01 STATE WATER RESOURCES CONTROL BOARD
03 PUBLIC HEARING
06 REGARDING STREAM AND WATERFOWL HABITAT RESTORATION PLANS
06 AND GRANT LAKE OPERATIONS AND MANAGEMENT PLAN SUBMITTED BY
07 THE LOS ANGELES DEPARTMENT OF WATER AND POWER PURSUANT TO
07 THE REQUIREMENTS OF WATER RIGHT DECISION 1631
13 HELD AT:
14 STATE WATER RESOURCES CONTROL BOARD
14 PAUL BONDERSON BUILDING
15 901 P STREET, FIRST FLOOR HEARING ROOM
15 SACRAMENTO, CALIFORNIA
18 WEDNESDAY, MAY 7, 1997
18 9:00 A.M.
24 Reported by: ESTHER F. WIATRE
24 CSR NO. 1564
01 BOARD MEMBERS:
02 JOHN CAFFREY, CHAIRMAN
03 JOHN W. BROWN (a.m. only)
03 MARC DEL PIERO
04 STAFF MEMBERS:
05 JAMES CANADAY, ENVIRONMENTAL SPECIALIST
06 GERALD E. JOHNS, ASSISTANT DIVISION CHIEF
08 DAN FRINK
09 LOS ANGELES DEPARTMENT OF WATER AND POWER:
10 KRONICK MOSKOVITZ TIEDEMANN & GIRARD
10 400 Capitol Mall, 27th Floor
11 Sacramento, California 95814
11 BY: THOMAS W. BIRMINGHAM, ESQ.
12 JANET GOLDSMITH, ESQ.
13 UNITED STATES FOREST SERVICE: (Not present.)
14 UNITED STATES DEPARTMENT OF AGRICULTURE
15 OFFICE OF GENERAL COUNSEL
15 33 New Montgomery, 17th Floor
16 San Francisco, California 94105
16 BY: JACK GIPSMAN, ESQ.
17 BUREAU OF LAND MANAGEMENT: (Not present.)
18 UNITED STATES DEPARTMENT OF THE INTERIOR
19 BUREAU OF LAND MANAGEMENT
19 BISHOP RESOURCE AREA
20 785 North Main Street, Suite E
20 Bishop, California 93514
21 BY: TERRY L. RUSSI
02 PEOPLE FOR MONO BASIN PRESERVATION:
03 KATHLEEN MALONEY BELLOMO
03 P.O. Box 201
04 Lee Vining, California 93541
05 FIRST PANEL:
06 JOHN TURNER
06 DONALD THOMAS
07 SECOND PANEL:
08 JOHN FREDERICKSON
09 JOE BELLOMO
09 KATHLEEN MALONEY BELLOMO
10 ARNOLD BECKMAN: (Not present.)
11 DeCUIR & SOMACH
12 400 Capitol Mall, Suite 1900
12 Sacramento, California 95814
13 BY: DONALD MOONEY, ESQ.
14 ARCULARIUS RANCH: (Not present.)
15 FRANK HASELTON, LSA
15 1 Park Plaza, Suite 500
16 Irvine, California 92610
17 RICHARD RIDENHOUR: (Not present.)
18 RICHARD RIDENHOUR
19 CALIFORNIA TROUT, INC.:
20 NATURAL HERITAGE INSTITUTE
20 114 Sansome Street, Suite 1200
21 San Francisco, California 94014
21 BY: RICHARD ROOS-COLLINS, ESQ.
02 CALIFORNIA DEPARTMENT OF FISH AND GAME:
03 NANCEE MURRAY, ESQ.
03 1416 Ninth Street
04 Sacramento, California 95814
05 McDONOUGH HOLLAND & ALLEN
05 555 Capitol Mall, Ninth Floor
06 Sacramento, California 95814
06 BY: VIRGINIA A. CAHILL, ESQ.
07 CALIFORNIA STATE LANDS COMMISSION:
08 CALIFORNIA DEPARTMENT OF PARKS AND RECREATION:
09 MARY J. SCOONOVER, ESQ.
09 1300 I Street
10 Sacramento, California 95814
11 MICHAEL VALENTINE
12 NATIONAL AUDUBON SOCIETY:
12 MONO LAKE COMMITTEE:
13 MORRISON & FOERSTER
14 425 Market Street
14 San Francisco, California
15 BY: F. BRUCE DODGE, ESQ.
03 PEOPLE FOR MONO BASIN PRESERVATION
04 FIRST PANEL
05 DIRECT EXAMINATION
06 BY MS. BELLOMO 1566
08 BY MR. BIRMINGHAM 1622
08 BY MR. ROOS-COLLINS 1640
09 BY MS. CAHILL 1644
09 BY MR. DODGE 1663
10 BY BOARD STAFF 1668
11 SECOND PANEL
12 DIRECT EXAMINATION
13 BY MS. BELLOMO 1684
15 BY MR. BIRMINGHAM 1766
15 BY MS. CAHILL 1799
16 BY MR. DODGE 1803
16 BY BOARD STAFF 1805
17 REBUTTAL TESTIMONY
18 DIRECT EXAMINATION
19 BY MR. DODGE 1815
21 BY MS. SCOONOVER 1832
22 BY BOARD STAFF 1840
23 AFTERNOON SESSION 1661
01 SACRAMENTO, CALIFORNIA
02 TUESDAY, MAY 6, 1997
04 CHAIRMAN CAFFREY: Good morning and welcome back to
05 these proceedings. I hope everybody got a good night's rest
06 and are ready with smiles on their faces. I know I am. I
07 apologize for being grumpy. I got a good five hours of
08 sleep. For me that is a record.
09 Mr. Del Piero will not be docked half a day's pay for
10 his outfit this morning.
11 MEMBER DEL PIERO: I told a couple of you, this is the
12 only shirt I could find to go with the tie.
13 THE COURT: We find ourselves at the point in the
14 hearing where we are within the rebuttal portion. If memory
15 and my record keeping serves me correctly, we were going to
16 now hear from Ms. Bellomo. And you have, if I understand
17 correctly, Ms. Bellomo, two panels that you want to present.
18 MS. BELLOMO: Yes, that is correct.
19 CHAIRMAN CAFFREY: And we will, after yesterday's
20 discussion, allow you one hour for direct within rebuttal
21 for each of those panels.
22 Are you ready to begin?
23 MS. BELLOMO: Yes, I am. The first panel is Mr. Turner
24 and Mr. Thomas of Department of Fish and Game, and Mr.
25 Thomas is out of the room, I think. He is in the building.
01 CHAIRMAN CAFFREY: I did just see him in the coffee
02 shop. We will take a moment while you round them up.
03 CHAIRMAN CAFFREY: Again, I just want to remind the
04 parties that we restrict the rebuttal portion of the hearing
05 to presentation of testimony or other evidence which is
06 intended to rebut evidence presented by another party.
07 Hopefully, we will all be able to keep track of that.
08 I am going to certainly rely on everybody's goodwill.
09 MS. BELLOMO: I tried to consciously prepare an
10 explanation for every point I am putting in with regard to
11 what it is rebutting. That should be a question I should be
12 able to answer.
13 CHAIRMAN CAFFREY: That would be very helpful and we
14 appreciate that.
16 DIRECT EXAMINATION BY
17 PEOPLE FOR MONO BASIN PRESERVATION
18 BY MS. BELLOMO
19 MS. BELLOMO: Good morning, Mr. Turner and Mr. Thomas.
20 MR. TURNER: Good morning.
21 MR. THOMAS: Good morning.
22 MS. BELLOMO: I am going to begin by directing my
23 questions to you, Mr. Turner. Can I ask you to state your
24 name for the record, please?
25 MR. TURNER: Yes. My name is John Turner.
01 MS. BELLOMO: By whom are your employed?
02 MR. TURNER: I am employed by the Department of Fish
03 and Game and Division Chief of Environmental Services
05 MS. BELLOMO: Did you receive a subpoena from the
06 People from Mono Basin Preservation requesting your presence
07 here today?
08 MR. TURNER: Yes, I did. For the record, I would like
09 to thank Jerry very much for the written invitation.
10 MS. JOHNS: Any time.
11 MS. BELLOMO: What is your current job with the
12 Department of Fish and Game?
13 MR. TURNER: I am chief of the Environmental Services
14 Division, which is in charge of review and evaluation of
15 lots and lots of developmental-type projects, CEQA process,
16 also a lot of the federal projects dealing with things like
17 FERC, Federal Energy Regulation Commission, and private
18 department projects.
19 MS. BELLOMO: Are you an expert in CEQA?
20 MR. TURNER: Yes.
21 MS. BELLOMO: Just to clarify, does your job involve
22 having responsibility for the review of environmental impact
23 documents and mitigation measures?
24 MR. TURNER: Yes, it does.
25 MS. BELLOMO: Can you just explain what mitigation
01 measures means or refers to?
02 MR. TURNER: We can go back a long way. Peter Bear
03 sort of listed mitigation measures as the runner-up's prize
04 for losing. I prefer to look at mitigation as reducing the
05 kinds of adverse impacts that show up on projects. We sort
06 that out from compensation-type projects which would be
07 fully mitigating or fully compensating for an environmental
08 impact. And part of the CEQA process is also try to avoid
09 impacts by, maybe, choosing a different alternative or
10 designing projects a different way.
11 MS. BELLOMO: Thank you.
12 I am going to direct your attention, Mr. Turner, to a
13 document that has been marked as -- it's actually in
14 evidence as R-PMBP-18. I know you weren't part of the
15 proceedings up to now. I have a copy for you of the
16 document, and I have some additional copies if the Board
17 Members would like to see it today.
18 CHAIRMAN CAFFREY: Thank you.
19 MS. BELLOMO: Mr. Turner, have you seen this document
20 any time since June 1st of 1993?
21 MR. TURNER: Yes, I have.
22 MS. BELLOMO: Did you review it prior to coming here
24 MR. TURNER: Yes, I did. Not on your hint. It was on
25 case of -- it was part of the record we were looking
02 MS. BELLOMO: Turning to the last page of Exhibit 18,
03 where it's originally signed by John L. Turner. Are you
04 the John L. Turner that signed this document?
05 MR. TURNER: Yes, I am.
06 MS. BELLOMO: I would like to ask you very briefly to
07 explain what the Paoha Project was.
08 MR. TURNER: The Paoha Project was a project proposed
09 by Joseph Keating. Joseph Keating was a small hydro
10 developer who probably, for a good portion of the early
11 '80s, proposed projects all over the State of California, of
12 which this is one.
13 MS. BELLOMO: Was the Paoha Project proposed to be
14 placed on Wilson Creek below the Lundy Powerhouse?
15 MR. TURNER: Yes. The water was to be diverted out of
16 the tailrace for the Lundy project, would go through Mr.
17 Keating's project, and then be shuttled back into Wilson
18 Creek or Wilson Ditch leading to Wilson Creek.
19 MS. BELLOMO: If I could ask you to turn to Page 2 of
20 R-PMBP-18. Do you see the paragraph beginning, "It is
21 important," where I, for convenience, marked with an
23 MR. TURNER: Yes.
24 MS. BELLOMO: If I could direct your attention to the
25 last sentence in this paragraph where it states:
01 Instream flows necessary to maintain --
03 Let me back up for a moment.
04 I would like to avoid the time of reading this whole
05 paragraph. Were you addressing the fish population in
06 Wilson Creek in this paragraph?
07 MR. TURNER: Yes.
08 MS. BELLOMO: Directing your attention to the last
09 sentence in this paragraph, where you state, "Instream flows
10 necessary to maintain this population in good condition are
11 required by law." Is this population phrase referring to
12 the brown trout in Wilson Creek?
13 MR. TURNER: Yes, it is.
14 MS. BELLOMO: What law were you referring to in that
16 MR. TURNER: Section 5937 of the Fish and Game Code.
17 MS. BELLOMO: Has Section 5937 of the Fish and Game
18 Code changed since January 1st, 1993?
19 MR. TURNER: No.
20 MS. BELLOMO: Can you tell me what Section 5937 of the
21 Fish and Game Code provides, with regard to fisheries?
22 MR. DODGE: Objection. Calls for legal conclusion. No
23 foundation that this witness can give a legal conclusion.
24 CHAIRMAN CAFFREY: Well, in view of the fact that he
25 works with this code, I think, as a professional, maybe
01 there is a way you can get to asking him the question
02 another way. Why don't you try it again?
03 MS. BELLOMO: Mr. Turner, could you tell me what your
04 understanding is of the requirements of Section 5937?
05 MR. TURNER: Yes. Section 5937 requires the Department
06 to ensure that we maintain fish below a dam in good
07 condition, and that adequate flows are provided for.
08 MS. BELLOMO: With regard to your statement that we
09 just read, "in stream flows necessary to maintain this
10 population in good condition are required by law," does that
11 statement remain true today?
12 MR. TURNER: I think you have to talk about this in the
13 text of this letter and this project. Okay. In the text of
14 this project, this project had a dam or small barrier that
15 would be put up for diverting the water out of the tailrace,
16 that provided an obstruction or a dam that would require
17 that the fish be maintained in good condition down below.
18 MS. BELLOMO: If today someone wanted to put in a
19 project with the same design as the Paoha Project, would
20 your opinion continue to be that in stream flows necessary
21 to maintain the population in good condition are required by
23 MR. TURNER: Yes.
24 MS. BELLOMO: Is there any other Fish and Game Code
25 section that you can refer us to that requires Fish and Game
01 to protect fisheries in creeks in the State of California?
02 MR. TURNER: In District four and a half, which
03 includes Mono County, there is Section 5943, which requires
04 us to fully maintain fish in good condition below a dam.
05 MS. BELLOMO: Would that apply to this Wilson Creek,
06 below the Lundy Powerhouse, in your opinion?
07 MR. DODGE: Mr. Chairman, if I could just have a
08 continuing objection to this line of questioning, I won't
09 interrupt again. She's calling for legal conclusion.
10 CHAIRMAN CAFFREY: I certainly appreciate your
11 position, Mr. Dodge, but I suppose I could defer to Mr.
12 Frink. But I am of the opinion that these are statutes that
13 the gentleman has to work with and has to interpret them in
14 his normal course of work, sometimes without the advice of
15 counsel. And so I am inclined to, certainly, note your,
16 respectfully note your objection, but to allow the line of
17 questioning to continue.
18 Mr. Frink, do you have any other advice for me?
19 MR. FRINK: I don't have any other advice, and I don't
20 have a copy of Fish and Game Code here. I was unaware of
21 Section 5943.
22 MR. TURNER: 46, I am sorry.
23 MR. FRINK: You are referring to Section 5946.
24 MR. TURNER: Yes.
25 MR. DODGE: I understand you ruled against me. I don't
01 want to keep popping up and objecting. I want a continuing
02 objection to this line of questioning, and I will sit down.
03 CHAIRMAN CAFFREY: I appreciate that, sir. I also want
04 you to know where I am coming from. I want to be very
05 careful, too. I want to give my counsel an opportunity to
06 correct me if he disagrees, or at least try and correct me.
07 MS. CAHILL: If I could join the already overruled
08 objection, I think that, to the extent the witness is being
09 asked for a legal conclusion --
10 MS. BELLOMO: Excuse me, could we stop the clock?
11 Thank you.
12 MS. CAHILL: I think she can ask how he implements.
13 Because when someone implements, they can seek advice of
14 counsel. We are asking him on the spot to make legal
15 conclusions without being able to.
16 CHAIRMAN CAFFREY: I have noted your objection.
17 Perhaps you can note the objection as well, Ms. Bellomo, and
18 try to characterize your questions in a way that, perhaps,
19 would not be construed as asking strictly for a legal
21 MS. BELLOMO: I tried to do that in the last question
22 when I stated "in Mr. Turner's opinion." I'll try to
23 emphasize that.
24 CHAIRMAN CAFFREY: Please.
25 MS. BELLOMO: Perhaps I should restate the question.
01 Would that be helpful, Mr. Turner?
02 MR. TURNER: Okay.
03 MS. BELLOMO: My question is: Does Section 5946 of the
04 Fish and Game Code protect Wilson Creek, in your opinion,
05 below the Lundy Powerhouse?
06 MR. TURNER: I guess the answer to that is probably it
07 is kind of a no. This gets complex because the Lundy
08 Powerhouse or the Lundy project sits on Mill Creek, and
09 Wilson Creek is not part of Mill Creek. So, in terms of a
10 dam on Wilson Creek, there is no dam. So, I don't know how
11 to answer that.
12 MS. BELLOMO: Is there any -- either of the code
13 sections that you have referenced this morning or any other
14 code section that operates to protect, in your opinion,
15 Wilson Creek, a portion of Wilson Creek that flows through
16 Conway Ranch?
17 MR. TURNER: There are all kinds of code sections
18 dealing with protection of fish and maintaining fish. I am
19 not sure how to answer this because I am not sure exactly
20 what you are trying to get to.
21 I guess, if I was asked why this letter was written
22 this way, I would stipulate that I think that there are
23 important fisheries on Wilson Creek. I would also stipulate
24 there are important fisheries on Mill Creek.
25 There is a complexity of projects which have been state
01 and continue to be federal projects that change which code
02 sections, federal and state, preempt which code sections.
03 It gets a little hard to sort out. When we made the
04 recommendation here on Keating project, this was a project
05 that affected, maybe, a 1500-foot stretch of Wilson Creek
06 and Wilson Ditch. Lundy was not a part of that decision.
07 We thought it was important to protect the fishery
08 under those kinds of conditions, and that was our
09 opportunity. And the case of the Lundy project, there have
10 been some things going on at the Lundy Powerhouse and
11 relicensing. There has been some things we proposed for
12 that under FERC and the federal project. Some of the things
13 we recommended there didn't come true, but they are in the
15 Again, that is not taking a system as a whole; that is
16 taking a piece of the system and trying to solve more of a
17 whole problem from a piecemeal approach. If we ever get a
18 shot of the whole watershed, I would recommend we work on
19 the whole watershed together. It would be a good idea.
20 MS. BELLOMO: By together, do you mean Mill Creek and
21 Wilson Creek?
22 MR. TURNER: Yes.
23 MS. BELLOMO: In your opinion, if the Southern
24 California Edison Company were to shut off the water flowing
25 down Wilson Creek, would the Department of Fish and Game get
01 involved in with regard to allegation that some
02 environmental wrong had been committed?
03 MR. TURNER: They've got some commitments under their
04 license, so we'd be in place to file a complaint with the
05 Federal Regulatory Energy Commission.
06 MS. BELLOMO: I guess what I am getting at is if the
07 power company shut off the water down Wilson Creek, would
08 you agree that the fish in the creek would die?
09 MR. TURNER: Anybody shuts the water off for Wilson
10 Creek or any other creek, sure.
11 MS. BELLOMO: In your opinion, if Edison engaged in
12 that behavior, would they have caused a, quote-unquote, fish
13 kill that would be pursued by Fish and Game for that
15 MR. BIRMINGHAM: Objection. Calls for speculation.
16 MS. BELLOMO: Asking for his opinion.
17 MR. TURNER: In my opinion --
18 CHAIRMAN CAFFREY: Overruled, I might add. Go ahead.
19 MR. TURNER: Got to wait for everybody here.
20 There have been occasions when Edison has not made
21 releases and has caused fish problems on Mill Creek. I am
22 not up on all of the details of that. I have a field staff
23 throughout a region that deals with the day-to-day problems.
24 When they get to me, I deal with them in terms of
25 coordinating with water rights and coordinating some of
01 these projects between regions. But I am not a person to
02 give you a lot of detail.
03 MS. BELLOMO: With regard to the comment that you just
04 made that there have been occasions where operation of the
05 powerhouse has resulted in shutting water off to Mill Creek
06 and Fish and Game has gotten involved, do you recall that
08 MR. TURNER: Yes.
09 MS. BELLOMO: If Fish and Game got involved because
10 there was an allegation that there had been some degree of
11 fish kill in Mill Creek, correct?
12 MR. TURNER: I don't know the details of that. I just
13 know that on occasions, and on rather regular occasions,
14 there have been fish losses on Mill Creek, and I assuming
15 that some of it is due to releases from the powerhouse at
17 MS. BELLOMO: Is that acceptable to the Department of
18 Fish and Game?
19 MR. TURNER: No. But it isn't subject to state law.
20 It is preempted by federal law, and we have to file
21 complaints for that.
22 MS. BELLOMO: Are you familiar with the settlement that
23 has been filed in this proceeding?
24 MR. TURNER: Yes.
25 MS. BELLOMO: And, specifically, have you reviewed the
01 document that is the conceptual agreement related to
02 waterfowl habitat restoration?
03 MR. TURNER: Yes, I have.
04 MS. BELLOMO: Just for the record, Mr. Johns, could you
05 refresh my recollection what exhibit number that is?
06 MR. JOHNS: DWP-68.
07 MR. FRINK: The conceptual agreement relating to
08 waterfowl habitat is 68A.
09 MS. BELLOMO: For the record, I am referring to 68A.
10 Would you agree that under CEQA a project for waterfowl
11 habitat restoration could be defined as waterfowl habitat
12 restoration, not a specific project, whether it is Mill
13 Creek or any other project?
14 MR. DODGE: Objection. Unintelligible.
15 CHAIRMAN CAFFREY: I am sorry, I couldn't hear the
17 MR. DODGE: Unintelligible.
18 CHAIRMAN CAFFREY: Could you restate the question?
19 MS. BELLOMO: Could we ask the witness if he understood
21 MR. BIRMINGHAM: I am going to voice the same
23 CHAIRMAN CAFFREY: Could you just restate the question,
24 Ms. Bellomo?
25 MS. BELLOMO: Mr. Turner, are you aware that when CEQA
01 documents are prepared that there has to be a project
02 proposed? Is that correct? Some sort of proposal in the
03 CEQA document; is that correct?
04 MR. TURNER: You mean proposal subject to a CEQA
06 MS. BELLOMO: Yes.
07 MR. TURNER: Yes.
08 MS. BELLOMO: In Exhibit 68A, the goal of the
09 Foundation, as it states, would be to seek the rewatering of
10 Mill Creek? Are you aware of that?
11 MR. TURNER: That is one of the projects that is listed
12 in there, yes.
13 MS. BELLOMO: Would it be possible to prepare a CEQA
14 document where the project was specified as rewatering of
15 Mill Creek?
16 MR. TURNER: It could probably be stated a number of
17 ways. Let me say something that might shorten this. We
18 bought into the waterfowl restoration process as a list of
19 potential projects that would benefit waterfowl. I don't
20 believe we have bought into the approval of any of those
21 processes at that point or any of those projects.
22 I think at this point in time, they are all subject to
23 CEQA compliance and review, including the one for Conway
24 Ranch. That is a public process, and I would value very
25 much all of the input that goes into that process before
01 coming to a conclusion on a decision about that, or any
02 other project.
03 MR. BIRMINGHAM: May I ask the reporter to mark that
04 answer, please?
05 CHAIRMAN CAFFREY: You may, and she will.
06 MS. BELLOMO: Then is the Department of Fish and Game's
07 position that the CEQA review should be looking at waterfowl
08 habitat restoration alternatives, not a CEQA review that
09 specifies that the project is rewatering Mill Creek?
10 MR. TURNER: I think at this point in time we have
11 proposed -- one of the projects proposed in that document is
12 a proposal for improving the habitat for waterfowl on the
13 Conway Ranch. I think that the environmental document
14 should try and lay that out.
15 MS. CAHILL: Can we provide the witness with the copy
16 of the agreement?
17 CHAIRMAN CAFFREY: You certainly may.
18 MS. BELLOMO: Can you continue with your answer, or do
19 you need the document?
20 MR. TURNER: I will wait until she --
21 MS. BELLOMO: Sir, just so the record is clear, are
22 you referring to the Exhibit R-LADWP-68A?
23 MR. TURNER: Yes.
24 MS. BELLOMO: Thank you.
25 MR. TURNER: The project we were referring to in this
01 restoration agreement is C-Mill Creek; it's been labeled.
02 The discussion that went on on this agreement was the
03 parties will analyze this proposed project, including its
04 impacts in the north basin consistent with California
05 Environmental Quality Act and the National Environmental
06 Policy Act.
07 I would assume that it would be developed as a
08 waterfowl kind of project, and that that would couch how
09 the project environmental document goes together. It would
10 obviously, probably, include a discussion on water, because
11 the important part of waterfowl habitat is water. As we
12 learned yesterday in testimony, is the lower end of Mill
13 Creek, which doesn't have a lot of water at sometimes. And
14 I would assume that all the impacts associated with that
15 proposal would be put together in a document, including all
16 various uses of water and all various uses of land as it
17 presently is.
18 MS. BELLOMO: Thank you.
19 Now, are you aware that the document, the settlement
20 document that you are referring to, 68A, provides for
21 payment of $3.6 million by the Los Angeles Department of
22 Water and Power to a fund?
23 MR. TURNER: Yes. Or escrow account.
24 MS. BELLOMO: My question to you is: Does the
25 Department of Fish and Game normally accept money for
01 mitigation rather than requiring that mitigation itself be
03 MR. TURNER: No.
04 MS. BELLOMO: Are you aware of any instance in the past
05 where the Department of Fish and Game has accepted money for
06 mitigation rather than requiring mitigation itself be
08 MR. TURNER: There have been a couple of instances
09 where that has occurred.
10 MS. BELLOMO: Can you tell us what those instances are?
11 MR. TURNER: One of them had to do with a wetlands
12 project that was down Goleta Slough in Santa Barbara County,
13 in which money was proposed for increasing the lands that
14 were part of Goleta Slough. We worked with the project
15 developer and with the county for a long time to identify
16 various places to purchase as far as mitigation. The
17 commission saw fit to collect $650,000, put it into an
18 account for that purpose. And about the same time, we
19 purchased a piece of property, or the county actually
20 purchased a piece of property that ended up part of Goleta
21 Slough. Also, there was some pretty special things attached
22 to that, in that the County of Santa Barbara and the airport
23 at Santa Barbara had a very solid long-term plan in place
24 for restoration of Goleta Slough. The money never passed
25 through the department's hands. It was worked through the
01 county. So, in a sense, we didn't take cash.
02 The only other one that I am aware of is on Kings
03 River, in which they took the money that would have been
04 used for a FERC project, screening, and they put it into a
05 management plan for endangered species. That, too, has been
06 run through a foundation-type of process and the money is
07 there to help manage that particular species. So, again,
08 the department didn't take cash.
09 MS. BELLOMO: Thank you.
10 MR. TURNER: Part of the discussion went into this
11 restoration plan that got us, I think, to the foundation
12 concept, was the concept that we voiced an opinion that we
13 did not wish to take cash as mitigation for this project,
15 MS. BELLOMO: In your opinion, do you believe that the
16 settlement document 68A is flawed because it doesn't provide
17 goals for goals monitoring and adaptive management?
18 MR. TURNER: It would have been nicer to have a
19 settlement that went further. This is part of an overall
20 settlement, and it is a settlement with Los Angeles over
21 Mono Lake, Mono streams restoration. I think the overall
22 plan is an excellent plan. Like any settlement, it didn't
23 go as far as some of the things I would like to see. That
24 is kind of what a settle is about; it is a little bit of
01 What we agreed to in the waterfowl section was we
02 agreed to work with a list of projects and to work with a
03 process, which is the CEQA process, in terms of exercising
04 complete review of how it fits into the whole. The kind of
05 adverse impacts and good impacts that each individual
06 project would provide.
07 I think there is time to look at each individual
08 project, set up goals. I would think that part of what the
09 group could do, if they wished, would be to set up
10 long-term plans and then weave the projects into it as a
11 mosaic of how each individual plan fits into the overall
12 goal. It would have been nice to have it up front. I am
13 not sure that we had all of the information to put that kind
14 of plan together.
15 And I think that we have bought into a process, that I
16 am comfortable with, and I think that the process was also
17 offered to the county, and I don't know if you were part of
18 that, to be part of that process in terms of putting these
19 projects together.
20 MS. BELLOMO: Mr. Turner, do you recall your telephone
21 call to me on April 28, 1997, to my residence, which was an
22 unsolicited telephone call to me that you placed?
23 MR. TURNER: Yes, I do. I am not sure it was
24 unsolicited. I was about to get subpoenaed, or was
25 subpoenaed. I received a subpoena from Jerry.
01 MS. BELLOMO: And then you contacted me?
02 MR. TURNER: Yes, because, as your rebuttal witness, I
03 was kind of looking for what you would like to talk about.
04 MS. BELLOMO: Do you recall telling me during that
05 conversation that, in your words, "it wouldn't break my
06 heart if the whole settlement fell apart"?
07 MR. TURNER: No. I said it wouldn't break my heart if
08 the settlement fell apart, if it didn't get put together as
09 a whole. My feeling is right now, that the fishery part of
10 this is excellent. And it has some shortcomings. And the
11 restoration process, I am uncomfortable with the fact that
12 we didn't nail down everything as hard as we could.
13 But my feeling is at this point in time that process
14 can still be put together and needs to be put together.
15 MS. BELLOMO: Do you also recall during that
16 conversation telling me that, in your opinion, you saw the
17 waterfowl portion of the settlement as being the Mono Lake
18 Committee Full Employment Act and that you didn't want to be
19 any part of it?
20 MR. TURNER: That part I do kind of agree with. That
21 part I was uncomfortable with because my feeling was that we
22 were being pulled into a process in terms of this Foundation
23 that might have prevented us from being able to review and
24 evaluate each project as it was put together.
25 MS. BELLOMO: Thank you, Mr. Turner.
01 MR. TURNER: I would like to finish my answer.
02 MS. BELLOMO: I'm sorry.
03 MR. TURNER: I have since had a chance to talk with
04 Peter Bontadelli who is my direct boss and represents our
05 directorate. He felt that we were in place with this
06 process where we could still do a fair and impartial, full
07 review and evaluation, and that we shouldn't feel that,
08 because we sit on this Foundation and we are only one of
09 five votes, that we are going to get over voted each time
10 and that we couldn't clearly put together our comments on
11 each project as it is put together.
12 MS. BELLOMO: Does that complete your answer?
13 MR. TURNER: Yes.
14 MS. BELLOMO: Mr. Thomas, I questioned you yesterday,
15 so I don't know if I need to go into this on the record.
16 Could I just confirm that you are employed by the
17 Department of Fish and Game?
18 MR. THOMAS: That's correct.
19 MS. BELLOMO: What is your job title.
20 MR. THOMAS: Associate Wildlife Biologist.
21 MS. BELLOMO: Are you here today testifying as a
22 rebuttal witness because you were served with a subpoena by
23 the People From Mono Basin Preservation?
24 MR. THOMAS: Yes.
25 MS. BELLOMO: Are you the Department of Fish and Game
01 employee who the Department of Fish and Game has been
02 relying on for a biological opinion regarding waterfowl
03 habitat proposals in this case, restoration proposals in
04 this case?
05 MR. THOMAS: Yes.
06 MS. BELLOMO: Is there any other Department of Fish and
07 Game employee who the Department of Fish and Game has been
08 relying on for biological opinions regarding the waterfowl
09 habitat restoration proposal in this case?
10 MR. THOMAS: The answer is no.
11 MS. BELLOMO: Are you acquainted with Bill Banta who
12 lives in Lee Vining?
13 MR. THOMAS: Yes.
14 MS. BELLOMO: Is he the son of Don Banta?
15 MR. THOMAS: Affirmative.
16 MS. BELLOMO: You know Don Banta as well?
17 MR. THOMAS: Yes.
18 MS. BELLOMO: Do you know them both to be avid duck
20 MR. THOMAS: Yes.
21 MS. BELLOMO: Is Don Banta the same Don Banta who's
22 been referred to throughout the course of this proceedings,
23 including Mono Lake level decisions regarding waterfowl in
24 the Mono Basin?
25 MR. THOMAS: Yes.
01 MS. BELLOMO: Are you aware that Bill Banta is
02 currently or was recently on the county commission, the Mono
03 County Commission, wildlife commission?
04 MR. THOMAS: I am aware of that.
05 MS. BELLOMO: Is it your understanding that the purpose
06 of or the charge of that commission is to dispense fine
07 moneys collected by Fish and Game wardens in the county?
08 MR. THOMAS: That's correct.
09 MS. BELLOMO: Thank you.
10 I have two documents that I am going to distribute at
11 this time. I would like to have them marked for
12 identification as next in order, PMBP next in order, if I
13 may do so.
14 CHAIRMAN CAFFREY: Two documents, you say Ms. Bellomo?
15 MS. BELLOMO: Yes.
16 MR. BIRMINGHAM: It is generally my experience, maybe
17 my experience is not consistent with other lawyer's
18 experience, but generally it is my experience when an
19 attorney distributes a proposed exhibit that it is given to
20 counsel before it is given to the trier-of-fact, so that
21 counsel may have an opportunity to review it to determine
22 whether or not they want to make objections.
23 I wonder if, as a courtesy, in the remainder of this
24 proceeding if we can follow that process.
25 MS. BELLOMO: Chairman Caffrey, that has not been the
01 process thus far in this proceeding. I feel that that is
02 trying to change the procedural rules during the course of
03 my examination.
04 CHAIRMAN CAFFREY: Even --
05 MS. CAHILL: Chairman Caffrey, I have just seen one of
06 these documents. We do vehemently object to it.
07 MS. BELLOMO: The Chairman will have to see -- the
08 Chair has to see the documents before he can rule on it.
09 MS. CAHILL: I can describe this document as an
10 internal Fish and Game document dealing with the decision
11 making of the department as to whether to accept a
12 settlement agreement. This was a -- this is a confidential
13 internal protected by the evidence code for privilege that
14 extends to settlement agreements which --
15 CHAIRMAN CAFFREY: Which document are you referring to?
16 MS. BELLOMO: Chairman Caffrey, may I at least
17 introduce these documents and lay a foundation so we can
18 have an argument about their admissibility? They need to be
20 CHAIRMAN CAFFREY: All right.
21 Mr. Frink, don't we need to at least have her indicate
22 what this is and then we will have to decide what we are
23 going to do with it?
24 MR. FRINK: At this point it is not even clear what the
25 objections are to.
01 CHAIRMAN CAFFREY: Right.
02 MEMBER DEL PIERO: Mr. Chairman.
03 CHAIRMAN CAFFREY: Mr. Del Piero.
04 MEMBER DEL PIERO: My recommendation at this point is
05 to take a five-minute break so everybody can review these
06 and be prepared, rather than shoot from the hip, to make any
07 type of intelligible argument on this.
08 CHAIRMAN CAFFREY: You mean after we get them
09 introduced or at least described?
10 MEMBER DEL PIERO: At least get them described and then
11 take a five-minute break to afford counsel for all the other
12 parties an opportunity to review, and they can decide
13 whether or not they have an objection or not.
14 MS. CAHILL: We absolutely do not want it read by the
15 Members of the Board.
16 CHAIRMAN CAFFREY: You don't want them read by the
17 Members of the Board before that occurs, is that the point?
18 MS. BELLOMO: May we mark them and number them? And
19 you can keep them under seal if you choose not to read
20 them. To at least have some identification of these
22 CHAIRMAN CAFFREY: Mark them. Careful how you describe
23 them to us so you don't tell us what they are.
24 MS. BELLOMO: The first document -- if you can tell me,
25 Mr. Johns, what the next in order number is.
01 MR. JOHNS: Next in order is going to be 34, your
02 Exhibit 34.
03 MR. DODGE: Which one is 34?
04 MS. BELLOMO: I am going to get a number and tell you
05 what the document is. The document that I have handed you,
06 Mr. Thomas, has a facsimile cover sheet from the Best
07 Western Lakeview Lodge, attention Bill Banta, and attached
08 to it has a memorandum, which the contents I will not
09 discuss, a memorandum from you to Vern Bleich and Alice
10 Pickard, dated April 21, 1997. The subject is called State
11 Water Resources Control Board Mono Basin Proceeding: The
12 Mono Basin Waterfowl Habitat Restoration Plan and Proposed
13 Conceptual Settlement Agreement. This document has been
14 marked as R-PMBP-34.
15 The second document that I have handed you is a
16 document that I would state for the record, so it is clear,
17 on the top there is a Post-it fax note sent to Joe Bellomo
18 care of Dan Frink from Ed Inwood, who is the supervisor in
19 Mono County for the Bridgeport District. He faxed this
20 document -- he called, spoke with us this morning, asked
21 where he could fax this to us. I asked him to fax it to Mr.
22 Frink, care of Mr. Frink, without asking Mr. Frink's
23 permission. It was sent care of Mr. Frink to us.
24 It was Mr. Inwood's request that we put this document
25 into the record today.
01 MR. FRINK: Excuse me, Ms. Bellomo. It looks like the
02 two documents are the same. One has a cover sheet, a
03 facsimile cover sheet. The other one was the one that you
04 mentioned that was faxed to Joe Bellomo in care of me, but
05 it looks like they are the same document.
06 MS. BELLOMO: I have not had a chance to compare them.
07 However, I believe they are the same document, and I think
08 that because there are questions being raised of privilege
09 and confidentiality, that it is important that the Board
10 know how we came into possession of these documents. And it
11 certainly relates to what kind of distribution these
12 documents have had.
13 Therefore, I am offering both of these documents, or,
14 at this point, asking that they be marked for
15 identification. And this is R-PMBP-35; it appears to be,
16 maybe Mr. Thomas could confirm this after the break, if this
17 is the same document, that these are both the same
19 Would that be possible to ask Mr. Thomas?
20 CHAIRMAN CAFFREY: I am sorry, I was interrupted and I
21 didn't hear your question. I apologize.
22 MS. BELLOMO: Perhaps Mr. Thomas could confirm after
23 the break whether 34 and 35 are copies of the same
24 document. I have not had a chance to see that comparison.
25 CHAIRMAN CAFFREY: We can do that to the extent that we
01 don't tread on anybody's rights. We are going to take a
02 break now and try to figure out what all this is, and how we
03 can deal with it in an inappropriate and adjudicatory
05 Let's take about a ten-minute break. Let's try to
06 start again at 10:00.
07 MS. BELLOMO: Thank you.
08 (Break taken.)
09 CHAIRMAN CAFFREY: We are resuming the hearing and, at
10 this point, we will hear from the various protesting
11 counsels as regards the two items that were marked.
12 Ms. Cahill, do you wish to begin?
13 MS. CAHILL: Yes.
14 MS. BELLOMO: Chairman Caffrey, will I be allowed to
15 respond after they object?
16 CHAIRMAN CAFFREY: Yes. We will first hear from the
17 concerned parties, and then allow you to respond and then we
18 will ask Mr. Frink for his wisdom on his research, also,
19 taking into consideration what he hears in the next few
20 moments. Try not to distract him. And we are off the
21 clock. That is correct, we are off the clock.
22 Please proceed, Ms. Cahill.
23 MS. CAHILL: Chairman Caffrey and Members of the Board,
24 the documents that have been proffered as an internal
25 Department of Fish and Game memorandum dealing with the
01 settlement agreements. The settlement discussions, both
02 among the parties and within a party deciding whether to
03 sign that agreement or not, are privileged. The Evidence
04 Code 1152 is the standard statement that there is privilege
05 for settlement discussions.
06 In this particular case, there was further a written
07 stipulation signed by the parties that was filed with this
08 Board in a earlier time that made it clear that anything
09 related to those settlement negotiations was to be
10 confidential and would not be revealed. Ron Thomas is not
11 authorized to release this document, either by the
12 department or by the other parties to that settlement
13 agreement. He does not have the authority to waive any
14 confidentiality that is held by the department.
15 In addition to being concerned with settlement
16 discussions and negotiations, this document gets to the
17 deliberative process of the Department of Fish and Game.
18 The decision of whether to sign this settlement agreement
19 was made by the Director of the Department. It is improper
20 to probe into his motives or the evidence that he considered
21 in reaching his decision.
22 I would cite the case of Gilbert v. Regents of
23 California, 93 Cal.App. 3rd, 233, 1979. In that case the
24 court determined that mental processes of an administrator
25 in the evidence that he considered in reaching his decision
01 was not discoverable. The theory being that the decision
02 made by an administrative agency stands for itself. All
03 that is relevant is what that decision is. The process of
04 reaching that decision is absolutely protected.
05 In addition, there is case authority to the effect that
06 staff cannot be questioned with regard to the decision made
07 ultimately by the agency. This document simply is not
08 properly before the board. It is not relevant to the
09 issues. It is relevant to internal decision making. And,
10 inasmuch as it relates to the settlement agreements and to
11 internal agency decision making, it should not be admitted
12 in this proceeding and, furthermore, we should recollect all
13 of those copies that have been distributed.
14 If we need -- If Mr. Frink would like a cite with
15 regard to the fact that staff may not be required to answer
16 questions regarding their own mental processes in arriving
17 at a decision, we have Mobil Oil Corporation versus Superior
18 Court, 59, Cal. App. 3rd, 293, 1976; Board of Administration
19 v. Superior Court, 50, Cal. App. 3rd, 314, 1975.
20 Again, it is apparent this document has left the
21 department, but I reiterate that the privilege is held by
22 the department. Mr. Thomas was not authorized to release
23 that document or to waive the privilege. And it would be
24 wholly improper of this Board to take this document into
01 CHAIRMAN CAFFREY: Thank you, Ms. Cahill.
02 I want to say for the record that the Board members
03 have not looked at this document and are generally unaware
04 of what they are.
05 Mr. Birmingham.
06 MR. BIRMINGHAM: The Department of Water and Power and
07 the City of Los Angeles joins in the objection that was made
08 by the Department of Fish and Game. We do have that
09 pursuant to the stipulation that we signed and discussions
10 that are confidential. I think Ms. Cahill made all the
11 points very eloquently, and I won't add anything.
12 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.
13 Mr. Dodge.
14 MR. DODGE: Very briefly, Mr. Chairman. We join in
15 that position, too. I would add, I have read the document
16 and most of it is a critique of the settlement agreement
17 where Mr. Thomas sets out criticisms that he has. And if
18 she wants to ask questions critiquing the settlement
19 agreement of Mr. Thomas, that is fine. Presumably he will
20 give the same answers to her that he gave in the internal
22 The point is, simply, she need not admit this
23 privileged document in order to ask those questions.
24 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.
25 Ms. Scoonover.
01 MS. SCOONOVER: Mr. Chairman, the State Lands
02 Commission and the Department of Parks and Recreation join
03 the Department of Fish and Game's objection to acceptance of
04 this document, and note that there are conversations with an
05 attorney that referenced in this letter that clearly is an
06 attempt to waive attorney-client privilege by an employee
07 who is not able to do so.
08 CHAIRMAN CAFFREY: Thank you, Ms. Scoonover.
09 Mr. Roos-Collins.
10 MR. ROOS-COLLINS: California Trout joins in the
12 CHAIRMAN CAFFREY: Thank you, sir.
13 Anybody else joining in the objection.
14 Ms. Bellomo, you wish to respond.
15 MS. BELLOMO: Thank you.
16 For starters, I would say that this document, which you
17 haven't read -- I guess Mr. Frink has read it -- is not
18 exclusively dealing with the settlement agreement and the
19 title of the document indicates so. It deals with waterfowl
20 habitat restoration and recommendations that Mr. Thomas
21 makes to not the attorneys but to Vern Bleich, senior
22 wildlife biologist in Bishop and Allen Pickard, senior
23 fisheries biologist in Bishop, California.
24 It is also a memo to the file, and the document
25 indicates, again without me stating the contents of what the
01 opinions are, that Mr. Thomas created this document because
02 he wanted the record to be clear in their file as to what
03 his positions were. So, for starters, it is not a document
04 that's simply critiquing the settlement. It was not
05 addressing the thought processes of Mr. whatever their
06 director's name is. And I have no reason to believe that
07 man has even seen this document, frankly.
08 Furthermore, I, myself, do not know how this document
09 came to be in the hands of Supervisor Ed Inwood, how it
10 became to be in the hands of Bill Banta, how it came to be
11 in the hands, I am told, of Rick Rockel, who has the
12 sporting goods store in Bridgeport, California, which means
13 it is in the hands of a lot of other people who are
14 interested in waterfowl habitat restoration. There's no
15 reason that I have to assume that Mr. Thomas is the person,
16 or the only person, who has distributed this document. It
17 went to Mr. Pickard in Bishop. It went Vern Bleich in
18 Bishop. Other people in the Bishop office have seen it, it
19 is in the file, which means that other people of the public
20 can go to their offices and legally ask to see their files.
21 So, for all I know, the People for the West have gone
22 down there, who wrote you a letter, and looked at the Fish
23 and Game file and gotten it. We were not the people that
24 got this document. We were not the people that distributed
25 it around Mono County. But, clearly, any kind of privilege
01 that attaches to this has been waived. Until I hear that
02 Mr. Thomas is the person who did it, I am not going to
03 accept that he didn't have the authority to do it. Perhaps
04 his supervisors sent this to Mr. Inwood. Perhaps they have
05 the authority to waive the privilege.
06 So I think that that is a very important point. The
07 second fact, by the way, that I don't see this as a
08 privilege document. This is a memo to supervisors and a
09 memo to file. This is not to attorneys; this is a memo to
10 file. To my understanding, that makes this a public
11 document. If somebody wanted to go to Fish and Game in
12 Bishop and say, "I want to look at your public files," they
13 would be shown this document. That is the way, at least, we
14 have been told that the local field people construe things.
15 That concludes my argument.
16 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo.
17 Mr. Frink, would you join me for a moment?
18 MR. BIRMINGHAM: Excuse me, Mr. Caffrey, may I address
19 one point that Ms. Bellomo made?
20 CHAIRMAN CAFFREY: Yes, briefly.
21 MR. BIRMINGHAM: This is a document that clearly
22 pertains to litigation. And Ms. Bellomo has suggested that
23 it is public record. There is an expressed exception to the
24 Public Record Act for documents pertaining to litigation.
25 CHAIRMAN CAFFREY: Thank you, sir.
01 (Break taken.)
02 CHAIRMAN CAFFREY: Mr. Frink, would you please.
03 MR. FRINK: Mr. Caffrey, I am ready to share whatever
04 advice I can.
