1365
01 STATE WATER RESOURCES CONTROL BOARD
02
03 PUBLIC HEARING
04
05
06 REGARDING STREAM AND WATERFOWL HABITAT RESTORATION
PLANS
06 AND GRANT LAKE OPERATIONS AND MANAGEMENT PLAN
SUBMITTED BY
07 THE LOS ANGELES DEPARTMENT OF WATER AND POWER
PURSUANT TO
07 THE REQUIREMENTS OF WATER RIGHT DECISION 1631
08
09
10
11
12
13 HELD AT:
14 STATE WATER RESOURCES CONTROL BOARD
14 PAUL BONDERSON BUILDING
15 901 P STREET, FIRST FLOOR HEARING ROOM
15 SACRAMENTO, CALIFORNIA
16
16
17
17
18 TUESDAY, MAY 6, 1997
18 10:30 A.M.
19
19
20
20
21
21
22
22
23
23
24 Reported by: ESTHER F. WIATRE
24 CSR NO. 1564
25
25
1366
01 APPEARANCES
01 BOARD MEMBERS:
02
02 JOHN CAFFREY, CHAIRMAN
03 JOHN W. BROWN
03 JAMES STUBCHAER
04 MARY JANE FORSTER
04 MARC DEL PIERO
05
05 STAFF MEMBERS:
06
06 JAMES CANADAY, ENVIRONMENTAL SPECIALIST
07 GERALD E. JOHNS, ASSISTANT DIVISION CHIEF
07
08 COUNSEL:
08
09 DAN FRINK
09
10 LOS ANGELES DEPARTMENT OF WATER AND POWER:
10
11 KRONICK MOSKOVITZ TIEDEMANN & GIRARD
11 400 Capitol Mall, 27th Floor
12 Sacramento, California 95814
12 BY: THOMAS W. BIRMINGHAM, ESQ.
13 and
13 JANET GOLDSMITH, ESQ.
14
14 UNITED STATES FOREST SERVICE: (Not present.)
15
15 UNITED STATES DEPARTMENT OF AGRICULTURE
16 OFFICE OF GENERAL COUNSEL
16 33 New Montgomery, 17th Floor
17 San Francisco, California 94105
17 BY: JACK GIPSMAN, ESQ.
18
18 BUREAU OF LAND MANAGEMENT: (Not present.)
19
19 UNITED STATES DEPARTMENT OF THE INTERIOR
20 BUREAU OF LAND MANAGEMENT
20 BISHOP RESOURCE AREA
21 785 North Main Street, Suite E
21 Bishop, California 93514
22 BY: TERRY L. RUSSI
22
23
23
24
24
25
25
1367
01
01 APPEARANCES
02
02 PEOPLE FOR MONO BASIN PRESERVATION:
03
03 KATHLEEN MALONEY BELLOMO
04 P.O. Box 201
04 Lee Vining, California 93541
05
05 POLICY STATEMENT PANEL:
06
06 FLOYD GRIFFIN
07 BONNIE NOLES
07 JOHN FREDERICKSON
08
08 ARNOLD BECKMAN: (Not present.)
09
09 DeCUIR & SOMACH
10 400 Capitol Mall, Suite 1900
10 Sacramento, California 95814
11 BY: DONALD MOONEY, ESQ.
11
12 ARCULARIUS RANCH: (Not present.)
12
13 FRANK HASELTON, LSA
13 1 Park Plaza, Suite 500
14 Irvine, California 92610
14
15 RICHARD RIDENHOUR: (Not present.)
15
16 RICHARD RIDENHOUR
16
17 CALIFORNIA TROUT, INC.:
17
18 NATURAL HERITAGE INSTITUTE
18 114 Sansome Street, Suite 1200
19 San Francisco, California 94014
19 BY: RICHARD ROOS-COLLINS, ESQ.
20
20
21
21
22
22
23
23
24
24
25
25
1368
01
01 APPEARANCES
02
02 CALIFORNIA DEPARTMENT OF FISH AND GAME:
03
03 NANCEE MURRAY, ESQ.
04 1416 Ninth Street
04 Sacramento, California 95814
05
05 McDONOUGH HOLLAND & ALLEN
06 555 Capitol Mall, Ninth Floor
06 Sacramento, California 95814
07 BY: VIRGINIA A. CAHILL, ESQ.
07
08
08 PANEL MEMBERS:
09
09 RONALD THOMAS
10
10 CALIFORNIA STATE LANDS COMMISSION:
11 CALIFORNIA DEPARTMENT OF PARKS AND RECREATION:
11
12 MARY J. SCOONOVER, ESQ.
12 1300 I Street
13 Sacramento, California 95814
13
14 MICHAEL VALENTINE
14
15 PANEL MEMBERS:
15
16 DIANA F. JACOBS
16 W. JAMES BARRY
17 SCOTT STINE
17
18 NATIONAL AUDUBON SOCIETY:
18 MONO LAKE COMMITTEE:
19
19 MORRISON & FOERSTER
20 425 Market Street
20 San Francisco, California
21 BY: F. BRUCE DODGE, ESQ.
21
22
22 ---oOo---
23
23
24
24
25
25
1369
01 INDEX
01
02 PAGE
02
03 STATES LAND COMMISSION & DEPARTMENT OF PARKS
AND RECREATION
03
04 DIRECT EXAMINATION
04
05 BY MS. SCOONOVER 1378
05
06 CROSS-EXAMINATION
06
07 BY MS. BELLOMO 1382
07 BY MR. ROOS-COLLINS
08 BY BOARD STAFF 1429
08
09 REDIRECT EXAMINATION
09
10 BY MS. SCOONOVER 1436
10
11 RECROSS EXAMINATION
11
12 BY MS. BELLOMO 1459
12
13 DEPARTMENT OF FISH AND GAME
13
14 DIRECT EXAMINATION
14
15 BY MS. CAHILL 1463
15
16 CROSS EXAMINATION
16
17 BY MS. BELLOMO 1464
17 BY BOARD STAFF 1504
18
18
19 PEOPLE FOR MONO BASIN PRESERVATION
19
20 POLICY STATEMENT PANEL 1550
20
21 AFTERNOON SESSION 1429
21
22 ---oOo---
23
24
25
1370
01 SACRAMENTO, CALIFORNIA
02 TUESDAY, MAY 6, 1997
03 ---oOo---
04 CHAIRMAN CAFFREY: Good morning to you all, and
05 welcome back to these proceedings on Mono Lake,
after what I
06 think what was about a two and a half month hiatus,
as
07 parties attempted to come to some resolution.
08 I am John Caffrey, Chairman of State Water
Resources
09 Control Board. You certainly all know who we are.
10 I would like to give special recognition to the
fact we
11 have been rejoined by Mr. Del Piero, who has been
12 recuperating for the last couple of months from
rather
13 significant back surgery.
14 Welcome back, Marc. Glad to see you.
15 MEMBER DEL PIERO: Thank you.
16 CHAIRMAN CAFFREY: Let me read a brief statement
into
17 the record. Hopefully, it's brief by your
definition.
18 This is a continuation of the State Water Resources
19 Control Board hearing on Mono Basin Stream and
Waterfowl
20 Habitat Restoration Plans that were required by
Water Right
21 Decision 1631. At the request of several parties to
the
22 proceeding, the hearing was recessed on February
25th, 1997
23 to allow the requesting parties time to prepare a
proposed
24 settlement agreement to submit for the Board's
consideration
25 Based on correspondence from the parties, the Board
1371
01 understands that some, but not all, of the parties
have
02 agreed on a proposed settlement. There will be an
03 opportunity for the parties to address the proposed
04 settlement later on in the hearing. I want to note
for the
05 record that in this matter, as in many high profile
06 disputes, the Board has received correspondence
from
07 interested persons who are not parties to the
hearing
08 process. The recent letters, which the Board has
received
09 on Mono Basin restoration proposals are included in
a file
10 available from Mr. Johns, who is sitting here at
the front
11 table, of course.
12 Letters from outside parties are not considered
part of
13 the evidentiary record, unless introduced and
accepted as an
14 exhibit. The procedures we will follow in today's
hearing
15 were addressed at the close of the hearing on
February 25th
16 and in three subsequent notices. In accordance with
those
17 procedures, the Board's first item of business will
be to
18 accept into evidence the remaining exhibits and
written
19 testimony which were previously submitted by
parties and
20 which were not subject of a written objection or
request
21 for cross-examination by April 25th.
22 Following that, we will provide an opportunity for
23 cross-examination of those witnesses who were
designated by
24 other parties by April 25th. After the oath has
been
25 administered, counsel for the party presenting the
witnesses
1372
01 should have the witnesses identify themselves and
their
02 previously submitted written testimony before
making the
03 witnesses available for cross-examination.
04 We expect to begin with witnesses Scott Stine,
James
05 Barry, and Diana Jacobs, who submitted written
testimony on
06 behalf of the State Lands Commission and the
Department of
07 Parks and Recreation. When the testimony and
08 cross-examination of these witnesses is complete,
we will
09 then proceed to the identification of the written
testimony
10 and the cross-examination of Ronald Thomas, who
submitted
11 written testimony on behalf of the Department of
Fish and
12 Game.
13 The previous request to have witnesses Ted Beedy
and
14 Gary Smith available for cross-examination has been
15 withdrawn.
16 Following completion of all testimony and
17 cross-examination regarding previously submitted
exhibits
18 and written testimony, we will provide an
opportunity for
19 presentation and questions regarding the proposed
settlement
20 agreement. Following that, the Board will provide
an
21 opportunity for rebuttal testimony. I want to
remind all
22 parties that the rebuttal portion of the hearing is
23 restricted to presentation of testimony or other
evidence
24 which is intended to rebut evidence presented by
another
25 party.
1373
01 Before proceeding further, I want to remind all the
02 participants that this hearing has already been
continued
03 three times at the request of various parties. The
Board
04 appreciates the efforts of the parties to reduce
areas of
05 disagreement, and we expect that those efforts will
shorten
06 the time needed for completion of this hearing. We
believe
07 that, if we follow the previously announced
procedures, we
08 should be able to complete the hearing in the two
days which
09 have been scheduled. If it looks like completing
the
10 hearing will require evening sessions, then we may
hold an
11 evening session either today, tomorrow, or on both
days.
12 Hopefully, that won't be necessary. That is
certainly our
13 intention to avoid that if we can.
14 Are there any questions up to that point, of what I
15 just stated?
16 Thank you.
17 Mr. Birmingham, did I see your hand go up? Yes,
sir.
18 MR. BIRMINGHAM: Mr. Caffrey, you referred to a
number
19 of letters which the Board has received from
interested
20 parties that are actually not parties to the
proceedings. I
21 wonder if we can obtain copies of those letters?
22 CHAIRMAN CAFFREY: Certainly.
23 Mr. Frink, would you like to comment on that? I
know
24 you have a file. Was it your intention to just make
the
25 file available or to provide actual copies to
anyone who
1374
01 might want them? What was the intent here?
02 MR. FRINK: All we have done so far is include them
in
03 a file. I wonder if he can get a count on the
number of
04 parties who would like copies, and we can get them
at the
05 break and have them this afternoon.
06 CHAIRMAN CAFFREY: How many don't want it?
07 MEMBER DEL PIERO: Assume everyone wants it.
08 MR. FRINK: We will have them available this
09 afternoon.
10 MR. BIRMINGHAM: Thank you.
11 CHAIRMAN CAFFREY: All right. Any other questions?
12 I will rely on you, Mr. Frink, and certainly the
other
13 attorneys in the room to make sure that I stay on
track
14 here. I am trying to focus, but I spent this
morning
15 testifying on the State Water Board's budget on the
Assembly
16 side. Someone at the State is shocked because they
doubled
17 one of our more significant water quality areas,
which is a
18 little bit different kind of experience than what
we are
19 used to. Please bear with me. It's very good news,
by the
20 way.
21 All right then, I believe that we are at the point
22 where we can accept, if offered into evidence, into
the
23 evidentiary record, the exhibits of Bureau of Land
24 Management, Mono Lake Committee and National
Audubon
25 Society, and California Trout, Inc. I see Mr. Dodge
at the
1375
01 podium.
02 Mr. Dodge.
03 MR. DODGE: Ready to offer Exhibits R-NAS/MLC 1
through
04 7, Mr. Chairman. We will offer those exhibits into
05 evidence.
06 THE COURT: Thank you, sir.
07 MR. DODGE: I would also offer BLM's exhibits into
08 evidence. I don't think they are here today.
09 CHAIRMAN CAFFREY: I believe that is the case, and I
10 appreciate your doing that.
11 Is there any objection from anyone as to the Board
12 accepting those exhibits into the evidentiary
record?
13 Very good. Seeing none, they are accepted.
14 I am sorry, Mr. Johns, did you have a
clarification?
15 MR. JOHNS: We have a Exhibit 7A which is
corrections
16 to Mr. Vorster's testimony. I am assuming you
wanted that
17 into evidence, as well?
18 MR. DODGE: Yes, and also there was an amendment to
the
19 STE testimony, which I believe is Exhibit 3A.
20 MR. JOHNS: That is correct.
21 MR. DODGE: I offer both of those.
22 CHAIRMAN CAFFREY: I assume that is on a
modification
23 of the exhibits; that is just a clarification?
24 MR. JOHNS: That is correct. We have three exhibits
25 from the Bureau of Land Management, Exhibits 1, 2,
and 3 for
1376
01 the record.
02 CHAIRMAN CAFFREY: Those are accepted without
03 objection.
04 That takes us to the evidentiary exhibits for
05 California Trout. Mr. Roos-Collins, good morning,
sir.
06 MR. ROOS-COLLINS: Morning, Mr. Caffrey. On behalf
of
07 California Trout, I ask that our Exhibits R-CT-1
through 5
08 be accepted into evidence.
09 CHAIRMAN CAFFREY: Thank you, sir.
10 At this time I will give Mr. Johns a chance to make
11 sure he synchronizes with you.
12 MR. JOHNS: We got it.
13 CHAIRMAN CAFFREY: Does that meet with your
14 understanding of the enumeration of the exhibits?
15 MR. JOHNS: Yes, it does. It is CT-1 through --
16 actually, I have two Exhibits 5s. One is Scott
Stine's
17 testimony and another one is a supplemental direct
testimony
18 from Carl Mesick, which is also identified as 5.
Should
19 that be 6?
20 MR. ROOS-COLLINS: Dr. Mesick's testimony is R-CT-2.
21 MR. JOHNS: I have a supplemental direct testimony
22 from him that we received on February 20th, and it
is
23 CT-6. I am sorry, I got it wrong. So, if you want
to
24 correct that to include his supplemental testimony
or not?
25 MR. ROOS-COLLINS: Yes, I do. Thank you for the
1377
01 correction.
02 MR. JOHNS: Now, I'm okay.
03 CHAIRMAN CAFFREY: Thank you, Mr. Johns.
04 Is there any objection from any of the parties or
any
05 one on the Board from accepting these exhibits into
the
06 evidentiary record?
