over here today because I have some real

11 concerns about this idea and what the Foundation would do.

12 I bought the Conway Ranch in 1980. The first third of it

13 from Katie Conway. It is Katie Conway Bell. And I bought

14 the remainder of the ranch with my partner, Arnold Beckman,

15 in 1983. And I have lived on the ranch. I have lived in

16 Mono County for 25 years. I run the June Lake marina. I

17 run Crowley Lake for the Department of Water and Power, and

18 I run 30 campgrounds and facilities for the U.S. Forest

19 Service.

20 I am real familiar with the area and all of the

21 streams. I live right above Wilson Creek, and behind my

22 house is a diversion to the DeChambeau Ranch, and there is a

23 pond there. And I have watched the waterfowl over the years

24 land there, and we were talking about what the waterfowl do

25 on stormy days. Well, I will tell you; several hundred of


01 them land on the pond behind my house.

02 I just can't see the reason for dewatering Wilson Creek

03 to put it back into Mill Creek. It is a real viable

04 habitat. I did all -- I worked on all the environmental

05 studies when the ranch was trying to develop a fly fishing

06 resort. I am real knowledgeable on the creek, and it would

07 just be a crime to do what was proposed to do.

08 So, I'll let you know I am against the Foundation and

09 dewatering Wilson Creek.

10 Thank you.

11 CHAIRMAN CAFFREY: Thank you, sir, very much for being

12 here to express your concerns. We appreciate it.

13 I am inclined at this point, it's 25 minutes to 5, to

14 call it a day and we come back tomorrow. We can begin with

15 the people from Mono Basin Preservation. Then we would go

16 to Ms. Scoonover and then to Mr. Dodge, being the order that

17 we have followed in direct.

18 I would also like to apologize to Mr. Brown when he

19 made his suggestion a little while ago about 8:00. That was

20 all my fault. I am kind of grumpy today. Mr. Brown is a

21 good friend and has very good suggestions. Under normal

22 circumstances, 8:00 would probably have been good. I

23 apologize, John, that was uncalled for.

24 MEMBER BROWN: Not necessary, Mr. Chairman.

25 Thank you.



02 With that, then, ladies and gentlemen --

03 MEMBER DEL PIERO: Nobody is supposed to be that

04 grumpy, except me.

05 CHAIRMAN CAFFREY: I had to deal with the Legislature.

06 Before we leave Mr. Johns has something.

07 We will start tomorrow morning at 9:00 a.m.

08 Thank you all very much.

09 (Hearing adjourned at 4:40 p.m.)

10 ---oOo---





















04 ) ss.






08 I, ESTHER F. WIATRE, certify that I was the

09 official Court Reporter for the proceedings named herein,

10 and that as such reporter, I reported in verbatim shorthand

11 writing those proceedings;

12 That I thereafter caused my shorthand writing to be

13 reduced to typewriting, and the pages numbered 1370 through

14 1558 herein constitute a complete, true and correct record

15 of the proceedings.


17 IN WITNESS WHEREOF, I have subscribed this certificate

18 at Sacramento, California, on this 23rd day of May 1997.






23 ______________________________


24 CSR NO. 1564



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