05 CHAIRMAN CAFFREY: Please do so, and then I will make a
07 MR. FRINK: I would begin with noting that the
08 proposed settlement agreement that has been discussed in
09 here and has been described as modification of the proposed
10 restoration plans, and, therefore, that settlement is
11 appropriate subject for this Board's inquiry. The opinion
12 of the Department of Fish and Game employee, who is most
13 familiar from a biological standpoint with the subject
14 matter of the agreement, is important evidence for this
15 Board to hear, as is the written memorandum in which he
16 states his opinion.
17 That memo was not between Mr. Thomas and the Department
18 of Fish and Game attorneys. It isn't marked confidential in
19 any way. There is no reason that I can see to conclude that
20 it is subject to the attorney-client privilege. I would
21 imagine, unless it has been removed, it is a file right now
22 in the Department of Fish and Game offices. It would be
23 subject to disclosure under the Public Records Act. It is
24 final signed memo which is subject to disclosure under the
25 Public Records Act, and it may be admitted into the record
02 There is no general exception under the Public Records
03 Act for internal documents. The majority of documents that
04 are generated within this Board are internal documents and
05 yet they are subject to disclosure. I believe the same
06 would apply to the Department of Fish and Game.
07 The stipulation between the parties on the issue of
08 confidentiality is not binding on a non-party to the
09 proceeding. If Ms. Bellomo and her group and others have
10 come across the document from the Department of Fish and
11 Game, that the Department of Fish and Game wishes had not
12 been prepared or wishes they did not come across, that does
13 not obligate a non-party to the confidentiality agreement,
14 to maintain the confidentiality of the document.
15 We are not interested in the mental processes of the
16 Director of the Department of Fish Game or how he reached
17 his decision. To the extent that this document is offered
18 to show that, I would agree that it should not be admitted
19 for that reason. To the extent that the document reflects
20 the opinion of the Department of Fish and Game biologist who
21 is familiar with the subject matter before the Board, I
22 think it is admissible.
23 Evidence Code Section 1152, which was mentioned, does
24 not apply in this situation. By its terms it has to do with
25 liability and offers to compromise in settling liability
01 cases. In this instance, the Department of Fish and Game is
02 the agency that the Board relies on to get expertise on
03 fishery and wildlife issues, and to preclude the Board from
04 receiving that evidence would not be in accord with the
05 policy of the Public Records Act.
06 Excluding the document would result in an anomaly
07 situation of everybody else in the state who is interested
08 in this having the document but the Board, who is called
09 upon to make a decision, not being able to utilize the
10 information in that document. Any privilege that may once
11 have been claimed, I believe, is waived. I don't believe it
12 could have legitimately been claimed anyway. But, I
13 believe, it was waived by the release of this document,
14 however that occurred, through the Department of Fish and
16 The notion that the document should be excluded because
17 it somehow relates to litigation, I guess you can the make
18 that argument with regard to almost every document in this
19 proceeding since this proceeding has been subject to appeal
20 and so forth.
21 I don't believe that the fact that it somehow relates
22 to litigation, excepts it from being admitted into the
23 administrative proceeding. I think the document is
24 admissible, Mr. Chairman.
25 CHAIRMAN CAFFREY: Thank you very much, Mr. Frink.
01 Appreciate everybody's arguments. I will now rule that
02 the documents are, in fact, admissible in any proceeding,
03 and we will proceed.
04 Ms. Bellomo, please continue with your questioning,
05 And, Mr. Johns, will you please tell us how much time
06 we have.
07 MR. JOHNS: We have 34 minutes left for this panel.
08 MS. BELLOMO: Thank you.
09 Mr. Thomas, when we left off at the break, I asked you
10 if you would look at Exhibit R-PMBP-34 and R-PBMP-35 and
11 tell us if the two memos that are contained in those
12 documents, dated April 21, 1997 are the copies of the same
13 memo prepared by you.
14 MR. THOMAS: I believe they are nearly identical.
15 MS. BELLOMO: Can you direct us to any differences?
16 Are they different versions or something?
17 MR. THOMAS: I am not sure. I haven't looked at these
18 two in detail. I probably would have to read both of them
19 entirely to see if they are exactly word-for-word. They are
20 essentially the same document.
21 MS. BELLOMO: Were both of the documents prepared by
23 MR. THOMAS: Yes.
24 MS. BELLOMO: Did you sign both of these documents?
25 MR. THOMAS: Yes.
01 MS. BELLOMO: I am going to assume that they are
02 essentially similar and work off --
03 MR. THOMAS. I see one difference. I would like to
04 make that correction. I have one copy here that is not
05 signed. So there is that difference, at least.
06 MS. BELLOMO: R-PMBP-35 is not signed; is that correct?
07 MR. THOMAS: I haven't numbered these. The one from
08 Supervisor Inwood is not signed.
09 MR. FRINK: Mr. Chairman.
10 CHAIRMAN CAFFREY: Yes, Mr. Frink.
11 MR. FRINK: With that additional information, if one of
12 the documents is not signed and could be viewed as a draft,
13 that would not be kept in the files of the department in the
14 normal course of business. It may be subject -- it may not
15 be subject to disclosure under the Public Records Act.
16 So, I think in order that our record is clear, it would
17 be better to limit ourselves to admission and discovery and
18 discussion of the final signed document.
19 MEMBER DEL PIERO: That is Best Western Lakeview Lodge?
20 CHAIRMAN CAFFREY: Trusting that the Board Members have
21 not had a chance to read these documents, we need to rerule,
22 is that what you are saying, Mr. Frink, and we will
23 eliminate from the record the one that is not signed. Is
24 that what you are telling me?
25 MR. FRINK: I think you ruled it was admissible. I
01 don't think she had offered it yet. What I would suggest is
02 that she offer only the final document.
03 CHAIRMAN CAFFREY: We will treat it in that fashion.
04 Thank you.
05 MS. BELLOMO: Thank you.
06 From here on to the end, so the record is clear, my
07 questions will be, and I will try to continue to make
08 reference, my questions then will relate to the memo marked
09 for identification as R-PMBP-34, with the Best Western
10 Lakeview Lodge fax transmittal sheet.
11 With that said, Mr. Thomas, I would ask you to turn to
12 the document itself, the memorandum. Was it, in fact, your
13 opinion -- let me rephrase it.
14 Is it, in fact, your opinion that you cannot support
15 the conceptual agreement, as written, and that you want the
16 record to be clear on this point?
17 MR. THOMAS: That is an accurate statement. I would
18 also like for the record to point out that this was written
19 at the request of my supervisor, Dr. Bleich, to bring him
20 up-to-date on what and where we were with this process, and
21 was written for his information.
22 MS. BELLOMO: Turning to Page 2 of the memorandum, the
23 second full paragraph, you state that pursuant to Decision
24 1631, the parties to the proceeding selected three waterfowl
25 scientists, et cetera, that sentence. Now moving to the
01 sentence where you say:
02 The plan provides a good, but somewhat
03 general set of proposals conceived to attempt
04 habitat restoration, focusing on restored
05 diversity of fresh, brackish wetland habitat
06 required by various waterfowl species.
08 Does that continues to be your opinion today?
09 MR. THOMAS: Yes.
10 MS. BELLOMO: Turning to the next paragraph on Page 2
11 of Exhibit R-PBMP-34, you state towards the bottom of that
13 The rocky substrates and steep gradient in
14 the lower reaches of Mill Creek cause me to
15 agree with T. Russi, BLM biologist, that
16 little or no ponding or soil formation can be
17 expected in a rewatered Mill Creek.
19 Is that your opinion, sir.
20 MR. THOMAS: Yes.
21 MS. BELLOMO: And you go on to say:
22 I conclude that little restoration of
23 critical refuge habitat will result from
24 rewatering Mill Creek. (Reading.)
25 Is that opinion, sir?
01 MR. THOMAS: Yes.
02 MS. BELLOMO: You state at the bottom of Page 2 in the
03 beginning of the last paragraph, you refer to political
04 pressures that resulted in the inclusion of the rewatering
05 of Mill Creek as plans second priority restoration measures,
06 second only to the raising of the lake level. And you
07 indicate that you were informed by one of the scientists and
08 Dr. Stine.
09 Who is the scientist that you were referring to?
10 MR. THOMAS: I believe, but I am not positive, that it
11 was Tom Ratcliff.
12 MS. BELLOMO: Do you --
13 MR. THOMAS: It has been some time ago and my memory is
14 not exact on that point, but I believe that is the case.
15 But I am certain that one of the three scientists told me
17 MS. BELLOMO: Thank you.
18 Did Mr. Stein tell you that as well?
19 MR. THOMAS: Something to that effect. It has been
20 some time ago, and I don't know the exact words.
21 MS. BELLOMO: Turning to Page 3 of the memorandum,
22 R-PMBP-34, you state in the middle of the first full
24 However, a number of qualified biologists and
25 local citizens are convinced that this
01 measure will provide little in terms of
02 increased habitat for substantial numbers of
03 ducks. (Reading.)
04 Are you referring to restoring the diverted flows of
05 Mill Creek?
06 MR. THOMAS: Yes.
07 MS. BELLOMO: And how do you know -- let me rephrase
09 Is it in your capacity as the local field biologist
10 that you talked to a number of local citizens and got their
11 opinion on this point?
12 MR. THOMAS: That's correct.
13 MS. BELLOMO: When you say "a number of qualified
14 biologists hold this opinion," to whom are you referring?
15 MR. THOMAS: I have discussed this issue with several
16 waterfowl managers from around the state that work on our
17 Fish and Game wildlife areas.
18 MS. BELLOMO: May I ask for the names of those
19 individuals, please?
20 MR. THOMAS: I discussed this with Ron Thompson down on
21 Salton Sea. Specifically, with him because I believe that
22 the situations are similar. There is a large salt water
23 body and fresh water marshes adjacent. I believe I
24 discussed this with Pete Blake who manages our Upper Butte
25 Basin wildlife areas. I am sure I discussed this with Tom
01 Blankenship, who is a senior biologist here in our downtown
03 MS. BELLOMO: In Sacramento?
04 MR. THOMAS: Yes.
05 MS. BELLOMO: You are saying that those people you have
06 named shared the view that you have stated in this sentence
07 that we just read?
08 MR. THOMAS: In general terms, yes.
09 MS. BELLOMO: You go on to say:
10 Based on my experience with ducks and their
11 habitats, I share this conviction.
13 Does that continue to be your opinion?
14 MR. THOMAS: Yes.
15 MS. BELLOMO: Are you concerned that the amount of
16 public opposition to the proposals to restore diverted flows
17 to Mill Creek makes it uncertain whether implementation of
18 the measure will actually occur or would actually occur?
19 Again, I am looking at the second to last sentence in
20 the first full paragraph on Page 3.
21 MR. THOMAS: I believe that public opposition makes it
22 uncertain if the project will be completed, yes.
23 MS. BELLOMO: Does that concern you, to the extent that
24 you testified yesterday, that you are desirous to see
25 waterfowl habitat restoration actually occur in Mono Basin?
01 MR. THOMAS: Yes.
02 MS. BELLOMO: Turn to the second full paragraph on Page
03 3 of R-PMBP-34. Excuse me, I have no questions on that
05 You state in at the bottom of the page, the second to
06 the last full paragraph, you state:
07 My conviction is that much more could be done
08 for water bird habitat for much less money if
09 other projects were chosen. (Reading.)
10 Are you -- when you say much more, are you referring to
11 much more than could be done with restoring the diverted
12 flows of Mill Creek?
13 MR. THOMAS: Yes, and I want to clarify that that
14 sentence refers to much more in terms of habitat capacity
15 for numbers of ducks.
16 MS. BELLOMO: Does that continue to be your opinion
18 MR. THOMAS: Yes.
19 MS. BELLOMO: Turning to Page 4 of your memo, Exhibit
20 R-PMBP-34, at the bottom of the first paragraph, you state:
21 The result is, in my opinion, a conceptual
22 settlement agreement which fails to include
23 language assuring effective waterfowl habitat
24 restoration. (Reading.)
25 Does that continue to be your opinion today?
01 MR. THOMAS: Yes, and I want to stress "assuring."
02 MS. BELLOMO: I would like to clarify for the record,
03 do you object to the portion of the settlement that has been
04 proposed to the Board that relates to stream and fishery
06 MR. THOMAS: I am not at all familiar with that aspect
07 of the settlement agreement. I have no opinion on that.
08 MS. BELLOMO: Just so we are clear for the record, your
09 criticism in this memorandum relates to the portion of the
10 settlement that pertains to waterfowl habitat restoration;
11 is that correct?
12 MR. THOMAS: The beliefs and opinions I express are
13 limited to the waterfowl portion.
14 MS. BELLOMO: Thank you.
15 You go on to state in the first full paragraph on Page
17 I must emphasize that excellent opportunities
18 exist to provide habitat for large numbers of
19 ducks, such as existed before the effects of
20 diversion in the Eastern Sierra. (Reading.)
21 Do you continue to believe that statement?
22 MR. THOMAS: Yes. I believe we discussed this some
23 yesterday, as well.
24 MS. BELLOMO: Is it your opinion, as a waterfowl
25 expert, that a monetary settlement, lacking firmly stated
01 project goals and assured implementation, is not the
02 appropriate remedy for the documented damage to fish,
03 wildlife, and other public trust resources of California?
04 I am reading in the second full paragraph on Page 4.
05 MR. THOMAS: I believe that the assurance of some
06 stated degree of restoration is the appropriate settlement
08 MS. BELLOMO: Thank you.
09 Now, am I correct that comments at Page 4 and going
10 over to Pages 5 and 6 you have provided in your memo,
11 R-PMBP-34, a list of what you have termed, quote-unquote,
12 flaws of the conceptual agreement? This would be numbers
13 one through nine.
14 You need to answer audibly.
15 MR. THOMAS: I am sorry, I didn't hear the question.
16 MS. BELLOMO: My question is: Are points one through
17 nine on Pages 4 through 6 a list of what you have termed,
18 quote-unquote, flaws in the conceptual agreement?
19 MR. THOMAS: Yes. Again, limited to the waterfowl
21 MS. BELLOMO: I would like to very quickly go through
22 the flaws because I want -- what you have identified as,
23 quote-unquote, and I want to give you an opportunity to
24 explain yourself, if you need to, for the benefit of the
01 With number one, you state that no quantified goal or
02 performance standard of any project proposal is stated or
04 Do you consider that to be a flaw in the conceptual
05 agreement on waterfowl habitat restoration?
06 MR. THOMAS: I do.
07 MS. BELLOMO: You state in number two, there is no
08 specified schedule of implementation for any habitat
09 restoration proposal.
10 Do you continue to believe that is a flaw in the
11 conceptual agreement?
12 MR. THOMAS: I do.
13 MS. BELLOMO: Can you explain why that is important to
14 -- why, in your opinion, it would be important to have
15 specified scheduled implementation for restoration
17 MR. THOMAS: A major portion of my opinion on that
18 point relies on the testimony of Dr. Reid, where he
19 discussed the current high population levels of ducks in the
20 flyway and stated that this would be a good time for
21 restoration to begin, to encourage the rapid use of that
22 newly recreated habitat because of the abundance of birds in
23 the flyway at present.
24 MS. BELLOMO: Mr. Johns, could you tell me how much
25 time I have left?
01 MR. JOHNS: Eighteen minutes.
02 MS. BELLOMO: On point four on Page 4 of your memo, you
03 state that, additionally, the lack of stated restoration
04 goals in the settlement language renders the monitoring
05 program pointless. No monitoring program can reveal success
06 or failure of effort with no restoration objective or target
08 Does that continue to be your opinion?
09 MR. THOMAS: Yes.
10 MS. BELLOMO: Point five, you state there is no
11 provision for adaptive management in response to monitoring
13 Do you continue to view that as a flaw in the proposed
14 conceptual agreement?
15 MR. THOMAS: Yes.
16 MS. BELLOMO: Retract what sounded like the beginning
17 of a question. Moving to point six 6 on the bottom of Page
18 4, you state that:
19 Layers of bureaucracy -- (Reading.)
20 MR. THOMAS: I would like to clarify that last point,
21 if I may.
22 MS. BELLOMO: Please do.
23 MR. THOMAS: I believe the agreement, as written,
24 allows for adaptive management. I see no provision assuring
25 any implementation.
01 MS. BELLOMO: Is it your opinion or that it would be
02 preferable to have some adaptive management be assured that
03 that occur in whatever the Board adopts?
04 MR. THOMAS: That is my opinion.
05 MS. BELLOMO: Thank you.
06 Turning to point six at the bottom of Page 4, you refer
07 to the "layers of bureaucracy" created by the conceptual
08 agreement, and you state this may seriously delay or prevent
09 implementation the program.
10 Are you -- do you continue to be concerned about this
11 aspect of the conceptual agreement?
12 MR. THOMAS: I do.
13 MS. BELLOMO: Turning to Page 5, in the first full
14 paragraph, you state there is substantial disagreement among
15 the parties regarding restoration projects.
16 Does it continue to be your opinion that there is
17 substantial disagreement among the parties regarding the
18 restoration projects?
19 MR. THOMAS: I would have to say yes.
20 MS. BELLOMO: Turning to point six on Page 5, you
21 critique two other points that you find in the conceptual
22 agreement that leave other aspects uncertain. A pertains to
23 a party being able to petition the Water Board to change the
24 program after five years, and B, parties to the Foundation
25 can be added by a vote at any time.
01 Do you continue to view this as a flaw in the
03 MR. THOMAS: I believe a certain amount of flexibility
04 is needed in a plan, and I believe that these aspects could
05 have benefits. I am concerned, again, about the timely
06 nature of restoration, if restoration could be conducted in
07 a timely manner, given these, as I believe, uncertainties.
08 MS. BELLOMO: Turn to point seven on Page 5 of Exhibit
09 R-PMBP-34 --
10 MR. THOMAS: Where are we?
11 MS. BELLOMO: Paragraph 7, point seven, paragraph seven.
12 You state in the middle of that paragraph:
13 I submit that a reasoned approach is to
14 analyze the restoration of waterfowl habitat
15 in the North Basin. Rewatering Mill Creek
16 logically then would be one of several
17 reasonable alternatives objectively analyzed.
19 Does that continue to be your opinion today?
20 MR. THOMAS: Yes.
21 MS. BELLOMO: At point eight, turn to Paragraph 8 on
22 Page 5. You state:
23 A conceptual agreement language creates a
24 barrier to conducting restoration programs
25 outside the basin. (Reading.)
01 Do you continue to hold that opinion?
02 MR. THOMAS: I would probably modify that statement to
03 say that projects outside the basin, which I believe could
04 be very important, are allowed by the conceptual agreement
05 in the future, but I believe not in a timely manner.
06 MS. BELLOMO: Are you referring to the provision that
07 says in ten years it would be considered restoration in
08 other areas?
09 MR. THOMAS: Yes.
10 MS. BELLOMO: Can you explain to the Board why, in your
11 opinion, it is important that a barrier not be placed in the
12 Board's plan, in whatever plan for restoration the Board
13 adopts, why it is important that the Board not place a
14 barrier to conducting restoration programs outside the
16 MR. THOMAS: I guess my major point of concern there is
17 that it is recognized, and I believe the scientists point
18 out, that the options for restoration in the basin are
19 limited and, for instance, those few options are not
20 successful, I believe the option to do waterfowl restoration
21 outside the basin should be considered on a timely manner.
22 It doesn't really matter to the ducks if a waterfowl habitat
23 is in Mono Basin or down Crowley.
24 MS. BELLOMO: Is that part of the adaptive management
25 approach that you have testified as being important?
01 MR. THOMAS: That would be one aspect of it.
02 MS. BELLOMO: Turn to Paragraph 9 on Page 6 of
03 R-PMBP-34, you state the settlement would end the
04 jurisdiction of the El Dorado County Superior Court and
05 effectively removing outside oversight of performance.
06 I am not sure what to ask you about that. Why does
07 that concern you?
08 MR. THOMAS: I am not sure how to answer on that one,
10 MR. FRINK: Mr. Chairman, I would object to the --
11 MR. THOMAS: I am not an attorney.
12 MR. FRINK: I would object to the witness expressing an
13 opinion on the extent of the El Dorado County Superior
14 Court's jurisdiction.
15 MR. BIRMINGHAM: I thought Mr. Frink said this was an
16 admissible document.
17 MR. FRINK: Got me there, Tom.
18 CHAIRMAN CAFFREY: I won't -- never mind. Keep going.
19 MR. BIRMINGHAM: I will very seriously state that the
20 it is the Department of Water and Power's view that this
21 Board is going to continue to have oversight with respect to
22 the implementation of the Waterfowl Habitat Restoration
23 Plan, and this Board will provide the assurances that are
24 needed in order to implement that plan.
25 CHAIRMAN CAFFREY: Thank you for that commentary, sir.
01 MS. BELLOMO: Turn back to R-PMBP-34, Mr. Thomas, at
02 Page 6, you state in the middle of the page:
03 I also want to describe what I see as a
04 reasonable, meaningful and cost-effective
05 waterfowl restoration program. (Reading.)
06 Do you see where I am reading from?
07 MR. THOMAS: Yes.
08 MS. BELLOMO: You go on to state:
09 Much of what follows was developed with input
10 from Tom Ratcliff, one of the three
11 scientists who developed the waterfowl plan
12 pursuant to Decision 1631.
14 When was this list of -- let me rephrase that.
15 When did you receive the input from Tom Ratcliff that
16 you were referring to?
17 MR. THOMAS: We discussed this on about the date that
18 is on the memo, but I don't know the exact date.
19 MS. BELLOMO: It was sometime after the proposed
20 settlement and conceptual agreement had become public
21 documents, that it had filed with the Board?
22 MR. THOMAS: I am unclear if any of the documents are
23 public or not. Again, I am not an attorney, so I would be
24 laboring under some misconceptions about what is public and
25 what is not.
01 MS. BELLOMO: Just so the record is clear, your input
02 -- you received input from Mr. Ratcliff approximately around
03 April 21st, give or take a few days.
04 MR. THOMAS: Yes. Would have been before that date,
05 probably close to that date.
06 MS. BELLOMO: Now, what I would like to do is briefly
07 go through the list of recommendations that you developed
08 with Mr. Ratcliff. And just so the record is clear, do
09 those papers at Page 6 and 7 at point one through eight?
10 MR. FRINK: Ms. Bellomo, I wonder if it might expedite
11 matters you had him read those silently and then state if he
12 continues to agree that those are recommendations that he
14 MS. BELLOMO: That would be fine.
15 MR. THOMAS: These continue to be my -- would be my
16 recommendations, or I believe these to be reasonable
17 recommendations. I would also say that much of what follows
18 Mr. Ratcliff and I discussed some of this, but not every
19 point. It was part of our discussion.
20 MS. BELLOMO: Can you tell us which points you did not
21 discuss with Mr. Ratcliff of points one through eight?
22 MR. THOMAS: I am afraid I can't at this point.
23 MS. BELLOMO: Do you recall any which you specifically
24 did discuss with Mr. Ratcliff?
25 MR. THOMAS: I can say that we specifically did discuss
01 the adaptive management point, number five. The others, it
02 was a long conversation and I am not sure.
03 MS. BELLOMO: Did you -- turning to point three, did
04 you discuss with Mr. Ratcliff that a reasonable, overall
05 objective is to restore and maintain shallow, fresh or
06 brackish open water ponding to restore diversity?
07 MR. THOMAS: We did discuss that.
08 MS. BELLOMO: And did you discuss the fact with him
09 that goals relate directly to the scientists', of which he
10 was one, finding that the loss of fresh and brackish water
11 areas reduce the diversity of wetland habitat?
12 MR. THOMAS: I am not sure. If we discussed that in
13 particular or at that time, I am not sure.
14 MS. BELLOMO: Turning to point four, where you
15 recommend that the monitoring program be specified in
16 detail, did you discuss that with Mr. Ratcliff? Do you
18 MR. THOMAS: No, I don't recall on that point.
19 MS. BELLOMO: Thank you. I have no further questions.
20 At this time I would like -- is it appropriate for me to
21 offer these into evidence or wait until the staff asks
23 CHAIRMAN CAFFREY: I think we have to go potential
24 cross-examination and then ask you if you have redirect,
25 and then I will call for it, the entry of exhibits at that
02 Mr. Birmingham, we had -- much earlier in these
03 proceedings, a couple months ago, you asked that you be at
04 the bottom of the order for cross-examination. Is that
05 still your desire?
06 MR. BIRMINGHAM: I am happy to go first.
07 CHAIRMAN CAFFREY: I thought you might. We will return
08 then to the originally established order, and we will start
09 with the City of Los Angeles.
10 Before you begin, Mr. Birmingham, I am not going to
11 single you out. I would like everybody to kind of let us
12 know how much time they are going to need. I believe, under
13 our rules, you are entitled to an hour for
14 cross-examination, but we do want to finish today. We are
15 going to go until we do. Just give me your estimate. I
16 won't hold you to it as long as --
17 MR. BIRMINGHAM: Fifteen minutes.
18 CHAIRMAN CAFFREY: I realize it depends on the length
19 of the answers as well. I appreciate that. Please begin.
20 CROSS-EXAMINATION BY
21 LOS ANGELES DEPARTMENT OF WATER AND POWER
22 BY MR. BIRMINGHAM
23 MR. BIRMINGHAM: I would like to turn to R-PBMP-34, Mr.
24 Thomas. Did you distribute this memorandum to anyone
25 outside the Department of Fish and Game?
01 MR. THOMAS: I provided this memorandum to Bill Banta
02 and to Mr. Inwood.
03 MR. BIRMINGHAM: Did you do that with the approval of
04 any of your superiors in the Department of Fish and Game?
05 MR. THOMAS: I didn't discuss it with anybody else.
06 MR. BIRMINGHAM: You did it on your own initiative?
07 MR. THOMAS: I did it at the request of these two
08 members of the public over there.
09 MR. BIRMINGHAM: I would like to turn to the last page
10 of the Exhibit 34. It says:
11 In addition, the El Dorado County Superior
12 Court also retains jurisdiction to further
13 insure performance. (Reading.)
14 Is it your view that the State Water Resources Control
15 Board is incapable of assuring performance?
16 MR. THOMAS: No, it is not.
17 MR. BIRMINGHAM: It is not your view that the El Dorado
18 Superior Court needs to retain jurisdiction in order to
19 assure performance?
20 MR. THOMAS: I guess I have to say, based on my recent
21 experience with this legal process, I am not an attorney and
22 I would -- I don't have an opinion on that one now.
23 MR. BIRMINGHAM: I would like to turn to Page 3 of
24 Exhibit 34, towards the bottom of Page 3, it states that:
25 My conviction is that much more could be done
01 for water bird habitat for much less money if
02 other projects were chosen. (Reading.)
03 Is that correct?
04 MR. THOMAS: Yes. And I believe I clarified that a bit.
05 MR. BIRMINGHAM: You clarified it by saying, when you
06 say "much more" you are talking about habitat capacity for
07 numbers of ducks?
08 MR. THOMAS: Correct.
09 MR. BIRMINGHAM: So, it is your view that the
10 Department of Water and Power of the City of Los Angeles
11 could implement waterfowl habitat restoration to satisfy its
12 obligation under Decision 1631 for less than $3.6 million?
13 MR. DODGE: Objection. Calls for a legal conclusion.
14 CHAIRMAN CAFFREY: I not sure that is a legal
16 MR. DODGE: Refers to L.A.'s obligation under D-1631.
17 MR. BIRMINGHAM: I will withdraw the question.
18 CHAIRMAN CAFFREY: All right. Mr. Birmingham, thank
19 you for rescuing me. Please go ahead.
20 MR. BIRMINGHAM: You say --
21 MEMBER DEL PIERO: Mr. Chairman, just for my -- are you
22 going rephrase the question?
23 CHAIRMAN CAFFREY: I assumed you were.
24 MEMBER DEL PIERO: One Board Member would like to hear
25 the answer to the question.
01 CHAIRMAN CAFFREY: At least one.
02 MEMBER DEL PIERO: Be creative.
03 MR. BIRMINGHAM: I will explore it through a series of
05 MEMBER DEL PIERO: Okay.
06 MR. BIRMINGHAM: You said that the clarification was
07 that much more habitat capacity could be created for numbers
08 of ducks if other projects were chosen. Is that correct?
09 MR. THOMAS: Correct.
10 MR. BIRMINGHAM: Projects other than rewatering Mill
12 MR. THOMAS: That was my meaning.
13 MR. BIRMINGHAM: Can you tell me, Mr. Thomas, where in
14 the settlement agreement, R-LADWP-68 or 68A, it states that
15 Mill Creek is going to be rewatered?
16 MR. THOMAS: I don't have a copy of that in front of
17 me at the moment; I am sorry to say. I believe the wording
18 is such that the Foundation will pursue the project, and,
19 as I recall, it doesn't say that it will occur.
20 MR. BIRMINGHAM: It says that is an alternative that is
21 going to be studied under the CEQA NEPA process; isn't that
23 MR. THOMAS: Understand that to be true.
24 MR. BIRMINGHAM: Let me lay a foundation for this. You
25 have been involved in the review of environmental impact
01 reports; is that correct?
02 MR. THOMAS: Yes, I have.
03 MR. BIRMINGHAM: Have you been involved in the
04 preparation of environmental impact reports?
05 MR. THOMAS: No.
06 MR. BIRMINGHAM: Is it your understanding, based upon
07 the review of environmental impact reports prepared under
08 CEQA, that feasible alternatives to a proposed project are
09 considered as part of the review?
10 MR. THOMAS: Yes.
11 MR. BIRMINGHAM: So, you would expect, wouldn't you,
12 Mr. Thomas, that if the proposal to study Mill Creek were
13 studied under the CEQA process, that other alternatives
14 would be considered and ultimately might be chosen; is that
16 MR. THOMAS: That would be my expectation, based on my
17 experience with CEQA documents, yes.
18 MR. BIRMINGHAM: So, when you say that "my conviction
19 is that much more could be done for water bird habitat for
20 much less money if other projects were chosen," in fact, the
21 settlement agreement might identify and choose other
22 projects; is that right?
23 MR. THOMAS: I would hope that the CEQA process,
24 pursuant to the settlement agreement or whatever plan is
25 adopted by the Board, that that CEQA process would
01 objectively assess a reasonable range of projects, yes, or
02 alternative, I should say.
03 MR. BIRMINGHAM: It is your conviction that those
04 reasonable range of projects could be implemented for less
05 than $3.6 million?
06 MR. THOMAS: I believe that more acres of the most
07 important types of water bird habitat could be created
08 utilizing projects other than Mill Creek, yes.
09 MR. BIRMINGHAM: The cost of those would be less than
10 $3.6 million?
11 MR. THOMAS: Yes.
12 MR. BIRMINGHAM: Now, Ms. Bellomo asked you a question
13 about Page 4 of R-PMBP-34, and specifically she quoted from
14 the document concerning your view that a monetary settlement
15 is not the appropriate remedy for the documented damage to
16 fish, wildlife, and other public trust resources of
18 Do you recall her asking you that question?
19 MR. THOMAS: Yes.
20 MR. BIRMINGHAM: The settlement agreement involves
21 significantly more than a monetary settlement, doesn't it?
22 MS. BELLOMO: Chairman Caffrey, since I got Mr. Thomas
23 in this, can I hand him copies of the settlement agreement?
24 CHAIRMAN CAFFREY: Certainly.
25 MR. BIRMINGHAM: I believe he has a copy.
01 MS. BELLOMO: He said he didn't have one.
02 MR. THOMAS: I do.
03 MS. BELLOMO: Do you have both documents?
04 MR. THOMAS: I have the waterfowl portion.
05 MS. BELLOMO: Here is the other agreement, as well.
06 MR. THOMAS: Thank you.
07 MR. BIRMINGHAM: The settlement agreement -- let me
08 restate the question.
09 The settlement agreement contains more than a monetary
10 settlement, doesn't it?
11 MR. THOMAS: Yes. The settlement agreement contains
12 monitoring and some allowance for possibility of waterfowl
14 MR. BIRMINGHAM: Your paragraph here, refers to fish,
15 wildlife and other public trust resources. The settlement
16 agreement deals with fish restoration in a particular way.
17 Isn't that correct?
18 MR. THOMAS: I will state for the record that if I was
19 writing this document, I would take the word "fish" out of
20 there because I did not review the stream plans. That is
21 not my expertise.
22 MR. BIRMINGHAM: If you were rewriting this document,
23 this document refers to R-PBMP-34, you would delete
24 references to fish?
25 MR. THOMAS: Yes. Again, this document was for the
01 purpose of explaining this complex process to my superior
02 and was never intended to be here under this situation.
03 MR. BIRMINGHAM: I appreciate that. We didn't intend
04 it to be here, either.
05 But let's focus, if we can, for a moment on the
06 waterfowl habitat restoration. The settlement agreement, in
07 fact, involves more than the payment of money by DWP,
08 doesn't it, for waterfowl?
09 MR. THOMAS: That is true.
10 MR. BIRMINGHAM: In fact, the settlement agreement with
11 respect to waterfowl says that the Department of Water and
12 Power is going to implement the recommendations of the three
13 scientists in terms of creating waterfowl habitat on Rush
14 Creek; isn't that correct?
15 MR. THOMAS: Maybe I can shorten this. I concede that
16 settlement agreement, as written, contains some important
17 general aspects and provides something of a template for
18 waterfowl restoration. I still believe that there are
19 serious flaws.
20 MR. BIRMINGHAM: Let me see if I can make the point
21 that I am trying to make.
22 Your memo, if read by itself, leaves an individual with
23 the impression that, with respect to restoring waterfowl
24 habitat, all the Department of Water and Power is going to
25 do is pay $3.6 million and walk away from the
02 MS. BELLOMO: Objection. I think the question is
03 argument and also Mr. Birmingham is testifying.
04 CHAIRMAN CAFFREY: I don't know if it is even a
05 question yet. I just heard the statement part of it. I
06 don't know how it is going to conclude. But I will note
07 your objection and let me hear the rest of the question.
08 MR. BIRMINGHAM: Isn't it correct, Mr. Thomas, that
09 with respect to waterfowl habitat restoration the Department
10 of Water and Power, under the settlement agreement, is
11 expected to do more than merely pay $3.6 million?
12 CHAIRMAN CAFFREY: I am going to overrule the
13 objection because I think that is all one question, is it
14 not? All right.
15 MR. THOMAS: Yes. And I would clarify that I believe
16 my understanding, the settlement agreement reads that the
17 one project that would be undertaken by DWP is rewatering of
18 the distributaries in Rush Creek, I believe. And if there
19 are other requirements of DWP, then I am not aware of them.
20 MR. BIRMINGHAM: In fact, the Waterfowl Habitat
21 Restoration Plan, is in evidence as LADWP-20, contains a
22 proposal, does it not, that the channels on Rush Creek be
23 reopened for purpose of waterfowl habitat restoration?
24 MR. THOMAS: Yes.
25 MR. BIRMINGHAM: The settlement agreement provides that
01 the Department of Water and Power will implement that
02 recommendation, does it not?
03 MR. THOMAS: Can you point to me that stipulation in
04 the conceptual agreement?
05 MR. BIRMINGHAM: The settlement agreement, I am looking
06 at R-PMBP-38, Page 12, Paragraph 3 (a) (1).
07 MR. THOMAS: Is that this one?
08 MR. BIRMINGHAM: Yes. Page 12, Paragraph 3 (a) (1).
09 Does it state on that page that the Department of Water
10 and Power will carry out the following activities with
11 respect to Waterfowl Plan; number one, reopen Rush Creek
13 MR. THOMAS: Yes, it does. I also believe that a goal
14 statement to provide an assurance of some degree of
15 restoration is an important aspect that is lacking, in terms
16 of acreage or linear channel to be restored or some goal.
17 MR. DODGE: Move to strike everything after, "yes,"
19 MR. BIRMINGHAM: I would join in that request.
20 CHAIRMAN CAFFREY: I will overrule it.
21 MR. BIRMINGHAM: Mr. Thomas, doesn't the Waterfowl
22 Habitat Restoration Plan that has been prepared by the
23 Department of Water and Power, R-LADWP-20, contain
24 monitoring that will assure that the channels on Rush Creek
25 are, indeed, open for waterfowl habitat restoration?
01 MR. THOMAS: I am unaware of monitoring that will
02 assure that to happen.
03 MR. BIRMINGHAM: I would like to go to Page 12,
04 Paragraph 3 (a) (2).
05 Does the settlement agreement provide that upon the
06 recommendation of the Mono Basin waterfowl habitat
07 restoration that the Department of Water and Power will use
08 its Mill Creek water rights for waterfowl habitat
09 restoration pursuant to Water Code Section 1243 and will
10 petition the State Water Resource Control Board for a change
11 in purpose of use pursuant to Section 1707?
12 MR. THOMAS: Yes, it does. And as stated in the
13 waterfowl plan, that is an insufficient amount of water to
14 substantially restore waterfowl habitat.
15 MR. DODGE: Move to strike everything after "yes" as
17 CHAIRMAN CAFFREY: I am not going to strike it, but I
18 am going to ask the witness to please be responsive to the
19 question and try not to ad lib and be argumentative.
20 Thank you, sir.
21 MR. BIRMINGHAM: Mr. Thomas, following up on your last
22 answer, doesn't the settlement agreement and Exhibit 68A
23 contemplate that the provision of additional water, water in
24 addition to the water described in Paragraph 3 (a) (2) will
25 be considered as a proposal for the restoration of waterfowl
02 MS. BELLOMO: Chairman Caffrey, I object. I believe
03 that question calls for the witness to speculate about the
04 intent of the parties to the agreement. I don't know how he
05 can know what a document contemplates. That implies that
06 the parties have some understanding of what is supposed to
07 happen and limited to what is on the face of the document
08 unless he can tell us what he has heard the parties say that
09 they intend.
10 MR. BIRMINGHAM: Let me restate the question.
11 CHAIRMAN CAFFREY: Please do, Mr. Birmingham.
12 MR. FRINK: Mr. Chairman, I wonder if one way of
13 speeding this up is to recognize that the document provides
14 for what the document provides for, and having Mr. Thomas
15 acknowledge what the document provides for doesn't change
16 what is in the document.
17 MR. BIRMINGHAM: Mr. Frink is absolutely correct. But
18 what I am attempting to inquire into is the basis of the
19 opinions that have been expressed by Mr. Thomas in
20 R-PMBP-34. We have already established that Mr. Thomas
21 would modify the document if he were to rewrite it today.
22 When it makes reference to fish, he would modify the
23 document to eliminate references to the retention of
24 jurisdiction by the El Dorado County Superior Court. And I
25 think I am entitled to inquire into Mr. Thomas'
01 understanding of the documents because it certainly relates
02 to the foundation of the opinions expressed in the memo that
03 he drafted, Exhibit 34.
04 CHAIRMAN CAFFREY: I am going to allow you to continue
05 with that line of questioning. I am also going to tell the
06 witness that this is a continuation of what I mentioned
07 before, Mr. Thomas. Your attorney has, certainly, the right
08 to ask you pertinent questions with regard to this line of
09 reasoning and just to her right to redirect. So you don't
10 have to try and become your own lawyer.
11 All right. Please proceed, Mr. Birmingham.
12 MR. BIRMINGHAM: Let me go back. I asked you a
13 question about the dedication of the City's water rights on
14 Mill Creek for the waterfowl restoration purposes, and you
15 said the agreement does provide for that, but that is
16 inadequate water for waterfowl habitat restoration.
17 That is what your response was; is that right?
18 MR. THOMAS: Yes, it was, and I based that on the
19 Waterfowl Plan.
20 MR. BIRMINGHAM: Isn't it right, Mr. Thomas, that
21 Exhibit 68A, Page 3, provides that among the projects that
22 will be studied is providing additional water, water in
23 addition to LADWP's water to Mill Creek for waterfowl
24 habitat restoration?
25 MR. THOMAS: I believe that is true.
01 MR. BIRMINGHAM: And yesterday when answering questions
02 for Ms. Bellomo, you stated that among the things that you
03 would like to see done is continuation of the monitoring of
04 brine shrimp and alkali flies as part of the waterfowl
05 habitat restoration programs.
06 Do you recall saying that?
07 MR. THOMAS: I don't believe continuing is accurate. I
08 believe there has been no recent monitoring of those
09 species. But I certainly support monitoring of those
11 MR. BIRMINGHAM: Does the settlement agreement provide
12 that the City of Los Angeles will continue the limitilogical
13 monitoring for a period until ten years after Mono Lake
14 reaches a transition level of 6392 feet?
15 MR. THOMAS: Yes.
16 MR. BIRMINGHAM: So, the Department of Water and Power,
17 it is your understanding, will continue to monitor brine
18 shrimp in Mono Lake?
19 MR. THOMAS: But not brine flies, I believe.
20 MR. BIRMINGHAM: Doesn't the settlement agreement
21 contemplate, here I am referring to LADWP Exhibit 68, that
22 lake productivity, including alkali pond monitoring will be
23 conducted? I am looking at Page 2, Paragraph A.
24 MR. THOMAS: Yes.
25 MR. BIRMINGHAM: So, the settlement agreement, with
01 respect to waterfowl habitat restoration, provides that the
02 Los Angeles Department of Water and Power will do more than
03 merely pay $3.6 million; isn't that correct?
04 MR. THOMAS: That's correct.
05 MR. BIRMINGHAM: One of the flaws is a term I believe
06 that you used. Mr. Thomas, in preparing Exhibit 34, one of
07 the flaws that you have identified, here I am looking at
08 Page 5, Paragraph 7, is that the language of the conceptual
09 agreement presupposes a water allocation to Mill Creek.
10 Then you go to state:
11 I suggest that the objective CEQA analysis,
12 impact analysis, could determine what water
13 now in Wilson drainage is to remain there. I
14 submit that reasoned approach is to analyze
15 the restoration of waterfowl habitat in the
16 North Basin, the rewatering of Mill Creek,
17 logically, then would be one of the several
18 "reasonable alternatives" objectively
19 analyzed. (Reading.)
20 Is that what you wrote?
21 MR. THOMAS: Yes, it is.
22 MR. BIRMINGHAM: Isn't it your understanding, Mr.
23 Thomas, that the settlement agreement, LADWP-68A, provides
24 for the precise process which you have described in
25 Paragraph 7?
01 MR. THOMAS: My concern with this language in the
02 settlement agreement, at the bottom of Page 3, which could
03 be interpreted, to determine the appropriate water
04 allocation. I read that as -- that the -- it could be
05 interpreted that the preconceived decision that, A, an
06 appropriate water allocation for waterfowl in Mill Creek,
07 which is the subject of this paragraph, is the focus.
08 MR. BIRMINGHAM: May I ask for an instruction that the
09 witness answer my question.
10 CHAIRMAN CAFFREY: I believe he -- does it lead to a
11 yes or no answer?
12 MR. THOMAS: I will try. Could I hear the question
14 MR. BIRMINGHAM: Why don't you repeat it.
15 (Record read as requested.)
16 MR. THOMAS: I don't believe so, no.
17 MR. BIRMINGHAM: Isn't it correct, in the process as
18 described on Page 3, Paragraph (c) of LA-68A that the CEQA
19 process could lead to a determination concerning water
20 allocation between Wilson and Mill Creek be maintained, the
21 status quo be maintained?
22 MR. THOMAS: Yes. I believe that is implied.
23 MR. BIRMINGHAM: It is implied that the status quo be
25 MR. THOMAS: It is implied that the CEQA process will
01 determine that decision.
02 MR. BIRMINGHAM: Isn't that the process which you
03 described in Paragraph 7 on Page 5 of R-PMBP-34?
04 MR. THOMAS: Not quite.
05 MR. BIRMINGHAM: Mr. Turner, I have just one question
06 for you.
07 Can you tell me what the position of the Department of
08 Fish and Game is concerning what the State Water Resources
09 Control Board should do in modifying the restoration
10 proposal submitted by the Department of Water and Power as a
11 result of these proceedings?
12 MR. TURNER: My opinion right now is that the
13 settlement submittals that have been introduced to this
14 proceeding, we're in support of and we recommend the Board
15 implement them. And I am sure that the Board is going to
16 continue its jurisdiction over them in terms of making sure
17 that the job gets done.
18 MR. BIRMINGHAM: Thank you very much.
19 MR. TURNER: Can I make one more remark, going back to
20 the testimony?
21 CHAIRMAN CAFFREY: Were you answering a question or
23 MR. BIRMINGHAM: Do you have any additional remarks,
24 Mr. Turner?
25 MR. TURNER: I have one.
01 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.
02 MR. BIRMINGHAM: About the subject at hand?
03 MR. TURNER: I would like to formally apologize for an
04 off-color remark that was made on the telephone to Ms.
05 Bellomo about the Mono Lake Committee dealing with the full
06 employment from this restoration process. I believe the
07 funds are being put in an escrow account that is neutral.
08 It is not for their personal use. I am personally
09 embarrassed that that got thrown back at me. It tells me
10 that I should choose my words more wisely. So please accept
11 my apologies, particularly Martha Davis, for making that
12 off-color remark and to Bruce Dodge, also.
13 CHAIRMAN CAFFREY: Thank you for that clarification.
14 MR. BIRMINGHAM: Mr. Turner, you and I have something
15 in common. I, too, have often made off-color remarks about
16 the Mono Lake Committee.
17 CHAIRMAN CAFFREY: Probably about this Board.
18 Thank you, Mr. Birmingham.
19 Proceeding down the list, I will just call off in the
21 Is there anybody from United States Forest Service
22 wishing to cross-examine?
23 Anyone from Bureau of Land Management?
24 Arcularius Ranch?
25 Richard Ridenhour?
01 Cal Trout?
02 MR. ROOS-COLLINS: Yes, Mr. Chairman.
03 CHAIRMAN CAFFREY: Good morning, sir. As late in the
04 morning as it is, you finally get your opportunity. Again,
05 any estimate -- you have up to an hour, of course. But do
06 you have an estimate of how much time you think you are
07 going to need, Mr. Roos-Collins, for your cross?