07 Seeing and hearing none, they are accepted.
08 Thank you very much, Mr. Roos-Collins.
09 There were a number of exhibits offered by the
10 Department of Fish and game and the State Lands
11 Commission and the Department of Parks and
Recreation, which
12 were not subject to objection or request for
13 cross-examination by the April 25th date. However,
in the
14 interest of time, I think probably, procedurally,
it would
15 be better after the cross-examination of the
certain
16 exhibits, that we take it all up at that time.
17 So, if that is agreeable with you and Ms. Cahill,
18 thank you very much.
19 Let's administer the oath to those who are here to
20 testify or feel that they might some time during
the course
21 of this proceeding.
22 (Oath administered by Chairman Caffrey.)
23 CHAIRMAN CAFFREY: Thank you very much. You may be
24 seated.
25 I believe we will start with the panel of Scott
Stine,
1378
01 James Barry and Diana Jacobs.
02 Ms. Scoonover, do you wish to present your panel?
03 MS. SCOONOVER: Good morning.
04 CHAIRMAN CAFFREY: Good morning, Ms. Scoonover. Good
05 morning to the panel.
06 MS. SCOONOVER: This morning I would like to present
07 Drs. Stine, Barry, and Jacobs on behalf of the
State Lands
08 Commission and the Department of Parks and
Recreation, take
09 just a few minutes to ask each witness to identify
his or
10 her testimony, and then make this panel available
for
11 cross-examination.
12 CHAIRMAN CAFFREY: Thank you, Ms. Scoonover.
13 ---oOo---
14 DIRECT EXAMINATION BY
15 STATE LANDS COMMISSION and
16 DEPARTMENT OF PARKS AND RECREATION
17 BY MS. SCOONOVER
18 MS. SCOONOVER: Dr. Barry, would you please spell
your
19 name for the record?
20 DR. BARRY: B-a-r-r-y.
21 MS. SCOONOVER: Dr. Barry, is R-SLC/DPR-1 a true and
22 accurate copy of your Curriculum Vitae?
23 DR. BARRY: Yes, it is.
24 MS. SCOONOVER: Dr. Barry, is R-SCL/DPR 100 and
25 following exhibits a true and accurate statement of
your
1379
01 testimony before this Board?
02 DR. BARRY: Yes, it is.
03 MS. SCOONOVER: Dr. Jacobs, I will ask you to spell
04 your last name for the record.
05 DR. JACOBS: J-a-c-o-b-s.
06 MS. SCOONOVER: Dr. Jacobs, is R-SLC/DPR-3 a true
and
07 accurate copy of your resume?
08 DR. JACOBS: Yes.
09 MS. SCOONOVER: Dr. Jacobs, is R-SLC/DPR-300 and
10 following a true and accurate statement of your
testimony
11 and exhibits before this Board?
12 DR. JACOBS: Yes.
13 MS. SCOONOVER: Dr. Stine, would you please spell
your
14 last name for the record?
15 DR. STINE: Yes. S-t-i-n-e.
16 MS. SCOONOVER: And is R-SLC/DPR-4 a true and
accurate
17 statement of your Curriculum Vitae?
18 DR. STINE: Yes, it is.
19 MS. SCOONOVER: Is R-SLC/DPR-400 and following a
true
20 and accurate statement of your testimony and
exhibits?
21 DR. STINE: Yes, it is.
22 MS. SCOONOVER: Do you have any corrections you
would
23 like to make to that statement, Dr. Stine?
24 DR. STINE: Yes. One minor clarification on the
25 testimony on Page 12, of the testimony. Second full
1380
01 paragraph at the end, there is a sentence which
currently
02 reads:
03 This has been particularly true during the
04 past ten years when water earmarked for the
05 Upper Conway Ditch, largest of the Conway
06 ditches, has been diverted instead into
07 Wilson Creek. (Reading.)
08 I would like to cross out the words "Upper
Conway
09 Ditch, largest of the Conway ditches" and
replace that with
10 "upper portions of the Conway lands."
11 MS. BELLOMO: Would it be possible to ask the
witness
12 to read the sentence as it now reads? I am slightly
13 confused.
14 CHAIRMAN CAFFREY: Yes. Could you do that, please,
Dr.
15 Stine?
16 DR. STINE: Certainly. The last sentence of that
17 second paragraph now reads:
18 This is has been particularly true during the
19 past ten years when water earmarked for the
20 upper portions of the Conway lands has been
21 diverted instead into "Wilson Creek."
22 (Reading.)
23 MR. DODGE: The language "largest of the Conway
24 ditches" is gone?
25 DR. STINE: Yes.
1381
01 MS. BELLOMO: And Upper Conway Ditch is gone, as
well?
02 DR. STINE: That's correct.
03 MS. SCOONOVER: I would also like to note for the
04 record that Dr. Ted Beedy is here and present today
and has
05 been sworn as a witness. If any of the
cross-examination
06 questions are specifically waterfowl related, the
responses
07 of the birds or waterfowl, I will ask that Dr.
Beedy be
08 allowed to join this panel to respond to the
questions.
09 As the Water Board requested, we split up your
10 testimony by area of expertise, obviously, and
present them
11 as a panel. All of them are necessary in order to
get the
12 entire picture for the waterfowl habitat
restoration
13 efforts.
14 If they're no questions for Dr. Beedy, that is
fine.
15 He will remain in the audience. However, he has
been sworn
16 and is available, should either the Board staff or
Board
17 Members themselves have questions of Dr. Beedy.
18 CHAIRMAN CAFFREY: Thank you, Ms. Scoonover. We
19 appreciate your letting us know that is the case if
the need
20 presents itself.
21 MS. SCOONOVER: Likewise, Dr. Barry is qualified to
22 answer questions on Dave Carls' testimony that was
23 presented. His is primarily prescribed burns, and
there is
24 overlap. If the Board Members or Board staff have
questions
25 on David Carls' testimony, Dr. Beedy is prepared to
respond
1382
01 to those as well.
02 If there is nothing further from the Board, I
request
03 to make these witnesses available for
cross-examination.
04 CHAIRMAN CAFFREY: Thank you very much, Ms.
Scoonover.
05 Ms. Bellomo, representing the People for Mono Basin
06 Preservation, are you ready to cross-examine the
witnesses?
07 MS. BELLOMO: Yes, I am.
08 CHAIRMAN CAFFREY: I will remind you that you have
up
09 to one hour to cross-examine this panel, as it was
the
10 previous procedure that we had established at the
beginning
11 of this hearing.
12 MS. BELLOMO: Thank you.
13 CHAIRMAN CAFFREY: Good morning and welcome.
14 MS. BELLOMO: Good morning. Morning, Board Members.
15 CROSS EXAMINATION BY
16 PEOPLE FOR MONO BASIN PRESERVATION
17 BY MS. BELLOMO
18 MS. BELLOMO: Morning, Drs. Jacobs, Barry, and
Stine.
19 I want to ask at the outset if you could tell me,
Dr.
20 Jacobs, what is your area of expertise? What is
your
21 professional field?
22 DR. JACOBS: My original academic background was
what
23 I call applied ecology with a specialization in
plant
24 ecology and more particularly ecology of woody
plants,
25 trees. When I started State service ten years ago,
I began
1383
01 with the Department of Water Resources and have
been with
02 State Lands Commission. And I have been
concentrating on
03 areas under those two agencies' authority and
jurisdiction,
04 so more particularly the ecology of riparian areas,
although
05 I am called upon to address wetland, aquatic
issues, and
06 upland as well, upland terrestrial ecology.
07 MS. BELLOMO: What is the purpose of your testimony
in
08 this proceeding?
09 DR. JACOBS: I don't understand the purpose.
10 MS. BELLOMO: Were you given some mission when you
went
11 out and prepared testimony?
12 MR. BIRMINGHAM: Objection. Vague and ambiguous.
13 MS. BELLOMO: I will rephrase the question.
14 What is the scope of your testimony? I am trying to
15 get at: What is the purpose of you presenting
testimony to
16 the Board, here?
17 DR. JACOBS: To present in the team format, I guess
18 you would say, to support the waterfowl scientists
19 recommendations for waterfowl restoration at Mono
Lake.
20 MS. BELLOMO: I assume that you are qualified to
21 address some areas that your two fellow panelists
are not;
22 is that correct?
23 DR. JACOBS: Yes.
24 MS. BELLOMO: What are the areas that you are
qualified
25 that they are not?
1384
01 DR. JACOBS: My testimony addresses the riparian
02 bottomland of Mill Creek and the some of the issues
on
03 Wilson Creek and the ditches as riparian systems.
04 MS. BELLOMO: Thank you.
05 Dr. Barry, I am trying to get, elicit, the same
answers
06 from you. For starters, what is your field or area
of
07 expertise?
08 DR. BARRY: Well, I have several. I have Bachelor's
09 degree in soil science from the University of
Nevada, a
10 Master's degree in environmental horticultural from
the
11 University of California at Davis, and a Ph.D. in
plant
12 ecology from the University of California at Davis.
13 I was the first State Parks' plant ecologist with
14 statewide responsibility in vegetation management
and
15 protection for about a decade. I am now a Senior
State Park
16 ecologist, and I deal with ecological oversight,
policy
17 formulation for the department, dealing with
natural and
18 cultural heritage values, and research, park
science
19 technology, and also a California Resource Agency
University
20 of California fellow, which deals with research in
the
21 Sierra Nevada. And I have duties that require both
field
22 work throughout the state and looking at impacts
and trying
23 to understand natural systems and manage them in an
24 ecological and sound fashion.
25 MS. BELLOMO: Thank you.
1385
01 What is the purpose of your testimony in this
02 proceeding?
03 DR. BARRY: The purpose is to make sure that the
04 Department's mission is fulfilled as it pertains to
Mono
05 Lake State Reserves.
06 MS. BELLOMO: What is that mission? How does that
07 pertain to this proceeding?
08 DR. BARRY: Lately, it is to maintain the natural,
09 native ecological associations of the reserve
itself.
10 MS. BELLOMO: When you say "the reserve
itself," you
11 are referring to State lands?
12 DR. BARRY: The reserve, the relicted lands, as well
13 as the lake bottom.
14 MS. BELLOMO: In this proceeding, what are you
offering
15 in terms of expertise that is distinct from your
two fellow
16 panelists and Dr. Beedy?
17 DR. BARRY: Well, I'm offering some applied ecology
18 like Dr. Jacobs, especially in the field of fire
ecology and
19 as well as some restoration ecology, which I have
done a
20 considerable amount throughout the state, and also
my own
21 experiences in ranching and irrigation.
22 MS. BELLOMO: Thank you.
23 Dr. Stine, I actually have been looking forward to
have
24 an opportunity to ask you this question because I
have
25 never, myself, met anyone nor known anyone who has
a BA, MA,
1386
01 or Ph.D. in physical geography. I wanted you to
explain
02 what that is, please.
03 DR. STINE: Physical geography is a discipline that
04 incorporates a number of other disciplines,
primarily
05 science. There is also a large component of history
in
06 physical geography. So that what I do is to
incorporate in
07 a multi-disciplinary, interdisciplinary way,
biological
08 phenomena, soils, hydrology, geomorphology, and
climatology,
09 paleoclimatology, as well as a number of other
things. What
10 I have ultimately trying to do is piece together
landscape
11 history, so that we can make predictions as to how
those
12 landscapes will function in the future under
certain
13 conditions.
14 MS. BELLOMO: Is that what physical geographers are
15 specialized in doing?
16 DR. STINE: Yes. If one goes on to graduate work in
17 physical geography, typically, that is what is
going to go
18 on. Typically, there will be some emphasis within
physical
19 geography, but it is going to be incorporative; it
is going
20 to take all of these different subdisciplines into
21 consideration.
22 CHAIRMAN CAFFREY: Excuse me, before you ask your
next
23 question, Ms. Bellomo, I was going to ask Dr. Stine
if he
24 could pull that mike over. We don't have the
world's
25 greatest sound system here, but we need to try and
use it as
1387
01 best we can.
02 I am a little concerned that some of the folks in
the
03 back of the room might not be able hear.
04 Ms. Bellomo, thank you. Please proceed.
05 MS. BELLOMO: Am I correct in assuming that you rely
06 on experts in other disciplines when you want to
get into
07 details, for instance, on biology? You brought Dr.
Jacobs
08 for that reason; is that correct?
09 DR. STINE: I didn't bring Dr. Jacobs. Dr. Jacobs'
10 expertise lies in the physiology of riparian
systems, and
11 she knows a great deal about it. If I have
questions on
12 riparian system's physiology, I would ask someone
like Dr.
13 Jacobs or Dr. Jacobs that particular question.
14 In terms of other elements of the biology, there
are
15 many elements of, for instance, riparian ecology
that I am
16 familiar with; indeed, that I have published on in
the
17 scientific literature. I teach a class, for
instance, in
18 the biology department at Cal State called
biogeography,
19 where we deal with a lot of different biological
phenomena.
20 If we wanted to know the timing of the second post
nuptial
21 molt of the Northern Pintail, I would probably go
to someone
22 like Dr. Beedy to figure out those psychological
questions.
23 MS. BELLOMO: Am I correct that you are not a
24 hydrologist?
25 DR. STINE: No, you are not correct. In part what I
1388
01 do as part of my science, as part of my research,
is to
02 study and report on in the scientific literature
elements of
03 hydrology.
04 MS. BELLOMO: Do you consider yourself an expert in
the
05 field of hydrology?
06 DR. STINE: I consider myself to be an expert on
07 certain elements of hydrology, particularly as they
interact
08 with other elements of the landscape.
09 MS. BELLOMO: Do you consider yourself to be a soils
10 expert?
11 DR. STINE: I consider myself to be on who uses soil
12 science as part of my landscape reconstructions. I
have
13 used it a great deal.
14 MS. BELLOMO: Are you qualified to be sworn as an
15 expert witness in soils?
16 DR. STINE: Yes. I am, insofar as the Mono Basin is
17 concerned, yes.
18 MS. BELLOMO: In your opinion?
19 MR. BIRMINGHAM: I am going to object to the
question
20 as calling for a legal conclusion.
21 CHAIRMAN CAFFREY: I don't think, with clarification
by
22 counsel, is necessary. He's answered the question.
23 MS. BELLOMO: Do you consider yourself to be an
expert
24 biologist?
25 DR. STINE: My answer is the same insofar as
biological
1389
01 phenomena and their interaction at, say, the
habitat level
02 in the Mono Basin goes, yes, I would say so. And I
always
03 defer to other experts in those areas that I don't
04 understand.
05 MS. BELLOMO: Would you defer to other experts on
06 hydrology?
07 DR. STINE: Depending upon the question, yes.
08 MS. BELLOMO: Would you defer to other experts on
09 soils?
10 DR. STINE: Depending upon the question, yes.
Although
11 I brought my doctoral dissertation along, 615
pages, and
12 I've made thousands of soil analyses in the Mono
Basin. And
13 I suspect that is factors of hundreds more than
anybody
14 else has ever done. So, I do a lot of soils work.
15 MS. BELLOMO: Would you defer to other expert
16 biologists on biology questions?
17 DR. STINE: Yes. As other biologists would rely on
yet
18 other biologists.
19 MS. BELLOMO: You consider yourself a biologist?
20 DR. STINE: I think I've answered that question. I
do
21 biology as part of my landscape reconstructions.