08 MR. ROOS-COLLINS: Not more than ten minutes, and Mr.
09 Johns is welcome to ring the bell within that time.
10 CHAIRMAN CAFFREY: We are not holding you. It is just
11 a guideline. We appreciate your estimate.
12 Thank you, sir.
13 CROSS-EXAMINATION BY
14 CALIFORNIA TROUT
15 BY MR. ROOS-COLLINS
16 MR. ROOS-COLLINS: Mr. Thomas, I have a few questions
17 for you regarding the requirements of the settlement
18 agreement that DWP will reopen the Rush Creek channels.
19 Do you have DWP's Waterfowl Plan in front of you?
20 MR. THOMAS: Yes I do.
21 MR. ROOS-COLLINS: Would you please turn to Page 22?
22 Does Page 22 describe DWP's plan to reopen Rush Creek
24 MR. THOMAS: Yes, it does. In fact, I see a note here
25 in my hand that has a big red "good" beside that section.
01 MR. ROOS-COLLINS: You understand that these channels
02 are below the narrows on Rush Creek?
03 MR. THOMAS: I understand that.
04 MR. ROOS-COLLINS: You understand that these channels
05 are in the Rush Creek bottomlands?
06 MR. THOMAS: Yes.
07 MR. ROOS-COLLINS: Now, in response to a question by
08 Mr. Birmingham you testified, I believe, that this
09 commitment does not have a quantified goal or performance
10 standard. Was that your testimony?
11 MR. THOMAS: That is what I said.
12 MR. ROOS-COLLINS: Are you familiar with DWP Exhibit
14 MR. THOMAS: I am afraid that I am not up on those
16 MR. ROOS-COLLINS: Stating termination criteria for
17 Rush Creek and Lee Vining Creeks?
18 MR. THOMAS: I am afraid I am not with you on that
19 one. I have to get on same page with you.
20 MR. ROOS-COLLINS: Mr. Thomas, I am showing you now
21 LA-68B, Page 3, which is entitled Riparian Vegetation
22 Termination Criteria. Please review that page and then I
23 will continue with questioning when you are done.
24 MR. THOMAS: I have seen this. My review of this has
25 been cursory, I would say.
01 MR. ROOS-COLLINS: Let me read from the settlement
02 agreement, DWP 68, Page 8, which provides that the
03 termination criteria for the Stream Monitoring Plan will be
04 as follows:
05 Point 1, the criteria will describe the
06 qualities which exist in the stream, subject
07 to D-1631 before DWP caused degradation to
08 these streams. For the purpose of the
09 settlement agreement those qualities are
10 preproject conditions. (Reading.)
11 Is it your understanding that the DWP-68B, Page 3,
12 states a termination criteria for riparian vegetation on
13 Rush Creek?
14 MR. THOMAS: Yes.
15 MR. ROOS-COLLINS: Is it your understanding that the
16 page which we are discussing states the acreage of riparian
17 vegetation which existed in each reach of Rush Creek before
18 DWP began diversions in 1941?
19 MR. THOMAS: Yes.
20 MR. ROOS-COLLINS: Is Reach 4 the bottomlands of Rush
22 MR. THOMAS: Yes.
23 MR. ROOS-COLLINS: Does Page 3 of DWP Exhibit 68B state
24 acreage of riparian vegetation for Reach 4?
25 MR. THOMAS: Yes, it does.
01 MR. ROOS-COLLINS: Is that acreage a quantified goal or
02 performance standard?
03 MR. THOMAS: Yes, it is.
04 MR. ROOS-COLLINS: Return now to PMBP-34, Page 4. You
05 discuss other flaws of the settlement agreement,
06 specifically the waterfowl portion of that settlement
08 Flaw number two is that there is no specified schedule
09 of implementation for any habitat restoration proposal; is
10 that correct?
11 MR. THOMAS: That's correct.
12 MR. ROOS-COLLINS: Does the waterfowl restoration plan
13 submitted by Los Angeles contain a schedule of
14 implementation for reopening of the Rush Creek Channels in
15 the bottomlands?
16 MR. THOMAS: I didn't see any dates given.
17 MR. ROOS-COLLINS: I ask that you review the section
18 entitled "Implementation Schedule."
19 MR. THOMAS: There is an effort at scheduling for this
20 project. I see nine channels in the first year. I see
21 reference to the course of two or more years.
22 MR. ROOS-COLLINS: Thank you.
23 Finally, the fourth flaw that you identified is that
24 the monitoring program has merits, but lacks detail needed
25 to review cost procedures and purpose. Does the waterfowl
01 plan submitted by DWP estimate the cost of reopening Rush
02 Creek Channels?
03 MR. THOMAS: I don't believe that refers to
05 MR. ROOS-COLLINS: I understand.
06 Thank you very much. No further questions.
07 CHAIRMAN CAFFREY: Thank you very much, Mr.
09 Department of Fish and Game. Ms. Cahill, do you wish
11 MS. CAHILL: Yes, I do. Thank you.
12 CROSS-EXAMINATION BY
13 DEPARTMENT OF FISH AND GAME
14 BY MS. CAHILL
15 MS. CAHILL: I have just a couple quick questions for
16 you, first Mr. Turner.
17 Mr. Turner, is it accurate to say that the Department
18 of Fish and Game relied entirely on Ron Thomas in
19 determining appropriate actions with regard to waterfowl
20 habitat restoration?
21 MR. TURNER: I think we relied heavily on Ron. I was
22 trying to think who else we were talking to.
23 MS. CAHILL: Was there input, for example, from other
24 biologists such as Gary Smith and regional people?
25 MR. TURNER: I think Gary had some opinions when we got
01 into the aquatic issues. Primarily split between Ron doing
02 the waterfowl and Gary doing the aquatic stream.
03 MS. CAHILL: Were the department representatives and
04 their attorneys familiar with the evidence that was
05 presented in this case, including testimony of other experts
06 such as Dr. Fritz Reid?
07 MR. TURNER: Yes.
08 MS. CAHILL: With regard to the Joe Keating project,
09 does Joe Keating still have a license for the Paoha Project?
10 MR. TURNER: I am not even sure about that. He tried
11 to originally do that project in '82 and then he tried again
12 in about '92, and I don't what the status of that project
14 MS. CAHILL: I need to find my notes.
15 MEMBER DEL PIERO: We can call Andy Sawyer, and he can
16 tell us all about Mr. Keating.
17 MR. TURNER: I know Mr. Keating is still active in
18 Placerville. He hasn't given up on some of these projects,
19 but I don't know what the status of that one is.
20 MEMBER DEL PIERO: I have to apologize for that.
21 MS. CAHILL: Mr. Turner, with respect to Fish and Game
22 Code Section 5937, it requires that fish be kept in good
23 condition in Mill Creek below Lundy Dam?
24 MR. TURNER: I would say the answer to that is yes.
25 MS. CAHILL: Has the Department of Fish and Game done a
01 stream evaluation report for Mill Creek that provides
02 recommended flows for keeping the fish in good condition?
03 MR. TURNER: Yes, they have.
04 MS. CAHILL: In your opinion, is there sufficient
05 water in the Mill-Wilson system to provide the flows that
06 would be needed to keep the fish in good condition in both
07 Mill and Wilson Creeks?
08 MR. TURNER: I think the short answer to that is,
09 probably no. I would like to qualify the question a little
10 -- qualify the answer a little bit, though. We have
11 completed the project in terms of Mill Creek and making a
12 determination what the instream flow needs would be for Mill
13 Creek, if we were just dealing with Mill Creek.
14 We also did a project for Wilson Creek and the data has
15 been collected. We are still in the middle of doing an
16 analysis, putting together a final report. That report will
17 talk about Wilson Creek. But neither report is an attempt
18 to try to compare one against the other.
19 MS. CAHILL: Would you expect that the environmental
20 document that is proposed under waterfowl conceptual
21 agreement would deal with these issues?
22 MR. TURNER: Yes, I do. And I think it is really
23 critical that both the Wilson and Mill reports get utilized
24 in putting that environmental document together.
25 MS. CAHILL: And you believe --
01 MR. TURNER: Can I make one more -- I would also like
02 to say that there has been some indications, and I am not
03 the expert for this in terms of having seen this, but there
04 are fish kill and there are times when both of those rivers
05 at least partially are dry. And I think that is an
06 indication that running both of those rivers and trying to
07 optimize conditions both for aquatic and waterfowl is a very
08 difficult thing to do. There is going to be a need for
09 doing some really hard choices on that water.
10 MS. CAHILL: Mr. Thomas, in your testimony that you
11 went over yesterday, in Paragraph 12, you state that:
12 Taken in their entirety, the recommendations
13 of the scientists' restoration plan would
14 provide substantial waterfowl habitat
15 restoration. (Reading.)
16 That is still your opinion, is it not?
17 MR. THOMAS: Yes, it is.
18 MS. CAHILL: In the document that was just submitted
19 today, R-PMBP-34, when you address a reasonable, meaningful,
20 and cost effective restoration program, the first step is to
21 develop a list of projects described in detail, using the
22 scientists' plan as a template; is that correct?
23 MR. THOMAS: I am not with you on the same page.
24 MS. CAHILL: Page 6, number one, toward the bottom.
25 MR. THOMAS: Yes.
01 MS. CAHILL: Do you believe the scientists' plan was a
02 reasonable plan to use as a template for restoration?
03 MR. THOMAS: Yes.
04 MS. CAHILL: And then let's go to the scientists' plan,
05 which is the attachment to your waterfowl report, and go to
06 Page 111.
07 Isn't it true that the scientists' plan says that their
08 second priority is rewatering Mill Creek, including
09 important distributaries and raising water table in the
10 flood plain to restore riparian marsh, stream, wet meadow
11 and open water ponds and sloughs and to recreate a
12 hypopycnal environment at the mouth of the stream?
13 MR. THOMAS: That is what they say.
14 MS. CAHILL: So, if you were to use the scientists'
15 plan as a template, wouldn't you at least look at this
17 MR. THOMAS: Yes.
18 MS. CAHILL: Doesn't the settlement agreement do that?
19 MR. THOMAS: Yes.
20 MS. CAHILL: And you have testified that it is good to
21 have a diversity of habitats; is that true?
22 MR. THOMAS: That's true.
23 MS. CAHILL: And you stressed the importance of
24 shallow, open water ponds?
25 MR. THOMAS: Yes.
01 MS. CAHILL: Don't you agree, also, that diversity has
02 a value and to restore some riparian, marsh stream, wet
03 meadow, open water ponds, and hypopycnal would also have
05 MR. THOMAS: Certainly.
06 MS. CAHILL: On Page 112 of the scientists' report, the
07 next measure is rewatering the important distributaries in
08 Rush Creek below the narrows. I think we have already dealt
09 with that. Isn't it true that the settlement agreement
10 provides that Los Angeles will do that?
11 MR. THOMAS: Yes.
12 MS. CAHILL: The item is DeChambeau Ponds, County
13 Ponds, Black Point restoration complex project. The third
14 item under that is the feasibility of creating one or
15 several shallow ponds near Black Point.
16 Do you favor that?
17 MR. THOMAS: Yes, I do.
18 MS. CAHILL: Is that provided for in the settlement
20 MR. THOMAS: It is allowed by the settlement
22 MS. CAHILL: With regard to DeChambeau Ponds, County
23 Ponds, did you listen to the testimony of Fritz Reid?
24 MR. THOMAS: Yes, I did.
25 MS. CAHILL: What was his current position with regard
01 to rewatering the County Ponds?
02 MR. THOMAS: I believe he was talking -- I am not sure.
03 I believe he was talking about artesian flows there, I
05 MS. CAHILL: Do you think his position was that he
06 would recommend doing it, but only if there were artesian
07 flows available?
08 MR. THOMAS: Yes.
09 MS. CAHILL: Yesterday, there was a number that floated
10 by. I can't remember if you agreed or not; something to the
11 effect if you create perhaps some shallow ponds for $6,000
12 an acre.
13 MR. THOMAS: I think we referenced that number in from
14 the scientists' plan. I don't have the exact page.
15 MS. CAHILL: That would certainly not be the number for
16 County Ponds, would it?
17 MR. THOMAS: Certainly not.
18 MS. CAHILL: County Ponds would be considerably
20 MR. THOMAS: With Forest Service water running in there
21 now, I am not sure there would be any further cost. All the
22 cost may have already accrued, and so I don't know what
23 further costs there would be in the future.
24 MS. CAHILL: In any event, that would be one of the
25 items that could be considered in the EIR that deals with
01 waterfowl restoration in the context of the waters to Mill
02 and Wilson Creek?
03 MR. THOMAS: I can't speculate of what all the EIR
04 would include, but those projects are already, in fact, in
05 place and functioning. I don't know that the EIR process
06 would need to include projects that are already
07 completed. I expect they could be by then.
08 MS. CAHILL: They could be included as either the
09 existing environment, if they exist, or as a proposed
10 alternative if they don't yet?
11 MR. THOMAS: Yes.
12 MS. CAHILL: And nothing in the settlement agreement
13 would preclude that?
14 MR. THOMAS: No.
15 MS. CAHILL: The next item that the scientists
16 recommend on Page 112 is a prescribed burn plan. I believe
17 that yesterday you testified that you favored a prescribed
18 burn plan; is that correct?
19 MR. THOMAS: That's correct.
20 MS. CAHILL: Does the settlement agreement authorize
22 MR. THOMAS: It allows burns to happen with no stated
23 goals given.
24 MS. CAHILL: Doesn't it say that the small committee of
25 scientists will set goals for each project?
01 MR. THOMAS: Yes, it does.
02 MS. CAHILL: The fifth item on the scientists' list, if
03 you are going to use it as a template, is to investigate
04 the feasibility of enhancing existing artificial ponds near
05 Simons Springs and the creation of one or several shallow
06 ponds in other lake fringing habitats.
07 Does the settlement agreement indicate that one of the
08 items under open water habitat could be investigate the
09 feasibility of creating one or several shallow ponds in
10 similar lake fringing marsh and wet meadow habitats and, if
11 feasible, those projects qualify for funding?
12 MR. THOMAS: That is what it says.
13 MS. CAHILL: Does the settlement agreement allocate
14 $340,000 for restoring, operating, and maintaining open
15 water habitat?
16 MR. THOMAS: Yes.
17 MS. CAHILL: Is there a time frame that -- this is over
18 at least the next ten years?
19 MR. THOMAS: That is what it says.
20 MS. CAHILL: Let me move to the next item, and what you
21 would recommend in a monitoring plan.
22 The second item is, state specific implementation
23 schedules for all proposals. Did the three scientists state
24 specific schedules for all their proposals?
25 MR. THOMAS: No, they did not.
01 MS. CAHILL: Given that the possibility of rewatering
02 Mill Creek will involve an environmental impact report and
03 considerable analysis, is it possible to come up with a
04 specific time?
05 MR. THOMAS: Regarding Mill Creek?
06 MS. CAHILL: Yes.
07 Could you come up with a specific implementation
08 schedule prior to doing that environmental work?
09 MR. THOMAS: No. Nor could you even assure that the
10 project would be done.
11 MS. CAHILL: Is there any way you could, in fact, do a
12 specific implementation schedule at this time when
13 environmental work hasn't been done?
14 MR. THOMAS: For Mill Creek, no.
15 MS. CAHILL: With regard to monitoring, would you agree
16 that most monitoring projects are probably exempt from CEQA?
17 MR. THOMAS: I believe that is true.
18 MS. CAHILL: Does the settlement agreement allocate
19 $410,000 for monitoring over the next ten years and is there
20 a recommended schedule there?
21 MR. THOMAS: I agree with the amount. You will have to
22 help me with the scheduling.
23 MS. CAHILL: Does the agreement provide that the
24 monitoring will begin immediately upon funding of the
01 MR. THOMAS: Yes.
02 MS. CAHILL: There are four monitoring activities
03 listed here. Would you read those please?
04 MR. THOMAS: In the conceptual agreement?
05 MS. CAHILL: Yes.
06 MR. THOMAS: Lists aerial surveys, lists aerial
07 photography, lists waterfowl time activity, and it lists
08 productivity, including alkali fly.
09 MS. CAHILL: Are these the items that you told Mr.
10 Canaday yesterday that you thought should be included in the
11 monitoring program?
12 MR. THOMAS: Yes, and they are based on the scientists'
14 MS. CAHILL: Isn't there some implementation schedule
15 also here? Doesn't it say that the monitoring activities
16 will be implemented within the first year of funding of the
17 Foundation and will continue for at least ten years?
18 MR. THOMAS: Yes, it does say that.
19 MS. CAHILL: With regard to quantified targets for
20 each project, that is number three on Page 6, of the PMBP
21 Exhibit 34, states quantified targets for each project. Is
22 it true that the settlement agreement under monitoring
23 states that -- I guess monitoring is measuring a goal --
24 Under open water habitat, isn't it true that the
25 settlement agreement provides that each project shall
01 contain measurable criteria for assessing performance?
02 MR. THOMAS: They are unstated in the conceptual
04 MS. CAHILL: Doesn't the conceptual agreement provide
05 that each project, as it is selected, will contain
06 measurable criteria for assessing performance?
07 MR. THOMAS: It allows for that, yes.
08 MS. CAHILL: Do you read "shall" to mean "allow"?
09 MR. THOMAS: I'm afraid I'm not with you. I don't know
10 exactly where you are reading.
11 MS. CAHILL: Of Page 3 of the conceptual agreement,
12 after the first full paragraph, there is a single line that
13 says, "each project shall contain measurable criteria for
14 assessing --"
15 MR. THOMAS: That is what it says.
16 MS. CAHILL: Those projects are to be selected and
17 directed by people who are experts in the field of waterfowl
18 and waterfowl habitat; is that correct?
19 MR. THOMAS: That is what it says.
20 MS. CAHILL: And the list of projects here reflects
21 projects that were part of the scientists' plan; is that
23 MR. THOMAS: That is correct, yes.
24 MS. CAHILL: So, Mr. Thomas, going to Page 7 of the
25 document that is PMBP Number 34, you suggested that
01 monitoring plan should have specific monitoring programs
02 detailed in design to assess progress toward a stated goal.
03 Having just walked through with the provisions of the
04 settlement agreement with regard to monitoring, do you now
05 think that the agreement does accomplish what you think it
06 needs to accomplish, with regard to the monitoring program?
07 MR. THOMAS: It allows for it.
08 MS. CAHILL: With regard to adaptive management, why
09 don't you explain what your understanding of adaptive
10 management is?
11 MR. THOMAS: I think we touched on this yesterday. But
12 briefly, adaptive management, to me, involves specifically
13 stated projects which can be implemented in response to the
14 results of monitoring of progress of the initial project.
15 So, it is a second tier of projects that can be implemented
16 if needed, based on results of monitoring.
17 MS. CAHILL: In the conceptual waterfowl plan, is there
18 flexibility to do adaptive management?
19 MR. THOMAS: It would allow it.
20 MS. CAHILL: Until, in fact, the early stages are done,
21 there is no way to know what might need to be done at a
22 future date; isn't that right?
23 MS. BELLOMO: Objection. The question is vague and
24 ambiguous, the early stages of what.
25 CHAIRMAN CAFFREY: Can you rephrase.
01 MS. CAHILL: Yes.
02 With regard to the provisions in the conceptual plan
03 for open water habitat where certain projects are listed, if
04 it proves that one or more of those projects is not
05 feasible, doesn't the settlement agreement allow adaptive
06 management to come up with other measures?
07 MR. THOMAS: It allows it.
08 MS. CAHILL: At this point in time, before we have done
09 some of the these initial projects, do we have anything to
10 do adaptive management on?
11 MR. THOMAS: At this point, no.
12 MS. CAHILL: In other words, at this point in time, we
13 couldn't spell out what the adaptive management might be
14 because we won't know what it is until we started with the
15 listed projects?
16 MR. THOMAS: I disagree.
17 MS. BELLOMO: Objection. The question is
19 CHAIRMAN CAFFREY: I'm sorry, I didn't hear the
20 question or the objection. That is my fault.
21 MS. CAHILL: I withdraw that one.
22 It is true, that as we sit here today, we cannot know
23 what might be needed in the way of adaptive management?
24 MR. THOMAS: We cannot know at this point.
25 MS. CAHILL: We could not now specify the projects that
01 you might want to implement as adaptive management at a
02 later point?
03 MR. THOMAS: I disagree, because we can specify those.
04 MS. CAHILL: You could specify them now?
05 MR. THOMAS: Certainly. We could specify projects that
06 could be available as options in the future, if needed.
07 MS. CAHILL: What the agreement does is indicate that
08 if the funds are not needed for the listed projects, the
09 money could be allocated for other restoration or monitoring
11 MR. THOMAS: Yes, it does.
12 MS. CAHILL: You indicated that you -- let me ask you.
13 Would you prefer to see more projects outside the Mono Basin
15 MS. BELLOMO: Question is vague. More projects than
17 MS. CAHILL: Than are proposed in the settlement
19 CHAIRMAN CAFFREY: All right, sir, having heard the
20 rest of the question.
21 MR. THOMAS: Would you repeat that question?
22 MS. CAHILL: Let me ask a different question.
23 Do you understand that the Decision 1631 is focused
24 primarily on waterfowl habitat restoration within the Mono
01 MR. THOMAS: Absolutely.
02 MS. CAHILL: Do you agree that we ought to take
03 advantage of whatever opportunities exist within basin
04 before we go outside?
05 MR. THOMAS: Absolutely.
06 MS. CAHILL: The settlement agreement does allow us,
07 however, to go outside the basin if it later proves that we
08 can't do adequate restoration within the basin; isn't that
10 MR. THOMAS: It allows it.
11 MS. CAHILL: I may have, Chairman Caffrey, further
12 questions, but I would suggest that we break for lunch now
13 and then I will be hopefully more organized and less paper
14 shuffling when we come back.
15 CHAIRMAN CAFFREY: That is -- I think that is a
16 reasonable request. But before we do that, I just want to
17 say, I just want to reiterate that, of course, we all know
18 this is a lengthy process, hopefully a very worthwhile
19 one. I do intend to finish today, whatever hour that is.
20 We have been about this for some time. We had approved
21 hiatuses, if you will, for the purpose of becoming more
22 efficient and being able to conclude in a reasonable amount
23 of time.
24 So, I want to say that some of the Board Members have
25 other commitments and will not be able to be here, if we go
01 into evening. I know Mr. Del Piero will be here till the
02 bitter end, even if he has to lie down.
03 And I appreciate that, Marc. We will take the time
04 necessary to get done. And to remind you all that we still
05 have another panel. I believe that is one witness.
06 MS. BELLOMO: A panel of three witnesses.
07 CHAIRMAN CAFFREY: I'm sorry. We have another panel
08 with three witnesses. And so, at the rate we are going, it
09 looks like we will go into the evening. I just wanted to
10 let you all know that. If we get to mid or late afternoon,
11 and that is a surety, we will certainly provide some time to
12 move automobiles and do whatever else we need for
13 sustenance, if you will. We will try to keep those breaks
14 to a minimum so that we can keep going.
15 We'll come back at 1:00, then resume. It is now 5 to
16 12, so that gives us a little time for lunch and rest.
17 (Luncheon break taken.)
01 AFTERNOON SESSION
03 CHAIRMAN CAFFREY: I hope everybody is ready.
04 When last we met, we were somewhere within Ms. Cahill's
05 cross-examination have these witnesses. Would you like to
06 continue Ms. Cahill?
07 MS. CAHILL: Thank you.
08 Mr. Thomas, in your memorandum do you suggest the
09 possibility of using some of the funds contributed by Los
10 Angeles to try to get matching funds from other sources?
11 MR. THOMAS: Yes.
12 MS. CAHILL: Do you in any way see anything in the
13 settlement agreement from representing the Foundation from
14 doing just that?
15 MR. THOMAS: No.
16 MS CAHILL: Does the agreement, in fact, provide the
17 parties will seek additional funding?
18 MR. THOMAS: Yes?
19 MS. CAHILL: Can you tell us what kind of habitat there
20 are in addition to refuge habitat?
21 MR. THOMAS: The open lake provides feeding habitat.
22 Any shallow, fresh or brackish ponds would provide likely
23 variety of food types, as well as refuge.
24 MS. CAHILL: For example, if there were a hypopycnal
25 layer at the mouth of Mill Creek, that would provide any
01 type of habitat, not refuge habitat.
02 MR. THOMAS: Any hypopycnal habitat around the lake
03 would provide that.
04 MS. CAHILL: Do you agree that the three scientists who
05 did the waterfowl scientists' report are qualified
07 MR. THOMAS: Absolutely.
08 MS. CAHILL: Do you agree that in their report they,
09 being qualified biologists, recommended the rewatering of
10 Mill Creek as a waterfowl habitat restoration measure?
11 MR. THOMAS: Yes.
12 MS. CAHILL: Would you recommend that we at least study
13 Mill Creek; that is, do the environmental analysis to look
14 at all the impacts of such a project?
15 MR. THOMAS: I think that is the only appropriate way
16 to proceed.
17 MS. CAHILL: Did you consider public opposition to the
18 rewatering of Mill Creek in forming your biological opinion?
19 MR. THOMAS: Yes. That, among other factors, caused me
20 concern regarding the assurance of that project being
21 implemented at all, in addition to what I see as limited
22 benefits there.
23 MS. CAHILL: You wouldn't purport to let public opinion
24 affect the scientific weighing of the project once it has
25 entered into the analysis?
01 MR. THOMAS: No. But CEQA does consider public input.
02 MS. CAHILL: Where the settlement agreement provides
03 for funding for open water habitat and three measures are
04 listed, would you prefer to have flexibility to shift those
05 funds among those three measures or would you have preferred
06 to have looked at a fixed dollar amount for each one?
07 MR. THOMAS: I think the flexibility is desirable.
08 MS. CAHILL: That is all I have.
09 CHAIRMAN CAFFREY: Thank you very much, Ms. Cahill.
10 State Lands Commission, Ms. Scoonover.
11 MS. SCOONOVER: We have no questions.
12 CHAIRMAN CAFFREY: No questions.
13 Mr. Dodge, representing Audubon Society and the Mono
14 Lake Committee.
15 MR. DODGE: Just a few, Mr. Chairman.
16 CROSS-EXAMINATION BY
17 AUDUBON SOCIETY and MONO LAKE COMMITTEE
18 BY MR. DODGE
19 MR. DODGE: Questions for Mr. Thomas.
20 Focusing on Exhibits 34 and 35, sir, I think you have
21 told us that you gave a copy of Exhibit 35 to Mr. Inwood and
22 a copy of Exhibit 34 to Mr. Banta. Correct?
23 MR. THOMAS: That is correct.
24 MR. DODGE: Did you give a copy of either Exhibit 34 or
25 35 to any other person who is not an employee of the
01 Department of Fish and Game?
02 MR. THOMAS: I believe the answer to that is no.
03 Mr. Rick Rockel, I believe, had a copy, but got it from
04 Mr. Inwood, I believe, in Bridgeport.
05 MR. DODGE: Do you know if Mr. Inwood has given copies
06 to anyone else?
07 MR. THOMAS: I know that he has, apparently.
08 MR. DODGE: Besides Mr. Rick Rockel.
09 MR. THOMAS: There is a fax tag on Number 35 or 34,
10 whichever it is, with his name on it.
11 MR. DODGE: Are you aware of any other copies being
13 MR. THOMAS: No.
14 MR. DODGE: The memorandum went from Mr. Vern Bleich
15 to Mr. Allen Pickard. Do you know whether either of those
16 gentlemen gave a copy of the document to someone who is not
17 an employee of the Department of Fish and Game?
18 MR. THOMAS: I don't know the answer to that.
19 MR. DODGE: As you sit here today, do you believe
20 Exhibits 34 and 35 are photocopies of the documents that you
21 gave respectively to Mr. Banta and to Mr. Inwood?
22 MR. THOMAS: As far as I can tell, yes.
23 MR. DODGE: You testified, sir, about acreages of
24 fresh, shallow, open water providing more ducks on a per
25 dollar basis than Mill Creek.
01 Do you recall generally that testimony?
02 MR. THOMAS: Yes, I do.
03 MR. DODGE: Can you explain to me, physically, how you
04 would create this shallow, fresh open water?
05 MR. THOMAS: There are several ways. In fact, I
06 believe that with moving very little material, with even a
07 shovel by hand, shallow ponds could be created at some
08 locations where existing natural lakes or berms could be
09 repaired with a shovel to contain water. That would be one
10 simple economical way.
11 MR. DODGE: Can you give us some examples of those
13 MR. THOMAS: Yes. I have seen locations like that near
14 Simons Springs. I would guess, but I don't know, there are
15 other locations, as well.
16 MR. DODGE: You don't know that?
17 MR. THOMAS: I don't know that.
18 MR. DODGE: Is it a fact that some locations would
19 require the use of heavier equipment?
20 MR. THOMAS: If the decision was made to put shallow
21 ponds in some locations, that would be the only way to do
22 it, yes.
23 MR. DODGE: Use a bulldozer, right?
24 MR. THOMAS: Or some other equipment, yes.
25 MR. DODGE: In that situation where you used heavy
01 equipment, is it likely that the maintenance of those
02 shallow, fresh water ponds -- excuse me, is it likely that
03 those shallow, fresh water ponds would require maintenance?
04 MR. THOMAS: At some point. I think the scientists'
05 plan talks about a lifespan of ten years or 15 years before
06 management would be required, and I would guess that that is
07 probably true.
08 MR. DODGE: In principle, some maintenance would be
10 MR. THOMAS: Yes.
11 MR. DODGE: How much and how often, would depend on a
12 case-by-case basis?
13 MR. THOMAS: Yes, it would. And, also, I would say on
14 the goal of a particular project, in some locations those
15 ponds would probably be inundated by the rising lake level.
16 Of course, there would be no more maintenance there.
17 MR. DODGE: Those that aren't inundated would require
18 maintenance from time to time?
19 MR. THOMAS: Yes.
20 MR. DODGE: If you came in with a bulldozer to create a
21 shallow, fresh water pond, would you agree that that is a
22 heavily engineered project?
23 MR. THOMAS: Not necessarily.
24 MR. DODGE: It could be?
25 MR. THOMAS: Depending on the size of the pond and what
01 size of the pond you needed to create. I would add, though,
02 that particularly on the wildlife areas bordering the Salton
03 Sea, these kinds of habitats are created with very minimal
04 soil disturbance and little equipment use.
05 MR. DODGE: These ponds, the shallow, fresh water ponds
06 that might be created, would you agree with me that those
07 did not exist at Mono Lake -- would you agree with me that
08 these did not exist prediversions? In other words, you are
09 not, by this proposed project, trying to restore the
10 prediversion conditions?
11 MR. THOMAS: Those kinds of projects could restore lost
12 refuge habitat. Those particular ponds did not exist there
14 MR. DODGE: They would be equivalent habitat, but
15 different habitat?
16 MR. THOMAS: Functionally equivalent.
17 MR. DODGE: That is all I have.
18 Thank you.
19 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.
20 That completes the cross-examination by the parties.
21 It now takes us to clarifying questions from staff. Are
22 there any?
23 MR. FRINK: Yes, we do have a few, Mr. Chairman.
24 CHAIRMAN CAFFREY: Mr. Frink.
01 CROSS-EXAMINATION BY
02 BOARD STAFF
03 MR. FRINK: Mr. Thomas, I will start.
04 At the bottom of Page 6 of your April 21st memorandum,
05 it states that a reasonable overall objective is to restore
06 and maintain 200 to 250 acres of shallow, fresh or brackish
07 open water habitat. It goes on to state that this 200 to
08 250 acres would be mitigated for the loss of 213 acres of
09 lagoons and 43 acres of bottomland in the Rush Creek area.
10 Do you see that?
11 MR. THOMAS: Yes.
12 MR. FRINK: Those statements?
13 MR. THOMAS: Yes.
14 MR. FRINK: From those statements, my understanding
15 there is that your recommendation on the number of acres of
16 shallow, open water habitat to be restored was based in
17 large measure on your assessment of the amount of habitat
18 that was lost as a result of the Department of Water and
19 Power's water diversions over the years?
20 MR. THOMAS: Only one correction to that. That is
21 true, except that that is my assessment. It was the
22 assessment of Dr. Stine and the waterfowl scientists that
23 wrote the plan.
24 MR. FRINK: Have you done any studies on the
25 relationship between the amount of waterfowl habitat that
01 presently exists in Mono Basin and the numbers of waterfowl
02 that can be supported on that habitat?
03 MR. THOMAS: In terms of specific study, no. In flying
04 the lake, however, in fact, back in '93 when we did the
05 intensive survey to count every duck on the lake, at least
06 try to, we certainly were able to look at the lake and its
07 habitats and the numbers or distribution of birds. It was
08 interesting that, at that time back in '93, that over half
09 of the total ducks counted, the total was about 8 or 900
10 birds, over half of those were on one ephemeral lagoon,
11 which, again, refuge-type habitat, at Simons Springs.
12 MR. FRINK: Were the County Ponds in functioning
13 condition at that time to provide waterfowl habitat?
14 MR. THOMAS: No.
15 MR. THOMAS: Were the DeChambeau Ponds in functioning
16 condition at that time?
17 MR. THOMAS: I believe at that time, if my memory
18 serves me, that there was some water in the DeChambeau
19 Ponds. I don't remember counting any ducks there. So I am
20 not sure what the extent of the habitat was there at that
22 MR. FRINK: The fourth provision, creating a specific
23 number of acres of shallow, open water habitat, in your
24 opinion, would be it reasonable to monitor and evaluate the
25 extent to which waterfowl habitat that has recently been
01 created is being utilized by waterfowl?
02 MR. THOMAS: Would you ask that again?
03 MR. FRINK: Yes. The County Ponds -- excuse me, the
04 DeChambeau Ponds project, it is my understanding, has either
05 recently been completed or nearly completed. Does that
06 provide some of the sort of shallow, open water habitats
07 that you believe is needed?
08 MR. THOMAS: Absolutely.
09 MR. FRINK: Would you be interested in knowing the
10 extent to which waterfowl used DeChambeau Ponds before you
11 commit to creating a specified number of acres of similar
13 MR. THOMAS: I believe that would be beneficial. I
14 would add that, at present, we already have an idea of the
15 times of heavy use by ducks and presently, as we speak, of a
16 variety of the species of other water birds based not on
17 normal surveys, but on reports of locals. And I don't think
18 I heard that from hunters, but local observers. But, yes,
19 assessment, certainly assessment of an existing restoration
20 project would be recommended before going further with other
21 similar projects.
22 I believe the scientists recommend that in their plan.
23 MR. FRINK: You testified that if the County Ponds were
24 to be maintained using Forest Service water, there may not
25 be substantial additional costs. Is that your opinion?
01 MR. THOMAS: I believe that is true.
02 MR. FRINK: If one objective is to provide shallow,
03 open habitat at a reasonable cost, would you recommend using
04 Forest Service water rights for maintaining the County
06 MR. THOMAS: I believe that is a good use of that
07 water, from a waterfowl habitat standpoint.
08 MR. FRINK: Those are all the questions I have.
09 CHAIRMAN SCHNABEL: Mr. Johns.
10 MR. JOHNS: Mr. Turner, these are for you. Since I was
11 helpful to inviting you to this party, I must ask you a few
13 You stated earlier that you have reviewed several CEQA
14 documents in the past, over your career?
15 MR. TURNER: Just a few.
16 MR. JOHNS: More than just a few, I am sure. Have you
17 seen cases where proposed projects are preselected by a
18 development interest and the CEQA process was used to
19 justify the project?
20 MR. TURNER: That is a hard question. I would say the
21 answer to that is sometimes yes. At least there have been
22 some projects in which a lot of emphasis might be pushed on
23 a certain project as being one that they would prefer. I
24 think that what comes out of a public process like that
25 normally, though, is the additional kinds of things that
01 help you make that decision. And so, I think you get things
02 out of an environmental review process that maybe you're
03 surprised at, that you didn't expect when you started.
04 MR. JOHNS: In those cases where a project is
05 preselected, are often times, or sometimes, cases where
06 alternatives to that preselected project are given short
08 MR. TURNER: I would say that is true. It is also up
09 to the reviewer to try to find those and point those out.
10 MR. JOHNS: In those cases, if possible, it is actually
11 legal to comply with the letter of CEQA with not, maybe,
12 satisfying the intent of CEQA, perhaps?
13 MR. TURNER: I would say, yes.
14 MR. JOHNS: Have you also seen cases where the CEQA
15 process was used to openly evaluate alternatives and the
16 proposed project evolved through that process?
17 MR. TURNER: Yes.
18 MR. JOHNS: Which of those two processes do you
19 envision to be used here for Mill Creek evaluation, as set
20 forth in Exhibit 68A?
21 MR. TURNER: I would certainly prefer number two.
22 MR. JOHNS: Is that your understanding of what the
23 process would be like for the CEQA review?
24 MR. TURNER: Yes. My feeling is, and the reason we
25 agreed to the waterfowl portion of this was that this was
01 kind of what I wanted to see in an agreement. It was, make
02 a list, prioritize that list for waterfowl. I am not, by
03 any means, a waterfowl expert. Subject those things to open
04 review and evaluation, including public review and
05 evaluation and pick those projects which seem to provide the
06 best benefit for waterfowl, in this case.
07 MR. JOHNS: Are you familiar with NEPA, the National
08 Environmental --
09 MR. TURNER: Yes.
10 MR. JOHNS: I used to do NEPA documents for your
12 MR. JOHNS: There is a thing in there called a purpose
13 and needs statement. What would the purpose and needs
14 statement look like for this proposal? Would it be to
15 rewater Mill Creek or the purpose and needs statement talk
16 about creating waterfowl?
17 MR. TURNER: I think the purpose and needs statement
18 for this is the loss of waterfowl habitat and waterfowl as a
19 result of LADWP's project, and that what we are trying to do
20 here is restore that.
21 Now, if restoring that means providing water, and one
22 of the projects has Mill Creek/Wilson Creek alternative that
23 would do that, that would be part of that project. I think
24 the goal here is to increase and enhance waterfowl habitat,
25 at least compensate or bring it back, restore.
01 MR. JOHNS: Thank you.
02 CHAIRMAN CAFFREY: Mr. Canaday.
03 MR. CANADAY: Thank you. These are for Mr. Turner, as
05 Is it my understanding that the department would
06 support or does support the full evaluation of the Mill and
07 Wilson Creeks in assessing if there was as a proposed
08 project as is described in the agreement, that it would be a
09 full disclosure of the consequences to Mill Creek and Wilson
11 MR. TURNER: I would like to see that, yes.
12 MR. CANADAY: You mentioned earlier that there is a
13 Mill Creek report out. In fact, it is an exhibit, already
14 been entered as an exhibit here. You mentioned the Wilson
15 Creek report.
16 Do you know when that report will be done?
17 MR. TURNER: I think the last time I talked to Gary, he
18 would like about six weeks of undivided attention to get it
19 done, and he would get it done. And I would like to see it
20 done as any part of kind of an EIR evaluation for the Conway
21 Project and that end of the things. I think it is important
22 we have that.
23 MR. CANADAY: Do you think it needs to be done prior to
24 the CEQA process?
25 MR. TURNER: I think concurrently. I think it would be
01 better prior, so that it becomes part of what they can
02 utilize out of it for information.
03 MR. CANADAY: Mr. Thomas, you had a lot of discussions
04 about open water habitat today, fresh water open habitat.
05 Yesterday I questioned you about the Dombroski Report. Do
06 you remember that?
07 MR. THOMAS: Yes.
08 MR. CANADAY: Do you remember where on the map that Mr.
09 Dombroski may have -- on the lake, approximately where the
10 greatest percentage of waterfowl concentration was?
11 MR. THOMAS: Yes, I do, 45 percent over Rush.
12 MR. CANADAY: Were there any artificial ponds there at
13 that time?
14 MR. THOMAS: Yes.
15 MR. CANADAY: Would you describe the kind of habitat
16 that you believe existed there?
17 MR. THOMAS: Well, from the sound of it, it was
18 artificially created ponds resulting from the diversion and
19 spreading of Rush Creek water, which I would guess created
20 very shallow ponds with emergent vegetation, possibly
21 periods of drying and rewatering.
22 MR. CANADAY: Not unlike what we would expect to do if
23 you were to create waterfowl habitat in the Mono Basin?
24 MR. THOMAS: It is hard for me to imagine, and based on
25 early discussions with the scientists, it is hard for me to
01 imagine that there is a more productive type of habitat to
02 be created for a variety of species.
03 MR. CANADAY: Mr. Turner, have you read the scientists'
04 report on waterfowl?
05 MR. TURNER: Just portions of it.
06 MR. CANADAY: Would you agree with me that the
07 scientists did not consider impacts to other wildlife
08 species, fisheries, or wetlands areas in either Mill or
09 Wilson Creeks in their evaluation.
10 MR. TURNER: Yes.
11 MR. CANADAY: You would agree with me?
12 Mr. Thomas, in your discussion or letter that was
13 submitted today, the memo that you wrote, R-PMBP-34, on Page
14 3, the second full paragraph, I am going to paraphrase.
15 Do you have that document in front of you, sir?
16 MR. THOMAS: Yes, I do.
17 MR. CANADAY: Page 3, second full paragraph.
18 MR. THOMAS: I am with you.
19 MR. CANADAY: The second full paragraph. But the
20 essence of that paragraph is that you were concerned about
21 pressures being applied or motivations as it described a
22 particular project.
23 Would that be a good characterization of that?
24 MR. THOMAS: Yes.
25 MR. CANADAY: In the waterfowl agreement as it is on
01 Page 3, Part C, Mill Creek, the last paragraph, and I will
02 read what it says:
03 The parties -- (Reading.)
04 And the parties meaning the signators to the document.
05 The parties will analyze this proposed
06 project, including its impacts on the North
07 Basin, consistent with the California
08 Environmental Quality Act and the National
09 Environmental Policy Act requirements.
11 Is that something that troubled you, that the parties
12 would actually be the ones analyzing their own project?
13 MR. THOMAS: Yes. That wasn't my primary and initial
14 concern with this paragraph, but yes.
15 MR. CANADAY: So you would prefer the analysis, whether
16 it is CEQA on NEPA, or particularly I will focus on CEQA, by
17 an independent party other than a signatory?
18 MR. THOMAS: Yes.
19 MR. TURNER: Can I add to that?
20 MR. CANADAY: Certainly.
21 MR. TURNER: My feeling through most of this
22 negotiation for this was that the lead agency for doing
23 these projects would be dependent upon that lead agency then
24 that had the most permitting authority or that kind of sort
25 of situation. I don't think there was a discussion that the
01 parties -- in fact, I know there has been some discussions
02 about some projects, parties don't want to be lead agency.
03 MR. CANADAY: We run into that all the time.
04 MR. TURNER: I think the discussion was, the two
05 probably most appropriate parties in many cases would be the
06 State Board or the state process and the county. And then
07 the ramifications, plus or minus of that. There has been
08 some discussions, but I don't think this was to focus in
09 that a project-developer-type of agency, or somebody that
10 had something to lose or gain out of this, was necessarily
11 going to be the lead agency.
12 MR. CANADAY: My question to you then, as a
13 representative of the Department of Fish and Game, you would
14 support the fact that you would like an outside agency,
15 rather than an agency that is signatory, to review this?
16 MR. TURNER: You bet.
17 MR. CANADAY: Mr. Thomas, I know you've read the
18 waterfowl report; I can tell by the tabs. I asked the
19 question of Mr. Turner, and I should have asked you at the
20 same time.
21 The question I asked Mr. Turner was, when the
22 scientists made their report, is it your impression that
23 they did not review the impacts to Mill or Wilson Creeks
24 resources other than waterfowl, whether it was wildlife or
25 fisheries or wetlands?
01 MR. THOMAS: That question was for me?
02 MR. CANADAY: Yes, sir.
03 MR. THOMAS: You have to repeat it. I thought you were
04 directing it Mr. Turner.
05 MR. CANADAY: The question was, from your discussions
06 with the scientists and your reading of the report, is it
07 your impression that the scientists did not, in developing
08 their recommendations, consider the impacts to Wilson Creek
09 or Mill Creek resources that would then include fisheries or
10 wildlife species or wetlands?
11 MR. THOMAS: I believe that is even stated in the
12 report, but that is the case, yes.
13 MR. CANADAY: Mr. Turner, you don't disagree that there
14 is an established fishery in Wilson Creek, do you?
15 MR. THOMAS: No. In fact, it is pretty good fish.
16 MR. TURNER: I draw that conclusion based on Keating's
17 reports and BLM's EA. They said it was slightly less than a
18 lot of Deinstadt's works on a lot of the streams he's
19 analyzed on. And I think that on the Keating project and
20 BLM EA, they talked about the fisheries that ran anywhere
21 from 42 at the steepest portion down to about 1,177 fish per
22 month, which is a lot -- pretty good number of fish.
23 MR. CANADAY: Your letter was written, of course, in
24 1993, the one that was presented today as an exhibit. But
25 your opinion would not change?
01 MR. TURNER: No. I haven't had reason to change.
02 MR. CANADAY: That is all I have.
03 Thank you.
04 MR. BIRMINGHAM: Mr. Chairman.
05 CHAIRMAN CAFFREY: Mr. Birmingham.
06 MR. BIRMINGHAM: For purposes of clarification,
07 following up on a question that was asked by Mr. Canaday
08 with respect to which agency would serve as the lead agency,
09 I believe what Mr. Turner said was absolutely correct. It's
10 always been the understanding of the parties to this
11 agreement that some agency would be selected as lead agency,
12 pursuant to CEQA. That is State Board or County of Mono,
13 that is what the CEQA process will result in. But I don't
14 think the parties contemplated that any party would be the
15 lead agency.
16 CHAIRMAN CAFFREY: Thank you for that clarification,
18 Mr. Dodge.
19 MR. DODGE: I was just going to say, I realized for the
20 first time when Mr. Canaday asked his question that we had
21 poorly worded this particular portion of the conceptual
22 agreement, where it says --
23 MR. TURNER: Bruce did that.
24 MR. DODGE: -- parties will analyze this proposed
25 project, it was contemplated there would be a lead agency
01 who would commission the analysis.
02 CHAIRMAN CAFFREY: All right, sir. Thank you for that
04 Any questions from the Board?
05 Thank you.
06 Let's see, we are now at the point where we can take up
07 redirect, if any.
08 Do you have any redirect Ms. Bellomo?
09 MS. BELLOMO: No, I do not.
10 CHAIRMAN CAFFREY: No redirect, of course, there will
11 be no recross. That takes us to the point of your right to
12 offer your exhibits now.
13 Let's do it at the end of both panels. Thank you, Mr.
15 Anything else, Mr. Frink, that I might have forgotten?
16 MR. FRINK: No.
17 CHAIRMAN CAFFREY: Mr. Turner and Mr. Thomas, thank you
18 gentlemen for being here today, although you my not consider
19 yourself having -- the invitation being all that optional.
20 We do appreciate your time and your efforts.
21 Ms. Bellomo, are you ready to --
22 MS. BELLOMO: We would like to present our next panel.
23 I know we just started. Could we take about five minutes to
24 set up; I think it would save time. I have a lot of
25 documents. If I could just get them laid out in a row on
01 the table, and we are going to show some slides, and get
02 that set up, then we will speed through this. Otherwise,
03 I'm shuffling through the boxes.
04 CHAIRMAN CAFFREY: Let's take a ten-minute break.
05 Let's start again at a quarter to two.
06 (Break taken.)
07 (Member John Brown leaves.)
08 CHAIRMAN CAFFREY: We will begin again.
09 Ms. Scoonover.
10 MS. SCOONOVER: I rise just to make a clarification.
11 I spoke to Ms. Bellomo about it during the break. She
12 understands. This is nothing regarding her panel, but
13 rather a clarification of statements that Mr. Birmingham and
14 Mr. Dodge made just before the break with respect to DWP
15 Exhibit 68A, the waterfowl conceptual agreement.
16 Page 3, the language at the bottom on the page, "The
17 parties will analyze this project." There was some
18 discussion with the last panel about the lead agency. I
19 want to make it clear that the parties, as Mr. Birmingham
20 clearly articulated, parties intend to use the existing CEQA
21 and NEPA process for selecting the agency. That is their
22 intent. They have no preselected lead agency in mind.
23 However, that does not rule out that one of the parties
24 to the Foundation, for a particular project in the waterfowl
25 habitat restoration area, may be the lead agency. For
01 example, U.S. Forest Service is the logical federal lead
02 agency for a number of proposed projects. They may very
03 well be the lead agency. It has not been predetermined. But
04 I wanted to make it clear that we are not ruling that
05 possibility out.
06 CHAIRMAN CAFFREY: You don't want us to go away
07 thinking that the parties were excluded in all instances. I
09 MS. SCOONOVER: In addition, the language is written
10 the way that it is because, even if the parties to the
11 Foundation, none of them are the lead agency, many of them
12 have independent CEQA or NEPA responsibilities, either as
13 trustee agencies, as responsible agencies, or cooperating
14 agencies. So, separate and apart from the decision on who
15 is lead agency, many of the state and federal agencies would
16 have their own CEQA and NEPA responsibilities that would
17 have to be met, and that is the purpose for the language at
18 the bottom of Page 3.
19 MR. BIRMINGHAM: Mr. Dodge was the attorney that said
20 it was inartfully drafted, not me.
21 MR. DODGE: I will stand by that.
22 MS. SCOONOVER: Thank you.
23 CHAIRMAN CAFFREY: Thank you for the clarification, Ms.
25 We are now ready for our second panel. And, Ms.
01 Bellomo, you may begin. You have up to one hour.
02 MS. BELLOMO: Thank you.
04 DIRECT EXAMINATION BY
05 PEOPLE FOR MONO BASIN PRESERVATION
06 BY MS. BELLOMO
07 MS. BELLOMO: I will begin with you, Mr. Frederickson.
08 Could you state your name for the record?
09 MR. FREDERICKSON: John Frederickson.
10 MS. BELLOMO: Where do you reside?
11 MR. FREDERICKSON: On Conway Ranch in Mono County.
12 MS. BELLOMO: How long have you lived in Mono County?
13 MR. FREDERICKSON: Since 1972.
14 MS. BELLOMO: Yesterday, you made a policy statement.
15 You referred to having been a part owner of the Conway Ranch
16 property. Can you tell us during what years you were a
17 partner in the Conway Ranch property?
18 MR. FREDERICKSON: In 1980 to March of 1994.
19 MS. BELLOMO: 1994?
20 MR. FREDERICKSON: Right.
21 MS. BELLOMO: During the time you were a part owner of
22 Conway Ranch, did you do some or all of the irrigation on
23 the ranch?
24 MR. FREDERICKSON: Most of it.
25 MS. BELLOMO: I apologize to the Board. We have not
01 rehearsed this, so I hope we can do this pretty smoothly. I
02 told Mr. Frederickson he can refer to the map that is behind
04 CHAIRMAN CAFFREY: Mr. Frederickson, if you like, if
05 you are going to have some time to spend with the map, you
06 can take that mike out of that slide and stand there and
07 point to things, if that is your choice.
08 MR. FREDERICKSON: Okay.
09 MS. BELLOMO: I want to ask you, did you irrigate
10 Conway Ranch above -- during the time that you were
11 irrigating Conway Ranch, did you irrigate Conway Ranch above
12 Wilson Creek? Let me back up. Do you understand what I
13 said when I was referring to Conway ranch above Wilson Creek
14 or north of Wilson Creek?
15 MR. FREDERICKSON: Yes.
16 MS. BELLOMO: Approximately what percentage of the
17 meadow property is that Conway Meadow?
18 MR. FREDERICKSON: The part of the ranch --
19 CHAIRMAN CAFFREY: Mr. Frederickson, please excuse me
20 for interrupting you. Could you maybe stand to the side so
21 the Board Members can see.
22 MS. BELLOMO: It is my recollection that there is
23 testimony in this record that approximately 85 percent of
24 the ranch land is to the north of Wilson Creek. Does that
25 sound approximately accurate to you?
01 MR. FREDERICKSON: Yes, that would be right.
02 MS. BELLOMO: My question is: During the time that you
03 irrigated Conway Ranch, did you irrigate this approximately
04 85 percent of the ranch land that is above Wilson Creek, did
05 you irrigate that land exclusively with Virginia Creek water?
06 MR. FREDERICKSON: No.
07 MS. BELLOMO: What source of water did you use to
08 irrigate that approximately 85 percent of the ranch land?
09 MR. FREDERICKSON: Partially with Virginia Creek,
10 partially with Virginia Creek water, and some artesian
12 MS. BELLOMO: You just said "partially with Virginia
13 Creek water," twice, I think.
14 MR. FREDERICKSON: Wilson -- I am sorry. Partially
15 with Wilson Creek water, partially Virginia Creek water, and
16 some artesian water.
17 MS. BELLOMO: Can you tell us, between 1980 and 1994,
18 is that an accurate statement for the time period 1980 to
20 MR. FREDERICKSON: Yes.
21 MS. BELLOMO: Can you point on the map that is there --
22 Maybe I could just ask Mr. Johns if that is an
24 CHAIRMAN CAFFREY: Yes, that is exhibit.
25 Can you give us the number, Mr. Frink?
01 MR. FRINK: The map was earlier identified as State
02 Lands Commission, Department of Parks and Recreation Exhibit
04 MS. BELLOMO: Thank you.
05 If I can, I ask you to look at the map that is Exhibit
06 424, State Lands Commission 424, can you trace on there for
07 us where the source of the water was and how you conveyed it
08 onto Conway Ranch, water from Conway Ranch property from
09 Wilson Creek?
10 MR. FREDERICKSON: If you -- the ranch was purchased in
11 three parcels. There was Gladys Conway, Ritchie Conway, and
12 Katie Conway. And so if you could imagine the ranch broken
13 up into three parcels. There was a 222 acre parcel which
14 belonged to Katie Conway. A 358 parcel belonged to Gladys;
15 and about 250 to 80 acres to Ritchie Conway.
16 As the maps sits here, this area roughly in here was
17 Katie Conway's property.
18 MS. BELLOMO: So the record is clear, where is that in
19 relation to Wilson Creek?
20 MR. FREDERICKSON: Actually, most of Katie's property
21 was on Wilson Creek. Again, it actually started right about
22 here and ran over into this area. And I think there was one
23 cut out here. Most of Wilson Creek ran through that 222
25 The upper part of the ranch, which would be closest to
01 Highway 395 and north, say this area right in here, or
02 basically here and here. I don't want to draw on this. I
03 wish I had brought my own map. Anyway, that area, about 358
04 acres, belonged to Gladys. And this section was Ritchie
06 MS. BELLOMO: You are pointing to the -- what direction
07 would that be? To the east?
08 MR. FREDERICKSON: Ritchie's would be northeast corner
09 of the property.
10 The Katie's property was the easiest to irrigate
11 because Wilson Creek ran through it and ditches were fairly
12 easy to operate. Gladys' property was irrigated by the
13 Lower Conway Ditch. And in the early part of our purchase
14 of the ranch, which goes back 15 years ago, we were able to
15 get some water in the Upper Conway Ditch, which could be
16 disbursed on the upper part of the ranch. But most of the
17 years, in the early years when there was a lot of water, in
18 the early eighties, '83 we used the Virginia Creek water
19 because it was adequate at that point.
20 MS. BELLOMO: For which portion of the ranch?
21 MR. FREDERICKSON: That would be the Virginia Creek
22 water irrigated Gladys Milner's property and Ritchie
23 Conway's property most of the season.
24 And then there are a couple artesian springs and quite
25 a bit of wetlands up in this area, too, that would naturally
01 stay green or pretty much. In the latter years, the late --
02 let's say, I mean, the mid eighties through 1994, during the
03 drought years, very difficult to get enough water,
04 impossible to get enough water in the upper ditch to the
05 upper part of the ranch.
06 Certain years we could water through what is called the
07 Lower Conway Ditch, across Brett Hill and irrigate this
08 portion of Gladys Milner's property.
09 MS. BELLOMO: How would you describe that? Is the
10 northwest portion, more or less?
11 MR. FREDERICKSON: Southwest portion.
12 MS. BELLOMO: North of Wilson Creek.
13 MR. FREDERICKSON: North of Wilson Creek, right.
14 During the drought years, we pretty much had to neglect
15 Ritchie Conway's property, which would be the northeast
16 corner of the ranch, because we couldn't get enough water
17 out of the Virginia Creek Ditch to get it all the way over
18 and to irrigate Ritchie's property. We were able to
19 irrigate the upper part of Gladys' property, which is the
20 northwest corner.
21 And we've also had enough water, because of Wilson
22 Creek, to irrigate Katie Conway's property, which is this
23 section down here, the southeast corner, I guess you would
25 MS. BELLOMO: Based on your experience, do you have an
01 opinion as to whether there is sufficient flow in Virginia
02 Creek to irrigate the approximately 85 percent of Conway
03 meadow above Wilson Creek, to do thorough irrigation all
05 MR. FREDERICKSON: Not easily. Like I said, the past
06 several years it has been very difficult to get enough water
07 over to Ritchie Conways's property, which is two to three
09 MS. BELLOMO: When you say not easily, are you saying
10 because sometimes there is not enough water in the Virginia
11 Creek flow?
12 MR. FREDERICKSON: Two cfs of water in the type of soil
13 up here, by the time you got to two cfs or three over into
14 this area, there wasn't much left. Then again, if you are
15 doing that, then you don't have the water to irrigate
16 Gladys' property or the northwest corner of the ranch.
17 MS. BELLOMO: Is it your testimony that if you have --
18 let me back up.
19 If you have water, nondrought condition water year flow
20 off Virginia Creek, and in your experience, if you are just
21 going to irrigate exclusively with Virginia Creek water, do
22 you have to make a choice between one of those two, which of
23 those two parcels north of Wilson Creek you were going to
25 MR. FREDERICKSON: Yes. With the amount of water that
01 you can get down from Virginia Creek, and the amount you've
02 got to have, you can't irrigate both parcels of the upper
03 part of the ranch at the same time. I think Terry Russi
04 clarified that there is six cfs of water rights out of
05 Virginia Creek, but you can only get about two or three down
06 to the ranch because of the old irrigation ditch.
07 MS. BELLOMO: In your experience, what happened -- let
08 me back up.
09 Was there ever a time when you didn't have enough water
10 to irrigate as fully as you wanted to on Conway Ranch?
11 MR. FREDERICKSON: Yes.
12 MS. BELLOMO: What happened to the meadow at times when
13 you didn't have sufficient water to irrigate fully?
14 MR. FREDERICKSON: Just turned brown.
15 MS. BELLOMO: Does irrigation on the -- let me back up
16 for a moment.
17 You indicated that you live at Conway Ranch. Can you
18 clarify for the Board, is there a subdivision somewhere in
19 relationship to Conway Ranch?
20 MR. FREDERICKSON: Yes, there is.
21 MS. BELLOMO: Can you tell us where it is located?
22 MR. FREDERICKSON: A 40-acre subdivision, and it is
23 located down in this corner of the ranch, right here, which
24 would be the southeast corner.
25 MS. BELLOMO: At this time, how many homes are in that
02 MR. FREDERICKSON: Six.
03 MS. BELLOMO: Are there lots -- I don't know quite how
04 the zoning works, but is it zoned or approved for more homes
05 to be built?
06 MR. FREDERICKSON: Yes.
07 MS. BELLOMO: How many?
08 MR. FREDERICKSON: I think 36 more.
09 MS. BELLOMO: Does the irrigation on Conway Ranch, to
10 the extent to which you do or do not irrigate on Conway
11 Ranch, have any effect on the habitat around the houses in
12 that subdivision?
13 MR. FREDERICKSON: Repeat that question.
14 MR. BIRMINGHAM: Objection.
15 MS. BELLOMO: I am trying to determine if you don't
16 irrigate Conway Ranch, in your opinion, is there any impact
17 on the plant life around on the subdivision?
18 MR. FREDERICKSON: Oh, yes.
19 MS. BELLOMO: Can you explain why that is?
20 MR. FREDERICKSON: Well --
21 MS. BELLOMO: Are you irrigating, actually irrigating
22 some of the property around the subdivision?
23 MR. FREDERICKSON: Oh, yeah. When the subdivision was
24 approved, part of the plan for the subdivision was -- and
25 there is all county easements on it. There is small
01 irrigation ditches like at Bishop, if anybody is familiar
02 with Bishop, there's a lot of ditch irrigation, water
03 running through private lots.
04 When the subdivision was designed, it was designed to
05 have irrigation water running through the lots to help with
06 shrubbery because it is a high desert area. And one of the
07 ideas was that the willows like the water out there. And
08 willows were an obvious plant choice to green up the
10 So each one of the lots on this Conway Ranch
11 subdivision had a streambed designed through it. And when
12 there isn't enough water, obviously, we couldn't run it
13 through the ditches.
14 MS. BELLOMO: Is there still water at the current time
15 running through any of the ditches? In the irrigation
16 season does water still run through any of those irrigation
17 ditches through the subdivision?
18 MR. FREDERICKSON: Yes.
19 MS. BELLOMO: Are you and your neighbors in the other
20 homes on that subdivision concerned about what impact
21 dewatering Wilson Creek might have on the plant life, the
22 vegetation surrounding your homes?
23 MR. FREDERICKSON: Yes, we are.
24 MS. BELLOMO: Are you acquainted with John Pelochowski?
25 MR. FREDERICKSON: Yes, I am.
01 MS. BELLOMO: Is he actually currently an employee of
03 MR. FREDERICKSON: Yes, he is.
04 MS. BELLOMO: Was John Pelochowski responsible for
05 irrigation on the Conway Ranch at any time in the past?
06 MR. FREDERICKSON: From 1994 until late summer last
08 MS. BELLOMO: Did you ever do any irrigation with John
09 Pelochowski on the Conway Ranch during that time period?
10 MR. FREDERICKSON: Yes, I did.
11 MS. BELLOMO: Can you tell us what you did?
12 MR. FREDERICKSON: We repaired irrigation ditches,
14 MS. BELLOMO: Did you help show John Pelochowski or
15 teach John Pelochowski how to irrigate Conway Ranch?
16 MR. FREDERICKSON: Yes, I did.
17 MS. BELLOMO: Did John Pelochowski, during the time
18 that he was irrigating, irrigate the ranch with the same
19 methods and using the ditches that you have just explained
20 to the Board in your previous answer?
21 MR. FREDERICKSON: Pretty much.
22 MS. BELLOMO: He always used Mill Creek water to
23 irrigate portions of the ranch?
24 MR. FREDERICKSON: Yes, he did.
25 MS. BELLOMO: Yesterday, during your policy statement,
01 you referenced a pond that is on, or I guess you'd say on,
02 Wilson Creek as it flows passed your house.
03 Do you recall that statement?
04 MR. FREDERICKSON: Yes, I do.
05 MS. BELLOMO: It was not on the record, so I need to
06 ask you now. Is it correct that ducks use the pond behind
07 your house?
08 MR. FREDERICKSON: Yes. It's a diversion to -- it is
09 called the upper diversion to the DeChambeau Ranch. And
10 there is a headgate, right behind my house, on Wilson Creek,
11 and it backs the water up, and it ponds in that area
12 there. And I hadn't really thought about this before Ron
13 had mentioned yesterday, that when the weather is bad on
14 Mono Lake, I wondered why all the ducks came at certain
15 times. If it is a bad weather day or a real windy day, yes,
16 there is a lot of ducks in Wilson Creek and in that pond
17 behind my house.
18 MS. BELLOMO: Approximately how large is that pond,
19 would you estimate?
20 MR. FREDERICKSON: Maybe three or four times as big as
21 this room?
22 MS. BELLOMO: As the hearing room we are in?
23 MR. FREDERICKSON: Yes.
24 MS. BELLOMO: Yesterday, I believe you made a statement
25 that you had seen as many as, and you gave a number of ducks
01 landing during windy weather on the pond. Can you tell us
02 what type numbers of ducks you have seen landing on that
03 pond during windy weather?
04 MR. FREDERICKSON: Several hundred.
05 MS. BELLOMO: At a time?
06 MR. FREDERICKSON: Yes.
07 MS. BELLOMO: Were you involved in any fish rearing
08 operations that have taken place on Conway Ranch, that have
09 been conducted on Conway Ranch in the past?
10 MR. FREDERICKSON: Yes. I helped build the ponds and
11 the raceways.
12 MS. BELLOMO: Can you briefly explain to us -- are
13 these dirt raceways?
14 MR. FREDERICKSON: Yes, they are.
15 MS. BELLOMO: Did you have anything to do with taking
16 care of the fish, feeding them or anything?
17 MR. FREDERICKSON: Yes, I worked with Beak
18 Environmental Engineers here in Sacramento to design the
19 ponds and the raceways. Going back to the mid to late
20 eighties, was when the first concept started, and then we
21 built the raceways, I believe, in late '90 and started off
22 operating them in late '91.
23 MS. BELLOMO: So, were you involved until the -- did
24 your involvement with the fish rearing activity end when
25 your ownership in the ranch terminated in '94?
01 MR. FREDERICKSON: Yes.
02 MS. BELLOMO: Did you consider that -- well, let me
03 back up. Was this a fish rearing venture for profit?
04 MR. FREDERICKSON: No. It was more an experimental
05 project at that time to make sure it worked. There was a
06 lot of questions by Fish and Game and other agencies, if we
07 could sustain fish during the winter months. It was a kind
08 of an experimental project that nobody really had any idea.
09 Fish and game didn't feel the fish would feed during the
10 winter months because of cold water. So, in a way, it was
11 an innovative project. We proved that we were growing fish
12 from roughly a half pound to two pounds in a year.
13 MS. BELLOMO: Is that good, based on your experience as
14 a marine manager?
15 MR. FREDERICKSON: From what I gather from Fish and
16 Game, it was successful.
17 MS. BELLOMO: Thank you.
18 I have no further questions of you, Mr. Frederickson.
19 Before I begin of my questions of Mr. Bellomo, I have a
20 couple of housekeeping things to take care of. One was,
21 yesterday, R-PMBP-33 was marked, and I think I was asked if
22 I would kind of try to keep things in order. Perhaps I will
23 just lay a foundation for this document at this time.
24 Should I introduce myself for the record?
25 CHAIRMAN CAFFREY: Yes.
01 MS. BELLOMO: My name is Kathleen Maloney Bellomo. I
02 am a resident of Mono County, and I am testifying here as
03 member of the People from Mono Basin Preservation.
04 At this time I wanted to address, lay the foundation
05 for document R-PMBP-33, which was distributed yesterday.
06 This is a document that I received from the Planning
07 Department of Mono County. It was part of their files on
08 the Conway Ranch development proposal and was part of their
09 file on the draft environmental review process. And this is
10 offered in support of our position in rebuttal to the
11 proposal to rewater Mill Creek and potentially dewater
12 Wilson Creek. Because the Department of Parks and
13 Recreation found and stated in their document, which is
14 Exhibit 33, that disturbance of historic Conway Ranch would
15 be of concern and we concur that it is of concern and concur
16 with the Department of Parks and Recreation's finding or
17 statement that the Conway family history goes back far into
18 the 1880's and is related to the history of Bodie, which is
19 a state historic park which is directly up the road and
20 attracts many, many visitors to the eastern side of the
21 Sierras every year. With that, I have concluded with my
22 foundation for Exhibit 33.
23 CHAIRMAN CAFFREY: Thank you.
24 MS. BELLOMO: The next housekeeping matter I had is
25 that we had transmitted to all parties a letter that set
01 forth corrections to the testimony of Joseph H. Bellomo.
02 This was pursuant to instructions from the Board at the time
03 that Mr. Bellomo testified on his direct testimony. He was
04 trying to make a couple corrections to his testimony, and he
05 was unsuccessful at finding the place he wanted to correct.
06 We were told to send this letter in.
07 And if I can inquire of -- Mr. Frink seemed to have
08 received this letter.
09 MR. FRINK: Yes, I have received it. Mr. Johns has it
10 right now.
11 MR. JOHNS: We received that on March 6th, 1997.
12 MR. DODGE: May I ask the date of the letter?
13 MR. JOHNS: The letter is actually undated. We
14 received it on the 6th of March.
15 MS. BELLOMO: It was cc'd to all parties. I do not
16 have copies with me, but if there is any party who did not
17 get this document, I will be happy to make copies
18 available. It was mailed to all parties.
19 CHAIRMAN CAFFREY: Thank you.
20 MS. BELLOMO: If I could ask to have this marked as
21 next exhibit in order.
22 CHAIRMAN CAFFREY: You want to number that, Mr. Johns?
23 MR. JOHNS: It would be number -- it will be 36.
24 MS. BELLOMO: If you can just tell me, in the interest
25 of saving time, do I need to go through the corrections with
01 Mr. Bellomo on the record or is it sufficient that he has
02 submitted these corrections in writing?
03 MR. BIRMINGHAM: We will stipulate to the admission of
04 those corrections.
05 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.
06 Is that satisfactory to the other parties?
07 MR. DODGE: I don't remember seeing it. But if it is
08 good enough for him, it is good enough for me.
09 MR. BIRMINGHAM: We did receive a copy of it.
10 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham. If
11 anybody -- although you all appear to be stipulating, if you
12 don't recall a copy, we will have them for you. Ms. Bellomo
13 has offered to do that.
14 MS. BELLOMO: I have handed a copy to Mr. Dodge. If
15 you would like to look at it while I am doing my
16 examination, he could let us know if he has any problems.
17 CHAIRMAN CAFFREY: Thank you.
18 MS. BELLOMO: Now, turning to our next witness, Joseph
20 Would you state your name for the record?
21 MR. BELLOMO: Joe Bellomo.
22 MS. BELLOMO: Where do you reside?
23 MR. BELLOMO: I live in Mono City, Mono County,
25 MS. BELLOMO: Did you previously testify in this
01 proceeding in the direct portion of our case?
02 MR. BELLOMO: Yes, I did.
03 MS. BELLOMO: Do you recall testimony that was given
04 earlier in this proceeding by Mr. Vorster regarding a
05 situation where there might be -- where there would be a
06 power outage at the Lundy Powerhouse and would have an
07 affect on the flows in Wilson Creek?
08 MR. BELLOMO: Yes, I do.
09 MS. BELLOMO: Is the powerhouse fully manual on
11 MR. BELLOMO: The powerhouse at Lundy is a manual
12 powerhouse. To change the water flows, it has to be
13 manually done via hand-operated valve.
14 MS. BELLOMO: When there is power outage, does the
15 water shut off and affect the flow in Wilson Creek?
16 MR. BELLOMO: There is, basically speaking, no flow
17 change in Wilson Creek.
18 MS. BELLOMO: Do you recall the testimony of Dr. Barry
19 yesterday regarding trees blowing over in Thompson Meadow
20 because Thompson Meadow is, in his opinion, over irrigated?
21 MR. BELLOMO: Yes, I do.
22 MS. BELLOMO: Have you visited Thompson Meadow
23 frequently in your time living in the basin?
24 MR. BELLOMO: Many times.
25 MS. BELLOMO: Could you describe -- let me preface
01 that. Do you have any knowledge of wind velocities in the
02 Mono Basin?
03 MR. BELLOMO: We have extremely high winds in Mono
04 Basin on a fairly regular basis.
05 MS. BELLOMO: What is the highest winds that you have
06 ever heard of?
07 MR. BELLOMO: The highest winds I've heard of is up at
08 Ellery [phon] Lake. We used to have an anemometer up there
09 that would register up in 150 range. That is not in the
10 basin itself. That's up at 9,000 foot elevation.
11 MS. BELLOMO: Was there someone who lived in Mono City
12 who had an anemometer that failed at a certain wind
14 MR. BELLOMO: Person by the name of Chuck Meredith.
15 Hasn't been in the area for quite a while, but he owns the
16 house that the Karls live in. Had one on that house, and it
17 blew off at 125 miles an hour.
18 MS. BELLOMO: Thank you.
19 How often have you seen trees on Thompson Meadow blown
20 over with the roots pulled out of the ground?
21 MR. BELLOMO: Very, very seldom. And I would have to
22 say I don't think I've ever seen a live tree that was blown
24 MS. BELLOMO: Do you see -- when high winds occur, do
25 you see cracked off dead parts of trees?
01 MR. BELLOMO: You see cracked off dead parts of trees
02 and cracked off live parts of trees. But the trees are
03 broken off above the ground level, quite a few feet.
04 MS. BELLOMO: Have you seen trees where the roots
05 remained in the ground, but the rest of the tree cracked off
06 and broke over, and roots remained in the ground?
07 MR. BELLOMO: There are several to the right side of
08 the driveway as you go into the park right now.
09 MS. BELLOMO: But the roots are still in the ground?
10 MR. BELLOMO: The roots are still in the ground.
11 MS. BELLOMO: Those were dead trees?
12 MR. BELLOMO: I believe live trees.
13 MS. BELLOMO: Did that occur during the very high wind
14 we had approximately two months ago?
15 MR. BELLOMO: Yes, it did. I believe it was in
17 MS. BELLOMO: Do you recall the photograph of the tree
18 that I was questioning Dr. Barry about yesterday that was
19 uprooted and the roots were actually sticking up in the
20 ground next to an irrigation ditch in Thompson Meadow?
21 MR. BELLOMO: Yes, I do.
22 MS. BELLOMO: Did you go out and look at that tree
23 after we received Dr. Barry's testimony?
24 MR. BELLOMO: Yes.
25 MS. BELLOMO: Did that tree appear to have been dead
01 when it fell over?
02 MR. BELLOMO: It appeared to be dead. It had grass
03 still in the roots that were still up. So, I would assume
04 that the tree hadn't been on its side too long, with the
05 grass hanging in the roots; and you could also see where
06 somebody was cutting on the limbs for firewood already.
07 MS. BELLOMO: Was that because -- was the wood dry like
08 dead wood or was it green?
09 MR. BELLOMO: It was a dead wood when I saw the tree.
10 MS. BELLOMO: Have you hunted in the past in the Mono
12 MR. BELLOMO: Yes.
13 MS. BELLOMO: Did you actually -- have you actually
14 hunted quite a bit there?
15 MR. BELLOMO: Hunted in the Mono Basin since 1977.
16 MS. BELLOMO: Just for the record, have you basically
17 been up bird hunting since we got married?
18 MR. BELLOMO: Basically.
19 MS. BELLOMO: Have you cooked any ducks at our house?
20 MR. BELLOMO: No, none.
21 MS. BELLOMO: Can you -- we are focusing here on birds,
22 not deer or anything of that nature, what kind of waterfowl
23 have you hunted for in the Mono Basin?
24 MR. BELLOMO: Ducks and geese.
25 MS. BELLOMO: Can you describe what a typical duck and
01 goose hunting day was like in the past for you. How does a
02 person go about hunting for --
03 MR. BIRMINGHAM: A great deal of fun.
04 MS. BELLOMO: Does it involve driving around and
05 looking at a lot of spots?
06 MR. BELLOMO: After 20 years of hunting in the same
07 area, I pretty well know where I want to go, to go hunting.
08 MS. BELLOMO: Does this involve creeping around
10 MR. BELLOMO: I do a lot of watching with a telescope,
11 and, yes, when you find something, it takes a lot of
12 crawling to get where you are going. It is a pretty flat
14 MS. BELLOMO: Have you done any hunting in the area of
15 Wilson Creek and below Black Point?
16 MR. BELLOMO: I've done a lot of hunting in the area
17 below Black Point.
18 MS. BELLOMO: Have you spent time down in the area of
19 Mill Creek, below the County Road down to the lake?
20 MR. BELLOMO: No.
21 MS. BELLOMO: Are you familiar with that area?
22 MR. BELLOMO: Yes.
23 MS. BELLOMO: Have you walked in that area?
24 MR. BELLOMO: I've walked in that area, swam in that
25 area, and done all kinds of things down in that area. But
01 it is not a hunting area.
02 MS. BELLOMO: Do you have any opinion -- let me
03 rephrase that.
04 I believe we had testimony from Mr. Thomas yesterday
05 that he was concerned, and I think it was in his Exhibit
06 R-PMBP-34, that he was concerned that the gradient of Mill
07 Creek is too steep to allow for ponding. My question is:
08 Do you agree with that statement?
09 MR. BELLOMO: I have never seen any ponding in the
10 lower sections of Mill Creek. And I have seen, basically
11 speaking, almost all kind of flows in that creek, from no
12 flow to, I believe, in excess of 500 second feet.
13 MS. BELLOMO: As a waterfowl hunter --
14 MR. BIRMINGHAM: Former waterfowl hunter.
15 MS. BELLOMO: Exactly.
16 -- former waterfowl hunter, do you agree with Mr.
17 Thomas' testimony that waterfowl in the Mono Basin need
18 refuge habitat when it becomes very windy?
19 MR. BELLOMO: Yes. When we would hunt on windy days,
20 we would make it a point to hunt the area below Black Point.
21 Because those short tufa towers coming up out of the water,
22 it was an area where you could get way back up into the tufa
23 towers in the lake, that would break the wind and break the
24 wave action. We would also hunt a section of Wilson Creek
25 below Highway 395 and coming into the top of Conway Ranch
01 section of BLM property. The area down around the
02 DeChambeau Ranch, below the ranch on the northeast
03 shoreline, I guess, of the lake, several large springs out
04 in there that are fairly protected from the wind. That had
05 real good ponding down below those. Those were always an
06 exceptional area.
07 MS. BELLOMO: I believe -- seems like many months now,
08 when Peter Kavounas testified. I believe he said on
09 redirect something to the effect that he didn't understand
10 why the County Ponds was critical waterfowl habitat.
11 And what I would like to ask you is to explain why, in
12 your opinion, based on your observations of the County
13 Ponds, why that is such good waterfowl habitat, or can be
14 such good waterfowl habitat?
15 MR. BELLOMO: I can't say why it would be good
16 waterfowl habitat. I can say that it is good waterfowl
17 habitat because they are there, when there is water.
18 MS. BELLOMO: In the past when County Ponds was
19 functioning, was the water -- source of the water,
20 irrigation water, from DeChambeau Ranch?
21 MR. BELLOMO: I believe it was tailwater off the ranch
22 that ended up down there. I am not exactly sure where the
23 water came from. It wasn't coming out of a well or pump.
24 MS. BELLOMO: Did the level at County Ponds fluctuate?
25 MR. BELLOMO: Yes.
01 MS. BELLOMO: Can you explain the cycle of fluctuation?
02 MR. BELLOMO: Basically, at the end of winter,
03 normally, or a lot of years, it was almost dry. And as the
04 spring would come on the pond, the pond would fill. After
05 they basically cut the irrigation back, the pond levels
06 would start to slowly drop.
07 MS. BELLOMO: As the pond levels started to slowly
08 drop, did that reveal vegetation that was, like, food
10 MR. BELLOMO: Covered vegetation in the bottom.
11 MS. BELLOMO: Was that utilized by waterfowl?
12 MR. BELLOMO: I believe so. That and bugs and
13 everything else in that water.
14 MS. BELLOMO: As a hunter, did you consider that to be
15 an area where you observed birds feasting on that type of
16 vegetation and bug life?
17 MR. BELLOMO: Yes.
18 MS. BELLOMO: Did you observe the fish rearing efforts
19 at the Conway Ranch in the approximately past three years?
20 MR. BELLOMO: Yes, I have; many times.
21 MS. BELLOMO: Did you go out there with John
23 MR. BELLOMO: Yes.
24 MS. BELLOMO: Was John Pelochowski running the fish
25 operation for Mr. Beckman at that time?
01 MR. BELLOMO: I believe it was for Mr. Beckman.
02 MS. BELLOMO: At any rate, he was --
03 MR. BELLOMO: He was responsible for it, and he worked
04 for Mr. Beckman.
05 MS. BELLOMO: Because you have responsibility for flows
06 out of Lundy Powerhouse in your capacity as a
07 hydro-operator, and I believe you testified to that
08 previously before the Water Board, is it for that reason
09 that you had to work closely with Mr. Pelochowski, to keep
10 him informed about the flows out of the powerhouse?
11 MR. BELLOMO: Yeah. We had to keep flows at a rate
12 where he could keep his fish going, and we couldn't shut his
13 water off. He would lose his whole crop of fish.
14 MS. BELLOMO: You worked with him to informa him of the
15 water changes that you were going to do so he could make
16 necessary adjustments in the raceways to protect the fish?
17 MR. BELLOMO: When we made flow changes, he had to make
18 his flow changes to match the system, the ditch system that
19 he used.
20 MS. BELLOMO: Are you acquainted with Tim Alpers, our
21 past supervisor?
22 MR. BELLOMO: Yes.
23 MS. BELLOMO: Does Mr. Alpers raise fish
25 MR. BELLOMO: Yes, he does.
01 MS. BELLOMO: Is that at the Alper's Ranch?
02 MR. BELLOMO: Alpers Ranch, on Upper Owen River.
03 MS. BELLOMO: Are his fish famous in the Eastern
04 Sierras, the fish that he raises, for being very high
06 MR. BELLOMO: He raises very high quality fish.
07 MS. BELLOMO: Have you been out to the Conway Ranch
08 property recently with Mr. Alpers to discuss his effort and
09 interest in raising fish on the Conway Ranch?
10 MR. BELLOMO: Yes, I have.
11 MS. BELLOMO: Did Mr. Alpers inform you that he has a
12 short-term contract with Mr. Beckman to raise fish on Conway
13 Ranch this season?
14 MR. BELLOMO: Yes, he does. That is what he told me.
15 MS. BELLOMO: Did you go out there to check creek flows
16 with him?
17 MR. BELLOMO: Went out and checked creek flows and to
18 make sure that he understood how the gate system works.
19 MS. BELLOMO: Did you understand that he is planning to
20 put fish in the pond within the next couple of weeks?
21 MR. BELLOMO: It is my understanding that he has fish
22 in there at this time, but I have not seen them myself.
23 MS. BELLOMO: Did he tell you if it is his expectation
24 that he will be able to raise similar high quality trout as
25 he raised at the Conway Ranch?
01 MR. BELLOMO: I would think he could, as John
02 Pelochowski did.
03 MS. BELLOMO: Has Mr. Alpers stated that he expects to
04 be able to?
05 MR. BELLOMO: He expects to do the same thing.
06 MS. BELLOMO: Do you recall when Mr. Porter testified
07 that -- when he was last at the Board testifying that there
08 were approximately five days left to completion of the
09 DeChambeau Ponds project to spread bentonite?
10 MR. BELLOMO: Yes.
11 MS. BELLOMO: Has that project been completed?
12 MR. BELLOMO: No, it has not.
13 MS. BELLOMO: As far as you can see, has anything
14 changed out there with regard to spreading of bentonite
15 since the time that Mr. Porter testified?
16 MR. BELLOMO: As far as I can tell, there hasn't been
17 any change at all.
18 MS. BELLOMO: Is there any more water in the ponds, the
19 DeChambeau Ponds, now than at the time when Mr. Porter
21 MR. BELLOMO: If there is, it's very insignificant.
22 MS. BELLOMO: The source of that would be from hot
24 MR. BELLOMO: From the hot water.
25 MR. FRINK: Excuse me, I wonder if you can clarify that
01 answer a little bit. The source would be from where?
02 MR. BELLOMO: There is a hot well out there, at the
03 ranch itself. It is geothermal, but it is an artesian. And
04 I did say that there was significantly no change, but the
05 Forest Service has done some work out there on the well
06 itself, and I believe they've increased the flow some on
07 that. I would let you talk to Roger about it.
08 MR. FRINK: I just wanted to know the source of the
10 MS. BELLOMO: Mr. Johns, could you tell me how much
11 time I have?
12 MR. JOHNS: Twenty-three minutes.
13 MS. BELLOMO: At this time, if we can dim the lights,
14 we would like to show the slides that are illustrative of
15 what Mr. Bellomo is going to testify to regarding work on
16 the ditches at DeChambeau Ranch that has taken place since
17 the time of the last hearing.
18 CHAIRMAN CAFFREY: Are these existing exhibits, these
20 MS. BELLOMO: No, they are not.
21 MR. BIRMINGHAM: May I inquire as to the relevance of
22 this line of testimony?
23 CHAIRMAN CAFFREY: Yes, you may.
24 MS. BELLOMO: There was significant questioning last
25 time around when Mr. Porter was testifying about whether the
01 Forest Service was utilizing its Wilson Creek water right on
02 DeChambeau ranch, and Mr. Porter testified that it was not.
03 That has changed, and we are updating the record.
04 He also testified as to how -- to the extent that it
05 was and was not feasible to get irrigation water onto
06 DeChambeau Ranch. And I know that he testified to
07 feasibility problems with doing that. And, in fact, at this
08 time, irrigation water is flowing on Conway Ranch through
09 the ditches. So, the record needs to be corrected on that.
10 Mr. Porter is in agreement with the record being updated,
11 really an update of the record. And he asked me, rather
12 than testifying, if I would present a letter that he wrote
13 to our group, which I will do, updating what the Forest
14 Service is doing out there.
15 He also asked me and agreed with me that it was
16 necessary to put in two environmental documents that Forest
17 Service prepared in the past that support the Forest
18 Service's decision to use their water on DeChambeau Ranch
19 which they were not doing at that time that he testified.
20 MR. BIRMINGHAM: We will accept that as an offer of proof
21 and stipulate to the admission of documents which Ms.
22 Bellomo has referred to.
23 CHAIRMAN CAFFREY: In an effort not to have to sit
24 through the slides? Is that the point?
25 MR. BIRMINGHAM: I am happy to sit through the slides,
01 but we do want to finish today.
02 MS. BELLOMO: We can do this very quickly. I have an
03 hour, and I keep asking. I've never run over today.
04 Everybody else goes longer than me, it seems like. If we
05 can just -- I am doing this very quickly.
06 CHAIRMAN CAFFREY: All right. I appreciate the gesture
07 that you have made, Mr. Birmingham. I think in fairness I
08 am pretty much obliged to let Ms. Bellomo use her hour as
09 she wants to.
10 I presume you are going to offer these slides as
11 evidence, and we are going to have to enumerate them; is
12 that right?
13 MS. BELLOMO: I believe that the record will be
14 sufficient with testimony from Mr. Bellomo explaining what
15 we are doing, and the slides can be used for illustrative
16 purposes if that is easier and faster?
17 CHAIRMAN CAFFREY: Is that acceptable, Mr. Frink?
18 MR. FRINK: It is acceptable to me. They could be
19 marked and introduced, or they could just be used for to
20 help illustrate the testimony.
21 CHAIRMAN CAFFREY: Let's try that it that way. If it
22 does, we can take it up.
23 (Discussion held off record.)
24 MS. BELLOMO: I will handle that in my questioning.
25 CHAIRMAN CAFFREY: You are going to describe each
02 MS. BELLOMO: Let's give it a try. I will do that.
03 CHAIRMAN CAFFREY: Let's try it that way. How much
04 time is left Mr. Johns?
05 MR. JOHNS: We have 19 minutes.
06 MS. BELLOMO: Mr. Johns, could you tell me when we get
07 to ten minutes?
08 MR. JOHNS: You bet.
09 CHAIRMAN CAFFREY: I am just curious, how many slides
10 are there?
11 MR. BELLOMO: About 40.
12 CHAIRMAN CAFFREY: You want to be notified at ten
14 MS. BELLOMO: Yes.
15 Mr. Bellomo, since the time that Mr. Porter testified,
16 did people from the -- members from People for Mono Basin
17 Preservation go and ask the Forest Service if they could
18 just go out there, do the work themselves to start
19 irrigating DeChambeau Ranch?
20 Are you listening to my question?
21 MR. BELLOMO: Yes, yes. I am sorry. I thought you
22 were making a statement.
23 MR. BIRMINGHAM: We now know the answer to the question
24 asked of Ms. Bellomo in cross-examination by Mr. Dodge.
25 MR. DODGE: The question referred to who is supervising
02 MR. BELLOMO: Yes.
03 CHAIRMAN CAFFREY: It works that way at my house, too.
04 MS. BELLOMO: Does this -- are we looking at a slide
05 for the illustrative purpose of showing the Board the work
06 that the community has done on Conway Ranch, digging ditches
07 and putting in headgates?
08 MR. BELLOMO: Yes.
09 MS. BELLOMO: Who constructed that headgate?
10 MR. BELLOMO: Rick Noles constructed the headgate with
11 Forest Service material.
12 MR. DODGE: I don't like to interrupt, but I thought we
13 were hearing about DeChambeau Ranch.
14 MS. BELLOMO: Excuse me, I meant DeChambeau Ranch.
15 MR. DODGE: You said Conway.
16 We are talking about DeChambeau Ranch?
17 MS. BELLOMO: Yes.
18 CHAIRMAN CAFFREY: Thank you.
19 MS. BELLOMO: Did people, including you, do work on the
20 plume where the water comes off of Wilson Creek in order to
21 get it down to DeChambeau, into the DeChambeau Ditches?
22 MR. BELLOMO: We worked on the whole ditch system from
23 Wilson Creek all the way on the ranch.
24 MS. BELLOMO: Over the course of what period of time
25 did you and other men in the community do this physical work?
01 MR. BELLOMO: I believe it was over, like, three
03 MS. BELLOMO: Can we proceed on, please?
04 Onward. And is --
05 MR. BELLOMO: This is the diversion on Wilson Creek.
06 MS. BELLOMO: In order to do that, did you have to back
07 up the diversion of Wilson Creek so you could get high
08 enough flow to get it into the ditch?
09 MR. BELLOMO: Yes.
10 MS. BELLOMO: Onward, please.
11 And before you did this work, were the ditches dry
12 leading down from Wilson Creek to DeChambeau Ranch?
13 MR. BELLOMO: Yes, they were.
14 MS. BELLOMO: Onward, please.
15 Did Mr. Noles do the bulk of the backhoe work that was
16 done to clean up the old ditches?
17 MR. BELLOMO: Mr. Noles did a lot of it with a backhoe
18 and the Forest Service did some, too.
19 MS. BELLOMO: Did Mr. Noles use the backhoe that was
20 contributed free of charge for one whole weekend by Jeff
21 Hansen who lives in Mono Basin?
22 MR. BELLOMO: Yes.
23 MS. BELLOMO: Proceed onward.
24 Did Mr. Noles -- was there quite an extensive amount of
25 ditch work that he did?
01 MR. BELLOMO: Quite extensive.
02 MS. BELLOMO: Was he doing it in the area of the old
04 MR. BELLOMO: Yes. He basically followed the old ditch
05 lines because they were already level.
06 MS. BELLOMO: Continue on. Continue on. Continue on.
07 Did you have to put in sandbags and mix cement to
08 reinforce some of the old ditch areas?
09 MR. BELLOMO: There were several areas along there that
10 had blow outs. We reinforced those areas with cement-filled
12 MS. BELLOMO: Onward, please.
13 Was the vegetation along the area of the old ditches
14 where they no longer been having water, as Mr. Roger
15 testified, they hadn't irrigated for a number of years, did
16 all the riparian vegetation die, or essentially?
17 MR. BELLOMO: I wouldn't say it is all dead, but it is
18 not in very good shape at all. We will have to see about it
19 later in the year, what comes back.
20 MS. BELLOMO: Did you, in order to clean out the
21 ditches, have to remove a lot of dead willow?
22 MR. BELLOMO: Yes.
23 MS. BELLOMO: Onward, please.
24 Can you identify where this particular picture is?
25 MR. BELLOMO: That is on Lower Wilson Creek.
01 MS. BELLOMO: No, this is--
02 MR. BELLOMO: Lower Mills, down below the County Road.
03 MS. BELLOMO: Are you sure?
04 MR. BELLOMO: Yes.
05 MS. BELLOMO: Is that an area where we are expecting
06 meadows in the future, according to Dr. Stine? Is that one
07 of the areas that he identified as an old channel?
08 MR. BELLOMO: That is a channel. That is in the old
09 area. I don't know.
10 MS. BELLOMO: Onward, please.
11 And is the bentonite that Ducks Unlimited is supposed
12 to be spreading out in the pond still sitting out there in
13 bags covered by tarps?