Yes, so I
22 consider myself, in part, a biologist, yes.
23 MS. BELLOMO: Do you consider yourself to be an
expert
24 plant ecologist?
25 DR. STINE: No. But as far as habitats go, yes. But
1390
01 plant ecology itself, I would say, is getting
pretty
02 physiological, so that does go beyond my expertise.
03 MS. BELLOMO: Do you consider yourself to be a
04 fisheries expert?
05 DR. STINE: Not in terms of the fish physiology. In
06 terms of fish habitat, yes, and stream systems and
their
07 support of fish, yes.
08 MS. BELLOMO: Do you consider yourself to be a
09 waterfowl expert?
10 DR. STINE: My answer would be the same. In terms of
11 studying the physiology of waterfowl, no; I would
defer to
12 other experts. In terms of waterfowl habitat, for
instance,
13 what kinds of habitat existed in the Mono Basin
14 historically, as well as what kinds of habitats
didn't exist
15 in the Mono Basin historically, yes, I would
consider myself
16 an expert.
17 MS. BELLOMO: Do you consider that Dr. Reid, Dr.
18 Drewien, and Dr. Ratcliff who prepared the report
for DWP
19 are more qualified as experts in the field of
waterfowl than
20 you are?
21 DR. STINE: The field of waterfowl is awfully broad.
22 They realized early on that Mono Lake is a peculiar
place
23 for waterfowl. So they relied on me to provide
information
24 on waterfowl habitats.
25 So, do I consider them to be more qualified than me
as
1391
01 waterfowl experts? Certainly on matters of
physiology,
02 certainly on matters of migration, for instance,
the timing
03 of waterfowl activities, things like that. But in
terms of
04 habitat and how they were used in the Mono Basin,
they
05 actually relied on me.
06 MS. BELLOMO: In terms of proposing to the Water
Board
07 suitable waterfowl habitat restoration measures, do
you
08 believe that you are as qualified to make those
09 recommendations as Drs. Reid, Drewien, and
Ratcliff?
10 MR. DODGE: Objection. Asked and answered.
11 MS. BELLOMO: No, it is a more specific question.
12 CHAIRMAN CAFFREY: I am sorry, what is the
objection?
13 Was there an objection?
14 MR. DODGE: I object on the basis that the question
has
15 been asked and answered.
16 MS. BELLOMO: It has not been asked and answered.
Dr.
17 Stine --
18 CHAIRMAN CAFFREY: Can you read back the question,
or
19 maybe you could just repeat it?
20 MS. BELLOMO: My question was with regard -- Dr.
Stine
21 qualified areas that he felt he was equally
knowledgeable as
22 the other three waterfowl -- as not the other, as
the three
23 waterfowl scientists in this proceeding. My
question to him
24 was with regard to making recommendations to the
Water Board
25 regarding suitable waterfowl habitat restoration
measures,
1392
01 does he think he is as qualified as those three
waterfowl
02 scientists who made recommendations to you. Is that
an area
03 that he feels equally qualified?
04 CHAIRMAN CAFFREY: That sounds to me like the same
05 question in a slightly different form, because now
it is
06 directed to answering questions to the Board; it is
a little
07 bit more specific, but I think it is completely
already
08 covered.
09 MS. BELLOMO: It is a different question. The
10 question, the first question I asked that Dr. Stine
answered
11 was whether he considered himself a waterfowl
expert, and he
12 said that he knew about the history of waterfowl in
the
13 basin and something else about waterfowl in the
basin. I am
14 asking him: Does he feel qualified to make
recommendations
15 as to what should be done to create waterfowl
habitat?
16 That is a different question.
17 CHAIRMAN CAFFREY: I will allow him to answer the
18 question. To me, the difference, and I am having
trouble
19 discerning the difference from what I heard before.
20 But go ahead and answer it.
21 DR. STINE: I'm sorry, I apologize. I am a little
bit
22 lost. I got a little bogged down in the
paraphrasing of
23 the answers that I gave to certain questions, which
seemed
24 to me quite different than the answers that I gave.
25 MS. BELLOMO: The record will speak for itself. Let
me
1393
01 just ask the question that Chairman Caffrey said
that I
02 could ask which is: Do you consider yourself as
qualified
03 as Drs. Reid, Drewien, and Ratcliff to make
recommendations
04 regarding appropriate waterfowl habitat restoration
measures
05 to be performed in the Mono Basin?
06 DR. STINE: I think that they are qualified to do it
07 after having conferred with me on what types of
things will
08 take care of themselves out there, what will
naturally
09 re-establish itself. So having taken that into
10 consideration, then, they have taken their
knowledge of
11 waterfowl and their new-found knowledge of Mono
Basin and
12 made what, I think, are some sound judgments about
what
13 should be done in the future.
14 MS. BELLOMO: If I hear you correctly, you are
saying
15 they took an area of expertise that you don't have
and added
16 it to your area of expertise to come up with their
17 recommendations. Is that correct?
18 DR. STINE: I would say that they took their
knowledge
19 and their expertise and their experience. They
conferred
20 with me on the history of the Mono Basin, what used
to be
21 out there, as well as the future of the Mono Basin,
what
22 will be there when the lake goes up, and based on
that they
23 made, what I think are, very solid recommendations
as to
24 what should go on in the future.
25 MS. BELLOMO: Is it fair to say that, in your mind,
1394
01 with your expertise as a physical geographer that
hydrology,
02 soil expertise, biology, botany, plant ecology, and
03 waterfowl expertise are subdisciplines of your
discipline?
04 DR. STINE: My discipline is composed only of
05 subdisciplines. So, it is tough for me to answer
that
06 question. It is though -- I get the sense that you
are
07 talking about some entity that exists independent
of all of
08 these subdisciplines. My discipline does not exist
09 independent of these subdisciplines. It is the
interaction
10 of these subdisciplines.
11 MS. BELLOMO: So, it sounds like if a person wanted
to
12 save money, would you agree, in hiring a
consultant, then
13 you just get a physical geographer and you don't
have to get
14 a biologist and a botanist and waterfowl expert? Is
that
15 correct?
16 MR. BIRMINGHAM: Objection. Argumentative.
17 CHAIRMAN CAFFREY: Overruled. I mean, sustained. I
18 was into the question. I was overruling the
question.
19 MS. BELLOMO: Dr. Jacobs, turning to your testimony,
20 you say on Page 1 that you've made three field
trips to the
21 Mono Basin; one in 1990, one in '94, and in '96. In
1990
22 and 1994, did you visit Mill and Wilson Creeks?
23 DR. JACOBS: No.
24 MS. BELLOMO: In 1996 when you visited Mono Basin,
was
25 it for the purpose of doing your evaluation for the
1395
01 testimony in this proceeding?
02 DR. JACOBS: Yes.
03 MS. BELLOMO: Can you tell me how --
04 DR. JACOBS: May I add one thing just to be
perfectly
05 accurate?
06 MS. BELLOMO: Yes.
07 DR. JACOBS: Since I swore to be totally honest, is
08 that I did stop by on my way back from Owens Valley
a month
09 ago, in late March, and I spent a few hours looking
again at
10 the upper Wilson system. I just wanted that to be
on the
11 record.
12 MS. BELLOMO: Thank you.
13 Can you tell me how long you were in the Mono Basin
in
14 1996 when you performed your evaluation for this
15 proceeding?
16 DR. JACOBS: Just one day, one-day field trip.
17 MS. BELLOMO: Can you describe what parts of Mill
18 Creek you visited?
19 DR. JACOBS: Perhaps we can look at Exhibit
20 R-SLC/DPR-424, which is a map.
21 MS. BELLOMO: While Dr. Stine is putting the map up,
I
22 would like to proceed with my question.
23 Can you describe where those areas are located?
24 DR. JACOBS: What I visited?
25 MS. BELLOMO: On Mill Creek.
1396
01 DR. JACOBS: We drove by, quickly, on Highway 95,
02 looked a little bit at the upper area of Mill Creek
below
03 395, but in passing. Mostly we went in on the
County
04 Road, and examined this portion.
05 MS. BELLOMO: What was the total amount of time that
06 you spent examining that portion?
07 DR. JACOBS: That I can't remember, to be honest
with
08 you. We spent a whole day looking at, visiting,
these
09 portions and these portions of Wilson. But no more
than a
10 few hours, shall we say that.
11 MS. BELLOMO: By "a few hours" you mean --
is a few
12 hours two hours?
13 DR. JACOBS: I don't know. You can help me here?
14 CHAIRMAN CAFFREY: Dr. Jacobs, just answer the
15 question. That is your testimony.
16 DR. JACOBS: I can't recall any more precisely.
17 MS. BELLOMO: Did you visit any other portions of
Mill
18 Creek?
19 DR. JACOBS: No.
20 MS. BELLOMO: What portions of Wilson Creek did you
21 visit?
22 DR. JACOBS: This the viewpoint right here, looking
23 out over the ditches. These portions in here. In
here,
24 there is a kind of a dirt road on this portion.
25 MR. JOHNS: Excuse me, I wonder if the witness could
be
1397
01 a little more specific in identifying the location.
02 DR. JACOBS: I am sorry. Below the Lundy powerhouse
03 and its intersection with the return ditch. We also
stopped
04 and overlooked some of the upper ditch areas where
there is
05 a meadow below the penstock to the north.
06 Portions along -- there is a dirt road north of
167.
07 So, had some access in there. Stopped along 395.
Examined
08 this. Drove down the County Road and examined
portions in
09 this area.
10 MS. BELLOMO: You are indicating?
11 DR. JACOBS: Wilson Creek. The County Road that is
12 below Highway 167, where it cuts off to DeChambeau
Ditch.
13 And then down on the quarry road area looking up,
and walked
14 down the Wilson all the way to the edge and along
the
15 shoreline and back up to the Mill Creek area.
16 MS. BELLOMO: What was the total amount of time you
17 spent examining or looking at Wilson Creek?
18 DR. JACOBS: Just because of logistics, I would
assume
19 it probably took more time than the examination of
Mill.
20 So, four to six hours, something like that.
21 MS. BELLOMO: When you say "logistics,"
what you are
22 saying, sounds like, some of that time was spent in
the car
23 driving around, correct?
24 DR. JACOBS: That's correct.
25 MS. BELLOMO: How much time of that four to six
hours
1398
01 did you spend looking at the creek, being at the
creek?
02 DR. JACOBS: I don't know. Four hours, let's say.
03 That's as good as I can recall.
04 MS. BELLOMO: Am I correct that you, at no time,
have
05 walked Wilson Creek on the Conway Ranch?
06 DR. JACOBS: That's correct.
07 MS. BELLOMO: Am I also correct that you have, at no
08 time, walked the length of Wilson Creek from the
powerhouse
09 down to the lake?
10 DR. JACOBS: Wilson? No.
11 MS. BELLOMO: Have you walked the length of Mill
Creek
12 from Highway 395 down to the lake?
13 DR. JACOBS: No.
14 MS. BELLOMO: Have you looked at Mill Creek below
Mono
15 City?
16 DR. JACOBS: No.
17 MS. BELLOMO: You haven't even gone to the bluffs
and
18 overlooked it?
19 MR. BIRMINGHAM: Objection. Argumentative.
20 CHAIRMAN CAFFREY: Sustained.
21 MS. BELLOMO: Did you go to a bluff and overlook it?
22 I am not trying to trip you up. I'm trying to
understand
23 what you did.
24 DR. JACOBS: I have a picture that will show the
25 overlook that I did have, which is Exhibit 308.
1399
01 MS. BELLOMO: Did you take all the photographs that
are
02 exhibit attachments to your testimony?
03 DR. JACOBS: Yes, actually, that is true. I am
04 sorry, I was citing a map, a historic map that I
did not
05 take. But all the color photos of the habitats were
mine.
06 MS. BELLOMO: Thank you.
07 Will you describe for me all the studies that you
08 performed at Mill Creek?
09 DR. JACOBS: As far as scientific research with
10 hypothesis testing, I have not done any of that.
11 MS. BELLOMO: Could you describe all of the
scientific
12 studies, as you have described research and
hypotheses, that
13 you performed at Wilson Creek?
14 DR. JACOBS: I have done none.
15 MS. BELLOMO: Did you collect any field data during
the
16 couple of hours that you spent at each of these
creeks?
17 DR. JACOBS: No.
18 MS. BELLOMO: Do you have any field notes of your
19 visits?
20 DR. JACOBS: I have very rough notes, but primarily
21 photos.
22 MS. BELLOMO: Did you perform any measurements while
23 you were at either of these creeks?
24 DR. JACOBS: No.
25 MS. BELLOMO: Are you qualified to testify regarding
1400
01 soil types present at various parts of Mill Creek?
02 DR. JACOBS: Soil types in the classic sense of a
soil
03 scientists, no. But as substrats upon which
riparian
04 habitat grows and part of the riparian
geomorphology, I
05 believe so, yes.
06 MS. BELLOMO: Am I correct that all you would know
07 about soils would be what you could see from the
surface
08 while you were looking at the surface, correct?
09 DR. JACOBS: Yes.
10 MS. BELLOMO: You did not take any soil samples?
11 DR. JACOBS: Correct.
12 MS. BELLOMO: Am I correct that different types of
13 plants require different types of soils to grow?
14 DR. JACOBS: True.
15 MS. BELLOMO: Can you tell me what lands you looked
at
16 while you were in the Mono Basin on this day in
1996, that
17 is State land?
18 DR. JACOBS: You mean -- are you getting at the
lake?
19 MS. BELLOMO: Let me say this: Was any part of your
20 Mill Creek visit on State lands?
21 DR. JACOBS: The Mill Creek Bottomland, below the
22 County Road. Eventually it will hit the elevation
that
23 becomes State land. Primarily, my visits were above
State
24 lands elevation.
25 MS. BELLOMO: On Page 3 of your testimony you
indicate
1401
01 in the second to bottom paragraph that your
photographs and
02 Exhibit 304 shows woody debris is scattered over
the
03 bottomland, attesting to the presence of the
abundant woody
04 riparian vegetation in the past. You are referring
to Mill
05 Creek, correct?
06 DR. JACOBS: Yes.
07 MS. BELLOMO: Let's turn to Exhibit 403 then, that
08 photograph, please.
09 DR. JACOBS: I believe we have an error in the
10 numbering.
11 MS. BELLOMO: Let's look at Exhibit 304 and see what
it
12 shows. What would you say that this woody debris
is? What
13 was that type of vegetation?
14 DR. JACOBS: Excuse me, the sentence -- the
testimony
15 is woody debris, Exhibit 305?
16 MS. BELLOMO: Did I misspeak? I am asking you to
look
17 at Exhibit 305.
18 DR. JACOBS: 305 is the woody debris and it goes
with
19 the sentence pertaining the woody debris.
20 MS. BELLOMO: I am asking you: What kind of woody
21 debris is that.
22 DR. JACOBS: I am sorry, I misheard.
23 MS. BELLOMO: Would you agree that that is dead
willow?
24 DR. JACOBS: I don't know whether that is dead
willow
25 or dead cottonwood.