14 MR. BELLOMO: Yes.
15 MS. BELLOMO: Is there a lot of garbage that has been
16 left there that has been blowing around in the wind?
17 MR. BELLOMO: Yes.
18 MS. BELLOMO: At times, have you observed Mono Lake to
19 become very rough when it is windy?
20 MR. BELLOMO: Yes, I have.
21 MS. BELLOMO: At those times, have you found, as an
22 experienced hunter, that you do not see waterfowl on the
23 lake when it is very rough?
24 MR. BELLOMO: No, you don't.
25 MS. BELLOMO: Onward, please. On, please.
01 And here is Mr. Porter. Let's go on. Go on. There
02 is Mr. Ford.
03 Is there now water flowing through whatever you call
05 MR. BELLOMO: Through the headgate.
06 MR. DODGE: The record should reflect that there were
07 two pictures of Mr. Porter, and in neither of the pictures
08 was he holding a shovel.
09 MS. BELLOMO: Onward, please.
10 MR. BELLOMO: DeChambeau Ranch, again.
11 This is a duck nest, but it didn't -- you can see the
12 eggs in there if you figure out where to look, exactly.
13 MS. BELLOMO: Does that happen to be next to the --
14 MR. BELLOMO: Right next to the headgate going off of
15 Wilson Creek onto the DeChambeau Ranch.
16 MS. BELLOMO: Which Mr. Porter informed us scared him
17 after he was there for a number of minutes when ducks flew
19 So, are the ponds still in a state of -- well, without
20 water, but evidence of earth work, earth moving?
21 MR. BELLOMO: There hasn't been any change that I know
22 of in the ponds.
23 MS. BELLOMO: On, please.
24 Are there two ponds that still have water in them at
25 DeChambeau Ponds?
01 MR. BELLOMO: Yes.
02 MS. BELLOMO: Are they anywhere near the size that they
03 were originally?
04 MR. BELLOMO: No.
05 MS. BELLOMO: Go on. Go on. Go on.
06 Now, to the culmination of this wonderful story. Do we
07 now have water on DeChambeau Ranch thanks to the efforts of
08 the community and Mr. Porter, I would say, by the way? Yes?
09 MR. BELLOMO: Yes, we do have water on the ranch and
10 it is being irrigated?
11 MS. BELLOMO: Who is actively irrigating right now?
12 MR. BELLOMO: Larry Ford and I am sure Rick Noles is
13 down at least twice a day.
14 MS. BELLOMO: Is Larry Ford the Forest Service person
15 working with Roger Porter, who has been working quite hard
16 along side you all to make it happen?
17 MR. BELLOMO: Yes.
18 MS. BELLOMO: Along with Mr. Porter?
19 MR. BELLOMO: Yes, along with Mr. Porter.
20 MS. BELLOMO: You are irrigating portions of the ranch
21 that go all around the ranch building; is that correct?
22 MR. BELLOMO: Yes. The ditch runs in the upper portion
23 of the ranch. Gravity feeds down into the lower portion.
24 MS. BELLOMO: Let's continue on.
25 Are you doing -- when I say you, I mean the group of
01 people that are out there working. Are you doing some flood
02 irrigation out there?
03 MR. BELLOMO: That is basically the technique that has
04 been used there for years, that is what is going on now.
05 MS. BELLOMO: On, please.
06 Are you finding any trees that still have signs of life
07 in them where you are now putting water?
08 MR. BELLOMO: Yes. Many of the trees are showing signs
09 of life.
10 MS. BELLOMO: Where they were not?
11 MR. BELLOMO: It would sound pretty amazing, but when
12 we started the project, everything looked dead. But as soon
13 as we put water on it, the next day there was leaves coming
14 out. I know that is just a coincidence. It's just the way
15 it happened to happen.
16 MS. BELLOMO: Onward, please.
17 Are your headgates -- have you had any trouble with the
18 headgates that Mr. Noles built?
19 MR. BELLOMO: We have been working with them.
20 MS. BELLOMO: Have you gotten to where they are
22 MR. BELLOMO: Well, when I left, they were all still
23 holding. We seemed to be getting a line on how to do
25 MS. BELLOMO: I don't recall if you said, but is Bill
01 Banta down there helping while you are gone?
02 MR. BELLOMO: Bill Banta, Rick Noles, Alex Anderson.
03 There is quite a few people.
04 MS. BELLOMO: Monitoring the situation?
05 MR. BELLOMO: Monitoring the situation.
06 MS. BELLOMO: Onward, please.
07 Is it your expectation that once the ditches get used
08 to having water in them again and the headgates get well
09 steaded, that it will, more or less, run itself? You are
10 not expecting to get run off and whatnot?
11 MR. BELLOMO: I feel that once we get a system that is
12 up and functional, I don't think we will have too many
14 MR. JOHNS: Ten minutes left.
15 MS. BELLOMO: Go on. Go on. Go on. Go on.
16 Thank you very much. That concludes our slides. If
17 you resume your seat. Don't waste any time here.
18 Have you seen any evidence of wildlife using the water
19 now that you've got water on the ranch?
20 MR. BELLOMO: Yes. There seems to be a lot more bird
21 activity down there than there was, prior to the water.
22 MS. BELLOMO: Can you tell us what kind of birds you
23 have seen, any that you can identify?
24 MR. BELLOMO: We have seen ducks down on the -- there
25 is one area that is already ponding, very shallow pond. We
01 have seen ducks on that. One morning we saw cattle egrets
02 down in there, two cattle egrets in the area.
03 MS. BELLOMO: Are those the white egrets?
04 MR. BELLOMO: Those are the white smaller egrets.
05 There is deer tracks down around the ditches every morning.
06 MS. BELLOMO: Have you seen any sage hen tracks?
07 MR. BELLOMO: Dallas has, I haven't.
08 MS. BELLOMO: Are there doves on the ranch?
09 MR. BELLOMO: Many doves.
10 MS. BELLOMO: Are there quail?
11 MR. BELLOMO: Yes, we found quail on the ranch.
12 MS. BELLOMO: Is water currently going into DeChambeau
14 MR. BELLOMO: No, it is not.
15 MS. BELLOMO: Would it be possible to put water into
16 DeChambeau Ponds at the current time from the irrigation
17 ditches that you have testified now have water in them?
18 MR. BELLOMO: Very easily.
19 MS. BELLOMO: Why is that not happening?
20 MR. BELLOMO: We are putting all the water on the
21 ranch, trying to green up the ranch. We also, at this
22 point, can't put any water down in the ponds because the
23 project isn't completed, and they won't be able to spread
24 the bentonite that is down there if the ponds get wet.
25 MS. BELLOMO: Were you told by Mr. Porter that it was
01 necessary to wait until the Ducks Unlimited finished their
02 bentonite spreading before any water could be put in the
03 ponds or allowed to go into the ponds?
04 MR. BELLOMO: Or allowed to even filter down that way.
05 MS. BELLOMO: So, at this point, it is being diverted
06 away from the ponds?
07 MR. BELLOMO: Being put on the ranch.
08 MS. BELLOMO: Do you anticipate in the future that the
09 Forest Service will be taking over responsibility for
10 maintenance of this irrigation at DeChambeau Ranch?
11 MR. BELLOMO: I would think so, to a point. Community
12 is more than willing to help.
13 MS. BELLOMO: Do you, the people that have been doing
14 the work out there, expect to remain available for trouble
15 shooting in special circumstances where they need some
16 expertise of people that have had experience irrigating?
17 MR. BELLOMO: Yes.
18 MS. BELLOMO: How much has it cost to get water down to
19 DeChambeau Ranch at this time?
20 MR. BELLOMO: A few cases of beer and a little diesel
22 MS. BELLOMO: And the donated time of the backhoe?
23 MR. BELLOMO: Backhoe, yes.
24 MS. BELLOMO: Whatever cost the Forest Service had for
25 the backhoe work they did?
01 MR. BELLOMO: For the backhoe, yes.
02 MS. BELLOMO: Have you used materials for wood and
03 whatnot from the area that they call "The Bone Yard" at the
04 Forest Service where they have leftovers in, basically --
05 MR. BELLOMO: Their scrap pile.
06 MS. BELLOMO: -- their scrap pile?
07 MR. BELLOMO: Yes. Actually, most of the material that
08 we have used down there has been the wood from the -- the
09 redwood from the walkways that went down to Mono Lake, as
10 the lake has been rising.
11 MS. BELLOMO: At this time, would it be possible to put
12 water into the County Ponds from a physical standpoint?
13 MR. BELLOMO: I believe so. I think it would take a
14 short section of ditch. We have to see what it does. It'll
15 kind of be an experiment.
16 MS. BELLOMO: Chairman Caffrey, I am going to have to
17 ask -- I am going to ask your indulgence to give me a few
18 extra minutes to put in -- I have some other documents I
19 have to put in, and I have all these letters from people
20 that have asked that they be entered into the record, from
21 Congressmen Doolittle and Senator Leslie, and I'm working as
22 fast as I can.
23 CHAIRMAN CAFFREY: Are you talking about additional
24 testimony or just the amount of time it takes to describe
25 these documents?
01 MS. BELLOMO: I would like to finish putting in a
02 little bit of additional testimony from me, and then I just
03 need time to mark all of these letters and documents.
04 CHAIRMAN CAFFREY: I guess -- why don't you take the
05 five minutes that remains for your testimony, and then we
06 will just mark these document as fast as we can.
07 Mr. Dodge.
08 MR. DODGE: There is a letter from Congressman Leslie
09 need not be marked. Isn't that part of your public comment?
10 CHAIRMAN CAFFREY: It's already in the file. It is
11 available to the Board and available to all the parties,
12 whether or not -- I suppose it is Ms. Bellomos's right to
13 offer it as an exhibit in evidence.
14 Mr. Frink, do you have anything to add to that?
15 MR. FRINK: Not really. It is not now an exhibit.
16 MS. BELLOMO: Is it necessary because Congressman
17 Doolittle's aide, John Martini, specifically requested that
18 these letters be put into evidence. I don't know if he felt
19 that he had gotten some understanding that it was necessary
20 to put them into the record.
21 CHAIRMAN CAFFREY: There is a difference between
22 evidence and the record. There is evidentiary record and
23 there is a general record.
24 Where is it now, Mr. Frink?
25 MR. FRINK: It is not now in the general record. The
01 Board maintains a correspondence file of these things. It
02 wouldn't be considered evidentiary.
03 MR. DODGE: We would object to it going into evidence.
04 I don't see the point of marking it.
05 MS. BELLOMO: Let's proceed with my testimony.
06 CHAIRMAN CAFFREY: We will proceed with your testimony
07 and take up the documents and hear the arguments. Please,
09 MS. BELLOMO: We are now talking about a document that
10 I would like to have marked as next exhibit in order.
11 MR. JOHNS: Thirty-seven.
12 MS. BELLOMO: This is a declaration prepared by me and
13 handwritten notes of a telephone conversation that I had on
14 April 22, 1997, with Thomas Ratcliff at the Modoc National
15 Forest, and I have transcribed my telephone conversation
16 notes with him.
17 On April 22, 1997, I called Thomas Ratcliff at the
18 Modoc National Forest and left a message. He was not in.
19 On April 23, 1997, at approximately 9:30 a.m., Thomas
20 Ratcliff returned my call. I introduced myself. I
21 explained I was a concerned citizen, and I informed him that
22 I was an attorney. We then proceeded to talk for
23 approximately 30 to 35 minutes. And Mr. Ratcliff talked to
24 me and answered my questions about the Waterfowl Habitat
25 Restoration Plan that has been proposed in this case, and
01 Attachment A are the handwritten notes of my telephone
02 conversation with Mr. Ratcliff that I took during the
03 conversation that I had with him.
04 And I immediately, when I got off the phone, went into
05 my office and typed up the notes, filling in with everything
06 that I remembered from my conversation and this is
07 Attachment B. At the conclusion of my telephone
08 conversation with Mr. Ratcliff, I told him that I would be
09 coming here, and I asked him would he object that I was
10 going to tell the Board that I had talked to him and to
11 solicit his opinions about waterfowl habitat restoration in
12 the basin; and he said that he understood that, and that I
13 should indicate to the Board that I had called and talked
14 with him about his recommendations for waterfowl habitat
16 What is most germane about Mr. Ratcliff's -- the
17 information that he gave me was that he told me that he did
18 not believe that Mill Creek would provide significant
19 waterfowl habitat, and that the Mill Creek recommendation
20 resulted as the number two priority after raising the lake
21 level as a result of political pressures that were placed
22 upon the waterfowl scientists, and that he was very --
23 essentially, he was not happy with the settlement. And he
24 was very, very happy to hear that the community wanted to
25 see waterfowl habitat restoration done.
01 He said that he was concerned that this Mill Creek
02 thing would stew along endlessly, and in the meantime he
03 gave me the name of Bruce Ivy, I believe, in Lone Pine, from
04 Ducks Unlimited, and said, "Why don't you get in touch with
05 him? Maybe you guys can just start figuring out how to do
06 some waterfowl habitat restoration yourself."
07 What he said needed to be done was shallow pond
09 MS. CAHILL: I would like to interject an objection at
10 this point. I know the Board is very flexible with regard
11 to hearsay. But to deliberately solicit hearsay from a
12 person who is not appearing as witness for cross-examination
13 and using that as a substitute for calling that person and
14 asking those questions, I think is inappropriate. I think
15 this is not what the Board's regulations, with regard to
16 hearsay, contemplates. I don't believe that it contemplates
17 that you go out and have a conversation with someone and
18 then come in and testify about it.
19 MS. BELLOMO: May I respond, Chairman Caffrey?
20 CHAIRMAN CAFFREY: Let me first ask Mr. Frink.
21 Mr. Frink.
22 MR. FRINK: The Board's regulations allow for admission
23 of hearsay if it is the sort of information that responsible
24 people rely on in the conduct of serious affairs. In this
25 instance, Ms. Bellomo has qualified how she got the
01 information. The Board could admit the information,
02 recognizing the fact that it is hearsay would go to the
03 weight to be attributed to the information.
04 CHAIRMAN CAFFREY: If it goes to the Board --
05 MS. BELLOMO: Can we turn the clock off, Mr. Johns?
06 MR. JOHNS: It is off.
07 MS. BELLOMO: Thank you.
08 CHAIRMAN CAFFREY: It goes to the Board to assign the
09 weight of evidence.
10 Mr. Dodge.
11 MR. DODGE: Well, I believe it's been pointed out that
12 the Board has subpoena power. I think a responsible person
13 who wanted to get Mr. Ratcliff's testimony before this Board
14 would subpoena Mr. Ratcliff and bring him here.
15 I think this is just totally outrageous.
16 MS. BELLOMO: May I lay comment, Chairman Caffrey?
17 CHAIRMAN CAFFREY: Go ahead, Ms. Bellomo.
18 MS. BELLOMO: I think that responsible parties who have
19 the money and the funds to hire these experts to prepare
20 these reports would have brought these three waterfowl
21 scientists here before the Board. This group does not have
22 the money to pay to get all of these people to come here. I
23 called Mr. Ratcliff, and he was very upset with this. And
24 to say that responsible people would not do this,
25 responsible people would not present this kind of waterfowl
01 plan and not bring Mr. Ratcliff here.
02 You heard Mr. Thomas; he knows Mr. Ratcliff does not
03 agree with this plan, and Mr. Ratcliff talked to me for 45
04 minutes because he knows this plan was politically
05 motivated, and he doesn't want to see it done. There is no
06 way for us to get these people to come here. We can't
07 afford it. We don't have any way to do it, and Mr. Ratcliff
08 did not want to come here. He did not want to come here
09 because it would be professionally embarrassing and
10 uncomfortable for him. And I was not in a position to
11 compel him to come here. He knew I was doing this. He said
12 that I could come here and tell you that I had talked to him
13 and present you ideas that he had about how waterfowl
14 habitat restoration, what should be done. He does not
15 believe the plan.
16 CHAIRMAN CAFFREY: Well, are you -- do you need some
17 time to compose yourself, Ms. Bellomo? You are obviously
18 very upset.
19 MS. BELLOMO: I would appreciate that.
20 CHAIRMAN CAFFREY: Mr. Birmingham.
21 Let's take two or three minutes. I want to keep going
22 here, and then I am going to make a ruling in just a moment.
23 MS. BELLOMO: Thank you.
24 CHAIRMAN CAFFREY: Please try to compose yourself. We
25 try not to make these hearings emotional if we can possibly
01 avoid it.
02 (Break taken.)
03 CHAIRMAN CAFFREY: We are back.
04 MS. BELLOMO: I just want to make a statement for the
05 record. I am not apologizing for my breakdown because we
06 are working under extraordinary circumstances here. I just
07 want the record to reflect that I am very disturbed that we
08 are going to be limited in the amount time we have to put in
09 our evidence. So, I have to rush through this and worry not
10 about how there is not enough time to say what our concerns
11 are. When the aligned parties for every hour that our group
12 has, these parties that are all joined together go at same
13 issue from every angle. For every hour that we have that
14 have five or six hours on the same subject. It is just an
15 impossible task. We are -- it is not an impossible task.
16 We are doing an incredible job, I think, frankly.
17 I am trying to put in a quantity of evidence that these
18 people have had an opportunity to do on their direct
19 testimony in writing in advance and now I am trying to rebut
20 it, and I have one hour to do it. Every time they want to
21 cross-examine somebody, they get an hour each to make all
22 the same points that I get one to do.
23 Frankly, I am just going to have to ask you, and I know
24 you may deny it, but I am going to have to ask you to give
25 me a little latitude to get the rest of the documents in
01 that I have here.
02 MR. BIRMINGHAM: Mr. Caffrey, I have been in that same
03 circumstance and I willing stipulate, as I did earlier, to
04 the admission of all of these documents, including the
05 declaration that she has offered, and --
06 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.
07 Let me first say that I think that we, at this Board,
08 have been very fair, and I think we tried to accommodate you
09 in every way we can. There are limits to how much time we
10 can allow any party. And also goes to the Board in its
11 deliberations to assign the weight of evidence. So length
12 of time that somebody receives to present their evidence is
13 not in any way proportional to what impresses us in our
14 individual thinking and the basis upon which we make our
16 I want everybody to know that. That is very, very
18 Having said that, I have a concern about this exhibit,
19 Ms. Bellomo, because, while we do allow hearsay -- it is not
20 a criticism of you. I understand the sincerity of your
21 effort, and I clearly understand your description of the
22 stress and pressure under which you work. But I do feel
23 that this is a stretch of the definition of what our
24 regulations would allow as admissible hearsay. So I am
25 going to rule against the inclusion of this as an
01 evidentiary exhibit. But I will, as an alternative, allow
02 you, if you would like, a reasonable length of time to
03 describe into the record, as part of your testimony, a
04 hearsay description of your conversations with the
05 gentleman, if you wish to do that.
06 MS. BELLOMO: Yes, I will do that. Thank you.
07 CHAIRMAN CAFFREY: Having said that, we did take a
08 break when I think you had at least five minutes to go.
09 MR. JOHNS: Two minutes according to this.
10 CHAIRMAN CAFFREY: The amount of time that you need to
11 describe it, whatever other exhibits that you may wish to
12 admit, I will treat that as time necessary to take outside
13 of your testimony.
14 So how much additional time do you feel you need, Ms.
15 Bellomo, for your direct presentation, including your
16 description of your telephone conversation with Mr.
18 MS. BELLOMO: I would estimate a maximum of ten
20 CHAIRMAN CAFFREY: I will allow you ten more minutes,
21 short of a massive uprising and objection on the part of any
22 of the other parties.
23 Hearing and seeing none, please take ten more minutes.
24 How much time, just for the record, do you think you will
25 need to describe all the documents you wish to enter as
02 MS. BELLOMO: Five or ten minutes.
03 CHAIRMAN CAFFREY: I think that is reasonable. Why
04 don't you take ten minutes for the rest of your oral
05 presentation and then we will consider the exhibits.
06 MS. BELLOMO: Thank you.
07 For the sake of the Court Reporter, I will try to speak
09 MR. DODGE: Chairman Caffrey.
10 CHAIRMAN CAFFREY: Mr. Doge.
11 MR. DODGE: If I may address you, I don't understand
12 the ruling, candidly. If the document is inadmissible, then
13 an oral summary of it is equally inadmissible. If you are
14 going to allow an oral summary, I would say lets spare us
15 that and put the document in.
16 MR. FRINK: I think that the objection of Ms. Cahill
17 went to the degree of hearsay that this was. Throughout the
18 proceeding, numerous witnesses have described what other
19 people have told them. Ms. Bellomo did the same thing
20 orally, as well as submitting a written record or her notes
21 on the conversation of when the person told them that. In
22 that way, perhaps a recollection of what the person told
23 them, is more reliable than a lot of other hearsay
24 statements we have had.
25 If the concern, though, is the degree of hearsay, the
01 detail of statements and so forth that she is repeating from
02 another person, then your ruling to not allow the notes in
03 would be in accord with what we have done with other
05 CHAIRMAN CAFFREY: My understanding of the basis of Ms.
06 Cahill's objection.
07 Was I wrong, Ms. Cahill?
08 MS. CAHILL: I believe this is equivalent to having an
09 exhibit from an expert that you don't call and then you
10 don't admit it. You know, we could have a signed
11 declaration from Mr. Ratcliff, and we don't even have
12 that. I think there were ways of, if he had a viewpoint
13 that he wanted this Board to have, for it to be submitted.
14 I just think this is a way of manufacturing.
15 MS. BELLOMO: Ms. Cahill, could I inquire or to any of
16 the parties why you did not bring the other two waterfowl
17 scientists before the Board? I feel the Board would like to
18 hear from these people. Why were they not brought here?
19 CHAIRMAN CAFFREY: Anyone wish to answer that?
20 MR. BIRMINGHAM: I will answer the question,
21 absolutely. Because this is a plan that was prepared on
22 behalf of the Department of Water and Power of the City of
23 Los Angeles. The question that is before the Board is: If
24 the plan is not adequate, in what way should it be
25 modified? There is substantial evidence in the record as to
01 whether or not the plan is adequate and, if not, how it
02 should be modified.
03 All of the witnesses who have submitted evidence
04 concerning the plan prepared by Drs. Reid, Ratcliff, and
05 Drewien have said they agree with what those three
06 scientists proposed doing. We saw no reason to bring Mr.
07 Ratcliff here to just add more evidence to what is a very
08 large record.
09 MR. DODGE: Mr. Chairman.
10 CHAIRMAN CAFFREY: Yes.
11 MR. DODGE: May I address an issue, please?
12 CHAIRMAN CAFFREY: Yes.
13 MR. DODGE: Mr. Frink refers to our receiving hearsay
14 or your receiving hearsay from time to time, as surely you
15 have done. My objection to this document is slightly
16 different than what you attribute to Ms. Cahill.
17 Here is one of the three scientists who prepared the
18 waterfowl plan. And if he had a problem with the Plan, I
19 think that -- and someone wanted to call that to this
20 Board's attention, he should be brought here and be
21 cross-examined. He is a central player. This is not
22 incidental hearsay that might come in on another witness.
23 This is someone who was part of the three-man group who did
24 the plan, and we should have him here and hear his views.
25 MS. BELLOMO: Yes, we should.
01 MR. DODGE: She wants to bring his testimony in here,
02 she is obligated to subpoena him, and she knows that.
03 MS. BELLOMO: Chairman Caffrey, at this point, I was
04 next in order.
05 CHAIRMAN CAFFREY: Just a moment. I believe you stood
06 up first, Mr. Birmingham.
07 MR. BIRMINGHAM: Thank you. I have gotten along so
08 well during the course of the last two days with Mr. Dodge,
09 I hate to disagree him on this point.
10 I have no objection to the admission of this document
11 because, quite frankly, what -- it really has very little
12 evidentiary weight with respect to any of the issues that
13 the Board has to decide with respect to the adequacy of the
15 Ultimately, what the Board is going to be asked to do
16 is to approve a process. And if Mr. Ratcliff has concerns
17 about any particular project that is going to be considered
18 during that process, then he can raise them at that time and
19 as can the people from Mono Basin Preservation. So, the
20 fact that this is hearsay, certainly, ought to go to the
21 weight that is given by the Board. But the materiality also
22 is affected by the issues that are before the Board. So I
23 do have to respectfully disagree with Mr. Dodge and Ms.
24 Cahill. It's my view this document ought to come in.
25 CHAIRMAN CAFFREY: Thank you very much, Mr.
02 And lastly, Ms. Bellomo, and sorry for the lastly. I
03 will hear from you, finally and lastly, Ms. Cahill.
04 Ms. Bellomo.
05 MS. BELLOMO: I would just state that I assume all of
06 the parties in this proceeding want to have before the Board
07 the best possible evidence for you to make your decision.
08 And unless there is someone here who thinks that I am lying
09 under penalty of perjury, Mr. Ratcliff told me that he does
10 not believe that rewatering Mill Creek is a suitable project
11 that is being to produce waterfowl habitat of the type that
12 should be done. So, unless people think that I am here
13 perjuring myself, this is a fact. And this is -- nothing
14 could be more germane to you.
15 This is not a game of who can come up with the best
16 legal objections to keep things out of evidence. This is
17 not a case of civil liability where two can hire the best
18 lawyer to put in the best record to win their point. This
19 record has to be fully developed. If this can't come in,
20 then I submit that the Water Board should conclude the
21 hearings today and have a day when they call Mr. Ratcliff
22 and Dr. Drewien in here because this goes to the heart of
23 everything. It goes to the settlement proposal, which is to
24 rewater Mill Creek. It goes to the DWP plan, which is to
25 rewater Mill Creek.
01 CHAIRMAN CAFFREY: Thank you. Ms. Bellomo.
02 And, Ms. Cahill, do you wish to say something?
03 MS. CAHILL: Yes. Just a further objection. This is
04 handed to us on the spot. We haven't read it. We haven't
05 had a chance to read it. It could have been provided in
06 advance. If there was an issue of some change of heart of
07 one of the waterfowl experts, that could have been -- the
08 parties could have put on notice.
09 To walk in, hand us a document, and say, "I had a
10 conversation with a potential witness who I am not calling,
11 but I will just tell you what he said," where we can't exam
12 him, I really don't think is the way we ought to be
14 MS. BELLOMO: Maybe I committed an error, but I cannot
15 believe that there is not --
16 CHAIRMAN CAFFREY: Ms. Bellomo --
17 MR. BELLOMO: I would just like to say, Mr. Caffrey, I
18 can't believe --
19 CHAIRMAN CAFFREY: Ms. Bellomo --
20 MS. BELLOMO: -- that there is not a party in this room
21 who knows --
22 CHAIRMAN CAFFREY: Ms. Bellomo --
23 MS. BELLOMO: -- that Mr. Ratcliff didn't agree with
25 CHAIRMAN CAFFREY: Ms. Bellomo, I ask you to respect
01 the Chair. When I am speaking, I ask you not to speak.
02 Now, thank you all for you arguments. Thank you for
03 yours as well, Ms. Bellomo.
04 I am going to stay with my original ruling. I think it
05 goes to the question of degree, and we have set the
06 precedent that we allow certain amount of description of
07 hearsay. I am going to allow you to describe your
08 conversation briefly, and I am not going to accept this
09 exhibit into evidence.
10 MS. BELLOMO: Fine. Thank you.
11 CHAIRMAN CAFFREY: Please proceed. You have ten
13 MS. BELLOMO: I spoke with Mr. Ratcliff when he
14 returned my call on April 23, 1997. And he informed me that
15 the three scientists tempered what they would have proposed
16 because of the opposition of the Mono Lake Committee, the
17 Audubon Society, and other agencies to any kind of open
18 water ponding. He said this ended up in the back of their
19 basin restoration plan. He said that what could and should
20 be done to significantly increase water waterfowl, and I am
21 quoting directly from him, is the following: "Create ponded
22 fresh water habitat." All waterfowl drink and bathe in
23 fresh water, he told me. They can't use Mono Lake for these
25 He said that when DeChambeau was functioning at Simons
01 Springs, every bird in the basin goes there to drink and
02 bathe once a day, and these are the only open water places
03 for them at the current time. He said that the parties had
04 told the waterfowl scientists that they didn't want,
05 quote-unquote, unnatural appearance in their restoration
07 He said that he had told them that this was
08 nonsensical, that the Mono Basin is one of the most
09 physically altered places that he has worked, and he asked
10 them what component there is natural, and that was never
11 answered. He said that -- he asked me if I realize that
12 there is a gravity fed water right totally available for use
13 of the Forest Service, but they won't use it at DeChambeau
14 because of political pressure that were placed upon them.
15 He said that the three scientists discussed what
16 restoration project to propose, based upon, in his words,
17 political feasibility. He said Mill Creek has such a
18 gradient that it would be extremely difficult to have any
19 ponding there without putting in structures. He said that
20 the scientists had discussed the possibility of putting in
21 concrete structures, and that that wasn't acceptable because
22 it wasn't natural enough.
23 He said that Mill Creek will not produce the habitat
24 that Rush Creek had, ever. He said this was due to the
25 gradient. He said that the proposing to rewater Mill Creek
01 as the top project was, and these are his words, a
02 concession to putting water in the lake. We supported Mill,
03 knowing full well they wouldn't get Rush Creek waterfowl
04 habitat, unquote. He said that the whole Mill Creek
05 argument is almost "completely divorced from waterfowl
06 habitat." He said that restoration efforts could do
07 significant things to help waterfowl. He said that whatever
08 benefit for waterfowl that comes out of rewatering Mill
09 Creek will be, in his words, "a default type of health."
10 Anything that comes out of increased flows is by default.
11 He said that the hypopycnal layer that would be created
12 at Mill Creek is "not necessarily better than Wilson."
13 Though he did say the Mill gradient at the entry may be
14 different in some way, and so he said that there may be more
15 acres of hypopycnal layers at the mouth of Mill Creek. He
16 said that their job was not to look at the entire
17 environmental effect of the proposal, but just to look at
18 the waterfowl restoration.
19 He said that if he was a land management person in the
20 basin, he would be looking at the Boards's edict to restore
21 waterfowl habitat, and he would note there has been a gross
22 loss of shallow water habitat in the basin. He said that he
23 was in favor of creating about one-half-acre ponds around
24 Simons and Warm Springs. He said he cannot understand how
25 that is objectionable for visual effect, but he was told by
01 the state agency people that it is "not natural enough." He
02 said that creating ponds is "something other than making
03 L.A. refill the basin and pay us to measure and monitor."
04 He felt that that was what the objection was. He said that
05 waterfowl habitat enhancement didn't fit the agenda of
06 "making L.A. refill the basin and pay us to measure and
08 He said that rewatering Mill Creek would be good for
09 waterfowl, but the big bang for the buck, quote-unquote, is
10 burning and fresh water ponded habitat. He said that you
11 want ponding near the lake so birds have open water
12 protection so that -- and there needs to be lake fringing,
13 better than not lake fringing because Mono Lake is a major
14 foraging area for birds. His recommendations lists that he
15 knew that I was going to present to the Water board was:
16 create ponding at Simons Springs; make the ponds at Warm
17 Springs bigger. To do that you would remove one-half to
18 one-half acre opening in the existing vegetative map and
19 discourage vegetation from filling in. You would deepen the
20 water a little bit or open up the area to cause permanent
22 He said this would not be an expensive project on a
23 comparative scale. But he said, "Heads up." The Mono Lake
24 Committee and the State Parks see enhancing ponds as ugly,
25 quote-unquote, and not natural, and we should expect them to
01 oppose this. He said that at Simons Springs there are old
02 blasted out pot holes that still serve a function but they
03 need to be made larger and, ideally, they should have more
04 open surface and less depth. He said a third project he
05 suggested is County Pond. He said, "Look real hard at
06 County Ponds." They can be developed with minimal
07 excavation. You can use surface waters so you don't need to
08 pump. Use the Forest Service water right, he said. He said
09 the County Ponds may need a little bit of sealing done to
10 them. He said that the Forest Service does not use its
11 water right for the ponds for "political reasons."
12 He said that the Water Board, in his opinion, needed to
13 issue a strong decision that gave a finding that the Forest
14 Service use of its water at DeChambeau Pond is "a beneficial
16 The fourth project that he proposed was at Black
17 Point. He referred to the existing pond at Black Point Mine
18 below -- he referred to them as trailers. There is actually
19 a little house. He said he had seen ducks using it. He
20 said that more of these ponds could be created below these
21 ponds. He said that he and the other scientists had
22 actually had preliminary discussions with the mine operator
23 out there, who has a lot of heavy equipment, who had said he
24 might even help them create the ponds.
25 He said that there is water for those ponds from an
01 artesian source above the Black Point Mine Road, and he said
02 that he thought that it was about 80 gallons per minute, but
03 he actually wasn't sure. He couldn't remember the number.
04 He said that a series of ponds could be put at Black Point
05 between existing ponds and the lake. He said that this was
06 a "ready-made" place for ponds in an area that is already
07 wet and very full of vegetation.
08 And I am almost concluded here, Chairman Caffrey.
09 He then referred me to the Ducks Unlimited people in
10 our area, and said maybe we could just get going and try to
11 get some waterfowl habitat started the way we were doing out
12 at DeChambeau Ranch with irrigation on our own, because he
13 said -- he felt -- he was concerned that this process and
14 this Mill Creek argument was going to go on so long that in
15 the meantime there wasn't going to be any waterfowl habitat
16 restoration taking place, while it really should be
17 happening now.
18 That concludes my summary of my conversation with Mr.
20 CHAIRMAN CAFFREY: Thank you.
21 That concludes your testimony?
22 MS. BELLOMO: If I could just take one moment here. I
23 have four other documents I want to mark that don't require
24 any testimony with them, and then the letters.
25 CHAIRMAN CAFFREY: All right. Under my definition, you
01 have concluded your testimony, and we are now just --
02 MS. BELLOMO: They need explanation as to why I am
03 offering them.
04 CHAIRMAN CAFFREY: That is appropriate. Please
06 MS. BELLOMO: I want to mark as exhibits two documents
07 that are pages from the Mono Lake Committee Newsletter; one
08 is of spring of 1997 and the other is fall of 1996.
09 Could I ask what numbers those would be?
10 MR. JOHNS: 38 and 39.
11 MS. BELLOMO: Make the fall of '96, 38; and spring of
12 '97, which is a two-page document, 39.
13 MR. DODGE: Mr. Chairman, I was doing something else.
14 What are the numbers, again?
15 CHAIRMAN CAFFREY: 38 and 39? 38 was for the -
16 MS. BELLOMO: The 1996.
17 CHAIRMAN CAFFREY: Does everybody have copies?
18 MS. BELLOMO: The next documents that I would like to
19 mark would be numbers --
20 CHAIRMAN CAFFREY: Are you going to describe these or
21 was there some --
22 MS. BELLOMO: You want me to explain the relevance?
23 CHAIRMAN CAFFREY: That would be appropriate. Let's do
24 it with each of these, so we don't get -- would you agree,
25 Mr. Frink?
01 MR. FRINK: That is appropriate.
02 CHAIRMAN CAFFREY: Please describe why you are offering
03 these as exhibits.
04 MS. BELLOMO: Exhibit 38 is the fall 1996 Mono Lake
05 Committee Newsletter, and it indicates that the New Eastern
06 Sierra Policy Director is Heidi Hopkins. We are concerned
07 that the Policy Director, who is making policy decisions at
08 this time, and this is what the Mono Lake Committee consists
09 of, in our views, who makes the decisions, that the Policy
10 Director joined in the fall of 1996, and we're concerned,
11 that although she has excellent credentials, she doesn't
12 know the area.
13 With Exhibit 39, similarly, this is from Mono Lake
14 Committee Newsletter, and it is an interview with Francis
15 Spivy, who is the new Executive Director of the Mono Lake
16 Committee. Again, we think she looks like she has excellent
17 qualifications, but as she indicates on Page 2:
18 My husband had not been to Mono Lake in
19 35 years, and I have never been until I
20 came to interview for the job. (Reading.)
21 We are concerned that these two people are the policy
22 decision makers for the Mono Lake Committee, and Ms. Spivy
23 told me that that was the case. And that Ms. Spivy was
24 never in the Mono Basin until she interviewed for the job
25 sometime in December or January. So that is the relevance.
01 It goes to our concern about the settlement and the
02 propriety of the membership of the Foundation.
03 CHAIRMAN CAFFREY: Next exhibit or next offering, I
04 should say.
05 MS. BELLOMO: Now I have two documents. Should I
06 describe them and say which number?
07 CHAIRMAN CAFFREY: Are these the letters, by any
09 MS. BELLOMO: No, there are two others letters.
10 CHAIRMAN CAFFREY: Describe them. Pass them out to the
11 other parties first.
12 MS. BELLOMO: Before I describe them?
13 CHAIRMAN CAFFREY: Describe them while you are passing
14 them out. I want to make sure they get them first.
15 MS. BELLOMO: Document one is a facsimile document on
16 fax sheet from Morrison and Forester, and a five-page
17 document. I would ask the Board to not read the portion
18 that has been crossed out. The only reason this is offered
19 is that we have concerns about the settlement process, and
20 the settlement should not be adopted in part because of the
21 fact that the public was -- the community was excluded from
22 the process. This is referenced in letters you received.
23 The purpose of this document is to show that we were
24 sent a draft copy of the settlement document and, in it, it
25 references the Mono Basin Waterfowl Habitat Restoration
01 Trust concept agreement. At that point, I called Heidi
02 Hopkins, saying, "Oh, great, they are showing it to us. So
03 we get to participate."
04 I was told that we weren't supposed to have it. It was
05 faxed to us in error by Mr. Dodge's office. And then the
06 next document is a letter from Heidi Hopkins, sent to me,
07 cc'ing to Bruce Dodge, and it is reminding me that this is a
08 confidential document. We, subsequently, several times,
09 asked Ms. Hopkins if we could have the Foundation agreement,
10 and asked the status of things. And we were told that we
11 weren't allowed to participate in the settlement discussion
12 because we had opted out of the settlement that they had
13 proposed at the time we were at the Board.
14 So this is offered to refute the notion that the People
15 from Mono Basin Preservation were given an opportunity to
16 participate in the settlement.
17 So, if we could have the facsimile marked as --
18 CHAIRMAN CAFFREY: You have numbers, Mr. Johns.
19 MR. JOHNS: That would be 40.
20 MR. FRINK: Mr. Caffrey.
21 CHAIRMAN CAFFREY: Go ahead, Mr. Frink.
22 Mr. Frink: In this instance --
23 CHAIRMAN CAFFREY: We haven't accepted any of this yet.
24 You want to wait until we get to that point?
25 MR. FRINK: I would have an objection to accepting one
01 of these two documents. You can hear it now or after she
02 has identified them all.
03 CHAIRMAN CAFFREY: Why don't we just get them all in,
04 get identification numbers on them, and then we will go to
05 them, because Ms. Bellomo is going to, at some point, offer
06 all these into evidence.
07 Go ahead.
08 MS. BELLOMO: The next document is a letter from Roger
09 Porter directed to the People from Mono Basin Preservation,
10 Roger Porter of the Forest Service, and it sets forth the
11 Forest Service's plans regarding irrigation of DeChambeau
12 Ranch during the spring and summer of 1997. This document
13 was mentioned earlier during our presentation.
14 MR. JOHNS: This will be 42.
15 MS. BELLOMO: This is offered to support our
16 understanding that we have testified to, that irrigation not
17 only is going on at DeChambeau Ranch, but it will be
18 permitted to continue.
19 The next document -- I don't know if you want to mark
20 this as one document or two documents. Mr. Porter had this
21 photocopied for us after we consulted with Mr. Frink about
22 having official notice taken and for the convenience of
23 everyone, we have copies for everyone. I don't know if that
24 is necessary. We want everyone to have them.
25 They are the U.S. Department of Agricultural Forest
01 Service Environmental Assessment for the DeChambeau
02 Enhancement Project. That is one document. And stapled to
03 it is the decision notice and finding of no significant
04 effect concerning the environmental assessment for the
05 DeChambeau Enhancement Project. This is a U.S. Forest
06 Service document. We are asking to have official notice of
07 these two documents taken. And we also relied on them in
08 our belief that it was appropriate to irrigate at DeChambeau
10 CHAIRMAN CAFFREY: Just a minute.
11 Other exhibits that you wish to offer?
12 MS. BELLOMO: Do we need numbers? I didn't get numbers
13 for these.
14 MR. JOHNS: The N.O.I., the last document there was --
15 MS. BELLOMO: One is an environmental assessment and
16 the other is the decision notice.
17 CHAIRMAN CAFFREY: You are just asking for us to take
18 official notice of those two documents?
19 MR. JOHNS: They need to have numbers. The
20 environmental one will be 43, and the decision notice will
21 be 44.
22 MS. BELLOMO: The back four pages I believe are the
23 decision notice.
24 Do you see it, Mr. Dodge?
25 MR. DODGE: I do, but I don't see why we just don't
01 have one number for them, since they were delivered to us
02 this way.
03 CHAIRMAN CAFFREY: That is a question Ms. Bellomo
04 raised. I don't know that it matters.
05 MR. FRINK: Ms. Bellomo, is it agreeable to give them a
06 single number?
07 MS. BELLOMO: That is fine.
08 CHAIRMAN CAFFREY: Give them a single number.
09 MS. BELLOMO: They are 43.
10 MR. JOHNS: That's correct.
11 CHAIRMAN CAFFREY: 43.
12 MR. BELLOMO: The final document that I have that is
13 not -- the letters here, is a document that I got from Roger
14 Porter, Scenic Area from Charles Simast, and it is a
15 document that shows wind records that they have started
16 keeping as of -- it shows on here the date that they
17 started, back in February of 1997, when they placed an
18 anemometer on top of the Visitors Center in Lee Vining and
19 they take 24 hour peak record reads once a day. That is
20 what this document is.
21 CHAIRMAN CAFFREY: You have a number for that, Mr.
23 MR. JOHNS: That would be 44. Again, I would like to
24 see it.
25 CHAIRMAN CAFFREY: Please continue. Is everything
01 ready for the next?
02 MS. BELLOMO: The next document I think Mr. Frink
03 distributed a letter from Congressman Doolittle, John T.
04 Doolittle, to yourself, Chairman Caffrey. I think it was
05 distributed yesterday.
06 CHAIRMAN CAFFREY: I believe we have received more
07 letters than that. I am not inclined to mark any of these
08 letters as evidence. I would be happy to treat them as
09 policy statements, but not part of the evidentiary record.
10 It will be part of the total hearing record.
11 MS. BELLOMO: Do they need numbers or anything?
12 CHAIRMAN CAFFREY: Not if they are policy statements.
13 Do they need numbers if they are policy statements, Mr.
15 MR. FRINK: Not if they are policy statements.
16 CHAIRMAN CAFFREY: I believe we already have that
17 letter in Mr. Johns' folder, and available to parties in the
19 MEMBER DEL PIERO: We have a letter from --
20 CHAIRMAN CAFFREY: State Senator Leslie.
21 MS. BELLOMO: I could just go through my pile. I know
22 I have a couple you don't have. Is that agreeable?
23 CHAIRMAN CAFFREY: If you just want to tell us who they
24 are from.
25 MS. BELLOMO: The letter from Senator Tim Leslie,
01 addressed to yourself, Chairman Caffrey.
02 A letter addressed to Chairman Caffrey from Dale
03 Sandel, People for the West, Bishop Chapter.
04 CHAIRMAN CAFFREY: I have that one, as well, in Mr.
05 Johns' folder.
06 MS. BELLOMO: I think they distributed them yesterday.
07 We have copies if people want them.
08 A letter to Chairman Caffrey from Don Rake, President,
09 People for the West, Mammoth area chapter.
10 CHAIRMAN CAFFREY: That may be the one that I have.
11 MEMBER DEL PIERO: That one I have seen.
12 CHAIRMAN CAFFREY: We are accepting these as policy
14 MS. BELLOMO: You have copies?
15 MEMBER DEL PIERO: One way or the other.
16 CHAIRMAN CAFFREY: We will see them.
17 MS. BELLOMO: I have a letter that I checked with Mr.
18 Frink or Mr. Johns, I can't recall, yesterday. It was
19 suggested that I hold on to this until we did our
20 presentation today. I have the original of a letter from
21 Joanne Ronci, who is Mono County Supervisor, District 3,
22 which is addressed to Chairman Caffrey. And Joanne Ronci
23 made some copies, but I don't know that she made enough
24 copies for everyone in the room. That will just have to be
25 done subsequently.
01 MR. JOHNS: What was the date of that letter?
02 MR. BELLOMO: May 5th.
03 And I also have a letter that I was asked to deliver
04 from Edward J. Inwood, Mono County Supervisor, District 4,
05 which is dated 5/1/97, and also addressed to Mr. Caffrey.
06 And Mr. Inwood made some copies, but probably not enough for
08 CHAIRMAN CAFFREY: Give the original to Mr. Johns. You
09 can give me a copy when you get one.
10 MS. BELLOMO: I have a copy for you. I don't know how
11 you deal with this. This is a minute order from the Office
12 of the Board of Supervisors, Mono County, regarding their
13 decision to oppose the conceptual agreement in the Mono
14 Basin proceeding.
15 CHAIRMAN CAFFREY: Could it be attached to the letter?
16 Don't we have a letter from the -- could we attach it to a
17 letter or do we take it as an exhibit?
18 MR. FRINK: It could be attached to the letter, but
19 since it is a document representing an official act of a
20 governmental agency, we could take official notice of it and
21 give it an exhibit number.
22 CHAIRMAN CAFFREY: We will take official notice of it
23 and give it number. Would that be 45?
24 MR. JOHNS: That is correct.
25 CHAIRMAN CAFFREY: Number 45.
01 MS. BELLOMO: And I have a letter from the Mammoth
02 Lakes Chamber of Commerce dated April 30, 1997, addressed to
03 Chairman Caffrey, signed by Emile Rummel.
04 CHAIRMAN CAFFREY: That will be a policy statement.
05 MS. BELLOMO: Do you have this document already? Has
06 this been distributed to people?
07 CHAIRMAN CAFFREY: I don't think I have seen that
08 one. I don't recall for sure. We will see it. We will
09 take another look at it.