1402
01 MS. BELLOMO: You couldn't tell by looking?
02 DR. JACOBS: No, I can't. I can't walking along,
03 looking at it casually.
04 MS. BELLOMO: Going back to your testimony on Page
3,
05 you say:
06 In addition, woody debris is scattered over
07 the bottomlands attesting to the presence of
08 abundant woody riparian vegetation in the
09 past. (Reading.)
10 Then you refer to Exhibit 305, which you say you
can't
11 tell if it is dead willow or dead cottonwood.
12 DR. JACOBS: That is why I called it "woody
riparian,"
13 to be more generic.
14 MS. BELLOMO: Are you telling us that that is
15 hundred-year-old woody debris?
16 DR. JACOBS: Yeah.
17 MS. BELLOMO: So you think that that could be a
18 hundred-year-old willow?
19 DR. JACOBS: Uh-huh.
20 MS. BELLOMO: Okay, very good.
21 So, if it was cottonwood, it would be a
22 hundred-year-old cottonwood?
23 DR. JACOBS: Yes.
24 MS. BELLOMO: So, now I understand somewhere in your
25 testimony, I don't want to take the time to find
it, I think
1403
01 you testified that it is your opinion that in the
past there
02 was -- that the Mill Creek Bottomlands supported a
lot of
03 cottonwood trees. Is that correct?
04 DR. JACOBS: That is correct.
05 MS. BELLOMO: Did you see a lot of evidence of a lot
of
06 woody debris of cottonwoods in the Mill Creek
bottomland?
07 DR. JACOBS: I didn't do probably enough of a survey
to
08 see how much was cottonwood. I saw even a dead
standing
09 tree, although I don't know how old that was. But
walking
10 through, what I remember, was occasional some big
snags to
11 step over and a lot of little ones, which I would
assume to
12 be willows.
13 MS. BELLOMO: If, in fact, when Wilson Creek -- let
me
14 restate that.
15 If, in fact, in the past when Mill Creek was
flowing
16 its natural channel, it was full of, heavily wooded
with
17 cottonwood, you would expect, if you went back and
inspected
18 it today, you would expect to see evidence of those
trees
19 then, wouldn't you?
20 DR. JACOBS: Right. Part of the problem is also due
to
21 the way the water has been managed on Mill Creek.
There is
22 a bit of a dry wash. It's been, the bottomland
topography
23 has been disturbed. And, you know, that could have
been
24 mobilized in those periods. But, again, I didn't do
a
25 transect by transect evaluation of how many stumps
there
1404
01 are. This is more of spot evaluation. This is what
I see.
02 MS. BELLOMO: What you were last saying about Mill
03 Creek and the way the water is managed, are you
suggesting
04 that, possibly due to high flows, these dead,
05 hundred-year-old trees would have washed down to
the lake?
06 DR. JACOBS: It could have been in some of the main
07 areas where I was looking where the biggest ones
might have
08 been. I don't know.
09 MS. BELLOMO: If that were the case, wouldn't you
10 expect to hear some anecdotal evidence from the
community
11 that large trees had been washed down, were
floating down to
12 the lake?
13 DR. JACOBS: Perhaps so.
14 MS. BELLOMO: Have you ever learned that that's the
15 case?
16 DR. JACOBS: No.
17 MS. BELLOMO: Again, on Page 3 of your testimony,
you
18 state that large -- you state that black
cottonwoods can
19 live to be a hundred or 200 years old.
20 DR. JACOBS: Right, correct.
21 MS. BELLOMO: Am I correct that you are predicting
that
22 in the future the bottomlands will have very old
and large
23 hundred-year-old trees?
24 DR. JACOBS: I would think so, yes.
25 MS. BELLOMO: And you're basing that on these, the
fact
1405
01 that you saw some unidentifiable woody debris?
02 DR. JACOBS: There is actually some remnant, large
03 cottonwood still existing. Particularly right on
the County
04 Road, there is a very large one there. The fact
that in the
05 Mono Basin black cottonwoods can grow to these
heights. In
06 fact, there is some on Upper Wilson. Obviously,
they thrive
07 in this climate okay.
08 MS. BELLOMO: What makes you think that if we
rewatered
09 Mill Creek would have so many when you didn't see
that kind
10 of evidence of them yourself?
11 DR. JACOBS: Partly because of the analogy with
Lower
12 Rush and Lower Lee Vining being similar bottomland
systems
13 and partly because there is a lot of cottonwood,
black
14 cottonwood, young ones, that are coming in right
now. They
15 are already growing.
16 MS. BELLOMO: You haven't studied the soils to
compare
17 Rush Creek Bottomlands and Mill Creek, correct?
18 DR. JACOBS: Correct.
19 MS. BELLOMO: You testified on Page 3 that, in the
20 middle of the second to last paragraph, after that
Exhibit
21 305, you say, "as Dr. Stine's testimony."
You see where I
22 am reading?
23 DR. JACOBS: Yes.
24 MS. BELLOMO: You state:
25 As Dr. Stine's testimony has reviewed, old
1406
01 multiple channels are still present, as are
02 low areas which appear to have the potential
03 for being ponds, pools or wet meadows.
04 (Reading.)
05 DR. JACOBS: Correct.
06 MS. BELLOMO: My question is: What are your
07 qualifications for concluding that any area has the
08 potential for becoming a pond or a pool?
09 MS. SCOONOVER: Objection. Argumentative. I think it
10 misstates Dr. Jacobs' testimony on this matter.
11 CHAIRMAN CAFFREY: I am not sure that it does.
12 MS. BELLOMO: It doesn't misstate it; I just read
it.
13 CHAIRMAN CAFFREY: I am going to allow the question.
14 You may answer the question.
15 DR. JACOBS: On reviewing, again, using Lower Rush
and
16 Lower Lee Vining as models of what this probably
will be
17 like in the future, but on a smaller scale, I have
reviewed
18 Dr. Dean Taylor's monograph on Mono Lake Basin
vegetation
19 and Dr. Stine's historical reviews and looked at
the
20 descriptions of the bottomlands.
21 I am testifying here primarily on the riparian, but
I
22 believe I am qualified generally on the ecology to
make
23 those kinds of comparisons, that I believe that
would result
24 in similar habitat.
25 MS. BELLOMO: Would you agree that in order to
conclude
1407
01 that you were going to have pools and ponds in the
areas
02 that you looked at, you would have to know the
gradient,
03 correct?
04 DR. JACOBS: That's correct.
05 MS. BELLOMO: Do you know the gradient of Mill
Creek?
06 DR. JACOBS: I do not.
07 MS. BELLOMO: Was there water flowing down Mill
Creek
08 to the lake when you were there?
09 DR. JACOBS: I don't know if it was getting all the
10 way. There was some water in some of the channels
that I
11 saw on the day.
12 MS. BELLOMO: Do you know the velocity of the water
13 that you did observe in the bottomlands?
14 DR. JACOBS: No, I do not.
15 MS. BELLOMO: Dr. Barry, if you can turn to your
16 testimony, can you tell me how much time, total,
you have
17 spent in the Mono Basin?
18 DR. BARRY: A little difficult. I lived in that part
19 of world in the early forties, Bishop, Tonopah and
Gold
20 Field; and I started working, actually in the
basin,
21 probably in the seventies. We had a research
project up on
22 the Dana Plateau, looking at the climatic effects
upon the
23 alpine and subalpine vegetation.
24 MS. BELLOMO: Excuse me, I am just focusing on the
Mono
25 Basin.
1408
01 DR. BARRY: The Dana Plateau is in the Mono Basin.
02 MS. BELLOMO: I didn't understand that.
03 DR. BARRY: So, that was probably my first work in
the
04 Mono Basin as an ecologist.
05 Later on, I did do some work on Populus tremuloides
and
06 quaking aspens for my Ph.D. thesis in the late
sixties.
07 MS. BELLOMO: Where was that in?
08 DR. BARRY: Where?
09 MS. BELLOMO: Yes.
10 DR. BARRY: I looked at the streams going into the
11 lake.
12 MS. BELLOMO: Which streams?
13 DR. BARRY: I didn't look at Mill Creek. I looked at
14 Lee Vining mainly, and this was more of an overall
view
15 because I did a distribution map with quaking aspen
in
16 California and Nevada as part of my work.
17 MS. BELLOMO: Let me get focused on what we are
doing
18 here. It sounds like you have generally been in the
area.
19 How much time have you spent on Mill Creek, looking
at
20 Mill Creek?
21 DR. BARRY: My first visit in Mill Creek in 1995 and
22 probably have been there five or six times, and I
can show
23 where I have been, if you would like.
24 MS. BELLOMO: Have you walked the full length of
Mill
25 Creek?
1409
01 DR. BARRY: I have not walked the full length of
Mill
02 Creek. I have walked the upper portions above Mono
City. I
03 have looked down into the canyon at Mono City. At
the big
04 bend, I have walked from the big bend in the creek
down to
05 the delta, to the lake, and over to Wilson Creek.
06 MS. BELLOMO: Have you walked the full length of
Wilson
07 Creek?
08 DR. BARRY: I have only walked the upper portion of
the
09 Wilson Creek Ditch, I believe it is, above 395, and
I have
10 observed only from the Conway Ranch Road the area
below
11 that. I have looked at the area along, what is,
Highway
12 167, both sides of the 167, for maybe a hundred
yards. And
13 I have walked up and downstream there, as well as
Cemetery
14 Road where I have walked on down to the delta.
15 MS. BELLOMO: Dr. Jacobs, there was one question I
16 forgot to ask you that I meant to ask it. Do you
feel the
17 study that you did of Mill and Wilson Creeks is
adequate, in
18 your professional opinion, from a scientific
standpoint, for
19 the State Water Resources Control Board to rely
upon in
20 making their decisions in this case?
21 DR. JACOBS: Let me -- I don't want to argue back.
22 But the investigation and my conclusions are not
just based
23 upon my field time, but I also examined aerial
photos and
24 probably 40 referee journal articles as well as the
EIR and
25 auxiliary reports. As far as a resource management
decision
1410
01 and picking a proposed alternative to go forward
with, yup.
02 MS. BELLOMO: Thank you.
03 Dr. Barry, back your to testimony. Sorry for the
04 interruption.
05 Have you told me how much time total you spent in
06 Thompson Meadow in preparation for our testimony in
this
07 case.
08 DR. BARRY: Thompson Meadow wasn't an issue until
09 relatively recently. So, I spent probably three
different
10 occasions at Thompson Meadow. I spent about two to
three
11 hours on each occasion, mainly looking at the soil
profiles
12 to kind of get an idea of what part was meadow
under natural
13 conditions and what part was meadow because of
irrigation.
14 MS. BELLOMO: Did you consult with the maps -- they
15 used to be called the Soil Conservation Service, I
believe.
16 I know they have another name now.
17 DR. BARRY: No. I saw no real reason to consult with
18 the Soil Conservation Service maps.
19 MS. BELLOMO: Fine. Thank you.
20 How much time did you spend on Conway Ranch in
21 preparation of your report in this proceeding?
22 DR. BARRY: I spent no time on Conway Ranch, as I
23 mentioned.
24 MS. BELLOMO: How much time did you spend on Mattly
25 Ranch in preparation of your report in this
proceeding?
1411
01 DR. BARRY: Mattly Ranch being above?
02 MS. BELLOMO: Above the Conway Ranch, below the
03 powerhouse.
04 DR. BARRY: I was up there on one occasion and
walked
05 from the powerhouse down to the 395.
06 MS. BELLOMO: How much time --
07 DR. BARRY: Along the creek.
08 MS. BELLOMO: So you spent the amount of time that
09 there is to do a walk of the creek?
10 DR. BARRY: Correct, and make observations and come
11 back.
12 MS. BELLOMO: How much time did you spend at
DeChambeau
13 Ranch in preparation of your testimony in this
proceeding?
14 DR. BARRY: I spent no time at DeChambeau.
15 MS. BELLOMO: Did you spend any time at the springs
16 area below DeChambeau Ponds in preparation of your
testimony?
17 DR. BARRY: Yes. I have spent some time. I think we
18 made two different field trips with Technical
Advisory Group
19 looking at those areas. But I spent no time
actually trying
20 to make detailed observations.
21 MS. BELLOMO: I noticed when you were explaining
what
22 your background is that you said that part of your
work
23 involves something along the lines of doing
assessments of
24 natural and cultural heritage values; is that
correct?
25 DR. BARRY: Correct.
1412
01 MS. BELLOMO: Did you perform such an assessment in
02 evaluating the proposal to rewater Mill Creek and
what
03 effect it might have on natural or cultural
heritage values
04 in the Mono Basin?
05 DR. BARRY: Yes. I really looked at the assessment
of
06 the natural values more than cultural. It takes a
good
07 archeological survey to really nail down the
cultural
08 aspects. So, as my job called for, I assessed the
two
09 streams as I could see what, say, the best for
waterfowl
10 habitat restoration which was --
11 MS. BELLOMO: What your job was?
12 DR. BARRY: Well, what certainly the charge is here,
13 yes.
14 MS. BELLOMO: Now I am confused. When you say you
have
15 to do an archeological study to do a cultural
heritage, to
16 really look at the cultural heritage values. Are
you only
17 interested in values that will show up on an
archeological
18 study?
19 DR. BARRY: When we are dealing with natural
20 ecosystems, we do archeological investigations to
make sure
21 that we don't disturb archeological sites. So if we
are
22 doing prescribed burns, for example, we would make
or have
23 our archeologists essentially do investigations.
24 MS. BELLOMO: Let me just clarify; perhaps my
question
25 wasn't clear. What I am trying to get at is, is it
part of
1413
01 your job to do an assessment of cultural heritage
values
02 that are not of prehistoric nature?
03 DR. BARRY: No. Historic values are not normally
what
04 I deal with as far as policy. Only occasionally do
I get
05 into describing zones for cultural protection and
so forth
06 that deal with historical value. Actually, also
historical
07 as far as horticultural, for example.
08 MS. BELLOMO: Maybe I am confused now. Is it part of
09 the charge of the State Park and Recreation
Department to
10 consider historical/cultural values?
11 DR. BARRY: Yes, it is.
12 MS. BELLOMO: Do you feel that should be considered
in
13 this proceeding when the Water Board makes its
decision?
14 DR. BARRY: I don't believe that we have any
15 historical values that are affected, at least in
the state
16 park system, by these restoration projects.
17 MS. BELLOMO: That is an important clarification. I
am
18 glad you said that because, perhaps, this line of
19 questioning isn't fair if your job is only to look
at the
20 historical values that would impact the state park
21 properties.
22 Are you limited to looking at that?
23 DR. BARRY: That is not entirely correct. But from
24 our mission, it's mainly within our lands and,
therefore, if
25 there was a historical site, say Navy Beach or
something had
1414
01 historical value, then we would be looking at that
to
02 protect those values in the state park.
03 MS. BELLOMO: Because it is on state property?
04 DR. BARRY: Yes.
05 MS. BELLOMO: I have a document that I would like to
06 have marked as R-PMBP next in order.
07 MR. JOHNS: That will be 33.
08 MS. BELLOMO: Dr. Barry, I would like --
09 MS. SCOONOVER: Excuse me, I would like to see the
10 exhibit before you question.
11 Thank you.
12 MEMBER DEL PIERO: I would like to see it, too.
13 CHAIRMAN CAFFREY: Do all the Board Members have
14 copies?
15 MS. SCOONOVER: Chairman Caffrey, if I might, I am
not
16 certain the purpose for this document being
introduced, but
17 I am somewhat skeptical that a document from 1988,
not
18 written by this -- not signed by this witness, is
19 appropriate basis for cross-examination. This issue
was
20 never discussed in the witness' testimony. I am
willing to
21 allow some latitude, but I have to give you my
hesitations
22 up front and forewarn you that there will probably
be an
23 objection very quickly.
24 MS. BELLOMO: Can we hear the question, Chairman
25 Caffrey?
1415
01 CHAIRMAN CAFFREY: I am not sure either, Ms.
Scoonover,
02 but I am going to allow Ms. Bellomo to proceed.
She's
03 marked the item. It is not an exhibit as yet. It
hasn't
04 been accepted. I don't know if she is going to
introduce it
05 as part of her rebuttal or what. Let's see where
this takes
06 us.
07 MS. BELLOMO: Dr. Barry --
08 CHAIRMAN CAFFREY: Your concern is noted.
09 Please proceed.
10 MS. BELLOMO: Dr. Barry, have you ever seen this
11 document before today?
12 DR. BARRY: Well, my memory is a little short
13 sometimes. 1988, I may have seen it, but I can't
say for
14 sure.
15 MS. BELLOMO: As you can see, this is written by the
16 Department of Parks and Recreation, signed by
Robert
17 Macomber.
18 Are you familiar with who Robert Macomber is?
19 DR. BARRY: Yes, I am.
20 MS. BELLOMO: In the subject, as the document
states,
21 is Environmental Impact Report - Conway Ranch. My
question
22 is, turning to point three in Mr. Macomber's
letter, where
23 he says:
24 Other areas of concern involve: disturbance
25 of historic Conway Ranch. Conway family
1416
01 history goes back to the 1880's in Bodie.
02 Bob Conway was one of the last residents in
03 Bodie at the beginning of World War II.
04 (Reading.)
05 My question to you is: Do you believe that it is
06 appropriate to consider this, for the Water Board
to
07 consider this information of cultural heritage
value when it
08 makes its determination in this proceeding?
09 MR. BIRMINGHAM: Objection. Lacks foundation.
10 CHAIRMAN CAFFREY: Mr. Frink, why don't you give me
a
11 little help on this.
12 MR. FRINK: I don't know if the witness has seen it
or
13 not. But he testified earlier that often in making
his
14 recommendations he looks at archeological impacts
of a
15 project. I think asking if he thinks that should be
looked
16 at in this instance, in particular at Conway Ranch,
is a
17 relevant question.
18 CHAIRMAN CAFFREY: You say is a relevant question?
19 MR. FRINK: Yes, it is a relevant question.
20 MR. BIRMINGHAM: Ms. Bellomo's question is based
upon a
21 document for which there is absolutely no
foundation. If
22 she wants to ask him a hypothetical question,
without
23 reference to the document, I have absolutely no
objection.
24 But there is no foundation for this document.
25 In fact, the witness has testified that he may have
1417
01 seen the document; he may not have seen it. He
can't
02 recall.
03 CHAIRMAN CAFFREY: He testified that he can't
recall.
04 That is correct. Anything else?
05 Mr. Frink, I have a further question. Sorry to
belabor
06 it. Apologize to everybody for the colloquy between
Mr.
07 Frink and myself. I thought Dr. Barry's earlier
testimony
08 was -- I thought he was using archaeology
synonymously with
09 prehistoric. I am not sure. Is that correct?
10 DR. BARRY: That was my intent, versus historical,
11 yes.
12 MR. FRINK: Maybe the question could just be
rephrased
13 and avoid the issue on whether or not there is a
foundation
14 for this letter, as to whether the witness believes
that
15 Conway Ranch and its historical value should be
considered
16 by the Board.
17 MS. BELLOMO: I would adopt that.
18 CHAIRMAN CAFFREY: I think I would like to respect
the
19 concerns of the two attorneys, and I would ask you
to, if
20 you could, please rephrase your question in that
regard.
21 MS. BELLOMO: That is fine; thank you. I can
introduce
22 this through rebuttal myself and lay the
foundation.
23 Dr. Barry, my question is: Do you believe that the
24 historical values at Conway Ranch should be
considered by
25 the Water Board in reaching its decision in this
proceeding?
1418
01 DR. BARRY: I believe that these historical aspects
02 should be covered in the EIR/EIS process.
03 MS. BELLOMO: So your answer is?
04 DR. BARRY: It should be considered during that
05 process, not now.
06 MS. BELLOMO: Not now, okay. Thank you.
07 CHAIRMAN CAFFREY: Just for all of our general
08 information, I believe you have, what, about 13
minutes
09 remaining.
10 MS. BELLOMO: Thank you.
11 I would like to ask you to turn to your testimony
at
12 Page 20. I am trying to find the picture of a blown
over
13 tree. Maybe you can help me with the number.
14 DR. BARRY: I think it was near the end.
15 MS. BELLOMO: Turning to the testimony at Page 20,
and
16 then I am going to be referring to the photograph,
you
17 indicate that you have noted windfall cottonwoods
along the
18 irrigation ditches at Thompson Ranch, and then you
refer to
19 the photograph in Exhibit 113. You say it shows an
20 irrigation ditch at Thompson Ranch on November 8,
1996, note
21 the wind-throw cottonwood.
22 By wind-throw do you mean blown over by wind?
23 DR. BARRY: Yes.
24 MS. BELLOMO: Am I correct that your purpose in
putting
25 this in the testimony was to support your
hypothesis that
1419
01 the meadow was over irrigated?
02 DR. BARRY: It is not a hypothesis.
03 MS. BELLOMO: Your opinion that the meadow is over
04 irrigated and, therefore, trees are susceptible to
blowing
05 over; is that what the purpose of putting this in
here?
06 DR. BARRY: The purpose was to show that when you
have
07 a high water table that you get shallow root
systems, even
08 with cottonwood trees, and these trees will be
subject to
09 wind and other forces and easily be toppled.
10 What Exhibit Number 114 shows is a very shallow
root
11 system of one the cottonwoods. This root systems
goes to
12 the water table in this meadow and pretty much
stops at the
13 gley layer. The gley layer is an area where the
water table
14 is a permanent area, which is about, around two
feet in this
15 particular instance.
16 The reason that I show these is pretty much that,
if
17 you bring the water table close to the surface, you
are
18 going to have shallow root systems; and if you
gradually
19 lower on the water table, then the root systems
will grow
20 down to the water and you won't have quite the
21 susceptibility of this sort of problem.
22 MS. BELLOMO: The problem being blowing over in the
23 wind?
24 DR. BARRY: Yes.
25 MS. BELLOMO: How many trees have you seen blown
over
1420
01 on Thompson Ranch where they were blown over and
the roots
02 came out?
03 DR. BARRY: I would say, maybe, half a dozen.
04 MS. BELLOMO: During what time period?
05 DR. BARRY: Last year, I would say.
06 MS. BELLOMO: How many have you seen where they
07 cracked off and the roots remained in the ground?
08 DR. BARRY: Probably a good 10 or 15.
09 MS. BELLOMO: Let's look at your photograph, 113.
10 113 and 114, incidentally, show the same tree,
correct?
11 DR. BARRY: No, they don't.
12 MS. BELLOMO: Excuse me?
13 DR. BARRY: No, that is not the same tree.
14 MS. BELLOMO: Can you tell me when you took the
15 photograph?
16 DR. BARRY: I can't without going to my testimony. I
17 think it says the date somewhere in here. 113 was
taken
18 November 8, 1996.
19 MS. BELLOMO: It was taken January 13, 1996?
20 DR. BARRY: No, November 8, 1996.
21 MS. BELLOMO: Would it surprise you if I told you
that
22 after we got your testimony we went and inspected
this area,
23 and we didn't see two trees, which leads me to
believe that
24 113 and 114 depict the same tree?
25 DR. BARRY: If you look at the photographs, if you
look
1421
01 at 113, you will see the ditch doesn't have water
in it, or
02 has water in it. But 114 that is no water. So I
don't see
03 how they could the same tree.
04 MS. BELLOMO: Unless you didn't take them on the
same
05 date, possibly.
06 Turning to the photographs again, would you agree
--
07 MR. BIRMINGHAM: Excuse me, I am going to ask that
the
08 last comment be stricken from the record. If it is
a
09 question, he should be given an opportunity to
respond to it.
10 CHAIRMAN CAFFREY: It sounded like testimony. So we
11 will strike that.
12 MS. BELLOMO: Thank you.
13 Turning to the photograph in Exhibit 114, would you
14 agree that this blew over fairly recently as
evidenced by
15 the grass still being on the roots?
16 DR. BARRY: That makes sense, yes.
17 MS. BELLOMO: And am I correct that you didn't
provide
18 us with a picture of any other portion of the tree
other
19 than the root?
20 DR. BARRY: Correct.
21 MS. BELLOMO: How old would you estimate that this
22 tree was when it blew over?
23 DR. BARRY: I didn't really -- I didn't do a coring.
24 You can easily tell by doing a coring, but I
didn't. I
25 can't make an accurate estimate without doing --
1422
01 MS. BELLOMO: You have no estimate for us?
02 DR. BARRY: It would be off the top of my head.
03 MS. BELLOMO: Would this be a ten-year-old tree?
04 DR. BARRY: Obviously not.
05 MS. BELLOMO: Would it be a 50-year-old tree?
06 DR. BARRY: Not likely. It is more like a 75,
hundred,
07 but --
08 MS. BELLOMO: Have you gathered any information
09 regarding the wind in the Mono Basin and the
velocities?
10 DR. BARRY: Yes. We gathered that kind of
information
11 prior to any described burning that we do. And so I
spent
12 several days going through records of the winds and
looking
13 at, for example, the window for prescribed burning,
the
14 safest window and so forth.
15 MS. BELLOMO: Do you look at wind record for every
16 month of the year?
17 DR. BARRY: Yes.
18 MS. BELLOMO: What were the highest velocities? What
19 time periods do you look at?
20 DR. BARRY: I don't recall the highest velocity. The
21 time period was over several years' record, and I
can't tell
22 you exactly what that period was without going to
my files.
23 MS. BELLOMO: Would you agree that your
investigation
24 showed that there are frequently winds in the Mono
Basin of
25 60 miles per hour?
1423
01 DR. BARRY: I know that there are winds that high,
02 and, I guess, up to 110 lately. So, yes.
03 MS. BELLOMO: Do you know how often in one year, on
04 average, we have winds of, let's say, the
60-mile-per-hour
05 range?
06 DR. BARRY: No, I don't. I don't recall that.
07 MS. BELLOMO: Do you know how often we have winds
that
08 reach over a hundred miles per hour?
09 DR. BARRY: No, I haven't. I know it's probably
10 rare.
11 MS. BELLOMO: From your evaluation or
investigations,
12 would you agree that there are 60-mile-per-hour
winds at
13 least once per year?
14 DR. BARRY: I would think so, yes.
15 MS. BELLOMO: You said this tree is approximately,
you
16 were estimating, about 75 years old?
17 DR. BARRY: Give or take, 50 years.
18 MS. BELLOMO: I thought you said it was definitely
was
19 not in the 20-to-30-year range. So now I am
confused.
20 DR. BARRY: I thought you said -- you said 60. I
21 thought you said 160. I am sorry. You said 60?
22 MS. BELLOMO: Your estimate was 60 to 75 years for
this
23 tree?
24 Let's be conservative, a 60-year old tree?
25 DR. BARRY: I would say that is probably close. But
1424
01 like I told you before, I am really not positive. I
could
02 go out there and find out with an increment core
exactly how
03 old.
04 MS. BELLOMO: Let me put it this way. Given that you
05 say that this over irrigation makes trees
susceptible to
06 blowing over, does it surprise you that this tree,
assuming
07 conservatively that it is 50 years old, survived at
least
08 50, 60 mile per hour winds and other hundred mile
per hour
09 winds before it blew over?
10 DR. BARRY: No, it doesn't surprise me.
11 MS. BELLOMO: Would you agree that this tree, in
fact,
12 was dead when it blew over?
13 DR. BARRY: No, I can't say that it was dead when it
14 blew over, no.
15 MS. BELLOMO: Would it surprise you if I told you
that
16 we went out and looked at it and that it was dead?
17 DR. BARRY: Certainly dead when I saw it, but I
don't
18 know exactly when it fell over.
19 MS. BELLOMO: When trees die and are standing, I
assume
20 their roots atrophy in some respect, don't they,
shrink up
21 somehow?
22 DR. BARRY: No, I don't think that you would find
root
23 shrinking up, not exposed to the air like that,
like the
24 ones in the photograph are.
25 MS. BELLOMO: My question is: When a dead tree is
1425
01 standing, as we often see, at Thompson Ranch -- let
me back
02 up.
03 Have you seen dead trees standing at Thompson
Ranch?
04 DR. BARRY: Yes.
05 MS. BELLOMO: When a dead tree is standing,
sometimes
06 for a couple of years, correct?
07 DR. BARRY: Yes, that is possible.
08 MS. BELLOMO: Does the root shrink?
09 DR. BARRY: The roots can decay. I doubt if they
10 essentially shrink.
11 MS. BELLOMO: When it decays, it becomes smaller,
12 correct?
13 DR. BARRY: I suppose. I've seen roots 5,000 years
14 old that haven't shrunk, so I --
15 MS. BELLOMO: In your evaluation, did you go down to
16 the state property below Thompson Ranch below the
County
17 Park?
18 DR. BARRY: Yes, I have.
19 MS. BELLOMO: In your evaluation for this testimony?
20 DR. BARRY: I'm sorry, would you repeat that?
21 MS. BELLOMO: In preparing your report, did you go
and
22 look at the State Reserve below the County Park?
23 DR. BARRY: Yes, I did.
24 MS. BELLOMO: Did you discuss that anywhere in your
25 testimony?
1426
01 DR. BARRY: No, I don't.
02 MS. BELLOMO: Do you have any concerns that changing
03 irrigation at Thompson Meadow could affect the
water table
04 at the State Tufa Reserve?
05 DR. BARRY: No. On the contrary, I am more concerned
06 with the unnatural condition of water flowing over
the road
07 that would potentially cause contamination to that
wetland.
08 The wetland itself is from a deep aquifer that is
indicated
09 by tufas in the area. So, certainly, irrigation was
not the
10 major factor in maintenance of that wetlands.
11 CHAIRMAN CAFFREY: Ms. Bellomo, that alarm you heard
12 means that you have exhausted your hour. We did
stop the
13 clock and add extra time for the objections.
14 MS. BELLOMO: May I just finish this line of
15 questioning? Then I will --
16 CHAIRMAN CAFFREY: How much more time?
17 MS. BELLOMO: Just a couple more questions.
18 CHAIRMAN CAFFREY: Two more questions; I will allow
a
19 couple more questions, very briefly.