10 MS. BELLOMO: I ask you, Mr. Johns, what was the date
11 of the letter that I just told you from the Chamber of
13 CHAIRMAN CAFFREY: April 30.
14 MS. BELLOMO: Thank you.
15 CHAIRMAN CAFFREY: Was that 45?
16 MR. JOHNS: That was 46.
17 MS. BELLOMO: Do we have as a policy statement the
18 letter of Mono County to the Water Board, dated January 22,
19 1997, addressed to Mr. Pettit, signed by Tom Farnetti?
20 CHAIRMAN CAFFREY: We have this one already.
21 MS. BELLOMO: Then I believe you have this. I think I
22 got this from the staff this morning. A letter from the
23 Mono County Board of Supervisors, dated May 6, 1997, and
24 signed by Tom Farnetti and addressed to Chairman Caffrey and
01 MR. JOHNS: Yes, we do. Faxed this morning.
02 CHAIRMAN CAFFREY: Again, a policy statement.
03 MS. BELLOMO: I think that concludes all of the letters
04 that I was asked to distribute.
05 CHAIRMAN CAFFREY: Thank you.
06 MS. BELLOMO: That concludes everything that I need to
08 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo.
09 Let me find out now from Mr. Frink what his comment was
10 now that we have all of these marked.
11 Do you have concern about one of these?
12 MR. FRINK: I had concern about the attachment on
13 People from Mono Basin Preservation, Exhibit Number 40. I
14 wouldn't say there is any problem with the admission of the
15 fax cover sheet or the cover memo from Mr. Dodge. It is
16 dated March 14th, 1997.
17 As Ms. Bellomo indicates, that gives some idea of the
18 interchange of communication between the parties in the
19 hearing and who was or wasn't included in the settlement
20 negotiations. But I don't believe that the X'd out portion
21 of the exhibit that was a draft of an early version of the
22 settlement agreement is admissible. The parties intended
23 that it be confidential. I don't believe that Ms. Bellomo
24 intends that we look at it, but rather than just have it X'd
25 out, I suggest that we remove it and not include it in the
01 file at all.
02 MS. BELLOMO: That sounds like a good idea. I just
03 didn't know if I should give it to you or not.
04 CHAIRMAN CAFFREY: Tear it off and destroy it before we
05 see it.
06 MR. BIRMINGHAM: Can we have a moment to confer?
07 CHAIRMAN CAFFREY: You certainly may. I was going to
08 ask if there were objection to these exhibits. So, please
09 takes a few moments, if you need it.
10 Are there objection to these exhibits?
11 MR. DODGE: Let me address that.
12 CHAIRMAN CAFFREY: Mr. Dodge.
13 MR. DODGE: Thank you. Exhibits 38 and 39 are excerpts
14 from the Mono Lake Committee Newsletter. I can't believe
15 that these are proper rebuttal, but in the interest of the
16 shortness of life, I am not going to object.
17 CHAIRMAN CAFFREY: Thank you for you kindness, sir.
18 MR. DODGE: Exhibit 40, we've dealt with.
19 Exhibit 41, again, rebuts nothing, but I don't object
20 to it.
21 And the 42, I don't object to.
22 Exhibit 43, of course, I can't have read this document
23 in the time alloted, but assuming it is what counsel
24 indicates it is, I have no objection.
25 MS. BELLOMO: Just for clarification, that is just for
01 official notice, is it? 43 is the Forest Service document?
02 CHAIRMAN CAFFREY: We received this for official
03 notice; is that correct, Mr. Frink?
04 MR. FRINK: Yes. We are giving it an exhibit number
05 and the Board can take official notice of it.
06 MR. DODGE: No objection to that.
07 No objection to Exhibit 44.
08 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.
09 Anybody else?
10 Mr. Roos-Collins.
11 MR. ROOS-COLLINS: In the interest of concluding this
12 hearing, California Trout does not object to the
13 introduction of any of the marked exhibits. However, I do
14 wish to express my concerns as to the weight that this Board
15 may grant some of them.
16 As to Exhibits 38 and 39, I understood Ms. Bellomo to
17 offer them to impeach the competency of the Mono Lake
18 Committee to negotiate an agreement and to offer that
19 agreement to this Board. That is a slippery slope that is
20 wholly irrelevant to this Board's decision, and, further,
21 would be very dangerous as a precedent in relations between
22 the parties in any hearing.
23 If we questioned either each other's competency,
24 motives, and so forth, even to being present, there would be
25 no way for this Board to ever reach the end of any dispute.
01 So while I do not object to the introduction of these
02 exhibits, I believe they are entitled to no weight.
03 As to Exhibit 41, this is apparently intended to show
04 that the People from Mono Basin Preservation were excluded
05 from negotiations. I note simply that is simply disputed
06 issue of fact. Again, I fail to see its relevancy to a
07 decision. I note that California Trout takes the position
08 that every party who expressed any interest in participation
09 in the negotiation was allowed to participate. Therefore, I
10 disagree emphatically with the inference that People from
11 Mono Basin Preservation attempt to draw from this exhibit.
12 And I have no comments regarding the remainder.
13 CHAIRMAN CAFFREY: Thank you, Mr. Roos-Collins.
14 Anybody else?
15 MS. BELLOMO: Chairman Caffrey, I just think I need to
16 respond to what Mr. Roos-Collins said, very briefly because
17 he misunderstood the purpose of these two documents.
18 CHAIRMAN CAFFREY: I think you need to -- he didn't
19 object to it. And I would like to hear from the parties.
20 You may run the risk of having somebody object to it.
21 MS. BELLOMO: I am willing to run that risk.
22 CHAIRMAN CAFFREY: Let's see if there are any other
23 objections, first.
24 Are there any further objections -- nobody has
25 objected, excuse me.
01 Does anybody else wish to offer any comments or
03 Mr. Dodge, are you rising again?
04 MR. DODGE: Yes. Just to note, I think we all
05 understand --
06 MEMBER DEL PIERO: He is thinking about it.
07 MR. DODGE: Just to note that Exhibit 40 now consists
08 of the first two pages that Ms. Bellomo handed us.
09 CHAIRMAN CAFFREY: That is correct, minus the X'd out
10 pages? Is that what you are referring to?
11 MR. DODGE: Yes, sir.
12 CHAIRMAN CAFFREY: Yes, sir, you are correct.
13 Ms. Bellomo, do you wish to clarify at the risk of
14 further argument?
15 MS. BELLOMO: Yes. I just want to clarify that Mr.
16 Roos-Collins misunderstood that in any way was I offering
17 Exhibits 38 and 39 as any sort of insult or challenge to the
18 integrity or competence of the Mono Lake Committee staff. I
19 tried to point that out, that they have both -- the people
20 referenced in these documents have very great resumes and
22 The point we were trying to make is that the Foundation
23 proposed -- it is proposed that the Foundation be composed
24 of parties including the Mono Lake Committee, and the
25 parties are charged with this very important task of
01 deciding what waterfowl habitat restoration work should be
02 done and supervising and whatever, however one chooses to
03 construe their responsibilities under that agreement.
04 We feel it is important for the Board to know that the
05 two head decision makers are not familiar with the area.
06 But this is not an attack on them or on their motives.
07 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo.
08 All right. Without objection then we will accept what
09 we have identified as exhibits into the record. And we have
10 identified those letters as policy statements, and they will
11 be part of the hearing record and not the evidentiary
13 Mr. Johns.
14 MS. CAHILL: Chairman Caffrey, Exhibit Number 37,
15 however, is governed by your prior ruling.
16 CHAIRMAN CAFFREY: I'm sorry, tell me what 37 is.
17 MS. CAHILL: 37 was the one you ruled would not be
19 CHAIRMAN CAFFREY: That's correct. Thank you for that
20 clarification, Ms. Cahill.
21 Mr. Johns.
22 MR. JOHNS: I want to go over this one at a time to
23 make sure -- there are a couple of these I am not sure you
24 are going to accept.
25 CHAIRMAN CAFFREY: Are you sure you want to do this?
01 MEMBER DEL PIERO: Let me help you out. 37 was not
02 accepted. Everything else the Chairman just indicated he is
03 prepared to accept into the record.
04 MR. JOHNS: Except we do have Exhibit 35, a draft of a
05 letter of 34, which I thought we were not going to accept
06 because of was a draft letter?
07 MS. BELLOMO: I had not offered it.
08 MEMBER DEL PIERO: That had actually been withdrawn.
09 CHAIRMAN CAFFREY: We had withdrawn that.
10 MR. FRINK: Which of those two are we taking?
11 MR. JOHNS: We are taking 34.
12 MS. BELLOMO: The signed copy.
13 CHAIRMAN CAFFREY: Thank you for the clarification,
14 Mr. Johns.
15 MR. JOHNS: We have Exhibit 33, which we talked about
16 yesterday, which I assume we are accepted at this time, as
18 MS. BELLOMO: I would be offering it at this time.
19 MR. JOHNS: Does your ruling include 33, which is a
20 letter from --
21 CHAIRMAN CAFFREY: It does without objection.
22 MR. DODGE: Could we hear what it is?
23 MR. JOHNS: It is a letter from Robert Macomber,
24 Department of Parks and Recreation to Bonnie Porter, dated
01 CHAIRMAN CAFFREY: The 1988 Macomber letter.
02 MR. DODGE: No objection.
03 CHAIRMAN CAFFREY: That also is accepted into the
04 record as an evidentiary exhibit.
05 CHAIRMAN CAFFREY: Does that complete that bit of
07 It is now time for cross-examination of these
08 witnesses. Let's take about a five-minute break for Esther,
09 and then we will come back with cross-examination.
10 (Break taken.)
11 CHAIRMAN CAFFREY: Mr. Birmingham.
12 CROSS-EXAMINATION BY
13 LOS ANGELES DEPARTMENT OF WATER AND POWER
14 BY MR. BIRMINGHAM
15 MR. BIRMINGHAM: Thank you very much, Mr. Caffrey.
16 Mr. Frederickson, I have just a couple of questions for
17 you. You described the use of water on the Conway Ranch
18 during your direct testimony, and you described the
19 development of a fish rearing project on Conway Ranch.
20 Is that correct?
21 MR. FREDERICKSON: Yes.
22 MR. BIRMINGHAM: When did you begin the fish rearing
23 project on Conway Ranch?
24 MR. FREDERICKSON: I believe they applied, or we
25 applied for the permits in 1991. And we started digging
01 ditches in late '91 or early '92.
02 MR. BIRMINGHAM: What permits did you apply for?
03 MR. FREDERICKSON: Fish and Game aquaculture permits.
04 MR. BIRMINGHAM: Am I correct that the water rights for
05 Conway Ranch are decreed water rights?
06 MR. FREDERICKSON: Yes.
07 MR. BIRMINGHAM: They are decreed by the Mono County
08 Superior Court?
09 MR. FREDERICKSON: Well, I --
10 MEMBER DEL PIERO: Do you understand the question,
12 MR. FREDERICKSON: I kind of do, but remember, I have
13 been out of this for a few years, and I would have to go
15 CHAIRMAN CAFFREY: Just answer as best you can.
16 MR. FREDERICKSON: No, I don't understand.
17 MR. BIRMINGHAM: Well, let me ask you this: When you
18 began your fish rearing project in 1991 or 1992, did you, or
19 anyone on your behalf, go to the Superior Court in Mono
20 County to ask the court to modified the purposes of use
21 described in the decree which establishes the water rights
22 for Conway Ranch?
23 MR. FREDERICKSON: Yeah. I believe our attorneys did.
24 MR. BIRMINGHAM: Mr. Bellomo, I have a couple of
25 questions for you.
01 During the presentation of the slides, you described
02 and depicted in those slides some work that was recently
03 done on Wilson Creek and ditches to return flows to
04 DeChambeau Ranch.
05 Is that correct?
06 MR. BELLOMO: That's correct.
07 MR. BIRMINGHAM: Did that work involve placing a
08 diversion facility in Wilson Creek?
09 MR. BELLOMO: The diversion facility was already there.
10 MR. BIRMINGHAM: Did you do any work on the diversion
12 MR. BELLOMO: Put some tin in the bottom of one of
14 MR. BIRMINGHAM: Did you do any excavation in
15 connection with the work you did?
16 MR. BELLOMO: No, we did not.
17 MR. BIRMINGHAM: Did you work any -- you described work
18 being done by a backhoe; is that correct?
19 MR. BELLOMO: That was on the ranch.
20 MR. BIRMINGHAM: And did you inquire as to whether or
21 not a 1601 permit from the Department of Fish and Game was
22 required in order to do that work?
23 MR. BELLOMO: I spoke with Roger Porter, and I am not
24 positive if one was required or one was not.
25 MR. BIRMINGHAM: Did you obtain one?
01 MR. BELLOMO: I don't believe there was one.
02 MR. BIRMINGHAM: Among the exhibits that were
03 identified by Ms. Bellomo during her testimony was
04 R-PMBP-43, which is a Forest Service environmental
05 assessment. Do you know -- was there any environmental
06 assessment done for the project that you implemented, other
07 than the environmental assessment that was prepared back in
09 MR. BELLOMO: I have no idea.
10 MR. BIRMINGHAM: Did you provide notice to any of the
11 other parties to this proceeding, other than the Forest
12 Service, that you were going to undertake the work in order
13 to restore flows to DeChambeau Ranch?
14 MS. BELLOMO: Just object. I think this
15 mischaracterizes the situation that should be clarified.
16 This is the Forest Service's ranch, and the people provided
17 volunteer labor to the Forest Service. You are allowed to
18 sign up and do volunteer work.
19 So, there was nobody who had any authority to be
20 notifying people who are applying for anything in the
21 community. It was the Forest Service land.
22 CHAIRMAN CAFFREY: But I still think the question can
23 be answered. Please answer the question.
24 MR. BELLOMO: Can you please restate it?
25 MR. BIRMINGHAM: Did you provide notice to any of the
01 parties to this proceeding, other than the Forest Service,
02 before you undertook the work?
03 MR. BELLOMO: I did not apply to anybody.
04 MR. BIRMINGHAM: Did you provide notice, not apply?
05 Did you tell anybody else that you were going to do this
07 MR. BELLOMO: I am kind of lost here in the question.
08 Who would I tell?
09 MR. BIRMINGHAM: Did you tell the Department of Water
10 and Power, the City of Los Angeles that you were going to go
11 out and do this work?
12 MR. BELLOMO: No, we did not.
13 MR. BIRMINGHAM: Did you tell the representatives of
14 the Mono Lake Committee that you were going to go do the
16 MR. BELLOMO: Roger Porter was dealing with the Mono
17 Lake Committee.
18 MR. BIRMINGHAM: Did you tell --
19 MR. BELLOMO: I didn't tell anybody.
20 MR. BIRMINGHAM: Let me ask you a different question.
21 What is the basis of your statement that Roger Porter was
22 dealing with Mono Lake Committee? Did he tell you that he
23 had spoken with the Mono Lake Committee?
24 MR. BELLOMO: Roger Porter told me that he was checking
25 with other parties, I believe is the words he used.
01 MR. BIRMINGHAM: Ms. Bellomo. If you would like to
02 answer these questions, you are certainly welcome to.
03 MS. BELLOMO: May I?
04 MR. BIRMINGHAM: Sure. Absolutely.
05 MS. BELLOMO: I would just add that Rick Noles and
06 Roger Porter told me that they were out on the ranch looking
07 around before the work was done, and Heide Hopkins was
08 there. And one day I was walking on the County Road with
09 Heidi Griffin, and the people that drove by first were some
10 of the community men that were going to be doing the work.
11 And then Heidi Hopkins drove by and then the Forest Service
12 drove by and stopped and talked to us. They said they were
13 all out there looking at it. They were explaining to Ms.
14 Hopkins what they were going to be doing out there and
15 getting input from them. And they walked around with her
16 and with Janelle O'Connor, I think her name is. She is
17 their biologist. So, they got the input from Ms. Hopkins, I
18 guess, as to what her concerns were. And I know she had
19 correspondence with the Forest Service saying that the Mono
20 Lake Committee supported the Forest Service's decision to
21 irrigate out there. And that they just expressed their
22 desire that the Forest Service keep records about how much
23 water was being used, or some such thing.
24 MR. BIRMINGHAM: Mr. Bellomo or Mrs. Bellomo, either
25 one of you, was part of your motivation in performing this
01 work to initiate some kind of project that would benefit
02 waterfowl in the Mono Basin?
03 MS. BELLOMO: I am sorry, I didn't hear the question.
04 I was reading something.
05 MR. BIRMINGHAM: May I ask you to read the question
07 (Record read as requested.)
08 MR. BELLOMO: Not particularly. It was more to keep
09 the ranch from dying while somebody made up their mind as to
10 what they were going to do.
11 MR. BIRMINGHAM: So, in other words, while this Board
12 was considering what kind of project should be implemented
13 with the water to be allocated from Wilson to Mill, you
14 decided that you would initiate this project to keep the
15 ranch from dying?
16 MS. BELLOMO: I can answer from my view and the views
17 of some others.
18 MR. BIRMINGHAM: Let me withdraw the question. It was
19 argumentative, I am sorry. I will withdraw.
20 CHAIRMAN CAFFREY: I guess -- all right.
21 MR. BIRMINGHAM: I should not have asked that question.
22 I apologize.
23 Ms. Bellomo, I have some questions that I would like to
24 direct to you, if I may.
25 Am I correct that your group's fundamental objection to
01 the Department of Water and Power's Waterfowl Habitat
02 Restoration Plan is that the plan contains proposals, the
03 environmental effects of which have not been adequately
05 MS. BELLOMO: I think there are so many different bases
06 for the proposal, that it could take me a while to
07 enumerate. Maybe I wouldn't be able to be complete, because
08 we have such a diverse group of people, with all
09 backgrounds, types and ages. There is every kind of concern
10 that you ever heard mentioned.
11 There are some people whose primary concern, some of
12 the older residents, is the loss of historical values that
13 is posed because they're very concerned, for instance, about
14 Mattly Meadow, which some people here have indicated that
15 they don't even know where it is. To them, that is an
16 important historical area that is related to their families.
17 There are people who are, hundreds for instance, who
18 are alarmed that the idea that or they view it as absurd
19 that anyone would think that waterfowl habitat will result
20 if you rewater Mill Creek. I am not saying that they are
21 right or not. They are just really upset that that is what
22 is being proposed for waterfowl habitat restoration, and
23 they want to see waterfowl habitat restoration done.
24 There are others who are concerned about the way the
25 process has been gone about, and they are really upset that
01 the county isn't being involved properly.
02 There are others whose primary interest is in having
03 the county raise fish on Conway Ranch. I don't know if --
04 some of them may not care about anything else. They're
05 concerned that if you don't have enough water on Conway
06 Ranch, you can't raise fish there.
07 There are people in Mammoth who are concerned about the
08 impact that is affecting the scenic quality of the area
09 along 395, which is the Scenic Byway and would have on
10 tourism with people that come up to the area. It just goes
11 on and on.
12 MR. BIRMINGHAM: Let me refer back to your original
13 direct testimony. You were selected by the People from Mono
14 Basin Preservation to be one of their two spokesmen at this
15 proceeding; is that correct?
16 MS. BELLOMO: Yes.
17 MR. BIRMINGHAM: Going back to your original direct
18 testimony, R-PMBP-29, on Page 3 you state you are somewhat
19 confused, that with the exception of BLM, no party to date
20 has raised publicly serious concerns about the effects of
21 making changes to Wilson Creek flows on Conway.
22 Among those effects that you are describing are
23 environmental effects; is that correct?
24 MS. BELLOMO: I should probably look at my testimony,
25 actually, because it is late in the day and I am not -- just
01 to do justice to your question, I really should look at my
03 MR. BIRMINGHAM: Let me give you my copy.
04 MS. BELLOMO: No. I have my copy here, if you could
05 just tell me what page.
06 MR. BIRMINGHAM: On Page 7, at the bottom of Page 7.
07 MS. BELLOMO: Okay. I am with you.
08 MR. BIRMINGHAM: In fact, the question says: Do the
09 documents pertaining to environmental review at Conway Ranch
10 increase the People from Mono Basin Preservation's concern
11 regarding the environmental consequences to Conway and
12 Thompson Meadows if LADWP plan is adopted?
13 MS. BELLOMO: I read the question.
14 MR. BIRMINGHAM: Your response to that question is that
15 you're confused because with the exception of BLM no party
16 to date has raised publicly serious concerns about the
17 effects of making changes to Wilson Creek flows on Conway.
18 And my question is, the effects that you are referring
19 to in that answer are the environmental effects; is that
21 MS. BELLOMO: Well, let me see here. I would have to
22 really read the whole context this was written in, but I
23 know environmental effects were one of them. And we also
24 have been concerned about the historical consequences. So,
25 I don't know in the context here exactly if that was the
01 question that specifically was just eliciting the concern
02 about the environmental concerns. But there certainly were
03 other concerns, as well.
04 MR. BIRMINGHAM: Let me ask my first question again. I
05 will rephrase it.
06 Is it your group's concern or among your group's
07 concern that the Waterfowl Habitat Restoration Plan proposed
08 by the Department of Water and Power is inadequate because
09 it fails to adequately consider the environmental
10 consequences of the proposed restoration measures identified
11 in the plan?
12 MS. BELLOMO: I am sorry, I literally slept three hours
13 last night getting ready for this, copying all these
14 documents. I really have to ask to have the question read
15 again; I can't follow you.
16 (Record read as requested.)
17 MS. BELLOMO: I haven't read the Department of Water
18 and Power proposed -- the plan, the restoration plan, that
19 your -- in quite some time, the February 29, 1996 plan. I
20 haven't read that in quite some time. I have been focusing
21 on the settlement and the other documents. But, I did read
22 it one time. I've read various parts a number of times.
23 But my answer to that is that I am not a CEQA expert.
24 I do understand there would be environmental review, and
25 that is probably what you are getting at. It is not that we
01 don't think there is any sort of environmental review
02 process that would have to be engaged in. But one of our
03 concerns, I recall, as a group, was that if the Water Board
04 chooses -- that the choice of plans, sort of along the
05 lines of the question that I think Mr. Johns was asking Mr.
06 Turner this morning, that the choice of projects can have
07 some impact on the outcome. And that we didn't like the
08 choice of projects that were being heavily emphasized in
09 your plan. And we are concerned, the group was concerned,
10 being composed of nonenvironmental experts, just lay people,
11 concerned, based on experience of looking at the outcomes of
12 other environmental reviews, that that choice of plans could
13 affect the outcome of the Board's decision. And we thought
14 it was off to a bad start.
15 Does that answer your question?
16 MR. BIRMINGHAM: Close enough.
17 Is it your view that before any specific proposal is
18 implemented that an environmental study should be conducted
19 to determine the potential impacts --
20 THE COURT REPORTER: I am losing you.
21 MR. BIRMINGHAM: Is it your view that before any
22 specific proposal is implemented, an environmental study
23 should be conducted to determine the potential impacts of
24 the proposal on the environment and cultural resources of
25 the basin?
01 MS. BELLOMO: I have to ask you, what do you mean by
02 "implemented," because I am not an environmental lawyer or
03 environmental specialist. When you say "implemented," do
04 you mean actually, let's say, turn off Wilson Creek and put
05 it all in Mill? Is that what you mean by "implemented"?
06 MR. BIRMINGHAM: Or any of the proposals that are
07 identified in the restoration plan.
08 MS. BELLOMO: What -- I don't even think what I think
09 should be done has anything to do with it. It is going to
10 boil down to what is required by the law. And I, frankly,
11 at this point, haven't had time to bone up on that, to find
12 out what the next stage of the fight might be here.
13 MR. BIRMINGHAM: Let me just ask a question very, by
14 throwing out all the rules of cross-examination. What is it
15 that you would like the State Water Resources Control Board
16 to do in reviewing the proposal that was submitted by the
17 Department of Water and Power of the City of Los Angeles and
18 the proposed modifications of that contained in the
19 settlement agreement?
20 MS. BELLOMO: We had certainly hoped originally that
21 the Department of Water and Power would have liked our
22 proposal. And our proposal was said in the testimony of Mr.
23 Bellomo. Because we felt that the Department of Water and
24 Power has been a really good land manager, regardless of
25 what has happened to the lake in the past, we always felt
01 DWP was a very good land manager in the basin and maintained
02 Cain Ranch in a marvelous condition and maintained Thompson
03 Meadow in a marvelous condition; we wanted to see the Board
04 consider the possibility of doing some really good waterfowl
05 habitat restoration that wouldn't have to cost a lot of
06 money because we don't care how much DWP has to spend, does
07 or doesn't have to spend, in the Mono Basin to do it. But
08 we wanted the Board to consider reasonable plans that
09 wouldn't be restoration, as people are calling it
10 restoration by destruction, because we think so many good
11 things could be done.
12 We have a proposal that is in Joe Bellomo's testimony
13 and supported by affidavits of other residents, and Mr.
14 Noles specifically, that has things like put water in
15 DeChambeau Ponds, put water in County Ponds. You would have
16 to go back and look at that proposal. That was what we were
17 trying to convey.
18 MR. BIRMINGHAM: If I understand your answer, if the
19 analysis of waterfowl habitat restoration program is to
20 implemented, were to consider the alternative that you have
21 proposed in Mr. Bellomo's testimony, you would be satisfied
22 with that?
23 MS. BELLOMO: I am not just going to answer yes to
24 that. Because as I said, I don't understand the
25 environmental review process enough to know if you can --
01 the way you are phrasing that I really don't know if there
02 is going to be one priority project that is Mill Creek and
03 looking at other alternatives, or are we looking, like Mr.
04 Turner, I think, testified, waterfowl habitat restoration in
05 the basin with everything being on a clean slate and looked
06 at fairly and evenly or are they going to be weighted.
07 MR. BIRMINGHAM: If the project were described as a
08 Waterfowl Habitat Restoration Plan, the objective of which
09 was to help mitigate for the loss of waterfowl habitat due
10 to the diversion of water under the City of Los Angeles'
11 water right licenses, and it were to include, among the
12 alternatives, the proposal set forth in Mr. Bellomo's
13 testimony, and an analysis were to be done under CEQA,
14 which I will represent to you requires that all feasible
15 alternatives, all reasonable feasible alternatives be
16 considered, would that satisfy your concern?
17 MS. BELLOMO: I have to answer that our group being
18 such as it is, we don't -- we are not elected officials or
19 compensated, given authority to make decisions on the spot,
20 that's certainly not something we have discussed in our
21 group. I don't think I can speak for the People from Mono
22 Basin Preservation to that. I think there'd have to be a
23 learning curve for people to understand what it is you're
24 talking about since I don't really understand it well
25 myself, and I am a lawyer. I can't answer for the group on
02 MR. BIRMINGHAM: Let me ask you a question about some
03 of the letters that have been received by the Board
04 objecting to the plan. For instance, the letter from
05 Congressman Doolittle and the action taken by Mono County,
06 which is in the record --
07 MS. BELLOMO: Let me just find the letter, if I can.
08 MEMBER DEL PIERO: I caution Mr. Birmingham not to go
09 too far afield in terms of the policy statement issues.
10 There has been policy statements entered into the record. I
11 don't know that you want to --
12 MR. BIRMINGHAM: I am happy --
13 MEMBER DEL PIERO: You know what I am saying; you don't
14 want to go there.
15 MR. BIRMINGHAM: I am happy to have them introduced
16 into evidence, but I will take the --
17 MEMBER DEL PIERO: Let me rephrase that. I don't want
18 to go there.
19 CHAIRMAN CAFFREY: I said you might have to lie down
20 before the light.
21 MR. BIRMINGHAM: Did you solicit those letters?
22 MS. BELLOMO: I couldn't be happier that you had asked
23 this. Because Congressman Doolittle got very interested in
24 this issue and, no, we did not solicit it because he became
25 very interested when he was somehow led astray into
01 somehow initially supporting a NAWCA grant for the purchase
02 of the Conway Ranch that would have given $2,000,000 to take
03 the water off Conway Ranch for waterfowl restoration. And
04 when the community found out --
05 MR. BIRMINGHAM: So, you did not solicit that letter?
06 MS. BELLOMO: No. -- he got very actively involved and
07 has sent his aide over to Mono County many times.
08 CHAIRMAN CAFFREY: Ms. Bellomo, we are trying to be
09 lenient here. We may only be halfway through this day, as
10 late as it is now, so other people have rebuttal testimony
11 to present. I am sorry I am taking so long with this.
12 Please be brief with your answer. Just answer the question.
13 Don't testify.
14 Thank you.
15 MS. BELLOMO: Okay.
16 MR. BIRMINGHAM: So, if I understand it, Ms. Bellomo,
17 you don't have a specific proposal to make to the Board
18 concerning how the Department of Water and Power's
19 restoration plan should be modified to comply with the
20 requirements of D-1631?
21 MS. BELLOMO: I guess I have to go back and read Mr.
22 Bellomo's testimony to know that satisfies that. I mean,
23 that might be a proposal for modification. I am not quite
24 sure. But I also am assuming that, as part of the brief in
25 this, that, based on the evidence in the record, we can make
01 proposals to the Board at that time. That is my
03 MR. BIRMINGHAM: I would like to take a couple of
04 minutes and go through the Mono Basin Habitat Restoration
05 Conceptual Agreement that has been introduced into evidence
06 -- excuse me, has been identified as Restoration-LADWP-68A.
07 Have you had an opportunity to review 68A?
08 MS. BELLOMO: I am sure I have. Let me find it. That
09 is the April -- came with the cover letter from April 8 from
10 Mary Scoonover; is that correct?
11 MR. BIRMINGHAM: Yes.
12 MS. BELLOMO: And it is a five-page document.
13 MR. BIRMINGHAM: Yes.
14 MS. BELLOMO: Yes, I have the document. And your
15 question is?
16 MR. BIRMINGHAM: Can you show me in this document where
17 it says that Wilson Creek will be dewatered and that the
18 water will be diverted back into Mill Creek?
19 MS. BELLOMO: Did I ever say that it said that? Do
20 you believe it is in here, because I don't want to spend
21 time reading it? I don't think it is in there.
22 MR. BIRMINGHAM: I don't believe it is in there. I
23 thought I understood you to be opposed to the dewatering of
24 Wilson Creek, and from some of your answers I thought you
25 were under the impression that the document provided that
01 water would be diverted from Wilson Creek and returned to
02 Mill Creek.
03 MS. BELLOMO: Maybe I could refer to Page 3 of the
04 document. One of the things that we object to is that the
05 agreement specifically says that the parties agree that the
06 proposed project, consistent with the scientists'
07 recommendations, is rewatering Mill Creek with year-round
08 flows, including, and then it has high springtime and
09 summertime flows, naturally high flows during the late
10 summer and fall, rewatering of channels in the bottomland --
11 I am not going to read all that.
12 But that is one of the things that we objected to
13 because that -- if that being the goal, that, in our
14 opinion, would have an impact on Wilson Creek, if that were
16 MR. BIRMINGHAM: What does the final sentence on Page 3
18 MS. BELLOMO: I think the document speaks for itself.
19 MR. BIRMINGHAM: Maybe you can read the final sentence
20 for me, because I have a question for you about that
22 MS. BELLOMO: A final decision will not be made prior
23 to the conclusion of the CEQA and NEPA process.
24 MR. BIRMINGHAM: As I understand your testimony today,
25 you don't have a firm understanding of CEQA/NEPA process; is
01 that correct?
02 MS. BELLOMO: That's correct.
03 MR. BIRMINGHAM: So you don't know what that last
04 sentence means about making a final decision or not making a
05 final decision concerning this proposal, prior to the
06 conclusions of the CEQA/NEPA process?
07 MS. BELLOMO: What I would say is that I am not an
08 expert on that. And, therefore, it wouldn't be appropriate
09 for me to testify. But let me assure you that I do have
10 friends who are attorneys, some that I even work with at the
11 PUC, who are CEQA experts. So it is not that we don't have
12 assess to, people to consult with, but I am not expert on
13 that subject.
14 MR. BIRMINGHAM: You don't know what is required under
15 CEQA with respect to the consideration of alternatives to a
16 proposed project?
17 MS. BELLOMO: I have a vague idea, but I certainly
18 would not rely upon my impression of that to advise the
19 group, or to advise you.
20 MR. BIRMINGHAM: Among the comments that is contained
21 in the letters received as policy statements by the Board
22 from various individuals is a statement to the effect that
23 local stakeholders had no opportunity to participate in the
24 creation of the settlement agreement.
25 MS. BELLOMO: Can we look at document you are
01 referring to?
02 MR. BIRMINGHAM: Sure.
03 MS. BELLOMO: Tell me what it is, and I will pull it
05 You may want this, so I will just get my own. Senator
06 Leslie's letter; is that correct?
07 MR. BIRMINGHAM: That is among the letters that I am
08 showing you, yes.
09 MS. BELLOMO: Let me find where you are here. I now
10 have the document, and what was the question?
11 MR. BIRMINGHAM: Are you aware of comments to the
12 effect that opposition to the proposed settlement agreement
13 is based upon the fact that local stakeholders had no
14 opportunity to participate in the creation of the agreement?
15 MS. BELLOMO: By comments, you are referring to letters
16 that have been sent to the Water Board?
17 MR. BIRMINGHAM: Among others.
18 MS. BELLOMO: I would like to be specific about what it
19 is we are talking about. Are you asking me: Do I know if
20 people complained to the Water Board about that? I really
21 don't understand the question.
22 CHAIRMAN CAFFREY: If you don't understand --
23 MR. BIRMINGHAM: If she doesn't understand the
24 question, I will rephrase it.
25 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.
01 MR. BIRMINGHAM: Ms. Bellomo, are you aware of any
02 statement in opposition to the proposed settlement agreement
03 that is based upon an understanding that local stakeholders
04 had no opportunity to participate in the creation of the
05 settlement agreement?
06 MS. BELLOMO: I have not read all of these letters
07 closely. Frankly, I have not had an opportunity. For
08 instance, I did not really read the one that the county
09 faxed yesterday. I just got it this morning.
10 But my understanding of, and I know the Rod and Gun
11 Club, in fact, we probably forgot to put that in, the Rod
12 and Gun Club from Bishop sent one in, and I can't remember
13 what they said in that.
14 MR. BIRMINGHAM: If you give me the letter from the Rod
15 and Gun Club, I will put it in.
16 MS. BELLOMO: I don't even know if I have it. They
17 never sent it to me.
18 CHAIRMAN CAFFREY: Could you just answer the question,
19 if you are aware of any. He didn't ask you to enumerate all
20 of them. He just said, "Are you aware of any instance."
21 MS. BELLOMO: My answer is that I haven't read them
22 all. But of those that I have read and that I recalled,
23 having talked to the people who wrote them or their
24 representatives, I could have some confusion about what
25 their positions were and what they put specifically in the
01 letters. But I am not aware of anyone who's objected, whose
02 only objections that was expressed to me was because the
03 local people weren't allowed to participate in the creation
04 of the settlement agreement. I don't know anywhere where
05 that was the sole basis of their objection. That sounds
06 like that is your question.
07 MR. BIRMINGHAM: Let me restate the question so that
08 there is no misunderstanding. Are you aware of any person
09 who has objected to the proposed settlement agreement on
10 grounds, including an understanding, that local stakeholders
11 had no opportunity to participate in the creation of this
13 MS. BELLOMO: I am aware, for instance, that Senator
14 Leslie sent this letter based on his understanding that we
15 told him that we had tried to get information about the
16 negotiation process and we were not given any of the drafts,
17 and that BLM told us that Ms. Scoonover had announced to the
18 parties that they were not allowed to talk to us about the
19 document, and that Mr. Leslie and his aides and some of
20 these other people heard from us that Mr. Haselton also told
21 us that he was really sorry, but he couldn't tell us what
22 was going on, and that the Mono Lake Committee would not
23 give us the Foundation document, that we didn't ever see any
24 of the documents prior to their being filed with the Board,
25 with the exception of the one document that we have in
01 evidence that was faxed inadvertently by Mr. Dodge's office
02 and Ms. Hopkins, when I called and said, "Oh, great, where
03 is the Foundation agreement that goes with it?" said, "My
04 God, how did you get this thing? You are not supposed to
05 have this."
06 So, yes, these people knew that we were not involved in
07 the process.
08 MR. BIRMINGHAM: I think that answers my question.
09 Thank you, Mr. Caffrey.
10 On February 24, 1997, the parties, including the
11 Department of Water and Power, the Mono Lake Committee --
12 MS. BELLOMO: Can you start over again? I missed the
14 MR. BIRMINGHAM: On February 24th, 1997, the parties,
15 including the Department of Water and Power, Mono Lake
16 Committee, National Audubon Society, the Department of Fish
17 and Game, State Lands Commission, the Department of Parks
18 and Recreation, and the United States Forest Service,
19 described to you an agreement in principle that had been
20 reached to resolve the issues currently before the Board.
21 Is that correct?
22 MS. BELLOMO: Is that the meeting where we were, for
23 the first time, told of the agreement that you had reached?
24 While we were in the middle of hearings and we hadn't been
25 invited to the negotiations yet, is that the meeting you are
01 talking about?
02 MR. BIRMINGHAM: Perhaps if I give you a copy of the
03 transcript from the hearing dated February 24th, 1997, it
04 will refresh your recollection. And I am not trying to
05 introduce this into evidence; it is in evidence. Maybe if
06 you could just take a moment and read the transcript at the
07 page that I am handing to you, it might refresh your
09 MS. BELLOMO: What part do you want me to read?
10 MR. BIRMINGHAM: Start at the bottom of Page 1249 and
11 go on.
12 MS. BELLOMO: I've read it, and now I kind of know what
13 is here so I can look if I need to.
14 MR. BIRMINGHAM: Let me restate the question and I'll
15 omit the reference to all the parties.
16 Is it correct that on February 24, 1997, the parties
17 that I previously mentioned described to you a settlement
18 agreement that had been reached in principle?
19 MS. BELLOMO: It was described to us and offered to us,
20 in fact, as a take-it-or-leave it proposal. Did we want to
21 join in it, take it or leave it. It had been arrived at.
22 That is what initially what we were told.
23 I thought what we did in that room when the Board was
24 sent out was confidential because -- do you want to get into
25 talking about what went on at that meeting that we had?
01 MR. BIRMINGHAM: She's answered my question.
02 CHAIRMAN CAFFREY: He's just asking you a question
03 whether you --
04 MS. BELLOMO: He's characterizing what happened in the
05 meeting, and I am not trying to open it up. I am just
06 saying, is that where we are headed, because I thought we
07 weren't supposed to talk about it. I have never talked
08 about that with anyone.
09 CHAIRMAN CAFFREY: You have answered his question, Ms.
11 Go ahead, Mr. Birmingham.
12 MR. BIRMINGHAM: This was stated publicly on the
13 record, Ms. Bellomo. I think if you review the transcript
14 you will be able to discover this. At that time it was
15 proposed that the parties wanted to continue these
16 proceedings, to provide an opportunity for the parties to
17 put the agreement that had been reached in principle into
18 writing; is that correct?
19 MS. BELLOMO: I recall something along those lines,
21 MR. BIRMINGHAM: It was understood by all of the
22 parties at the time that if a party did not agree with the
23 ultimate form of the written document that a party would not
24 be bound by the settlement agreement. Isn't that correct?
25 MS. BELLOMO: You have to say that again, I am sorry.
01 I really didn't get that.
02 (Record read as requested.)
03 MS. BELLOMO: That was not my understanding. My
04 understanding was that only those that agreed -- when it was
05 offered to us, that only if we agreed to the concept of the
06 settlement would we be allowed to participate in the
07 drafting of it. That is why later we were told that we
08 couldn't see the document until the Water Board got it.
09 Heidi Hopkins told me that several times. No, no, that was
10 not my understanding. My understanding was we couldn't
11 participate if we didn't agree at the outset. There was not
12 going to be any discussion, changes, that we could say
13 anything we wanted. It was take it or leave it, or you are
14 out of the process. That is what happened.
15 MR. FRINK: Mr. Birmingham, I question the relevance of
16 continued discussion of the settlement negotiations and what
17 the understandings of the parties were and so forth. On the
18 one hand, the parties who participated agreed it was
19 confidential; and on the other hand, how the proposal was
20 reached in terms of who understood what isn't necessarily
21 the issue before the Board. Rather, the issue is, do the
22 restoration proposals as set forth in the settlement
23 agreement meet the requirements of Decision 1631.
24 MR. BIRMINGHAM: Let me explain, if I may, Mr. Frink,
25 and to the Board why I am going into this line of questions.
01 And, unfortunately, it appears that we are going to have to
02 go into significant detail into the transcript from the 25th
03 in our argument, in written argument. But I have been
04 involved in proceedings before this Board, and the Bay Delta
05 proceeding is a prime example, where there have been
06 settlement discussions and a party was excluded from the
07 settlement discussions, and because they were excluded from
08 the settlement discussions, litigation was initiated. A
09 prime example is the decision today, this very day, of the
10 Third District Court of Appeal in which Stockton East Water
11 District and Central Delta Water Agency challenged Water
12 Rights Decision 95-6 in part on the grounds that they were
13 excluded from the settlement discussions which resulted in
14 the agreement that was presented to this Board which
15 resulted in the 1995 Water Quality Control Plan and the
16 Water Rights Decision 95-6.
17 Significant opposition exists to the settlement
18 proposal because there is perception that parties were
19 excluded. I understand that Ms. Bellomo feels that her
20 client was excluded from the settlement discussions.
21 MS. BELLOMO: I don't have a client in this case.
22 MR. BIRMINGHAM: It is Ms. Bellomo's perception that
23 People from Mono Basin Preservation were excluded from the
24 settlement discussions. I think that the record will speak
25 for itself, but it is entirely different than that. Ms.
01 Bellomo says that the way it happened was, if people
02 participated in the settlement discussions, they had to take
03 it or leave it. She knows that is the way it was.
04 In fact, we know from the record that is not the way
05 that it was. Frank Haselton participated in the settlement
06 discussions and he is not a party to the agreement because
07 he disagreed with the ultimate form. Mr. Roos-Collins, on
08 behalf of California Trout, Inc., participated in the
09 settlement discussions, and it was only on Monday, it was
10 only on Monday that they were finally able to conclude,
11 based upon on the settlement discussions, that they were
12 going to agree to the settlement.
13 I want to make this record very, very clear that there
14 was no party that was excluded from these settlement
15 discussions because I don't want any basis for some party
16 challenging the decision of this Board approving the
17 settlement agreement.
18 MS. BELLOMO: Mr. Chairman, can I very, very briefly
20 CHAIRMAN CAFFREY: Just a moment.
21 Mr. Frink.
22 MR. FRINK: Yes, Mr. Chairman. I think --
23 CHAIRMAN CAFFREY: Mr. Frink, come up here, please.
24 (Break taken.)
25 CHAIRMAN CAFFREY: Thank you for your argument, Mr.
02 Mr. Frink, go ahead.
03 MR. FRINK: I was just going to say --
04 CHAIRMAN CAFFREY: We had a little counsel up here and
05 I asked Mr. Frink to explain something.
06 MR. FRINK: I was just going to say, Mr. Chairman, I
07 think both Mr. Birmingham and Ms. Bellomo have expressed
08 their views on how the settlement negotiations proceeded. I
09 think the one thing I agree with that Mr. Birmingham said is
10 that the record speaks for itself. I think we should move
12 CHAIRMAN CAFFREY: And this question can be briefed by
13 both parties, all parties, after we finish today's
14 proceeding and leave the record open.
15 Is that not the case?
16 MR. FRINK: Yes, it may be briefed.
17 CHAIRMAN CAFFREY: Mr. Birmingham, I would ask you to
18 conclude this line of questioning with that understanding,
19 that you will obviously be allowed to brief this and could
20 we go onto some other line of questioning, if you have
21 another line.
22 How much time does Mr. Birmingham have left, Mr. Johns?
23 MR. JOHNS: Twenty-one minutes.
24 MR. BIRMINGHAM: Ms. Bellomo --
25 MS. BELLOMO: Yes.
01 MR. BIRMINGHAM: -- the Mono Basin Waterfowl Habitat
02 Foundation Conceptual Agreement, or R-LADWP-68A, talks about
03 the creation of a waterfowl habitat restoration Foundation.
04 Is that your understanding?
05 MS BELLOMO: If I could just pull out the document
06 again. You are asking if it talks about the creation of a
08 MR. BIRMINGHAM: Yes.
09 MS. BELLOMO: Yes, that is my understanding.
10 MR. BIRMINGHAM: Have you asked to become a party to
11 that Foundation or to the agreement?
12 MS. BELLOMO: I am trying to remember, and I want to be
13 completely -- I want to be completely accurate, obviously,
14 because I am under oath. I recall some time, a month or so
15 ago, going -- I can't recall if this happened when I was at
16 the house of Heidi Hopkins and Frances Spivy was there and
17 we went over to meet her during, I think, maybe her second
18 visit or third visit to the Mono Basin, or if it was just in
19 conversations I had with Ms. Hopkins --
20 CHAIRMAN CAFFREY: I don't know that we need to know
22 MEMBER DEL PIERO: Do you want to direct the witness?
23 CHAIRMAN CAFFREY: Just answer the question.
24 MEMBER DEL PIERO: A litany of the residents of the
25 Mono Basin is interesting, obviously, but it is not
02 CHAIRMAN CAFFREY: Agreed.
03 MEMBER DEL PIERO: The answer is yes or no, did she
04 solicit membership.
05 CHAIRMAN CAFFREY: You either can or you can't remember.
06 MS. BELLOMO: That is not --
07 CHAIRMAN CAFFREY: You are under oath.
08 MS. BELLOMO: It can't be answered as a yes or no
09 question. Because we have a lot of discussions at the Mono
10 Lake Committee, and I know we have talked about things like,
11 well, we are really upset at the idea that nobody can be on
12 this unless they agree with the Foundation. I've had
13 discussions to that effect.