20 MS. BELLOMO: Thank you.
21 Didn't you, Dr. Barry, in comments in this
proceeding
22 or in documents regarding irrigation at DeChambeau
Ranch and
23 County Ponds and Conway Meadow, express concern
that this
24 could upset, that cutting back irrigation could
affect
25 springs around tufas?
1427
01 DR. BARRY: No, I don't believe I said that. What I
02 did say was that there was a proposal to put a well
in, and
03 I don't -- I believe that a deep well could cause
some
04 problems to the wetlands around tufas. Because if
it
05 happened to hit the fault zone where the springs
are
06 located, then a well could essentially cause
problems.
07 MS. BELLOMO: These are deep wells on DeChambeau you
08 are speaking of?
09 DR. BARRY: Yes.
10 MS. BELLOMO: Thank you.
11 Thank for your indulgence in letting me ask
additional
12 questions.
13 CHAIRMAN CAFFREY: Your very welcome, Ms. Bellomo.
14 Let me then ask -- first of all, it is my
understanding
15 that there were no other parties that had written
back and
16 indicated that they wish to cross-examine these
witnesses.
17 Am I correct on that understanding?
18 I see that I am. We will then go to the Board
staff.
19 Do the Board staff have any clarifying questions to
ask
20 these witnesses?
21 Mr. Canaday, let me just ask you, sir, how much
time
22 you think you need, just in the interest in
breaking for
23 lunch. How long do you think you are going to need.
24 MR. CANADAY: Twenty minutes.
25 CHAIRMAN CAFFREY: I guess we better break for lunch
1428
01 and come back at 1:00.
02 Thank you all very much.
03 (Luncheon break taken.)
04 ---oOo---
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1429
01 AFTERNOON SESSION
02 ---oOo---
03 CHAIRMAN CAFFREY: Why don't we take our seats, and
we
04 can resume.
05 Welcome back, ladies and gentlemen. We will resume
06 with clarifying questions from the State Board
staff of this
07 panel, and I believe Mr. Canaday is going to ask
the
08 questions.
09 Is that right, sir?
10 MR. CANADAY: Yes. Thank you, Chairman Caffrey.
11 CROSS-EXAMINATION
12 BY BOARD STAFF
13 MR. CANADAY: This is for Dr. Jacobs.
14 In your 1996 evaluation of Mill Creek and Wilson
Creek,
15 did you evaluate existing wetlands at all, near the
streams?
16 DR. JACOBS: On the Mill Creek Bottomlands area I
have
17 pictures of grassy depressions that were moist,
even in the
18 fall, as I described. Whether or not those would be
19 considered wetlands, I don't know.
20 I did consider those areas, as far as on Wilson
Creek,
21 the portions that I visited were very creek-like,
and I
22 would consider those more woody riparian systems or
stream
23 systems. I am not sure how you are defining
wetlands.
24 MR. CANADAY: The definition of a wetland would be
the
25 definition of the 1987 Code Manual.
1430
01 DR. JACOBS: I didn't do any core delineation,
02 no.
03 MR. CANADAY: You are not aware of existence or
04 nonexistence of wetlands on the --
05 DR. JACOBS: Of federal core jurisdiction? No, I am
06 not.
07 MR. CANADAY: Dr. Barry, are you aware of any?
08 DR. BARRY: No, I am not aware of any under core
09 jurisdictions.
10 MR. CANADAY: You mentioned in your testimony gley
11 soils on the Thompson Ranch. Would you agree with
me that
12 gley soils are, in fact, a primary indicator of
wetland
13 hydrology and wetland soil?
14 DR. BARRY: They are an indicator of a high water
15 table. And if that gley layer is at surface, then,
yes.
16 MR. CANADAY: Within 12 inches of the surface?
17 DR. BARRY: You would have a wetland or meadow
18 situation of, say, 12 inches. I would call that a
wet
19 meadow situation, if you have a wet area close to
the
20 surface.
21 MR. CANADAY: Dr. Barry, on the burning program
along
22 the shore lands of Mono Lake, what was the primary
purpose
23 of the experimental burn?
24 DR. BARRY: The primary purpose was to evaluate the
25 usefulness of prescribed burning in the restoration
of
1431
01 wetlands around the perimeter of the lake. The
reason that
02 we went to this experimental program was
essentially because
03 of the TAG process. We felt that this was probably
a very,
04 very important way to restore wetlands habitat.
05 So, we began a prescribed burn program in 19 --
06 November 7th and 8th of 1995, I guess it was, and
then we
07 did a winter burn just February 14, 1997. And it
will take
08 some time to evaluate the overall success of these
time
09 frames. What we have to do is not just -- we have
to have a
10 whole program, a series of prescribed burns with
different
11 times of the year and different frequencies, to
really
12 evaluate the success of that particular ecological
13 restoration.
14 MR. CANADAY: Would these types of programs -- and
15 these were on state lands, state park lands?
16 DR. BARRY: Yes, they were.
17 MR. CANADAY: Would this be considered a normal
18 practice in state park lands?
19 DR. BARRY: We do experimental burns, yes; and we
have
20 a prescribed burn program, which I actually wrote
the first
21 plan '73, I believe, and we have been burning,
ecologically
22 burning, since that time, all of the state.
23 MR. CANADAY: Not on the Mono Lake?
24 DR. BARRY: These were the first ones at Mono Lake,
25 yes.
1432
01 MR. CANADAY: Dr. Stine, in your proposal for
02 rewatering of Mill Creek, do you have an estimate
of what
03 the acreage of marshland that would be accrued at
the bottom
04 of Mill Creek?
05 DR. STINE: I believe I looked at that, but thought
06 that it would be fairly speculative. Given that
over time
07 we wouldn't know exactly where the spring sites
were going
08 to be, for instance. It would depend tremendously
on where
09 the lake is at any given time, and that is going to
be
10 changing for a time.
11 There is every reason to think that springs will
form
12 at the mouth of the Mill Creek like they have at
the mouths
13 of the other creeks. And so, if we look at that, I
believe,
14 I was coming up with something on the order of 10
acres, 15
15 acres, something like that. The reason that I was
doing
16 this, to kind of come full circle on it, is that
the
17 marshland at the mouth of Wilson Creek, which is a
natural
18 marshland, is being destroyed by flows down Wilson
Creek.
19 So, I was curious, if we are losing over there, how
much
20 would we gain someplace else?
21 There is a part of those numbers -- I would feel
22 comfortable giving sort of a number plus or minus
50
23 percent. I think that is going to be awfully,
awfully
24 difficult to predict until the lake is up and we
see just
25 what happens there in terms of the marshland. This
is the
1433
01 shore land marshland.
02 MR. CANADAY: What is the current extent of the
03 marshland at Wilson Creek?
04 DR. STINE: In terms of acreage now?
05 MR. CANADAY: Yes, sir.
06 DR. STINE: Again, I will tell you what, when you
ask
07 somebody else a question next time I will put out
-- pull
08 out an aerial photograph because I don't really
remember. I
09 can give you estimate off of an aerial photograph.
The
10 problem is -- it's not a problem. Because of the
Board
11 order, the lake is coming up, and marshland is
being
12 overtaken by the lake pretty quickly out there.
13 But I can give you plus or minus 25 percent what is
out
14 there now, if you are interested.
15 MR. CANADAY: Dr. Jacobs or Dr. Barry, did either
one
16 of you in your assessments of the Wilson and Mill
Creek
17 streams, did you evaluate waterfowl habitat at all?
18 DR. BARRY: I evaluated what I could see from aerial
19 photographs as being what appeared to be, at one
time,
20 wetlands. And then I did go in the field and looked
for
21 relic species of wetland communities. I did not,
22 essentially, try and evaluate whether it would be
good for
23 certain kinds of waterfowl. But on, essentially,
whether
24 these wetlands could, in fact, be restored and not
to what
25 extent kinds of waterfowl would occupy them.
1434
01 MR. CANADAY: Was that from Mill Creek and/or Wilson
02 Creek? Which creek did you do that?
03 DR. BARRY: Wilson Creek. There is a wetland at the
04 base of Wilson Creek now, which is being covered up
by
05 sediments coming down the channel. And that has
been
06 dissected, and Dr. Stine probably will give you the
figures
07 on that.
08 I looked at that, but I can't say that I evaluated
it
09 in any respect to what kind of waterfowl would be
there. I
10 could see that it was declining because of this
inundation
11 of sediment covering up the wetlands.
12 The Mill Creek Bottomland, obviously, was a very
13 diverse kind of environment. It had small channels,
large
14 channels, ponds, all kinds of variations. And it
appeared
15 to me that there was adequate water; it would make
extremely
16 valuable wetland habitat.
17 MR. CANADAY: You didn't evaluate Wilson Creek as
far
18 as adjacent wetlands to the existing channel by
aerial
19 photographs, did you?
20 DR. BARRY: By aerial photographs, and I also looked
at
21 those, both systems from the air.
22 MR. CANADAY: Were there wetlands on Wilson Creek
23 adjacent Wilson Creek?
24 DR. BARRY: They are adjacent to both sides. They
have
25 been dissected by the Wilson Creek outflow of
alluvium.
1435
01 Yes, on both sides there are tufa towers and
associated
02 wetlands.
03 MR. CANADAY: I am more interested farther up the
04 channels, say between County Road and Highway 167
or between
05 Highway 167 and Conway property.
06 DR. BARRY: I can speak for below 167. There is not
07 much wetland value in there. It is a pretty incised
08 channel, and I would expect a quite poor quality as
far as
09 wetlands is concerned.
10 Above the road, when I looked, maybe a hundred
yards
11 above 167.
12 DR. JACOBS: Do you want me to answer, too?
13 MR. CANADAY: If you have an answer, yes.
14 DR. JACOBS: I didn't do any wildlife because we had
15 Ted Beedy on our team who is handling, sort of, the
bird
16 watch and faunal aspects of this analysis. I do
wear two
17 hats. I am here as the riparian expert, but then as
sort of
18 a State Lands ecological advisor. I had to interact
enough
19 with Ted and I read the EIR section pertaining to
wildlife,
20 so I am generally familiar. But that was basically
left to
21 him.
22 MR. CANADAY: Chairman Caffrey, that is all I have.
23 CHAIRMAN CAFFREY: Thank you very much, Mr. Canaday.
24 Are there questions from the Board Members?
25 No questions from the Board Members.
1436
01 Is there any redirect, Ms. Scoonover?
02 MS. SCOONOVER: Yes, Mr. Caffrey.
03 I promise to be brief.
04 REDIRECT EXAMINATION BY
05 STATE LANDS COMMISSION AND
06 DEPARTMENT OF PARKS AND RECREATION
07 BY MS. SCOONOVER
08 MS. SCOONOVER: Dr. Jacobs, you made a statement in
09 response to a question from Ms. Bellomo that I
wanted to
10 probe a little bit because I wasn't sure that I
understood
11 your answer.
12 She asked if a single field trip to the Mill
13 Creek/Wilson Creek area was an adequate basis upon
which to
14 make your or the for the Board to make its
recommendation.
15 I'm interested to know the basis of your response.
You
16 said yes. Do you recall that exchange?
17 DR. JACOBS: Yes, I do. I'm glad you asked me to
18 clarify.
19 MS. SCOONOVER: Could you explain to me, first -- we
20 will take it in a couple steps.
21 First, the basis of your recommendation for
supporting
22 the waterfowl scientists plan?
23 DR. JACOBS: First of all, I guess like I told Mr.
24 Canaday, I wear two hats, so I have to take off my
riparian
25 hat for a moment and just be a State Lands hat.
1437
01 Is that we are here for waterfowl restoration. That
is
02 a public trust use that was dependent upon the
lake. But
03 like a lot of ecological functions, the waterfowl
doesn't
04 exactly coincide with state owned boundaries, and
so that
05 explains a little bit -- I am sorry.
06 DR. JACOBS: Start me again.
07 MS. SCOONOVER: We'll start again. You recall the
08 exchange with Ms. Bellomo?
09 DR. JACOBS: Right.
10 MS. SCOONOVER: What I am asking is: Aside from your
11 two field visits in the past year, on what other
information
12 did you base your recommendations in support of the
13 waterfowl scientists' recommendations?
14 DR. JACOBS: My background, as I mentioned to Ms.
15 Bellomo, is, my professional and academic, a lot on
woody
16 plant physiology. My professional background, as of
late,
17 has been a lot on river and stream restoration,
both
18 state-owned lands and because, again, the public
trust
19 values sort of don't necessarily coincide exactly
with
20 state-owned. It's became part of my job to,
basically,
21 understand riparian systems throughout the state,
even the
22 smaller ones since they do relate to the work that
we do at
23 State Lands Commission.
24 An example would be the State Lands Commission's
River
25 Report which did an overview of our state's rivers.
So, I
1438
01 had that background of, basically, a lot of
literature about
02 the state's rivers and riparian systems already
collected.
03 Even though I had been doing it, it was a very
intense
04 effort. Also, because the State Lands Commission
has been
05 involved in the Mono Lake proceeding and Owens
Valley
06 activities, I certainly take it upon myself to make
sure I'm
07 up on that literature. And I further went and did
more
08 investigation and collected a lot, as I said,
referred
09 publications and unpublished literature to review
in
10 preparation for this and discussing a lot with Dr.
Stine and
11 Dr. Barry and Dr. Beedy about what we saw out
there, and
12 made sure I understood a lot of what Dr. Stine was
13 describing as the physical system because that is
where I
14 would draw my conclusions about what plants would
grow
15 there. We had many, many discussions about that.
16 I, again, did some literature review on
geomorphology
17 and hydrology. So I was clear and understood those
kind of
18 systems. So that was my conclusion. So it's not
just,
19 basically, those few field days. Furthermore, I
guess the
20 question, way back when Ms. Bellomo asked, is that
am I
21 enough to propose to the Board that recommendation.
I think
22 I was getting at, originally in my misstart, was
that this
23 is in the context of waterfowl restoration. We are
really
24 not talking about restoring Mill Creek. We are
talking
25 about restoring waterfowl habitat. We really
haven't
1439
01 mentioned the lake shore hypopycnal layers and the
embayment
02 that would be in the rias and the trenches of Mill
Creek and
03 those things that Dr. Stine described, including
the delta
04 area and the bottomlands, all as a complex for the
benefit
05 of waterfowl.
06 So, in that context, my piece of the riparian, I
07 believe, is sufficient to proceed, if taken in that
way.
08 MS. SCOONOVER: Can you briefly explain for me
whether
09 you are concerned or why the State Lands
commissioned you as
10 their spokesperson concerned with activities
occurring above
11 state-owned land, above the elevation of
state-owned land?
12 DR. JACOBS: As the Board recognized the target
13 elevation, although we restore a lot of public
trust values
14 to the lake, we'll still be short for waterfowl.
That is
15 why we are here, to come up with some ideas of
better ways
16 to restore them. And, again, the waterfowl use was
17 recognized as a public trust use and a value of the
lake.
18 The other thing, of course, the ducks don't
necessarily
19 know which is state-owned habitat and which is not.
So, in
20 order to restore waterfowl, we have to be concerned
with any
21 kind of habitat that would be beneficial.
22 Further than that, we are here to figure out how to
23 restore habitat. The TAG group, the Technical
Advisory
24 Group, came up with a series of ten guidelines or
goals on
25 how to come up with restoration plans, and State
Lands
1440
01 Commission and also State Parks endorsed those. And
looking
02 at those and reviewing those, you know, we feel, I
feel,
03 that the Mill Creek restoration and agree with the
04 waterfowl, that those are the best ways to meet
most of
05 those habitat restoration goals: for example,
multi-species,
06 self-sustaining. They tend to restore a habitat
that was
07 there and not create an artificial one, those sorts
of
08 goals. That was why we were considering rewatering
Mill
09 Creek. It is the whole, big picture. It's not just
creek
10 issues.
11 MS. SCOONOVER: Thank you, Dr. Jacobs.
12 I would like to direct your attention now to a
series
13 of questions that Ms. Bellomo asked you concerning
testimony
14 on Page 3 of your testimony, as to why you believe
there is
15 abundantly evidence today, both on the ground and
in
16 neighboring streams to support your predictions
about what
17 will happen on Lower Mill Creek if it is rewatered
as
18 proposed.
19 Can you explain to me what the basis of those
20 predictions are? What is it on the ground that
leads you to
21 believe these predictions or projections will come
true?
22 DR. JACOBS: I wonder if it might be helpful if we
can
23 refer to some of my exhibits, starting with 305. As
you go
24 into the area of Lower Mill Creek that we call the
25 bottomlands, we have described this being littered
with a
1441
01 lot of this woody debris. So, you can be in a
fairly dry
02 area. You can see the sagebrush around it, and you
will see
03 that there has been riparian growth there in the
past. That
04 is one point.
05 Looking at 306 and 307, these are pictures of the
06 lower depression areas, that are clearly evident.
They are
07 sort of bowl areas that would be affected. They
were green
08 at the time I visited in the late fall. The grasses
were
09 still green. There was riparian willows in these
areas.
10 And they are still surrounded by rabbitbrush and
sagebrush.
11 That indicates there is a lot of potential that the
12 groundwater is already pretty high there. Multiple
channels
13 are visible on the ground, as Dr. Stine described.
14 I saw these areas that kind of expanded out into
areas
15 that would probably be variously either wet meadow
or ponded
16 areas, given enough water.
17 And lastly, on Exhibits 308 and 309, sort of an
18 upstream view and downstream view, there already is
a
19 riparian corridor or kind of hanging in there right
20 now. There is sort of intermittent water that is
allowed to
21 go down or flows down Mill Creek, and already there
is
22 cottonwood and willow established there. There is
riparian
23 corridor there now.
24 I think with more water that will just be even
wider
25 and especially watering the multiple channels. So,
one
1442
01 reason I think cottonwoods will grow there is that
they are
02 growing there now. That is the biggest reason.
03 MS. SCOONOVER: Exhibits 306 and 307 that you
referred
04 to, these are all Lower Mill Creek?
05 DR. JACOBS: These are what we are calling the
06 bottomlands reach, which is just above the County
Road up to
07 the big bend.
08 MS. SCOONOVER: You are referring to SLC and DPR
09 Exhibit 4 --
10 DR. JACOBS: Exhibit 424.
11 So just below the County Road to this bend in the
creek
12 is where we have been, and Dr. Stine has called the
13 bottomlands reach.
14 MS. SCOONOVER: Is there comparable growth along
that
15 section of Wilson Creek now?
16 DR. JACOBS: No. That has been nicknamed the Grand
17 Canyon Reach. It's varied in size and pretty devoid
of
18 vegetation, although there may be some intermittent
things
19 growing.
20 I have a picture of similar geographic reach to the
21 bottomlands, Exhibit 314. Looking upstream. It's in
the
22 similar place to the bottomlands reach of Mill
Creek, but,
23 obviously, it isn't the bottomlands.
24 MS. SCOONOVER: This is Wilson Creek?
25 DR. JACOBS: This is Lower Wilson.
1443
01 MS. SCOONOVER: Can you locate it on the map for us,
02 please?
03 DR. JACOBS: That is a quarry road crossing. That is
04 Exhibit 424 I am indicating on.
05 MS. SCOONOVER: In terms of the significance of why
the
06 stretch along Mill Creek that you referred to is
similar to
07 Rush and Lee Vining, can you explain that to me,
why is that
08 so significant, that you believe the Rush and Lee
Vining
09 Creek habitats are similar to this stretch of Mill
Creek?
10 DR. JACOBS: Well, I guess it goes back to why we
are
11 here. We are here -- there are two reasons. One is
we are
12 here to restore waterfowl habitat, and it's not my
field of
13 expertise, but I understand that that is -- these
have been
14 shown to be part of the former waterfowl habitat.
Rush
15 Creek Bottomlands can never be restored to its full
16 condition because of its incision.
17 So, in a sense, the basin is going to be short
18 bottomlands. This is an opportunity to restore
those.
19 Again, the second part of my answer is the
restoration
20 of Mill Creek Bottomlands is really a part of the
rewatering
21 of Mill Creek. The bigger purpose probably -- well,
I would
22 leave that to the waterfowl experts, is the whole
system of
23 hypopycnal layer and the lake and flooding the rias
and
24 creating hypopycnal embayments there, and the delta
area and
25 the bottomlands, all in combination.
1444
01 MS. SCOONOVER: Is the vegetation along Lower Lee
02 Vining and Lower Rush Creek similar to what you
would expect
03 the vegetation to look like along Rush --
04 DR. JACOBS: In the historic conditions, and it is
05 recovering now. I also listened to the testimony
and I have
06 also seen it is in recovering condition of willows
and
07 cottonwoods, as well. And there I have said it,
that the
08 cottonwoods are coming in on those creeks as well.
They
09 were there before. They are coming back.
10 MS. SCOONOVER: It is your belief that we would not
11 have to reseed cottonwoods along Mill Creek if it
were to be
12 rewatered?
13 DR. JACOBS: As I said, they are there now.
14 MS. BELLOMO: I would object. I think we are getting
15 -- kind of biding my time. I think we are getting
beyond
16 the scope of my cross-examination now.
17 MS. SCOONOVER: Chairman Caffrey, there was a
18 significant amount of questioning from Ms. Bellomo
of Dr.
19 Jacobs concerning cottonwoods and why cottonwoods
would be
20 would be restored along Mill Creek, as well as
discussions
21 about Rush and Lee Vining comparisons. I am almost
22 finished.
23 CHAIRMAN CAFFREY: Mr. Frink. I just I wanted to
check
24 my understanding of the situation with Mr. Frink
before I
25 ruled on Ms. Bellomo's objection.
1445
01 There is no limitation on redirect. There is
02 limitation on recross. We would like -- we prefer,
03 obviously, that redirect stay reasonably on the
subject, the
04 limitation comes in the recross. Recross has to be
limited
05 to what was discussed in redirect. At least that is
the
06 procedure we have always followed here.
07 Thank you for bringing that question to our
attention.
08 It required me to do a little thinking. Thank you,
Ms.
09 Bellomo.
10 MS. BELLOMO: Could I make sure I understand, so I
11 don't make improper objections?
12 Redirect, there is no limit on the scope of
redirect?
13 CHAIRMAN CAFFREY: It has to be reasonably on the
14 subject area. It does not have to be specifically
confined
15 to what was brought out in the cross-examination.
16 MS. BELLOMO: Thank you.
17 MS. SCOONOVER: Dr. Jacobs, one more. I promise.
18 You also stated, in response to a question from Ms.
19 Bellomo, you have revisited Mono Basin in 1997 on
your way
20 home from a field trip to Owens Valley.
21 Do you recall that?
22 DR. JACOBS: Yes.
23 MS. SCOONOVER: Did your observations on that day
24 confirm your previous conclusions, or did it raise
any
25 concerns in your mind about your previous
conclusions?
1446
01 DR. JACOBS: No. I was happy that I was -- I was
very
02 happy with my conclusions. I stopped at a number of
03 overlook places. As I said, I had binoculars and a
04 telephoto lens, took some more pictures, was able
to view
05 while my state car was overheating, while cooling
off, I had
06 some time.
07 MS. SCOONOVER: Thank you, Dr. Jacobs.
08 Dr. Barry, I wonder if you might elaborate more on
your
09 experience in the Mono Basin. I believed you began
to
10 discuss some experiences on the Dana Plateau with
Ms.
11 Bellomo. I don't think you were finished with your
12 explanation of your local experience.
13 DR. BARRY: No. I worked in the Mono Basin on
several
14 projects in the 1980s. 1983, Dr. John DeMartini and
I dove
15 in the lake and took photographs to document the
formation
16 of tufas. And at this -- these slides that we did
take have
17 been used for a number of years for interpretation
at the
18 visitors center.
19 In 1984, I spent some time out at Simons Springs
where
20 I established permanent vegetation plots in the
wetlands and
21 the wet meadow areas around Simon Springs. These
plots are
22 read periodically.
23 I looked at species composition in the spring, and
I
24 looked at the biomass accumulation in the fall. So,
each
25 year since 1994, with some exceptions, I have gone
out and
1447
01 monitored these permanent plots to assess
ecological changes
02 in the wetlands.
03 My experience beyond that has been starting with
the
04 TAG groups, I believe in 1995. And I was involved
in both
05 wetlands and the stream Technical Advisory Groups
06 established by L.A. Water and Power. At that period
of
07 time, there was a lot of open discussion of
waterfowl
08 habitat requirements at Mono Lake and how we can
restore
09 these areas, which has come to the report that we
have
10 finally ended up with.
11 And I must say, it's always been an open forum,
that
12 all who were interested could attend those
technical
13 advisory groups.
14 MS. SCOONOVER: Thank you, Dr. Barry.
15 Can you explain to me why you did not review the
Soils
16 Conservation Service maps of this area?
17 DR. BARRY: Well, the Soils Conservation Maps are
18 normally mapped 1- to 40-acre scale. That scale is
much top
19 gross for the kind of work we were doing, site
specific
20 work. So the normal procedure that I find when I am
looking
21 at soils anywhere is to go out and look at the
profile and
22 try and determine what kind of community these
soils were
23 formed under. That is our normal, standard
procedure toward
24 ecosystem management in the state park system, is
to
25 determine what ecosystems were natural at a
particular
1448
01 site.
02 MS. SCOONOVER: I would like to talk a little bit
now
03 about the observations on Thompson Ranch. Ms.
Bellomo
04 talked to you a little about that.
05 You stated both in your written testimony and
response
06 to questions from Ms. Bellomo that you believed the
water
07 table on Thompson Ranch was very high. Can you
explain to
08 me how you reached this conclusion?
09 DR. BARRY: Well, the permanent water table of an
area,
10 that is, such as meadows and wetlands and so forth,
there is
11 a layer formed, called a gley layer, which is
reducing.
12 Below that layer you get an oxygen deficient area,
an
13 anaerobic area. Above that set layer is normal
oxygen and
14 not essentially under water all the time, as in
15 groundwater.
16 So by looking at the gley layer, the depth of the
gley
17 layer, you can pretty well tell what kind of
community would
18 be in a particular area for thousands of years,
19 essentially. It takes a long, long period of time
for these
20 layers to form. So, it is really a tracer of the
water
21 table. So you can, with this layer you can tell
where the
22 permanent water table is. Then by looking at some
iron
23 conglomerates above that, you can determine what
the
24 seasonal water table is also.
25 This iron modeling is pretty characteristic of
metal
1449
01 soils or gley. So, when I looked at these, I looked
at the
02 depth of that layer to try to determine whether
this was a
03 permanent meadow or whether it was a caused by
04 irrigation. And both parts of Thompson Ranch that I
looked
05 at were certainly permanent, had a permanent high
water
06 table, and irrigation had essentially shifted what
would
07 have been a dry meadow to a mesic and a mesic
meadow to a
08 wet meadow. And that shifts the species
composition.
09 So, when you look at the species composition of
these
10 meadows, you can pretty well tell how much water is
there by
11 what the species are, Juncus and Carex for example,
or wet
12 meadows species, and Poa and Deschampsia are mesic
meadow
13 species. And then you go into more dry acres, you
get Elena
14 [phon] and other native growth.
15 MS. SCOONOVER: I believe in response to a question
16 that Ms. Bellomo asked you noted that you had
actually
17 observed water running across the road down towards
the
18 County Park.
19 Do you recall that question and answer?
20 DR. BARRY: Yes, I do.
21 MS. SCOONOVER: Is that your opinion, that the water
22 that is running across the road was from
irrigation?
23 DR. BARRY: I'd like to clarify that. I was told
that
24 water runs across the road. I did not observe,
actually.
25 And, obviously, yes, it was because of irrigation.
It's the
1450
01 ditch irrigation of very inefficient means of
irrigation
02 there. Essentially, you open a portion of the ditch
up and
03 let the water surface flow. If the ditch tenderer
isn't
04 around, you get a lot more water maybe than if he
is around
05 doing his job, I guess.
06 As a child, I did this, and it didn't seem very
07 logical to me to always have to be at a given place
at a
08 given time to change the water.
09 Since that time, I have been at a number of
irrigation
10 systems, design and supervised installation, both
11 commercial, recreational, and ranch facilities,
including my
12 own, trying to use irrigation water more
efficiently. By,
13 in my case, going from aluminum pipe, high volume
sprinklers
14 to PVC plastic varied, low volume sprinklers, more
efficient
15 ways to utilize water.
16 MS. SCOONOVER: Is the high water application on
17 Thompson Ranch necessary in order to retain the
green
18 appearance of the ranch?
19 DR. BARRY: No, it's really not. Around the
periphery
20 of the meadows that were probably at one time under
21 sagebrush, then, yes, you would need to have
supplemental
22 irrigation in the peripheries, but essentially not
wet
23 meadows system. A much more efficient irrigation
system
24 could be installed there.
25 MS. SCOONOVER: With a more efficient irrigation
1451
01 system, I assume that means less water would be
necessary to
02 be applied?
03 DR. BARRY: Yes.
04 MS. SCOONOVER: How much less water? Do you have an
05 estimate?
06 DR. BARRY: I can only go on what figures that Dr.
07 Vorster and Dr. Stine. My -- Dr. Vorster's
08 evapotranspiration data indicates that about 380
acre-feet
09 for Thompson Ranch would be adequate.
10 Evapotranspiration takes in both groundwater and
11 irrigation water. A portion of that would be,
essentially,
12 groundwater, so I would think that less than that
would be
13 possible at the Thompson Ranch. This would be
fairly easily
14 designed. It would take some looking at the soils
and so
15 forth, but I think an irrigation system could be
designed
16 that would be much, much more efficient than
current.
17 CHAIRMAN CAFFREY: Let me interrupt there, assuming
18 that is the end of that question. We are tending to
run on
19 a bit on our answers. We are all here to be as
concise as
20 possible. I don't want to stifle you either, Ms.
Scoonover.
21 You indicated that you would be just a few minutes
or
22 something to that effect. Maybe not that --
23 MS. SCOONOVER: Brief.
24 CHAIRMAN CAFFREY: You have been at it 25. Perhaps I
25 should have asked you more precisely how much time
you need.