14 MEMBER DEL PIERO: Mr. Chairman.
15 CHAIRMAN CAFFREY: Mr. Del Piero.
16 MEMBER DEL PIERO: Ms. Bellomo, the Chairman admonished
17 you before. My tolerance is far shorter. That probably is
18 why he is the chairman and I am not. Let's leave it at
20 Mr. Birmingham, may I make a suggestion through the
21 Chair, if I might?
22 CHAIRMAN CAFFREY: Go ahead, Mr. Del Piero.
23 MEMBER DEL PIERO: If it is a problem in terms of this
24 line of questioning, perhaps what you ought to do is ask
25 whether or not, or ask if she knows to whom show would
01 solicit membership on the committee. I am not advising you
02 how to ask questions. Maybe you can get a yes or no out of
04 MR. BIRMINGHAM: Ms. Bellomo, do you know to whom you
05 should solicit membership on the Foundation?
06 MS. BELLOMO: I don't mean to nitpick, do you mean
07 after the Foundation was formed?
08 MR. BIRMINGHAM: Excuse me, I have no further
10 Thank you.
11 CHAIRMAN CAFFREY: I apologize. Did I disrupt your
12 line of questioning by my counseling up here, Mr.
14 MR. BIRMINGHAM: No. I just have no further
15 questions. We will cover all of this in the closing brief.
16 CHAIRMAN CAFFREY: Thank you, sir.
17 I apologize for the delay.
18 There is no one from U.S. Forest Service; is that still
19 the case?
20 Bureau of Land Management, I believe no one is here.
21 Arcularius Ranch, same thing.
22 Richard Ridenhour.
23 Cal Trout, do you wish to cross-examine?
24 MR. ROOS-COLLINS: No questions, Mr. Chairman.
25 CHAIRMAN CAFFREY: Ms. Cahill, the Department of Fish
01 and Game, do you wish to cross-examine?
02 MS. CAHILL: I do, very briefly. Mr. Johns can set the
03 timer for ten minutes, and if I am not finished by then, I
04 will sit down in any case.
05 CHAIRMAN CAFFREY: That is an interesting offer, Ms.
06 Cahill. Please take what time you need, as long as it is
07 ten minutes.
08 CROSS-EXAMINATION BY
09 DEPARTMENT OF FISH AND GAME
10 BY MS. CAHILL
11 MS. CAHILL: Mr. Frederickson, were you a partner in
12 the Conway Ranch when the property was subdivided?
13 MR. FREDERICKSON: Yes.
14 MS. CAHILL: At this time, do you own only the lot on
15 which you live or do you own some of the unsold lots in the
17 MR. FREDERICKSON: No, just the lot I live on, right.
18 MS. CAHILL: What was the historic use of the Conway
20 MR. FREDERICKSON: Agricultural.
21 MS. CAHILL: Would the conversion of part of the ranch
22 to a 40-unit subdivision cause a change in the historic use
23 of that part of the ranch?
24 MR. FREDERICKSON: Yes, it did.
25 MS. CAHILL: Would it cause a change in the appearance,
01 the historic appearance of Conway Ranch?
02 MR. FREDERICKSON: Yes.
03 MS. CAHILL: Would it cause, in fact, a significant
04 change in the appearance of Conway Ranch?
05 MR. FREDERICKSON: Yes.
06 MS. CAHILL: Were you involved in the Joe Keating Paoha
08 MR. FREDERICKSON: No.
09 MS. CAHILL: Does Mill Creek have a fishery in it?
10 MR. FREDERICKSON: Well, can I go back on that last
11 question? Joe Keating, at the time that he was proposing
12 the project, came to the Conway Ranch Partnership and
13 offered the partnership a piece of action in the proposed
15 MS. CAHILL: That was accepted?
16 MR. FREDERICKSON: No.
17 MS. CAHILL: Was not accepted?
18 MR. FREDERICKSON: Right.
19 MS. CAHILL: So the Conway Ranch Partnership was not a
20 partner in that project?
21 MR. FREDERICKSON: No.
22 MS. CAHILL: Is there a fishery in Mill Creek?
23 MR. FREDERICKSON: Yes.
24 MS. CAHILL: Are there times when Mill Creek does not
25 flow all the way to Mono Lake?
01 MR. FREDERICKSON: I don't know that.
02 MS. CAHILL: Do you know that, Mr. Bellomo, are there
03 times when Mill Creek does not flow all the way to Mono Lake?
04 MR. BELLOMO: That is correct.
05 MS. CAHILL: With regard to the recent taking of water
06 back to DeChambeau Ranch, what is the purpose of
07 reirrigating the ranch?
08 MR. BELLOMO: Aesthetic.
09 MS. CAHILL: Is there a crop being produced?
10 MR. BELLOMO: No. Part of a scenic area.
11 MS. CAHILL: Prior to the rewatering of DeChambeau
12 Ranch, was water in Wilson Creek flowing all the way to Mono
14 MR. BELLOMO: Pardon me?
15 MS. CAHILL: Prior to your efforts to rewater
16 DeChambeau Ranch, was water in Wilson Creek flowing all the
17 way to Mono Lake?
18 MR. BELLOMO: Yes.
19 MS. CAHILL: Was it still, after you took the water and
20 put it on DeChambeau Ranch?
21 MR. BELLOMO: Yes.
22 MS. CAHILL: Would you expect it to flow all the way to
23 Mono Lake all summer long if DeChambeau Ranch remains
25 MR. BELLOMO: That would purely be a guess on my part.
01 MS. CAHILL: That you, no further questions.
02 CHAIRMAN CAFFREY: Thank you, Ms. Cahill.
03 MR. BELLOMO: Actually, Ms. Cahill, I would like to
04 answer that. As long as they stay within their water
05 rights, water will flow all the way to the lake. As long as
06 they're irrigating the ranch with their amount of water and
07 they are taking their water at the proper time, there will
08 be no impact on that creek. If anything, it will be an
09 improvement for that creek.
10 MS. CAHILL: This is the Forest Service's water right?
11 MR. BELLOMO: That's correct.
12 MS. CAHILL: Which went unused for how many years?
13 MR. BELLOMO: I believe three.
14 MS. CAHILL: Thank you.
15 CHAIRMAN CAFFREY: Thank you, Ms. Cahill.
16 Ms. Scoonover, do you have some cross-examination?
17 MS. SCOONOVER: We have no questions.
18 CHAIRMAN CAFFREY: Mr. Dodge.
19 MR. DODGE: How much time did Ms. Cahill take?
20 MR. JOHNS: Two and a half minutes.
21 MR. DODGE: Set the clock for two and a half minutes.
22 Don't start; I haven't started yet. I have been accused by
23 Ms. Bellomo of taking an hour with each of her panel. I
24 took four minutes with her prior panel.
25 MEMBER DEL PIERO: I was a witness to the truth of
01 that accusation on more than one occasion.
02 CROSS-EXAMINATION BY
03 NATIONAL AUDUBON SOCIETY and MONO LAKE COMMITTEE
04 BY MR. DODGE
05 MR. DODGE: Mr. Frederickson, would you turn around
07 MR. FREDERICKSON: Sure.
08 MR. DODGE: State Lands Commission Exhibit 424 shows
09 the ranch there, right?
10 MR. FREDERICKSON: Yes, sir.
11 MR. DODGE: Conway Ranch?
12 MR. FREDERICKSON: Right.
13 MR. DODGE: How many acres is that?
14 MR. FREDERICKSON: 876 acres.
15 MR. DODGE: Turning to the time that you were involved
16 in irrigation, about how many acres were irrigated each
18 MR. FREDERICKSON: Oh, in the early part of partnership
19 up to 19, probably, 85, when the first drought started. The
20 whole ranch.
21 MR. DODGE: And after that?
22 MR. FREDERICKSON: Depending on the water, we had a
23 program with the Department of Water and Power to share the
24 water for the other ranches, so we came up with a plan at
25 the beginning of every year how much water we would use, and
01 that was during the drought years, which lasted almost all
02 the way up to the end of my partnership.
03 MR. DODGE: During those years, a lot fewer acres were
05 MR. FREDERICKSON: Yes, depending on the water.
06 MR. DODGE: Is there some document that you have that
07 could tell us exactly how much was irrigated?
08 MR. FREDERICKSON: On the Conway Ranch or on all the
10 MR. DODGE: On the Conway Ranch.
11 MR. FREDERICKSON: No, just my memory.
12 MR. DODGE: Approximately how many acres were irrigated
13 during the drought years?
14 MR. FREDERICKSON: Well, during the drought, it was
15 awful difficult to get water over on to Ritchie Conway's
16 property. So that would eliminate roughly 250 acres. So
17 maybe 5, 600.
18 MR. DODGE: Were you also involved in the irrigation on
19 the Mattly Ranch?
20 MR. FREDERICKSON: Yes, I was.
21 MR. DODGE: How many acres comprised the Mattly Ranch?
22 MR. FREDERICKSON: 160.
23 MR. DODGE: Approximately how many acres were
24 irrigated, if you know?
25 MR. FREDERICKSON: I think on the ranch you could
01 irrigate --
02 MR. DODGE: Not could, were. How many acres were
04 MR. FREDERICKSON: 100 to 150.
05 MR. DODGE: During what time frame, sir?
06 MR. FREDERICKSON: We usually turn that on somewhere in
07 early to mid March.
08 MR. DODGE: During which years?
09 MR. JOHNS: Couldn't do could it, could you, Bruce?
10 MR. DODGE: During which years of the 100 to a 150
11 acres were irrigated on the Mattly Ranch? I am trying to
12 determine what years you are referring to.
13 MR. FREDERICKSON: That would be all the years.
14 MR. DODGE: 1980 to 1994?
15 MR. FREDERICKSON: Yeah, roughly.
16 MR. DODGE: Thank you.
17 No further questions.
18 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.
19 MR. DODGE: Questions from staff?
20 MR. FRINK: I have a couple, Mr. Chairman.
21 CROSS-EXAMINATION BY
22 BOARD STAFF
23 MR. FRINK: Mr. Bellomo, is there now a structure in
24 place that allows the Forest Service to measure the quantity
25 of water diverted from Wilson Creek into the ditch leading
01 to DeChambeau Ranch?
02 MR. BELLOMO: It should probably be current metered,
03 with a current meter.
04 MR. FRINK: Right now, is the Forest Service able to
05 determine the amount of water diverted into the ditch?
06 MR. BELLOMO: I don't believe they are.
07 MR. FRINK: How much work would be required to improve
08 the diversion structure so they could regulate the flows
09 that are diverted?
10 MR. BELLOMO: They can regulate the flow.
11 MR. FRINK: They can measure the flow that gets
13 MR. BELLOMO: They can go up right now with a current
14 meter and measure the flow. All they have to do is bring a
15 current meter up there and do it.
16 MR. FRINK: Based on your experience in judging rate of
17 flow of water diversion as a hydro project operator, do you
18 believe that the current rate of diversion is within the
19 Forest Service's water rights?
20 MR. BELLOMO: Oh, yes, very much so. I would estimate
21 somewhere in the three to six range, cfs.
22 MR. FRINK: Now, the work that the local citizens did,
23 that was described as being volunteer work that the citizens
24 did on Forest Service project?
25 MR. BELLOMO: That is correct.
01 MR. FRINK: Is that project that is described in the
02 environmental assessment and decision notice that the People
03 from Mono Basin Preservation introduced into evidence?
04 MR. BELLOMO: I don't know that.
05 MR. FRINK: Ms. Bellomo, do you know if that is the
06 project, restoring flow to the DeChambeau Ranch was the
07 project that was evaluated in the Forest Service
08 environmental assessment?
09 MS. BELLOMO: I believe so. They looked at a number of
10 different scenarios, and the decision notice said something
11 like 11 cfs of water would be available for irrigation. I
12 think, yes.
13 MR. FRINK: Thank you.
14 CHAIRMAN CAFFREY: Mr. Canaday.
15 MR. CANADAY: Mr. Frederickson, what would be the
16 typical irrigation season for the Conway property and Mattly
18 MR. FREDERICKSON: March through October.
19 MR. CANADAY: That would be an average water year?
20 MR. FREDERICKSON: That would be on an average water
22 MR. CANADAY: That was March through the beginning of
23 October or the end of October?
24 MR. FREDERICKSON: Towards the end of October when the
25 sheep left. We would keep water on, to keep water for the
01 sheep. Not necessarily all being irrigated at that time.
02 MR. CANADAY: The fishing growing facility that is
03 currently on the Conway property, that is intended to be a
04 year-round facility?
05 MR. FREDERICKSON: Yes, it was.
06 MR. CANADAY: You will hold fish over the winter?
07 MR. FREDERICKSON: There have been, yes, for several
09 MR. CANADAY: Mr. Bellomo, you testified earlier, as a
10 hunter, you observed waterfowl or ducks at Black Point, near
11 the area of Black Point, where the County Ponds would be
12 near DeChambeau Ranch.
13 Could you identify what kinds of ducks those were?
14 MR. BELLOMO: There were usually quite a few teal and
15 ruddy ducks down around Black Point in the tufa towers on in
16 along that marshland. At the DeChambeau Ponds were
17 primarily mallards, and a lot of geese use the ponds there.
18 MR. CANADAY: White geese or Canadian?
19 MR. BELLOMO: Canadian geese. You get very few white
20 geese in the Mono Basin.
21 The area down north of, along the springs on the north
22 side of DeChambeau Ranch -- not -- yeah, the north shore of
23 the lake beyond DeChambeau Ranch are primarily the geese,
24 and the ponds had a lot of just mixed ducks, a lot of teal.
25 MR. CANADAY: What about the -- you mentioned the BLM
01 property. Do you recall what kind of ducks you saw there?
02 MR. BELLOMO: That was teal, mallards, a few pintail.
03 Those seemed to be the favorite ducks in that creek area.
04 MR. CANADAY: That is all I have.
05 CHAIRMAN CAFFREY: Thank you, Mr. Canaday.
06 Mr. Johns, you didn't have any questions?
07 MR. JOHNS: No, sir.
08 CHAIRMAN CAFFREY: Mr. Del Piero.
09 MEMBER DEL PIERO: Mr. Bellomo, have you observed ducks
10 over Simons Springs?
11 MR. BELLOMO: Yes, I have.
12 MEMBER DEL PIERO: What types?
13 MR. BELLOMO: Basically, the same; very mixed numbers
14 of ducks, and the same goes for the Warm Springs area.
15 MEMBER DEL PIERO: Ms. Bellomo, have you ever received
16 an invitation to join the group that was working on the
17 settlement agreement?
18 MS. BELLOMO: No.
19 MEMBER DEL PIERO: Have you ever written formally, a
20 letter requesting membership?
21 MS. BELLOMO: I am sorry, you mean during the time that
22 the negotiations were happening?
23 MEMBER DEL PIERO: I mean at any time since the group
24 -- since you became aware that the group was in existence,
25 have you ever written a formal request to any party involved
01 in the group, soliciting membership?
02 MS. BELLOMO: In the negotiation process, no.
03 MEMBER DEL PIERO: Thank you.
04 CHAIRMAN CAFFREY: Mr. Del Piero, thank you.
05 I believe that completes the cross-examination portion.
06 Do you have any redirect, Ms. Bellomo?
07 MS. BELLOMO: I just had one question. If I can do it
08 from sitting here.
09 CHAIRMAN CAFFREY: Certainly.
10 MS. BELLOMO: Mr. Bellomo, you testified that, in
11 response to a question from one of the prior attorneys, that
12 the purpose of putting water back on DeChambeau Ranch was
13 for aesthetic purposes.
14 Was there any other purpose?
15 MR. BELLOMO: Environmental, keep the trees and stuff
17 MS. BELLOMO: Was there any purpose among any of the
18 people doing the work in hoping to get the water back into
19 DeChambeau Ponds and County Ponds, ultimately?
20 MR. BELLOMO: It has been talked about. That is kind
21 of depending on what the Forest Service chooses to do with
22 their water right.
23 MS. BELLOMO: I have no further questions.
24 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo.
25 MS. BELLOMO: Any recross, Mr. Birmingham?
01 MR. BIRMINGHAM: No.
02 CHAIRMAN CAFFREY: Cal Trout, any recross?
03 MR. ROOS-COLLINS: No, Mr. Chairman.
04 CHAIRMAN CAFFREY: Ms. Cahill.
05 MS. CAHILL: No recross.
06 CHAIRMAN CAFFREY: Ms. Scoonover.
07 MS. SCOONOVER: No.
08 CHAIRMAN CAFFREY: Mr. Dodge.
09 MR. DODGE: No.
10 CHAIRMAN CAFFREY: My eye sight is going; did I miss
12 I don't think I missed anybody.
13 Thank you.
14 Questions from staff?
15 MR. FRINK: No.
16 CHAIRMAN CAFFREY: Mr. Del Piero. Anything else?
17 All right.
18 MEMBER DEL PIERO: I do, Mr. Chairman, have one
19 question in regards to the notice by Federal Government on
20 the project at DeChambeau.
21 What were the expressed purposes noticed. I have not
22 had a chance to review that. Everybody seemed to be asking
23 Mr. Bellomo what the intent of the federal agency was.
24 What were the expressed intents in that notice?
25 CHAIRMAN CAFFREY: Who are you asking, Mr. Del Piero?
01 Our staff?
02 MEMBER DEL PIERO: Actually, I am asking of Ms. Bellomo
03 because she introduced it into the record.
04 MS. BELLOMO: It is an environmental assessment
05 document, not a notice.
06 MEMBER DEL PIERO: What was the projection
07 characterized as? What was the intent of the project?
08 MS. BELLOMO: For the Forest Service to consider an
09 approach both to enhance, restore, and management of
10 wildlife habitat on DeChambeau Pond, and to manage heritage
11 resource values of DeChambeau Ranch compound through
12 interpretation and to provide for semipermanent recreation
14 MEMBER DEL PIERO: Included wildlife enhancement and
16 Thank you.
17 CHAIRMAN CAFFREY: Thank you, Mr. Del Piero.
18 I believe that, correct me if I am wrong, Mr. Frink, I
19 believe that we still have exhibits to accept from the first
20 panel, or did we accept those. I thought we put it off till
21 we finished both panels.
22 MR. FRINK: We may have. Just so the record is clear,
23 Mr. Johns, could you list the one through however many
24 exhibits were offered and accepted and identify the ones
25 that were not accepted.
01 MR. JOHNS: We have hearing exhibits PMBP-33 through 45
02 that were introduced, and all of those were accepted -- I
03 meant 45. Try it again. 33 through 45 were the ones
04 introduced. All were accepted, except 35 and 37.
05 CHAIRMAN CAFFREY: I think I got a little confused.
06 Somehow I thought we had not accepted the exhibits from the
07 first panel.
08 Am I wrong?
09 MR. FRINK: I think that is correct.
10 CHAIRMAN CAFFREY: We got them all in.
11 MR. FRINK: Exhibits 1 through 32 have been submitted;
12 is that correct?
13 CHAIRMAN CAFFREY: That is what I am asking. Have
14 they been accepted into the record?
15 MR. JOHNS: Those were accepted in February.
16 CHAIRMAN CAFFREY: I believe that completes our work,
17 if you will, with Ms. Bellomo's two panels.
18 Thank you very much, Mr. Frederickson, Mr. Bellomo, and
19 Ms. Bellomo. It's been a long day for all, and it is not
20 over yet.
21 I think that we probably ought to break around 5:30 as
22 there are cars to move. First let me get an idea of --
23 MR. DODGE: I am hopeful that we will be finished by
25 CHAIRMAN CAFFREY: That would be good. Let's see, we
01 still have rebuttal testimony from, I believe, Ms.
02 Scoonover. You had indicated you wished to offer rebuttal;
03 is that correct?
04 MS. SCOONOVER: We do not wish to offer rebuttal.
05 CHAIRMAN CAFFREY: Mr. Dodge, do you wish to offer
07 MR. DODGE: I am not next, Mr. Chairman.
08 CHAIRMAN CAFFREY: You are not next.
09 MR. DODGE: I am not next on the list, I don't think.
10 CHAIRMAN CAFFREY: I believe you are. I believe you
11 are last on the list.
12 MR. DODGE: Have you passed Fish and Game?
13 CHAIRMAN CAFFREY: Fish and Game declined yesterday.
14 MEMBER DEL PIERO: Set that watch for two and a half
16 CHAIRMAN CAFFREY: Set the timer for two and a half
18 MR. DODGE: I have a short rebuttal witness.
19 CHAIRMAN CAFFREY: You have a short rebuttal witness?
20 MR. BIRMINGHAM: No, he doesn't. He has a rebuttal
22 CHAIRMAN CAFFREY: Do you think, Mr. Dodge, your
23 rebuttal is of such a length as we might take a chance of
24 continuing here without a break?
25 MR. DODGE: Yes, sir.
01 CHAIRMAN CAFFREY: We will give it a try.
02 MR. DODGE: We would call Dr. Scott Stine.
03 CHAIRMAN CAFFREY: Five-minute break.
04 (Break taken.)
05 CHAIRMAN CAFFREY: We are back.
06 Please, Mr. Dodge.
07 DIRECT EXAMINATION BY
08 NATIONAL AUDUBON SOCIETY and MONO LAKE COMMITTEE
09 BY MR. DODGE
10 MR. DODGE: Dr. Stine, Ron Thomas testified on more
11 than one occasion that the creation of open, fresh water
12 ponds is key to returning large numbers of waterfowl to Mono
13 Lake. My question to you is: Was fresh, open water a major
14 part of the conditions that supported ducks prior to 1940?
15 DR. STINE: As part of my work on waterfowl habitat in
16 the Mono Basin, which I believe is -- in fact, it is indeed
17 part of the DWP waterfowl plan; is in there as an appendix,
18 I totaled the amount of open, fresh water habitat that
19 existed prior to 1940. The total acreage of fresh water,
20 open habitat, prior to 1940, was 1.2 acres.
21 We have already gained a huge amount of fresh, open
22 water habitat in the Mono Basin. It is far more abundant
23 today than it was prior to 1940. What was driving the
24 habitat in the Mono Basin prior to 1940 was not fresh water
25 pond or fresh water marsh. It was the lake itself. And if
01 I could be allowed to, I would like to read, slowly, but
02 over a period of no more than a minute or a minute and a
03 half, hear several accounts from the locals: Dombroski,
04 McPherson, Preston, among others, Don Banta, as well, about
05 that waterfowl habitat, because they are very, very clear on
06 what was driving the duck habitat in the Mono Basin prior to
07 1940. I can find no dissent among the long time residents
08 of the Mono Basin on this point.
09 Dombroski stated that in the absence of wind the
10 hunting was poor since the birds "remained far from shore
11 where they could feed and obtain water from the fresh water
12 springs in the lake."
13 McPherson, Wally McPherson, remembered that "when the
14 wind blew, why, you had good duck hunting because the wind
15 would drive the ducks off the lake. If you didn't have any
16 wind, you might as well stay home."
17 Preston said that "when the wind was right, there were
18 so many ducks along the shore, that they'd move out all
19 together. It looked like the entire shore was moving out."
20 McPherson again noted that the ducks were abundant and
21 the duck hunting was good on the lake.
22 This is not a quote, but he refers to ducks being so
23 thick 200 yards off shore that "you'd go out there in a boat
24 and it looked like they were going to run ashore in a sand
25 bar. There were so many birds."
01 McPherson again stated that -- pardon me. Banta, Don
02 Banta said that "shovelers were by far the most numerous.
03 They stayed almost entirely on the lake, utilizing fresh
04 water springs on the land nearer to the shoreline. They fed
05 mainly on insect life on the lake itself."
06 And then, finally, McPherson here gets to, I think, a
07 very, very important point which relates to this 1.2 acres
08 of fresh water pond that I alluded to here. He is talking
09 here about Simons Springs. But he says that at Simons
10 Springs the lake was "up to the spring, practically, and all
11 that swamp area that is there now, wasn't there. The lake
12 had it covered up."
13 This was the situation, not only at Simons Springs, but
14 at virtually all of the areas that are today fresh water
15 marshlands. This then goes to the concern of many of the
16 people that I have been working with on this, including, to
17 a large extent, Fritz Reid, but certainly Ted Beedy, who I
18 have worked with before, a waterfowl expert himself, Ph.D.
19 in waterfowl, essentially. We are concerned that to bring
20 waterfowl back in the Mono Basin we're going to be doing
21 things in the Mono Basin that were never there, rather than
22 allowing nature to actually restore the conditions that used
23 to be out there.
24 MR. DODGE: Dr. Stine, do you remember Mr. Thomas
25 testifying on that point and saying that natural processes
01 would not be enough to bring back duck habitat which
02 occurred prior to 1940?
03 Let me ask --
04 DR. STINE: Yes, I do.
05 MR. DODGE: Let me ask you to focus on the major
06 habitat for waterfowl that supported waterfowl prior to
07 1940. Which ones will and which ones will not be restored
08 through natural processes?
09 DR. STINE: Hypopycnal areas were probably the most
10 important, based on all of the accounts from the long time
11 residents of Mono Basin, written and spoken, as well as the
12 Dombroski map. Hypopycnal areas were probably the most
14 Now, D-1631, in its wisdom, has more water going down
15 Rush and Lee Vining Creeks in the winter -- pardon me, in
16 the fall and winter than would be going down those streams
17 under natural condition. We are not only going to have
18 hypopycnal areas return to Mono Lake, but we are going to
19 have bigger ones than existed under nature. So, that will
20 be taken care of on Rush and Lee Vining Creeks.
21 In terms of shoreland lagoons, there were small
22 ephemeral shoreland lagoons prior to 1940. When the lake
23 started to fall, right around 1940, in the mid 40s, we
24 started to lose that. A falling lake doesn't build these
25 ephemeral lagoons. And I am referring here to ephemeral
01 lagoons of the type that are illustrated on my Exhibit 420.
02 If I could, in referring to these, the full thing here is
03 R-SLC/DPR-420. If I could just refer to my exhibits by the
04 three numerals there I would appreciate it.
05 In any case, on Exhibit 420 I have here a photograph
06 taken with Dr. Beedy of the type of habitat that is now
07 forming out there and that will continue to form as the lake
08 rises to and then fluctuates about lake level 6391, 6392.
09 We are going to have a lot of this stuff. We are going to
10 have more of this than existed prior to 1940. Indeed, we
11 are going to have many tens, dozens of acres of this kind of
12 habitat, particularly when the lake rises up in a wet year
13 and then backs off a little bit in the ensuing normal years
14 of dry years. We are going to have an awful lot of this
15 material here. We don't have to raise a shovel; we don't
16 have to pay a dime. That is the second type.
17 The third type is the hypopycnal rias. Now, hypopycnal
18 rias did not exist prior to 1940. But they are a bonus. It
19 is something that the City of Los Angeles has, in a sense,
20 given back to us. They caused the streams to incise, but
21 now there are these elongated embayment that the lake can
22 rise into when it rises. These are going to be still water
23 coves, fresh water skims overlying this invertebrate rich
24 brine. A total of approximately 40 acres of it when the --
25 MR. DODGE: Associated with which streams?
01 DR. STINE: This would be Rush Creek and Lee Vining
02 Creek, which would constitute a little bit over half of
03 that. We would then have -- thank you for the correction
04 --- if Mill Creek were rewatered, we would get an
05 additional, I believe, it is 14 acres of hypopycnal ria
06 there. Again, we don't lift a finger; we just allow the
07 lake to rise on Lee Vining and Rush Creeks. If we rewater
08 Mill Creek, we will get two hypopycnal rias that will
09 contribute a great deal of habitat of the type that has been
10 described as being beneficial to ducks.
11 MR. DODGE: If you rewater Mill Creek and dewater
12 Wilson Creek, will you lose hypopycnal ria?
13 DR. STINE: You will not. There will not be a
14 hypopycnal ria on Wilson Creek because there is no ria on
15 Wilson Creek. There was no delta for Wilson Creek to incise
16 when Mono Lake fell. That, as you guys know, is because
17 Wilson Creek is not a natural stream. It built no delta
18 during the last 10,000 years.
19 May I go with those types of habitats that will come
20 back due only to natural process?
21 MR. DODGE: Try to complete your answer quickly.
22 DR. Stine: There are a couple more. The still water
23 coves and no one can predict exactly how much still water
24 coves along the shoreline there is going to be. I can't
25 predict it. I pointed out that these things are going to
01 form, but it all depends on how much the shoreline bevels as
02 the lake rises, and I have no way of predicting that. There
03 will be still water coves along the shoreline.
04 The last thing is bottomlands. Bottomlands were used
05 by ducks prior to 1940. If Mill Creek is restored, making
06 up for the irreparably lost bottomlands on Rush Creek, it
07 will be almost a wash. We will be back to almost where we
08 were prior to 1940 in terms of bottomlands. All of this for
10 MR. DODGE: Does that complete your answer?
11 DR. STINE: It is complete enough.
12 MR. DODGE: Let me move to a new subject.
13 Mr. Thomas, and I believe others, have expressed a concern
14 that the gradient on Mill Creek is such that if it were
15 rewatered that fresh water ponds or marshes would be less
16 likely, for example, to form on Mill Creek than on Rush
18 Do you have an opinion on that subject?
19 DR. STINE: Yes, I do. Reference was made to the
20 average gradient on Rush Creek versus Mill Creek. And I've
21 drawn this analogy before, if Bill Gates was to walk into
22 this room right now, the average value of everyone in here
23 would go up about $500,000,000. Averages don't work when we
24 are talking about streams and ponds along streams. It is
25 the breaks in the stream profile that determine where you
01 get the ponds. Having hiked up and down Mill Creek many
02 times with, in some cases, people in this room, I can
03 testify to the fact that there will be lots of places, as
04 many places per mile on Mill Creek that will contain ponds
05 as there will be on Rush Creek, once Rush Creek is
06 restored. Not as many miles of it, but there will be as
07 many places per mile.
08 The gradient of Mill Creek, I should make clear, is a
09 little steeper than Rush Creek. It is not as steep as Lee
10 Vining Creek. It is between the two, actually closer to
11 Rush Creek than it is Lee Vining Creek.
12 MR. DODGE: Let me move to a new topic, sir. The
13 Bellomos have asserted in their testimony that the
14 restoration of Mill Creek will take, I can't remember
15 exactly how long, but many, many years to accomplish after
16 the rewatering.
17 Do you have an opinion as to how long it will take
18 restored Mill Creek to provide waterfowl habitat?
19 DR. STINE: Yes, I do. And there will be a number of
20 different types of waterfowl habitat provided. So let me
21 break it down very briefly. Ponds, if you were to put most
22 of the water back into Mill Creek, as I have suggested in my
23 report there, those kinds of amounts, you would have ponds
24 within hours. You would have hypopycnal layers within a few
25 more hours. You would have willows, as we know from what
01 has gone on Rush Creek and on Lee Vining Creek, the
02 explosive growth as it has been very correctly called.
03 Willows, willow thickets, dense willow thickets in two to
04 three years with anastomozing channels running between
06 Cottonwoods, well, the cottonwood establishment is
07 already going on on Mill Creek. So the cottonwood
08 establishment is under way. Those trees do take a long time
09 to reach maturity; 20 years, 40 years, 60 years, something
10 like that. So mature cottonwood forest, not for a while.
11 Did that answer your question?
12 MR. DODGE: If you are finished, it does.
13 DR. STINE: I think it does.
14 MR. DODGE: Much has been talked about various
15 witnesses about the significance of the bottomlands in Mill
16 Creek vis-a-vis waterfowl habitat. Mr. Bellomo talked on
17 that subject and so have others.
18 In your view, what is the value to waterfowl of
19 rewatering the Mill Creek bottomlands?
20 DR. STINE: The bottomlands -- I am glad you asked,
21 because it is something that has to be cleared up. I have
22 made statements that I stick by that have been quoted by Joe
23 Bellomo correctly; that is, that the bottomlands will
24 provide habitat for hundreds, but not thousands or tens of
25 thousands of ducks. I stick by that.
01 They are important, however. Fritz Reid determined
02 that they were important. The locals used to talk about
03 jump hunting in these bottomlands. So, we know they were
04 important to ducks. They were part of a complex of
05 habitats. But what is overlooked here in these numerous
06 quotings of Stine, is that there is an indirect benefit of
07 bottomlands that is forgotten.
08 If you want to maximize, or even come close to
09 maximizing, hypopycnal area at the mouth of the stream,
10 which may be the thing that is running the duck motor out
11 there prior to 1940, the best way to do it is to fill up
12 those bottomlands, which are essentially big sedimentary
13 sponges, with water. You do that by not allowing large
14 amounts of water to flow through the bottomlands, but
15 spreading it out in as many channels as you possibly can,
16 that then raises the water table in the bottomlands to the
17 point where, after flows naturally drop to levels in the
18 fall -- when I say flows here, talking about the surface
19 flows of Mill Creek naturally drop to low levels in fall,
20 you have that huge sponge that is essentially being wrung
21 out down at the mouth of the stream.
22 I have seen in 1980, '82, '83, and '86, all very wet
23 years, when water went down simply one channel on Mill
24 Creek, huge amounts of spring water emanating from the
25 sediments very close to the mouth of Mill Creek. And it is
01 on that basis, plus what I have seen at other streams, that
02 I talk about here about the importance of filling up that
03 bottomlands. Otherwise --
04 MR. DODGE: Are you saying, in effect, that filling up
05 the bottomlands through very high flows has an effect later
06 in the year, in the fall, at a different part of the stream?
07 DR. STINE: Yes. At the mouth of the stream. So, you
08 are just storing water in this groundwater reservoir that
09 then slowly ekes through, increasing pretty dramatically
10 then the amount of water that it has contributed to the
11 hypopycnal layer later in the year when the waterfowl are
12 out there. That is the point, in the fall of the year,
13 fall to early winter of the year.
14 MR. DODGE: Let me move to a different subject. Mr.
15 Thomas was asked yesterday to suppose that there was no
16 longer a continuous flow in Wilson Creek. And he was asked
17 a question as to how that would affect the hypopycnal layer
18 in Wilson Creek. And I ask you the same question.
19 DR. STINE: Yes. There will still be water at the
20 mouth of the Wilson Creek because of the natural spring
21 system that is at the mouth of Wilson Creek.
22 I don't have to go into that. I was told yesterday by
23 one learned party that I went into too much detail on that,
24 so I won't again. In any case, there are natural springs
25 there at the mouth of Wilson Creek. But I would also ask
01 you to think back to that same explanation of the exhibit
02 that I pointed to yesterday. The mouth of Mill Creek where
03 the water would be lies just 500 feet west of the mouth of
04 Wilson Creek.
05 The water will be -- the hypopycnal ends will
06 essentially be in the same place, except there will be more
07 water, importantly, coming down Mill Creek than there is
08 coming down Wilson Creek and, secondly, the Mill Creek
09 hypopycnal layer will be part of a habitat continuum that
10 goes from the hypopycnal lens to the willow thicket going
11 upstream -- pardon me -- the hypopycnal lens on the lake
12 into the hypopycnal ria, then into the willow thicket just
13 upstream, and finally into the bottomlands. We don't have
14 that kind of continuum on Wilson Creek because, A, there is
15 no hypopycnal ria on Wilson Creek and, B, there is no
16 bottomlands on Wilson Creek.
17 MR. DODGE: Is that the continuum to which Dr. Reid
19 DR. STINE: I believe he referred to this as a complex.
20 I always have referred to it as a continuum. But we are, I
21 think, saying essentially the same thing.
22 MR. DODGE: I am not sure you answered the initial
23 question. Under my hypothetical where there is no
24 continuous water down Wilson Creek, is there still any
25 hypopycnal lens there or not?
01 DR. STINE: There will be a hypopycnal lens
02 attributable solely to the spring water coming off of Wilson
04 MR. DODGE: It would be much diminished, but there?
05 DR. STINE: Much diminished, but there, but overlapped
06 by the new hypopycnal area. The Wilson Creek hypopycnal
07 area is very, very close to the Mill Creek hypopycnal area.
08 They essentially occupy the same spot.
09 MR. DODGE: Mr. Thomas referred yesterday, I believe,
10 to a conversation with Tom Ratcliff about, basically, the
11 politicizing of the waterfowl restoration program. He also
12 referred to a conversation with you about politicizing the
13 waterfowl restoration program.
14 Did you have such a conversation with Mr. Thomas?
15 DR. STINE: Yeah. I would clarify. He wasn't accusing
16 me, of course, of politicizing it. But we had a
17 conversation; he is right. It was one of those windy,
18 wonderful, late afternoon Mono Basin days when everything is
19 just sort of starting to glow out there. We were out at
20 Simons Springs, and it was one of those guy times, knock
21 around, push one around down in the mud, but we were not --
22 he was talking about the politics. He was lamenting the
23 politics of the process. I was lamenting certain aspects of
24 the three scientists' report, which overall I think is quite
01 I just wish that they, and I wish then to him, that
02 they could have been a little bit more explicit about the
03 role of standing fresh water on the shorelands, exactly what
04 I talked about here when I began. But I wasn't talking
05 about the politicization or the politics of this. Ron
06 Thomas was lamenting it.
07 MR. DODGE: My final set of questions for you.
08 DR. STINE: Who I like very much, by the way.
09 MR. DODGE: If you would look at the People for the
10 Preservation of Mono Basin Exhibit 31.
11 DR. STINE: I don't know what that is.
12 MR. DODGE: It's a quote attributed to you.
13 MR. BIRMINGHAM: Can we take a 30-second recess?
14 (Break taken.)
15 MR. DODGE: Ms. Bellomo read that into the record
16 during one of the days you were not here. I would ask you
17 to read Exhibit 31 and to tell me, first, whether that is
18 something that you said.
19 DR. STINE: You want me to, first, read it -- and I can
20 say that it is, indeed, something I said. And that I will
21 be more than happy to read it. I would add, however, it is
22 taken out of context.
23 MR. DODGE: First read it. I am supposed to ask the
25 DR. STINE: Trying to remember that.
01 Quote, Stine:
02 I want to make one thing -- (Reading.)
03 Pardon me, I wasn't being very articulate then.
04 I want to make one other thing by way of
05 context clear here, and that is that -- and I
06 guess it was raised, perhaps, a couple times
07 here already. The matter of ducks is
08 continuously discussed here, and I think
09 assumed that rewatering Mill Creek is because
10 of ducks. Is just because of ducks. The
11 reason that this is being discussed in terms
12 of ducks is that the waterfowl issue has been
13 raised by the State Water Board. There are
14 lots of us, who for a long time, have been
15 seeing that in terms of environmental issue,
16 in terms of a species issue, in terms of a
17 nature issue, Mill Creek is the big issue
18 left in the Mono Basin. Not just because of
19 waterfowl, but for lots and lots and lots of
20 reasons. So I would -- just want to make it
21 clear that by putting water back into Mill
22 Creek is not being suggested simply because
23 of waterfowl. I would say that there's a
24 relatively one of, perhaps even one minor
25 element, of a whole bunch of different
01 elements of why to rewater Mill Creek, why to
02 put Mill Creek back to the way it has been
03 for the past 10,000 years. (Reading.)
04 MR. DODGE: You started to tell me that you felt that
05 that statement has been taken out of context. Would you
06 explain that, please?
07 DR. STINE: Yes. That day Nelson Matthews, Peter
08 Vorster, I, Heidi Hopkins, and a number of other people
09 attended two meetings. The first meeting was an afternoon
10 meeting with a select group of Mono Basin residents. The
11 second meeting was before the townspeople of Mono Basin at
12 the firehouse.
13 At both meetings, and in between the two meetings,
14 there seemed to be a prevalent misconception. And that
15 misconception is this. If you leave water where it is on
16 Wilson Creek, you have habitat for coyotes, for ducks, for
17 geese, for passerine birds, for deer, for antelope, and for
18 a whole bunch of different creatures. Whereas, if you take
19 it from there and put it back into Mill Creek, what you will
20 have is dubious habitat for a few ducks.
21 What I was trying to point out here is that the
22 benefits of rewatering Mill Creek go way, way beyond simply
23 ducks. That we would be restoring an ecosystem, as Ron
24 Thomas himself said today, and that within any complex
25 ecosystem like that ducks are going to be a minor part of
01 it. So, I simply didn't want there to be this conception
02 that Mill Creek was good for everything that lives -- pardon
03 me, Wilson Creek was good for everything that lives; we were
04 going to lose all of that if we made duck habitat on Mill
05 Creek. That was the context here.
06 The 10,000 years, by the way, which is a number that
07 has come up a couple other times there, I am not trying to
08 put the stream back as it was 10,000 years ago. The stream
09 has been essentially that way. Mill Creek has been
10 essentially that way for the last 10,000 years, throughout
11 Holocene time.
12 MR. DODGE: In fact, was essentially that way about a
13 hundred years ago?
14 DR. STINE: Absolutely, yes.
15 MR. DODGE: That is all I have.
16 Thank you.
17 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.
18 Mr. Birmingham, do you wish to cross-examine?
19 MR. BIRMINGHAM: With great regret, I wish --
20 CHAIRMAN CAFFREY: With great regret you wish to
22 MR. BIRMINGHAM: With great regret, given my long
23 history of examining Dr. Stine, having been given this last
24 opportunity, I have no questions.
25 MEMBER DEL PIERO: Mr. Caffrey, you understand the
01 significance of that?
02 CHAIRMAN CAFFREY: I have only been at this for about
03 ten days. You've had --
04 MEMBER DEL PIERO: For years you couldn't have kept him
05 in his chair.
06 CHAIRMAN CAFFREY: Thanks, Mr. Birmingham.
07 Let's see, Ms. Bellomo, any cross-examination?
08 MS. BELLOMO: I have no questions.
09 CHAIRMAN CAFFREY: Mr. Roos-Collins.
10 MR. ROOS-COLLINS: No questions, Mr. Chairman.
11 CHAIRMAN CAFFREY: Ms. Cahill.
12 MS. CAHILL: No questions.
13 CHAIRMAN CAFFREY: Ms. Scoonover.
14 MS. SCOONOVER: Yes, Mr. Chairman.
15 CHAIRMAN CAFFREY: Please begin.
16 CROSS-EXAMINATION BY
17 STATE LANDS COMMISSION
19 DEPARTMENT OF PARKS AND RECREATION
20 BY MS. SCOONOVER
21 MS. SCOONOVER: I have some areas that I would like to
22 talk to you about, Dr. Stine. First one, Mr. Terry Russi of
23 BLM testified in late January that soils on Mill Creek are
24 inappropriate to support marshland and riparian vegetation.
25 Do you recall that testimony?
01 DR. STINE: I do.
02 MS. SCOONOVER: In your opinion, will the soils on Mill
03 Creek support marshland and riparian vegetation?
04 Dr. STINE: Yes, they will.
05 MS. SCOONOVER: On what do you base that opinion?
06 DR. STINE: I base that opinion on many miles walked
07 and many hours and days spent on Mill Creek. And what I
08 have observed there, if I may, is a washed-out channel that
09 has been -- that has come as a result of a loss of the
10 vegetation due to the dewatering of Mill Creek, and that
11 wash, as I call it, is composed of fist and larger-sized
12 cobbles and boulders. The fine sediments have been largely
13 washed out of that wash. Fine sediments will come back to
14 that wash if the stream is allowed to flow in a more natural
15 way than it has during the past, essentially, hundred years.
16 What happens on that stream is that you have deluges
17 separated or sort of intercalated with droughts. So that
18 the water is either on or it is off.
19 And very often what happens is that the high flows
20 scour out the fine sediments. They are turned off,
21 essentially, rather than that water being allowed to recede
22 as it would naturally. During recessions of a river, as the
23 velocity slows, finer and finer and finer material is
24 settling out.
25 So, if the stream is put back and furnished with more
01 natural flows, we are going to very rapidly get back fine
02 sediment, even on that wash. I separate the wash from the
03 rest of the stream here, because there are multiple channels
04 in the Rush Creek bottomlands that are still in awfully good
05 shape. If you look at those multiple channels today, they
06 are composed of the fine sediments that have been there for
07 a long, long time. So, we don't have to refurnish fine
08 sediment to those multiple channels. It is already there.
09 The fine sediment is there.
10 CHAIRMAN CAFFREY: Mr. Dodge, do you rise?
11 MR. DODGE: Mr. Chairman, yes. I heard Dr. Stine
12 refer to the Rush Creek bottomlands. My question is: Did
13 he mean to refer to Mill Creek?
14 DR. STINE: I apologize. I was trying to refer to Mill
15 Creek there. All of what I've said in this answer is Mill
17 CHAIRMAN CAFFREY: Thank you for that clarification,
18 Mr. Dodge.
19 MS. SCOONOVER: Dr. Stine, I assume then, your
20 estimates of the amount of time it would take on Mill Creek
21 for a variety of habitats to return was based on your
22 knowledge of the soils as well as the other physical
23 conditions and water that you expect on Mill Creek?
24 DR. STINE: That is correct. And could I clear up one
25 other thing?
01 MS. SCOONOVER: Certainly.
02 DR. STINE: Mr. Russi's statement, I believe, was
03 something to the effect that if you wanted the vegetation of
04 the type that Stine says is going to come back, to come
05 back, you would need to have different soils. The soils
06 that are there today are inappropriate.
07 In fact, though, the vegetation that I have talked
08 about is coming back. The cottonwoods are coming back, and
09 we have dozens of pretty good shaped cottonwoods coming back
10 on Mill Creek. Is that enough to bring ducks back?
11 Absolutely not. But we have a good start there at least on
12 the cottonwoods since 1980 because we have had such a large
13 number of release years since then.
14 MS. SCOONOVER: Dr. Stine, the other area that I want
15 to probe with you is a question that Mr. Johns asked of, I
16 believe it was, Mr. Thomas this morning. And it was
17 something to the effect of whether or not Mr. Thomas was
18 aware of any of the programs or projects identified by the
19 Intermountain Joint Venture as being of a nature to
20 sacrifice or damage one environment and in favor of another.
21 Do you remember that exchange?
22 DR. STINE: I believe it was expressed, perhaps, as a
23 tradeoff, and I think that was yesterday rather than this
25 MS. SCOONOVER: It is all a blur.
01 Yesterday, but it was Mr. Johns exchanged with Mr.
03 DR. STINE: Yes, it was.
04 MS. SCOONOVER: Did you understand Mr. Johns' question
05 to be referring to a tradeoff that may be expected to occur
06 if the proposal to rewater Mill Creek were adopted?
07 DR. STINE: That is the way I understood it.
08 MS. SCOONOVER: What is your opinion of this of what
09 such a tradeoff would entail? What would occur, in your
11 DR. STINE: Well, there are a number of resources
12 associated with and, to one extent or another, dependent on
13 water in some amount being in so-called Wilson Creek. Part
14 of this is irrigated acreage. Part of it is a fishery.
15 Part of it is vegetation along Wilson Creek. These are all
16 real concerns, and they are concerns that I wholeheartedly
18 If I may opine here. It does seem to me there has
19 been an awful lot of emotion and an awful lot of sides on
20 this, and that people haven't really stepped back to figure
21 out what of the resources over there on Wilson Creek could
22 be kept while still returning Mill Creek to a near natural
24 And I have played with a number of figures with my
25 friend and colleague, Peter Vorster, among other people, and
01 it is clear that we can have green fields of historical size
02 at Conway Ranch and still return Mill Creek to near nature.
03 We can maintain the vegetation along Wilson Creek that Terry
04 Russi is concerned with and still maintain or still return
05 Mill Creek to a near natural condition. I will cut this
06 short, I think that the one thing that we can't have, where
07 the conflict does lie, and this is perhaps what the question
08 was aimed at, is a fishery in both streams. I don't see how
09 we can have a viable fishery in both streams. I don't --
10 MS. SCOONOVER: Excuse me, Dr. Stine. Is that a
11 year-round fishery?
12 DR. STINE: A year-round fishery. I think that if we
13 are going to establish, re-establish, Mill Creek, such that
14 it supports waterfowl both in its bottomlands and much more
15 importantly at the hypopycnal stream at the mouth of the
16 stream, it is going to be very difficult to maintain a
17 year-round fishery in Wilson Creek. So, in that respect, I
18 would agree with Mr. Johns, that there will be a tradeoff,
19 but I don't think that this tradeoff is environmental
20 disaster in regard to everything now dependent on Wilson
21 Creek, at all.
22 MS. SCOONOVER: Dr. Stine, am I correct that you have
23 spent an extensive amount of time both along Wilson Creek,
24 as well as along Mill Creek?
25 DR. STINE: Yes. I have walked them both with
01 apologies to John Frederickson. I have walked Mill Creek a
02 couple times, although that was in the early eighties when
03 it didn't seem to matter. I haven't been on there since.
04 I have walked Mill Creek many times. Indeed, from the
05 headwaters up in the Lundy Canyon area all the way down to
06 the lake, and I have done on a number of occasions.
07 MS. SCOONOVER: If, as you predict, Dr. Stine, the
08 year-round fishery is actually moved from Wilson Creek to
09 Mill Creek, in your opinion, would there be a loss of
10 fisheries habitat, an overall loss of fisheries habitat from
11 that move?
12 DR. STINE: I think that there will be an overall gain
13 of fishery habitat, and I base that on length of channel,
14 which I am capable of measuring, and have, indeed, measured
15 width and depth of the water, particularly in the multiple
16 channels on Mill Creek. I also, however, base it on
17 conversations with Allen Pickard and Gary Smith, both of the
18 California Department of Fish and Game, who have been
19 forthcoming, at least in Allen's case, in a public meeting
20 in pointing out that Mill Creek, despite a hundred years of
21 degradation, today supports a fishery that, in fact,
22 produces more fish, bigger fish, greater concentration of
23 fish than Wilson Creek, which has been supplemented for the
24 last hundred years. So, I would expect that if we are to
25 restore Mill Creek with near natural flows that the fishery
01 values would flourish all the more.
02 MS. SCOONOVER: Finally, Dr. Stine, if we were to
03 reopen the bottomland channels of Mill Creek, how much heavy
04 equipment would be required in order to do so? How much
05 heavy -- would you describe the project as being heavily
06 engineered? How much work would have been to done in order
07 to reopen the bottomland channels of Mill Creek as you
09 DR. STINE: Well, Ms. Bellomo will be refreshed to know
10 that I am not an engineer. But at the same time, I have
11 worked with Scott English and I would want to defer to
12 someone like Scott English on this. I can tell you this,
13 that he has opened a number of channels on Rush Creek that
14 were far more clogged because of the quarrying operation
15 that existed above the narrows on Rush Creek, far more
16 clogged with debris than any of the channels are on Mill
18 My suspicion is that to open the channels on Mill Creek
19 you could do it with a team of shovel holders or you could
20 do with two or three people and one of these little
21 bobcat-like affairs.
22 MS. SCOONOVER: Thank you. That is all.
23 CHAIRMAN CAFFREY: Thank you, Ms. Scoonover.
24 Any redirect, Mr. Dodge?
25 MR. DODGE: No.
01 CHAIRMAN CAFFREY: I am sorry, I did it again, I
03 Questions from the staff.
04 MR. FRINK: Staff does have a few.
05 CHAIRMAN CAFFREY: Please.
06 CROSS-EXAMINATION BY
07 BOARD STAFF
08 MR. FRINK: Dr. Stine, from your testimony about the
09 benefits of rewatering Mill Creek, would I be correct in
10 assuming that you would recommend rewatering Mill Creek even
11 if Decision 1631 did not require preparation of a waterfowl
12 habitat restoration plan?
13 DR. STINE: I am sorry?
14 MR. FRINK: Would you recommend rewatering of Mill
15 Creek even if this Board had not directed preparation of a
16 waterfowl habitat restoration plan?
17 DR. STINE: I would -- I guess what I would do would be
18 to point out to those people who have the power to rewater
19 it, that there are some real environmental gains to be made
20 by rewatering Mill Creek. We got an ecosystem there of the
21 type that has existed in less than a dozen places throughout
22 the whole great basin. I think that from the standpoint of
23 biodiversity, those were probably the most these deltaic
24 bottomlands were probably --
25 MR. FRINK: Sorry to interrupt, all I wanted was an
01 answer if you recommend it or not.
02 DR. STINE: I would on that basis.
03 MR. FRINK: Did you ever propose rewatering Mill Creek
04 before Decision 1631 was entered?
05 DR. STINE: Yes, I probably did propose rewatering. I
06 believe it was before this Water Board. I think that I was
07 saying, in fact, in response to a line of questioning by
08 Hugh Smith, I believe, that we could make up partially for
09 the approximately 44 acres of bottomlands that were
10 irreparably -- if that is the right word, no it isn't but
11 you get the point -- lost in Rush Creek by rewatering Mill
13 So, if only for bottomlands, yes, I would recommend
14 it, yes. And I believe I did on that occasion to you
16 MR. FRINK: Thank you.
17 I believe you testified earlier that with respect to
18 waterfowl habitat, the most important reason to restore Mill
19 Creek would be to increase the amount of hypopycnal area at
20 the mouth of the Mill Creek as it enters Mono Lake. Is that
22 DR. STINE: Yes, it is. And what I said, I think, was
23 that this was the type of habitat, in combination with
24 existing refuge habitat, that drove the waterfowl population
25 at Mono Lake.
01 MR. FRINK: You also testified that, under the flows
02 that will be required and are being required under Decision
03 1631, that you would expect that the hypopycnal areas at the
04 mouth of Rush and Lee Vining Creek to be greater then they
05 were 1940; is that correct?
06 DR. STINE: To be greater than they were under natural
07 conditions, is what I said.
08 MR. DODGE: I believe his testimony was during certain
09 months of the year.
10 DR. STINE: In the fall when the waterfowl are there,
12 MR. FRINK: During the period that is important for
13 waterfowl habitat, the flows under Decision 1631 will
14 provide larger hypopycnal areas than were there before under
15 natural conditions?
16 Dr. Stine: And were there under natural conditions,
18 MR. FRINK: Thank you.
19 CHAIRMAN CAFFREY: Mr. Johns.
20 MR. JOHNS: One question.
21 You mentioned the amount of acreage that were
22 irreparably lost, or would be irreparably lost in Rush
23 Creek, I assume it is due to the incision of the channel?
24 DR. STINE: That's correct.
25 MR. JOHNS: Do you have an estimate for the loss on Lee
01 Vining Creek of bottomland habitat?
02 DR. STINE: I do. I don't have it at my finger tips,
03 but it wasn't nearly as great as on Rush Creek for reasons
04 that you don't want me to get in. Involves a volcanic
05 eruption 600 years ago.
06 MR. JOHNS: Thank you.
07 CHAIRMAN CAFFREY: Mr. Canaday.
08 MR. CANADAY: Just a follow-up on Mr. Johns' question.
09 Wouldn't those numbers likely be in our technical
10 report number one that you prepared on riparian vegetation,
12 DR. STINE: Come to think of it, yes. They are in
13 something I have written somewhere.
14 MR. CANADAY: Dr. Stine, I know the answer to this, but
15 I am not sure that the Board does. I think they need to
16 understand, because we talked about Wilson Creek quite a bit
17 in the hearing.
18 MEMBER DEL PIERO: Mr. Canaday, we know the answer to
19 everything. Didn't you know that?
20 MR. BIRMINGHAM: Excuse me. I have to share this with
21 the Board, a story. Relates to Judge Finney's retirement
22 party. Judge Finney recounted the time to the several
23 thousand people that were gathered at his retirement. He
24 recounted the time that a witness, an expert witness, turned
25 to him and said, "your Honor, I would explain this, but I
01 don't think you could understand it."
02 And Mr. Dodge was very nice to point out that it was
03 one of my witnesses.
04 CHAIRMAN CAFFREY: Is that witness still living in this
05 state, by any chance? Living at all?
06 MR. DODGE: The first and last thing we always said to
07 every witness we were going to put on the stand was, "Don't
08 turn to Judge Finney and say, "This is complicated," or "You
09 may have a problem with this."
10 MEMBER DEL PIERO: I am sorry, Mr. Canaday, I started
11 that. I deeply apologize. Please proceed.
12 MR. CANADAY: You owe me one, Mr. Del Piero.
13 MEMBER DEL PIERO: Big time. I owe you more than that.
14 MR. CANADAY: I want to be clear of what the historic
15 Wilson Creek was versus the current Wilson Creek. You have
16 the map, 424, which is your map, I believe. Would you,
17 first of all, describe and use that map to show where the
18 historic watershed for Wilson Creek was?
19 MR. JOHNS: You mark on that map, I keep it.
20 DR. STINE: It is yours. I thought it was yours,
21 anyway, to tell you the truth.
22 MR. JOHNS: I have one in the record.
23 MR. CANADAY: Would you mark with dotted lines, I
24 suppose, in yellow where the historic watershed was for the
25 Wilson Creek prior to augmentation for Mill Creek water?
01 DR. STINE: Not the watershed, as I understand it. You
02 want the stream course?
03 MR. CANADAY: The stream course. What stream courses
04 contributed to what we call Wilson Creek?
05 DR. STINE: On Exhibit 424 here is the north arrow to
06 get everybody oriented, so this line here is running
07 east/west. In the northeastern corner of what is blocked
08 out here as Conway Ranch you can sort of see here Rattle
09 Snake Gulch and Bacon Gulch. This is a deteriorated,
10 granite arroyo system that carries water during the snow
11 melt season of the year. Usually dry by June, in any case.
12 Probably a little wet a little bit later in very wet years.
13 It was in this area right through here that water was
14 generated for flow down natural Wilson Creek.
15 MR. CANADAY: Dr. Stine, we will provide you with a red
17 DR. STINE: I will put a red, dashed line -- that is
18 much better -- around the proximate watershed as I can
19 define it on this map for natural Wilson Creek. As I say,
20 it was high ephemeral. The stream -- can I mark the stream
21 as well?
22 MR. CANADAY: Would you please mark that stream?
23 DR. STINE: The stream itself had several tributaries,
24 which I will make a solid red line. There are several
25 different tributaries. Again, all of them ephemeral with
01 the exception of one perennial stream site up there that
02 gets drunken by the sediments by pretty readily.
03 These three ephemeral tributaries then join into one
04 ephemeral stream that came up onto the Conway Ranch here and
05 withered. It was the classic withering stream. So the
06 stream would come out here over the very coarse alluvium
07 that composed Conway Ranch right here, being as it is right
08 at the foothills of the Bodie Hills. That alluvium would
09 just drink up the stream.
10 In wet years, the photographs from 1930, show in wet
11 years water could make its way all the way down to somewhere
12 in through here. I have debates with myself as to whether
13 or not this Wilson Creek ever made it to Mono Lake. I don't
14 think it did make it to Mono Lake under natural conditions.
15 It was just drunk up along the way by the sediments there.
16 MR. CANADAY: Now, could you show where Wilson Creek,
17 the modern addition to Wilson Creek, occurs, or what is
18 called Wilson Creek?
19 DR. STINE: Yes. Here at the Lundy Powerhouse --
20 MR. JOHNS: Do that in blue.
21 DR. STINE: I didn't understand that.
22 CHAIRMAN CAFFREY: I think it is going to happen to all
23 of us when you are trying to mark a surface straight up like
25 Go ahead.
01 DR STINE: Here is the Lundy Powerhouse, right here.
02 Water from the Mill Creek system is brought to the Lundy
03 Powerhouse by way of a penstock, at least when the
04 powerhouse is working, which is most of the time. And then
05 there are two egresses from the Lundy Powerhouse here. One
06 of them goes north, and I'll mark that as a dashed line,
07 sort of dashed coming out of the powerhouse. That is one
09 MR. BIRMINGHAM: May the record reflect that the Dr.
10 Stine is marking that in blue.
11 DR. STINE: Sort of lazuli, as matter of fact.
12 CHAIRMAN CAFFREY: I might always add that, just as a
13 practical matter, that if we are not efficient in our
14 answers, and our questions as well, but especially in our
15 answers, we are going to have to take a break to come back
16 for about what I suspect will be only ten or fifteen minutes
17 because the parking lot is going to close.
18 DR. STINE: I will be lickety- split here, I promise.
19 Some of the water can come out on the south side of the
20 powerhouse and be put into the Mattly Ditch system and into
21 the Conway Ditch system. Much of that water is then
22 returned to what is now called Wilson Creek, which is, under
23 natural conditions, nonexistent. That water then flows, can
24 flow, down toward Mono Lake and has essentially two pathways
25 that it can take to reach Mono Lake. The split of those two
01 being here at the County Road. In other words, it can
02 either go to Mono Lake by north of Black Point or it can go
03 to Mono Lake west of Black Point. It is a stream that is
04 many, many, many hundreds of times its natural size today as
05 a result of that diversion.
06 MR. CANADAY: Thank you.
07 One last question, Dr. Stine. You are advocating in
08 your proposal for rewatering Mill Creek, totally dewatering
09 of Wilson Creek, are you?
10 DR. STINE: No. In fact, it would be very difficult to
11 totally rewater Wilson Creek as long as Virginia Creek water
12 continues to be put onto the Conway lands, which I assume
13 will be the case. Because there is an awful lot of water
14 that is picked up off of the Virginia Creek diversion that
15 adds flow to Wilson Creek. So, whether or not you are even
16 putting a drop of Mill Creek water back into Wilson Creek,
17 there is going to be some gain. Is it a lot? No, it is not
18 a lot. It is not a lot. But there will be water in there.
19 And do I advocate dewatering it? I am against dewatering
20 Wilson Creek up through the Conway property there. I think
21 we can maintain the values with a small amount of water.
22 MR. CANADAY: Thank you. That is all I have.
23 CHAIRMAN CAFFREY: Thank you, Mr. Canaday.
24 Let's see, there was no redirect, Dr. Dodge; is that
01 MR. DODGE: You know, I think that be one of the great
02 tactical errors of our time, to start redirect.
03 MS. SCOONOVER: We agree.
04 CHAIRMAN CAFFREY: I concur in your observation.
05 Unless I am hallucinating -- wait a minute.
06 Let me ask: Do you have any exhibits per se for your
07 rebuttal that you wish to offer into evidence?
08 MR. DODGE: I would offer amended State Lands
09 Commission Exhibit 424 with the color lines on it.
10 CHAIRMAN CAFFREY: That makes sense. I was going to
11 ask Mr. Frink if that is still the same piece of evidence.
12 MR. FRINK: I think we were considering it to be part
13 of the record with the lines.
14 Thank you.
15 CHAIRMAN CAFFREY: The record does --
16 MR. FRINK: Mr. Johns says he will designate the one
17 with the lines on it as State Lands Commission Exhibit
19 CHAIRMAN CAFFREY: 424A. All right, thank you.
20 I believe we are just about completed here except for,
21 if I am not mistaken, some discussion on deadline for
22 submission of legal briefs and written closing statement.
23 Mr. Frink, you want to give us anything on that?
24 MR. FRINK: You may want to hear from some of the --
25 We have inquiries from some of the parties about it.
01 There would be an opportunity for submission of legal
02 briefs. I said ordinarily it is discussed at the end. At
03 the request of the parties, the Board often establishes a
05 CHAIRMAN CAFFREY: I believe Ms. Bellomo rose first.
06 Mr. Del Piero, I am sorry.
07 MEMBER DEL PIERO: I don't know how you are going to
08 rule. I thought about it, and just if you want my five
09 cents worth before everybody else starts.
10 CHAIRMAN CAFFREY: Please.
11 MEMBER DEL PIERO: It is my personal opinion, legal
12 briefs and closing arguments ought to be authorized.
13 Closing argument, obviously, legal briefs should be
14 authorized to be submitted.
15 CHAIRMAN CAFFREY: I absolutely agree. Actually,
16 unless somebody has a problem with that, I would just more
17 or less open up to discussion from when we want to set a
18 reasonable deadline.
19 Ms. Bellomo, you rose first. What was your comment?
20 MS. BELLOMO: I hesitate to even say anything. I tried
21 your patience more than I deserve to.
22 CHAIRMAN CAFFREY: That is all right.
23 MS. BELLOMO: It was brought to my attention that I
24 didn't -- one of my answers contained a serious omission to
25 a question of Mr. Del Piero, which is -- and if I could just
01 tell you what it is. A piece of physical evidence that I
02 did not inform the Board of. I am not trying to augment the
03 record in any way, but it may be important, based on what
04 Mr. Birmingham was trying to discover. I am not trying to
05 augment the record, but I would like to make it available.
06 CHAIRMAN CAFFREY: Mr. Birmingham.
07 MR. BIRMINGHAM: I have no objection if Ms. Bellomo
08 would like to clarify an answer that she made.
09 CHAIRMAN CAFFREY: We will treat as you go, as
10 clarifying. Please go ahead, Ms. Bellomo.
11 MS. BELLOMO: I just wanted to bring it to the Board's
12 attention and to Mr. Birmingham's attention that in response
13 to the question of --
14 CHAIRMAN CAFFREY: I'm having a little difficulty
15 hearing you, Ms. Bellomo. If you wouldn't mind coming up to
16 the mike.
17 Thank you.
18 MS. BELLOMO: There were questions about whether our
19 group had ever asked to participate in the settlement
20 negotiations, and members of the group reminded me that
21 there is a videotape of a public meeting where our group did
22 make that request to Martha Davis. I am not making any
23 representation about what happened there or anything. It
24 does exist. If this becomes necessary for anyone, we are
25 not planning to challenge the Board's decision based on --
01 this was news to me that there was a legal issue about that.
02 But it exists, and I felt that incumbent upon me to bring
03 that to the Board's attention.
04 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo.
05 Mr. Birmingham.
06 MR. BIRMINGHAM: May I just inquire?
07 MEMBER DEL PIERO: I would find out, Mr. Chairman, that
08 Ms. Bellomo was completely responsive to my question,
09 because I asked whether or not she had any writing. I
10 didn't know about a videotaping.
11 CHAIRMAN CAFFREY: He was asking about in writing, yes.
12 Mr. Birmingham, you rise.
13 MR. BIRMINGHAM: May I inquire as to the date of the
14 that meeting?
15 MS. BELLOMO: I would be happy to provide that to you.
16 I believe that it was the same date that Dr. Stine made the
17 statement that we transcribed, a portion of that is in the
18 record. I believe that was on the same videotape.
19 MR. BIRMINGHAM: I believe that was December 9th, 1996.
20 MS. BELLOMO: I don't recall. If it is important, I
21 will provide that to you after I am in Mono County. I don't
22 recall. We have two or three videotapes of public
24 CHAIRMAN CAFFREY: Anything else?
25 Let's have some -- gentlemen, Mr. Dodge, and then Mr.
02 MR. DODGE: I would suggest that we have, as we did
03 before, simultaneous opening briefs and closing briefs.
04 That seemed to work well before, and I would suggest for the
05 opening briefs that they be due three weeks after the
06 transcript is received, and that we have approximately the
07 same amount of time to write the closing briefs.
08 CHAIRMAN CAFFREY: Any objection anywhere to that? The
09 Board, the staff, or any of the parties?
10 Ms. Scoonover.
11 MS. SCOONOVER: If we could ask the Court Reporter for
12 some estimate of when those transcripts would be ready
13 because we can then check with calendars.
14 MR. JOHNS: I talked to the Court Reporter earlier in
15 the day, and she indicated that probably a three-week time
16 period would be appropriate.
17 MS. SCOONOVER: Three weeks from today then the
18 transcript would be --
19 MR. JOHNS: They should be. We are not giving any
20 guarantees here, but that looks like reasonable time frame.
21 MS. CAHILL: So, in no event would they likely to be
22 due in less than four weeks from today; is that right?
23 MEMBER DEL PIERO: Transcript available three weeks
24 from today and if we were to follow Mr. Dodge's
25 recommendation, Mr. Chairman, the opening would be due six
01 weeks from today.
02 MR. JOHNS: They might be done earlier than three
04 (Discussion held off the record.)
05 CHAIRMAN CAFFREY: I just want to get this thing nailed
07 Mr. Roos-Collins.
08 MR. ROOS-COLLINS: Mr. Chairman, may counsel confer for
09 just a moment?
10 CHAIRMAN CAFFREY: Sure.
11 (Discussion held off the record.)
12 MR. FRINK: Mr. Chairman, proceeding under the
13 assumption that the transcript will be completed in three
14 weeks, the parties I spoke to, I think it included counsel
15 for all of them who are here, agreed that June 16 would be
16 an acceptable date for submission of their closing briefs,
17 and July 8th would be an acceptable date for submission of
18 their reply briefs. If for any reason that transcript
19 preparation was delayed substantially beyond that, we could
21 CHAIRMAN CAFFREY: We will just make an adjustment by
22 the like amount of days. Is that agreeable? We can notify
23 or whatever. Does that work for everybody? Is there any
24 objection to that by any of the parties?
25 Ms. Bellomo.
01 MS. BELLOMO: I have no objection. I would want to
02 make sure before we ended today, because I have never filed
03 a brief here, if there are any page limitations or
04 requirements of any sort?
05 CHAIRMAN CAFFREY: Mr. Frink, do I answer that now, or
06 do you want to provide her with a set of our regulations,
07 wherever else that is covered or may be covered, if it is
08 covered at all? Maybe you can answer it quickly now.
09 MR. FRINK: Our regulations do not include a page
10 limitation. Obviously, we prefer that it not be overly
11 long. As far as other processes, serve a copy on the Board
12 and the other parties.
13 MS. BELLOMO: Thank you.
14 CHAIRMAN CAFFREY: Mr. Birmingham.
15 MR. BIRMINGHAM: I would just like to make a few
16 closing remarks, if I may.
17 MR. DODGE: Before we have closing remarks, could I
18 address the one substantive issue?
19 CHAIRMAN CAFFREY: If we are going to have closing
20 remarks, we are probably going to have to take a break
21 because everybody else might want to make closing remarks.
22 We've got cars to move.
23 MR. DODGE: I want to state my understanding, Mr.
24 Chairman, of the issues.
25 CHAIRMAN CAFFREY: Do you yield, Mr. Birmingham?
01 Go ahead, Mr. Dodge.
02 MR. DODGE: I want to address the Board with my
03 understanding of what is going to be briefed; that is, we
04 are going to brief the question of whether or not the
05 settlement negotiated should or should not be accepted by
06 the Board. And if that is not correct, then I would like to
07 be told that.
08 CHAIRMAN CAFFREY: Could you ask that again? I am not
09 sure I understood it, or maybe heard it all.
10 MR. DODGE: My understanding of what is being briefed,
11 and I want to be told if I am wrong, is whether this Water
12 Board should or should not accept the proffered settlement.
13 If you want a broader scope of issues briefed, than I would
14 like to be told that now.
15 CHAIRMAN CAFFREY: That is an excellent question. I
16 hadn't thought of it. Mr. Frink, do you have any --
17 MR. FRINK: I don't. Maybe the Board is interested in
18 briefing on particular issues. But we ordinarily don't
19 restrict the scope of the briefs beyond the scope of the
20 issues listed in the hearing notice.
21 Certainly, the acceptability of the settlement
22 agreement is one issue you may want to address. The
23 parties would be free to address the other relevant issues.
24 MR. DODGE: The problem is this. I am going to be very
25 blunt about this. The problem is that if we go to a broader
01 scope of issues, that is if I brief the question, assuming
02 the settlement is rejected, what should the Board order with
03 respect to stream and waterfowl restoration? That is
04 potentially a very complicated brief. It's going to take me
05 a lot of time and going to cost my clients a lot of money.
06 I would propose that we brief the question whether the
07 settlement should be accepted. If it is rejected, that we
08 come back and brief the other issues.
09 MR. FRINK: Mr. Chairman, could I respond to that?
10 CHAIRMAN CAFFREY: Certainly, Mr. Frink.
11 MR. FRINK: Thank you.
12 The process has drug on for a very long time. And I
13 have no idea what the Board is going to rule. But it could
14 be considerably after this initial set of briefs is due on
15 July 8th. And the idea that if the Board decides one thing,
16 you throw it open again for more briefing, takes us into the
17 possibility of briefing in the fall.
18 I believe all the parties knew at the time they
19 submitted their exhibits for the hearing what the issues
20 were, and I believe Mr. Dodge's client suggested some
21 changes in L.A.'s original proposal. I think that they can
22 brief the issues as stated in a hearing notice, to the
23 extent that they desire to.
24 MR. DODGE: As long as that is clear, that is fine.
25 CHAIRMAN CAFFREY: That is certainly was -- I think
01 that is reasonable. I think that is my intent. I know it
02 is my intent.
03 Do you have any problem with that, Mr. Del Piero?
04 MEMBER DEL PIERO: I have no problems with it,
05 Mr. Chairman. I think Mr. Frink, in articulating his
06 thoughts on that argument, was indicating what that past
07 policies of the Board has been. And, frankly, as we all
08 know, no one can second guess what the Board ultimately is
09 going to do. Least of all, sometimes all the Board
11 So, we need to have the briefs address what was in the
12 original hearing notice, so that we can get it all in before
13 the end of the summer. We can proceed with deliberations.
14 CHAIRMAN CAFFREY: Mr. Roos-Collins, did you have a
15 question, sir?
16 MR. ROOS-COLLINS: Mr. Chairman, could I offer a brief
17 opinion regarding Mr. Frink's statement?
18 CHAIRMAN CAFFREY: I would allow very briefly.
19 MR. ROOS-COLLINS: The hearing notice, which convened
20 this hearing, asked questions, identified three key issues.
21 The issue was the same for each plan required by D-1631:
22 Does that plan comply with the requirements of D-1631?
23 My understanding is that Los Angeles has offered three
24 plans through this settlement agreement. Therefore,
25 California Trout intends to brief: Is each plan submitted
01 through the settlement agreement in compliance with
02 requirements of D-1631? We do not intend to address the
03 plans as originally submitted because Los Angeles does have
04 those plans before this Board.
05 MR. FRINK: Mr. Chairman, I don't have the notice in
06 front of me, but I am virtually certain that the other major
07 issue listed in the notice is: If the plans submitted by
08 Los Angeles do not meet the requirements of Decision 1631,
09 what modifications in those plans should be made? I think
10 that the process will go on indefinitely.
11 CHAIRMAN CAFFREY: Thank you, Mr. Frink.
12 Let me just -- excuse me, Mr. Birmingham. Let me just
13 say one thing. My thought was that we were going to not
14 have closing statements because we are allowing for written
15 closing statements. However, I have no problem with
16 allowing each party to take five minutes for a closing
17 statement. If that is reasonable. I can certainly do that,
18 because I don't want to stifle any of you. But I also think
19 -- I hope that five minutes on each of your parts is
20 sufficient, if that is the desire.
21 I know that you want to make some closing remarks, Mr.
22 Birmingham. If I allow you to, in fairness, I have to allow
23 everybody else to. I just want to -- if that is where we
24 are headed. Is five minutes satisfactory for everybody?
25 MR. BIRMINGHAM: Yes.
01 CHAIRMAN CAFFREY: Hearing and seeing no objection, we
02 will take the order that -- well, I was just wondering
03 about, we have to get our cars.
04 (Discussion held off the record.)
05 CHAIRMAN CAFFREY: Mr. Dodge, were you going to comment
06 on closing statements?
07 MR. DODGE: I don't see the need for closing statement.
08 My closing statement will be to thank the Board and staff
09 for their patience.
10 CHAIRMAN CAFFREY: If everybody is going to take less
11 than five minutes or not any time at all.
12 Mr. Birmingham.
13 MR. BIRMINGHAM: Thank you very much.
14 I know that the Board is very diligent about reading
15 the record of these proceedings. But I wish that the entire
16 Board were here this evening. Because what the Board has
17 witnessed the last few days is really remarkable. And it is
18 remarkable for the follow reasons.
19 The Department of Water and Power of the City of Los
20 Angeles has been in battle, has been involved in very
21 contentious litigation over issues involving Mono Lake since
22 1979. And when the State Water Resources Control Board
23 issued its Decision 1631 in September of 1994, it set the
24 stage for the Department of Water and Power to come together
25 with other parties that had participated in the proceedings,
01 a growing number of parties. And since September of 1994,
02 the Department of Water and Power has attempted to fulfill
03 its obligations under Decision 1631 in a spirit of
04 cooperation and compromise.
05 The fact that virtually all of the parties to this
06 proceeding have spoken with the unanimous voice on the two
07 issues that have been addressed with respect to each one of
08 the plans submitted by the Department of Water and Power is
09 truly remarkable. And I would like to personally thank the
10 other parties and the counsel for those other parties for an
11 extraordinarily effort. And as has been stated earlier,
12 that was an effort that continued up until Monday of this
14 As Mr. Roos-Collins observed and Mr. Frink observed,
15 the issues were identified by the notice of this hearing
16 was, does the Mono Basin Stream and Stream Channel
17 Restoration Plan prepared by LADWP comply with the
18 requirements of Water Decision 1631? If not, what changes
19 are needed? Those same two questions are asked with respect
20 to the Grant Lake Operations Management Plan and the
21 Waterfowl Habitat Restoration Plan.
22 There is no dispute among the parties -- let me restate
24 There is no longer any significant dispute among the
25 parties concerning restoration of the stream and the stream
01 habitat. For that reason, the Department of Water and Power
02 would like to ask the Board for authorization to initiate
03 some of the restoration measures which are identified in its
04 plan and in the settlement agreement, immediately.
05 Mr. Roos-Collins privately has addressed a very serious
06 point about deferring a decision too long and losing another
07 season. So at this point, what we would ask is that the
08 Board authorize Mr. Petit, as the Executive Director, to
09 approve projects which are consistent with the plan as
10 submitted by DWP and modified by the settlement agreement.
11 MEMBER DEL PIERO: Which streams? Rush and Lee
13 MR. BIRMINGHAM: Rush, Lee Vining, Walker, and Parker.
14 We recognize that ultimately that the State Water
15 Resources Control Board must make a decision as to whether
16 or not that plan complies with D-1631, the plan as modified
17 by the settlement agreement.
18 It is our view that it does. I believe it is the view
19 of all of the other parties who have signed the settlement
20 agreement that it does.
21 I would like to turn for a moment to Waterfowl Habitat
22 Restoration Plan as modified by the settlement agreement.
23 I am truly sorry that the People from Mono Basin
24 Preservation feel that they were excluded from the process
25 that resulted in that plan. If they have been left with
01 that impression, I believe they are mistaken.
02 On February 25, 1997, there was significant discussion
03 concerning what was going to be involved in further
04 discussions and who was going to participate. And as Mr.
05 Frink observed earlier, the record will speak for itself.
06 But Mr. Johns, towards the end of that hearing asked a
07 clarifying question. He asked:
08 I just want to clarify now, if the Bellomos
09 were willing to participate in the settlement
10 discussions with the parties at this point in
12 Chairman Caffrey: They already said
14 Ms. Bellomo: Maybe their discussions are
15 going to turn into something we would be
16 interested in. But it didn't look like, that
17 way, that is the way it is headed.
18 Mr. Johns: Are you saying that you are
19 willing to talk to them about the possibility
20 of settlement even though you think right now
21 you are not likely to settle, you are willing
22 to work with them in that process?
23 MS. BELLOMO: Sure. Because they might
24 change their proposal.
25 Mr. Johns: Right, or you might be convinced
01 that their proposal is acceptable.
02 MS. BELLOMO: Right, right. (Reading.)
03 Ms. Bellomo has characterized our presentation to her
04 as a take-it-or-leave-it deal. I think that the record is
05 very clear that it was not a take-it-or-leave-it deal.
06 I will conclude in just a moment, Mr. Caffrey. If I
07 may have one more minute.
08 CHAIRMAN CAFFREY: Go ahead.
09 MR. BIRMINGHAM: Thank you.
10 The settlement proposal with respect to stream and
11 waterfowl habitat restoration creates a process. It doesn't
12 identify any specific project which will be carried
13 out. And the Bellomos and any other interested party,
14 People from Mono Basin Preservation will have every
15 opportunity to participate in that process. The CEQA/NEPA
16 process demands it.
17 In fact, it demands that the alternative that Ms.
18 Bellomo described as being in Mr. Bellomo's testimony is
19 feasible. It should be considered. But the process will
20 provide them with the opportunities, and that is what the
21 settlement agreement creates. And the settlement agreement
22 does not indicate that any parties are taking control or the
23 settlement agreement does not ask this Board abdicate its
24 responsibility in overseeing that process.
25 So, with respect to the issues, the Department of Water
01 and Power of the City of Los Angeles would request that the
02 State Board approve the restoration plans as modified by the
03 settlement agreement.
04 Thank you.
05 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham. We will
06 take your request for, can you start on some of the specific
07 projects under submission. Let me see by a showing of hands
08 how many people wish to give a six-minute closing statement?
09 Mr. Roos-Collins, you wish to give a closing statement.
10 Ms. Bellomo, do you wish to give one?
11 MS. BELLOMO: Yes. Very brief, though. It won't be
12 five minutes.
13 CHAIRMAN CAFFREY: Any others?
14 There are two more. We better take a break and move
15 cars and come back. I don't think we have time to do
16 closing statements and get your car out of hock.
17 Sorry to do that, folks, but we ran out of time.
18 Let's take a break.
19 MR. ROOS-COLLINS: Mr. Caffrey, I can limit my closing
20 statement to three minutes.
21 CHAIRMAN CAFFREY: I don't think that is -- we always
22 make those promises, but I don't think it is going to work.
23 She has to walk out this door at ten to or her car is going
24 to be locked up all night.
25 Anybody else stuck in this parking lot?
01 I think we better break and come back in 15 minutes to
02 take closing statements.
03 (Break taken.)
04 CHAIRMAN CAFFREY: Lets begin the conclusion.
05 Ms. Bellomo, I'll give you -- you have six minutes if
06 you wold like to make a closing statement. Of course, you
07 are entitled, of course, to a written closing statement as
09 MS. BELLOMO: Thank you, Chairman Caffrey and Mr. Del
10 Piero, and Members of the Board who are not present who may
11 be reading.
12 We want to thank you sincerely for your patience and,
13 really extraordinary patience in this proceeding, and your
14 forbearance in our effort to put on our case here, not being
15 familiar with your rules and whatnot. We also want to thank
16 the three staff members, particularly Mr. Frink and Mr.
17 Johns, for all the assistance that they have provided us in
18 resolving procedural problems we had along the way. We
19 really appreciated that very much.
20 We want to simply make it clear that we don't in any
21 way want to be viewed as standing in the way of the adoption
22 of the portion of the settlement agreement that the parties
23 have arrived at as it relates to stream restoration at Lee
24 Vining, Rush, Parker, Walker, and, I guess, the Grant Lake
25 Management Plan. We think it is admirable that they have
01 come up with something. By all reports it sounds like they
02 think that they've come up with some really good projects,
03 and we hope that that can go forward. And we don't want in
04 any way to be an obstacle in slowing that down.
05 I am not going to rehash any of our positions on the
06 waterfowl plan. I will put that in the briefs, and I think
07 you are well aware of that.
08 Closing, I would just say that I have proved to myself
09 that I knew what would happen at the beginning of this
10 proceeding, that I have proven that an attorney who
11 represents herself has a fool for a client, and I am sorry
12 that it had to happen in front of you.
13 Thank you.
14 CHAIRMAN CAFFREY: Well, I don't think you should feel
15 that way, Ms. Bellomo. I want to thank you for your very
16 gracious comments.
17 Are there any others?
18 I know that Mr. Roos-Collins wanted to make a closing
19 statement. I don't know where his car was parked. I hate
20 to have us all leave now.
21 MS. SCOONOVER: I would be glad to fill some time,
22 Chairman Caffrey. Just briefly, really.
23 CHAIRMAN CAFFREY: As long as it's song and dance.
24 MS. SCOONOVER: Thank you.
25 I would echo the others in thanking you all for your
01 time and attention. I have practiced before a number of
02 bodies in my career and believe that this is one unique
03 institution in that I feel that all the material is indeed
04 read, that whatever is submitted is taken very seriously.
05 And I know it is a great deal of information and it takes a
06 great deal of time. I appreciate the staff and the Water
07 Board's time and attention given to it.
08 Finally, at the risk of repeating myself, I guess I
09 would like to quote an appellate court in saying, and with
10 feelings this time, all things must end even in the field of
11 water law.
12 Thank you.
13 CHAIRMAN CAFFREY: Thank you very much, Ms. Scoonover.
14 CHAIRMAN CAFFREY: Mr. Roos-Collins, do you need time
15 to catch your breath? Or were you parked on the other side
16 of the Capitol, per chance?
17 MR. ROOS-COLLINS: No. I was parked a good walk from
19 CHAIRMAN CAFFREY: We weren't going to leave without
21 MR. BIRMINGHAM: Although Mr. Dodge suggested it.
22 MR. DODGE: At least some of us weren't going to leave
23 without you.
24 CHAIRMAN CAFFREY: You have six minutes, Mr.
01 MR. ROOS-COLLINS: Mr. Chairman, Mr. Del Piero,
02 California Trout respectfully asks that you accept the
03 restoration plans submitted by the Department of Water and
04 Power as fulfilling the requirements of Decision 1631.
05 In your hearing notice you asked the parties to address
06 two key issues: Does a restoration plan comply with
07 requirements of D-1631 and, if not, how should it be
08 changed? In the course of the many months of this hearing,
09 including the procedural complexities, politics, all the
10 evidence, I fear that we parties have lost track of those
11 key issues. In my closing argument I ask you to focus on
12 them as you make your decision.
13 Cal Trout's answer to that question, to those questions
14 as they pertain to the stream plan was, no, at the outset of
15 the hearing. Our answer today is, enthusiastically, yes.
16 The record contains substantial evidence that the
17 stream plan complies with all of the requirements set forth
18 in Paragraph 8 of Decision 1631. I will be so bold as to
19 say that I am aware of no evidence in the record that
20 demonstrates the plan, now submitted by DWP, is inadequate
21 in any respect to achieve the purpose of restoring the
22 fisheries and the creeks subject to DWP's control.
23 Now, there were disputed issues of law, as well, as we
24 entered this hearing. I comment tonight only that for the
25 first time in these cases the environmental groups, the
01 resource agencies, and DWP are in agreement that the stream
02 plan it has put before you complies with its duties under
03 the law. To my knowledge, we have never had such an
04 agreement, and you have it tonight.
05 Now, as may have been apparent to you from the emphasis
06 in our written testimony, Cal Trout had one priority in this
07 hearing for amendment of the stream plan as submitted
08 February 1996. That was to assure the monitoring program
09 will inform the Board and the interested parties the status
10 of these streams and the progress towards restoration. I
11 say, unequivocally, tonight that the monitoring program
12 contained in the stream restoration plan now before you is
13 the best such plan California Trout has ever seen any water
14 right licensee adopt for this purpose. We believe it is
15 extraordinary in the quality of the scientific knowledge it
16 introduced and we are, therefore, satisfied that we will
17 know, as time goes by, whether this stream restoration plan
18 is having its intended effect.
19 There have been many charges in the course of this
20 hearing about secret or unfair negotiations between the
21 parties who have signed the agreement before you. I say
22 tonight only this: Cal Trout is sensitive to a fault to
23 exclusive negotiations which concern allocation of public
24 resources. And I believe that negotiations we undertook
25 were fair. But more importantly, you weren't involved in
01 them and the procedures we used should not control your
03 Your decision, as stated in your hearing notice,
04 concerns the key issues: Does each plan comply with
05 requirements of Decision 1631? And if not, how should it
06 been amended?
07 On behalf of the Board of Directors of California Trout
08 and its Executive Director, Jim Edmondson, who was here with
09 us yesterday, I thank the Board Members and Board staff for
10 the patience that you have shown as we struggled towards a
11 settlement agreement, and I thank you as well for the
12 guidance that you have given us in Decision 1631 and also in
13 the rulings you have made in the course of this hearing, all
14 of which contributed directly to our success in reaching
15 this settlement agreement.
16 In my closing argument in the 1993 and 1994 hearing, I
17 expressed hope that the decision this Board adopted would be
18 so fair and so well-founded in the record and so consistent
19 with the law that it would not be appealed and, if appealed,
20 would be upheld. Several attorneys on my side of the V said
21 that I was naive and I described a miracle. You did it. I
22 have that same hope tonight.
23 Thank you.
24 CHAIRMAN CAFFREY: Thank you very much, Mr.
25 Roos-Collins. We also have that hope.
01 Are there any other closing statement from the parties?
02 I believe that the staff have --
03 Mr. Dodge.
04 MR. DODGE: I just wanted to repeat my closing
05 statement, that I, on behalf of the Mono Lake Committee and
06 the National Audubon Society, we thank the Board and thank
07 staff for your courtesy and your fair-mindedness, and we
08 trust the final order will come out in a way that is
09 consistent with the facts and the law.
10 Thank you.
11 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.
12 MR. BIRMINGHAM: The Department of Water and Power
13 would also like to thank the Board and its staff for the
14 courtesies that have both shown, both to the staff and
15 counsel during this process.
16 Thank you.
17 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.
18 MS. CAHILL: And that is certainly true as well for the
19 Department of Fish and Game. We appreciate very much the
20 attention of the Board, the Board Members personally.
21 Mr. Del Piero, it is good to have you back.
22 CHAIRMAN CAFFREY: Certainly is.
23 MS. CAHILL: We appreciate the courtesy and helpfulness
24 of the staff, and we wish you the best in reaching your
01 CHAIRMAN CAFFREY: Thank you, as well, Ms. Cahill.
02 I believe Mr. Canaday had something that he wanted to
04 MR. CANADAY: Thank you, Chairman Caffrey.
05 This staff would like to echo the accolades to the
06 legal counsel for all the parties and their staffs for the
07 cooperation in which they have shown us. We look forward to
08 working with you in the restoration of the Mono Basin. We,
09 again, appreciate all the parties and particularly the
10 citizens of Lee Vining. You took the time to come over
11 here. We appreciate them being here. We look forward to
12 seeing you all in the basin soon.
13 CHAIRMAN CAFFREY: Thank you, Mr. Canaday.
14 I am going to close the hearing in just the matter of a
15 very few minutes. I want to make a statement of my own, if
16 you all will indulge me and bear with me.
17 As Chair of the Water Board, I have a lot of
18 administrative duties that don't always afford me the
19 opportunity to actually be a hearing officer in the water
20 rights side as much as I would like to. I have a great
21 interest in this issue personally. I think it is a very
22 important one. And, of course, somewhat at the urging of
23 Mr. Del Piero, who said, "Try it; you will like it," I
24 decided that I would chair this very important set, if you
25 will, of this very important issue. And I have to say, that
01 if enjoyable is the right term to use, I have really enjoyed
02 it. You were truly, all of you, a remarkable group of
03 dedicated people, for whatever reason brings you here to
04 this issue and to this hearing room.
05 I am very, very impressed at your professionalism, and
06 I want to just put that on the record. This has been an
07 honor and a pleasure for me, and I certainly hope that
08 somehow we will be able to take this record that we have
09 garnered with your help and be able to put something
10 together that has the acceptance that we have enjoyed with
11 D-1631. That is certainly our hope and our quest.
12 And with that, I want to say to you all, again, thank
13 you. The Board will take this matter under submission,
14 based on hearing records and the legal briefs and documents
15 that you are going to be submitting by the deadline, the
16 dates that we all agreed upon. And all of you will be
17 notified as to the next time we will be doing anything with
18 this matter.
19 Anything else, Mr. Del Piero, that you would like to
21 MEMBER DEL PIERO: Only that the valedictorian from the
22 Marc Del Piero School of Hearing Officers has done a pretty
23 fair job. My complements, Mr. Chairman.
24 CHAIRMAN CAFFREY: Thank you very much, Mr. Del Piero.
25 Thanks again to you for all of your dedication to this issue
01 throughout the months and years.
02 With that, then we wish you all God speed and farewell,
03 and you will be hearing from us.
04 Thank you all very much.
05 (Hearing concluded at 7:10 p.m.)
01 REPORTER'S CERTIFICATE
04 STATE OF CALIFORNIA )
04 ) ss.
05 COUNTY OF SACRAMENTO )
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 transcribed, and the pages numbered 1565 through 1875 herein
14 constitute a complete, true and correct record of the
17 IN WITNESS WHEREOF, I have subscribed this certificate
18 at Sacramento, California, on this
19 27th day of May 1997.
24 ESTHER F. WIATRE
25 CSR NO. 1564