1452
01 How much more time do you think you need?
02 MS. SCOONOVER: Just a few more questions for Dr.
Barry
03 and a couple for Dr. Stine.
04 CHAIRMAN CAFFREY: That would be five more minutes?
05 Half an hour? I do intend to offer the same amount
of time
06 to anybody else wishing to recross, hopefully.
07 Proceed.
08 MS. SCOONOVER: Dr. Barry, there was some discussion
09 earlier about archeological assessments of the
Conway Ranch
10 and of the other State Parks' procedures or
policies. Can
11 you explain to me, or perhaps briefly clarify, the
12 distinction between prehistoric and historic
archeological
13 or cultural patterns?
14 DR. BARRY: Well, essentially, the archeological
sites
15 that I mentioned are just that. They are indigenous
people
16 sites. And historical sites are, essentially,
handled a bit
17 differently. If you need to -- if there is a
project in a
18 historically significant area, then the Office of
State
19 Historic Preservation must be contacted, and they
will
20 determine if there is an impact of your project on
that
21 site.
22 I frankly don't see an impact of wetland
restoration
23 being, certainly not removing buildings or
anything.
24 MS. SCOONOVER: Finally, Dr. Barry, why aren't you
25 surprised that a tree with shallow roots could
survive
1453
01 upright for 60 to a hundred years?
02 DR. BARRY: I was trying to point out that with this
03 gley layer and so forth, you get shallow root
systems and
04 with that, essentially, these shallow root systems
are
05 subject to windfall. It is not surprising that it
lasts a
06 hundred years or whatever.
07 Trees in the -- trees often last a thousand years
on
08 the summits of mountains without blowing over. That
is
09 because they have deep root systems, not shallow
roots.
10 MS. SCOONOVER: Again, the shallow root system is an
11 indication of?
12 DR. BARRY: High water table.
13 MS. SCOONOVER: Thank you.
14 Dr. Stine, I want to ask a couple brief questions
about
15 your expertise, specifically with respect to this
ongoing
16 Mono Basin water rights process. Can you explain to
me, Dr.
17 Stine, how many of the technical appendices to the
EIR that
18 was prepared by the State Water Resources Control
Board and
19 the Department of Water and Power you participated
in
20 preparing?
21 DR. STINE: I was the sole author on either five or
six
22 of the auxiliary reports.
23 MS. SCOONOVER: Can you briefly describe the range
of
24 subject areas?
25 DR. STINE: One of them was on historical assessment
of
1454
01 the riparian vegetation along the stream system in
the Mono
02 Basin. That was auxiliary report number one. I
don't
03 remember the numbers of the other ones. Another one
was on
04 tufa tower toppling on the Mono Basin, and I think
there was
05 some visual things in that one as well.
06 The third one was on the growth and shrinkage and
07 peninsularization of islands and islets in Mono
Lake with
08 lake level fluctuations. A fourth was on the shore
land
09 vegetation.
10 MS. SCOONOVER: Thank you; that is fine, Dr.
11 Stine.
12 Would you say that all of these reports, all the
13 subject matters of these reports are clearly within
your
14 area of expertise?
15 DR. STINE: Yes, they are.
16 MS. SCOONOVER: Did you respond to questions during
the
17 previous hearing before the Water Board on
waterfowl habitat
18 restoration?
19 DR. STINE: The previous hearing being back in 1993?
20 MS. SCOONOVER: That's correct.
21 DR. STINE: Yes, I did.
22 MS. SCOONOVER: Were those discussions with Hugh
Smith
23 of the State Water Board staff?
24 DR. STINE: In part, Hugh Smith was one of the
people
25 asking questions.
1455
01 MS. SCOONOVER: To the best of your knowledge, were
02 those conversations recorded and made part of the
03 transcripts and, therefore, part of the official
records of
04 the State Water Board records?
05 DR. STINE: Yes, they were.
06 MS. SCOONOVER: I would like to ask a couple
questions
07 about the Wilson Creek marsh lands that was raised
by Mr.
08 Canaday.
09 Can you explain to me why allowing water to
continue
10 running down Wilson Creek would not sustain the
marshland at
11 the mouth of Wilson Creek? That is seems
counterintuitive.
12 DR. STINE: It does seem counterintuitive. Here is
the
13 predicament. The marshland at the mouth of Wilson
Creek is
14 ancient. It's been there for a long, long time. It
has
15 been underneath the lake from time to time, but
that is an
16 area of marshland down there. We know that on the
basis of
17 looking at the soils that are there, some of the
same
18 evidence that Dr. Barry was referring to a few
seconds ago.
19 Also, tufa towers we know formed at the sites of
springs.
20 And those tufa towers down there, I have been able
to date
21 at about 900 years old because they have
900-year-old wood
22 in them. So, it has been an area of high spring
flow for a
23 long, long time, 900 years plus.
24 Thirdly, in 1857, when Von Schmidt, Alexus
Valadimire
25 Von Schmidt first surveyed the basin, he produced a
plat
1456
01 that shows the very springs that are there today in
that
02 site. That was 1857, and that was before any water
had been
03 diverted over to Wilson Creek.
04 In other words, the marshland there at the mouth of
05 present day Wilson Creek is natural. What has
happened in
06 the intervening century and a half here is that
water has
07 been diverted from Mill Creek into Wilson Creek and
Wilson
08 Creek now flows down to that marshland, that
previously
09 existing marshland. In the process of flowing down
there,
10 it has done a huge amount of erosion, and the
sediment that
11 has been excavated and transported in the course of
that
12 erosion has been dumped on top of the marsh. So
roughly
13 half, maybe a little bit more than half of the
marsh that
14 would be down there today under natural conditions,
is now
15 under sediment that is much too coarse and much too
thick to
16 support marsh. In other words, Wilson Creek doesn't
support
17 the marshland down there. Wilson Creek is
destroying that
18 marshland down there.
19 Does that answer the question 'cause I kind of
forget
20 what the question was?
21 MS. SCOONOVER: I believe so.
22 Is there an exhibit in your testimony that would
show
23 this damage to the marshland?
24 DR. STINE: Yes. Exhibit R-SLC/DPR-405, which is, I
25 think, probably the first of the photographs that
are shown
1457
01 in that packet of mine, is an aerial oblique
photograph of
02 the mouths of the Mill Creek, which is off to the
left
03 there, and Wilson Creek, which was in the center of
the
04 photograph.
05 You can see, concentrating on Wilson Creek right in
06 through here, we can see off to both the right and
to the
07 left; that is, to the east in and to the west of
the Wilson
08 Creek mouth. The green area in here, that is the
naturally
09 existing marshland. You can also see the white sort
of
10 splay deposits that have been laid down overlying
that
11 marsh. That is the sediment that is today covering
up that
12 marsh, in some cases to a thickness of four, five,
even six
13 feet deep.
14 MS. SCOONOVER: Thank you, Dr. Stine.
15 That is all I have.
16 CHAIRMAN CAFFREY: Thank you, Ms. Scoonover.
17 That was about 35 minutes.
18 Ms. Bellomo, do you wish to recross?
19 MR. BIRMINGHAM: Mr. Caffrey, in one of the earlier
20 notices that the Board sent out after we had
recessed in
21 order to give the parties an opportunity to reach a
22 settlement, the Board noted that if the hearings
were to
23 resume we would not spend a lot of time covering
information
24 which is in the written testimony of the witnesses.
25 CHAIRMAN CAFFREY: That is correct.
1458
01 MR. BIRMINGHAM: Significant portions of the
testimony
02 that were elicited by the redirect of Ms. Scoonover
was
03 simply a restatement of the written testimony that
had been
04 submitted. And I would like to ask the Board to
reaffirm or
05 reiterate that we don't need to take time simply
restating
06 what is in the written record.
07 CHAIRMAN CAFFREY: Well, Mr. Birmingham, I do very
much
08 appreciate your concern. It's one that I share.
Perhaps, I
09 can answer the issue in this fashion: that this is
a full
10 time Board. We read everything. What you say in
direct
11 only gets separate weight if it is anything
different than
12 what is in the submitted exhibits.
13 I will stipulate to that right now on behalf of
myself
14 and every Board member here. I do very much want to
foster
15 and encourage the spirit in which those three memos
were
16 sent and signed by this Hearing Officer and Chair,
and I
17 would like very much for us to be able to move with
all
18 possible dispatch. I was reluctant and reticent at
first to
19 limit people, because I am concerned about the
basic right
20 of being able to stand up and ask or an exception.
I must
21 admit without that without any criticism of Ms.
Scoonover,
22 her definition of a few short questions might be
different
23 than mine. It turned out to be 35 minutes. Again,
that is
24 not a criticism because you get into these things
and
25 sometimes they take a little bit longer.
1459
01 Another part of this to please ask the witnesses to
be,
02 I am talking directly to the witnesses now, please
be very,
03 very concise. We don't want dissertations in your
answers.
04 If you can say yes or no, that is perfect. If you
have to
05 go a little beyond that, okay. But we don't need
the
06 repetition and the dissertations.
07 Ms. Bellomo, while I feel you have a right to 35
08 minutes, could you get by with less?
09 MS. BELLOMO: I only have two questions.
10 CHAIRMAN CAFFREY: That is wonderful. Thank you very
11 much.
12 RECROSS EXAMINATION BY
13 PEOPLE FOR MONO BASIN PRESERVATION
14 BY MS. BELLOMO
15 MS. BELLOMO: Dr. Barry, you had indicated that you
had
16 heard about irrigation water flowing off Thompson
Ranch,
17 across the County Road, correct?
18 DR. BARRY: Yes.
19 MS. BELLOMO: I want to ask you: Are you aware that
20 last summer the sheep herders dug a ditch parallel
to the
21 County Road to prevent that water from crossing the
road in
22 the future?
23 DR. BARRY: I have seen the ditch.
24 MS. BELLOMO: You are aware of that.
25 DR. BARRY: Yes.
1460
01 MS. BELLOMO: I just want to understand your
proposal
02 here. Are you proposing that while the State
Reserves
03 should remain in a natural condition that at
Thompson Ranch
04 pipes and sprinklers should be installed in the
part of the
05 scenic area?
06 DR. BARRY: I am saying that this is a more
efficient
07 way of irrigating.
08 MS. BELLOMO: Are you suggesting that that should be
09 done?
10 DR. BARRY: I think that should be an option that
11 should be investigated. I am not saying that is the
only
12 answer.
13 MS. BELLOMO: In your mind is there any
14 incompatibility between having pipes and sprinkler
systems
15 in what is attempting to be a very natural scenic
area?
16 DR. BARRY: Well, County Park has irrigation
17 installed, and I haven't noticed it detracts from
the scene
18 there.
19 MS. BELLOMO: What size would you say there is of
20 sprinkled grass?
21 DR. BARRY: I don't know.
22 MS. BELLOMO: Very small, isn't it?
23 DR. BARRY: Could be.
24 MS. BELLOMO: Thank you. No further questions.
25 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo.
1461
01 Reminding ourselves of the spirit of the memos and
the
02 wonderful goodwill and euphoria that permeates this
meeting,
03 is there anybody else wishing to recross?
04 Hearing and seeing none, I think we have now
reached the
05 point where we ask staff, again, if they have any
clarifying
06 questions.
07 Anything clarifying from the staff?
08 MR. CANADAY: No, sir.
09 CHAIRMAN CAFFREY: Thank you, gentlemen of the
staff.
10 Anything from the Board Members?
11 Ms. Scoonover, do you wish to offer your exhibits,
all
12 of your exhibits, I should add, into the record?
13 MS. SCOONOVER: I do, Mr. Caffrey. Would staff
prefer
14 that we read through the list. The exhibits are as
they
15 were noted in our original testimony submitted to
the Board.
16 So, if you don't need me to read the list, I just
as soon
17 not.
18 MR. JOHNS: We have seven pages.
19 MS. SCOONOVER: Yes, we do. I would offer the State
20 Lands Commission and Department of Parks and
Recreation's
21 exhibits as identified in our submittal to the
Board for
22 acceptance into the record.
23 CHAIRMAN CAFFREY: We thank Mr. Johns for not
insisting
24 that you not read them all.
25 Is there any objection to accepting all of those
1462
01 exhibits into record?
02 Hearing and seeing none, they are so accepted.
03 Thank you very much, and thank you to the panel.
04 Appreciate your taking the time to be here, to
provide us
05 and the cross-examining parties with the
information they
06 required.
07 That will then take us to the witnesses to be
presented
08 -- I should say the witness to be presented by the
09 Department of Fish and Game for cross-examination.
10 Are you ready with your witness, Ms. Cahill?
11 MS. CAHILL: Yes, we are. Thank you.
12 MS. BELLOMO: Excuse me, Mr. Caffrey, I am the only
one
13 doing cross-examination; I wonder if we could take
a
14 five-minute break.
15 CHAIRMAN CAFFREY: We most certainly can, may, and
16 will.
17 MS. BELLOMO: Thank you.
18 CHAIRMAN CAFFREY: Five-minute break.
19 (Break taken.)
20 CHAIRMAN CAFFREY: We shall resume the hearing, and
21 good afternoon again, Ms. Cahill.
22 MS. CAHILL: Good afternoon.
23 The Department of Fish and Game calls Ronald
Thomas.
24 ---oOo---
25 //
1463
01 DIRECT EXAMINATION BY
02 DEPARTMENT OF FISH AND GAME
03 BY MS. CAHILL
04 MS. CAHILL: Mr. Thomas, would you state your name
for
05 the record, please?
06 MR. THOMAS: Ronald Thomas.
07 MS. CAHILL: Are you familiar with the Exhibit
R-DFG-4?
08 Is that a true statement of your qualifications?
09 MR. THOMAS: Yes, it is, but I would like to add two
10 points I didn't include there. My participation in
the
11 Intermountain West Joint Venture, which is
attempting to
12 implement the North American Waterfowl Plan. I
think that
13 is pertinent recent experience. I also had a
helicopter
14 survey flight of Mono Lake in March of this year
that I
15 would like to add.
16 MS. CAHILL: With regard to the exhibit that is
marked
17 R-DFG-3, is that your testimony?
18 MR. THOMAS: Yes, it is.
19 MS. CAHILL: Do you believe that that testimony is
20 still accurate?
21 MR. THOMAS: Yes, it is, but I would like to make
one
22 minor change on Page 3.
23 CHAIRMAN CAFFREY: Mr. Thomas, excuse me for
24 interrupting you. Could you draw that mike a little
closer?
25 We are having a little trouble picking you up.
1464
01 Please go on. Thank you, sir.
02 MR. THOMAS: It was on Page 3 at Point 10. I would
03 like to remove that last sentence.
04 MS. CAHILL: That is the sentence that reads:
"The
05 development of the ponds should not be dependent on
surface
06 water from Mill or Wilson Creek"?
07 MR. THOMAS: That is correct. I would like to strike
08 that sentence.
09 MS. CAHILL: We are ready for cross-examination.
10 CHAIRMAN CAFFREY: Thank you very much, Ms. Cahill.
11 Ms. Bellomo, do you wish to cross-examine?
12 CROSS-EXAMINATION BY
13 PEOPLE FOR MONO BASIN PRESERVATION
14 BY MS. BELLOMO
15 MS. BELLOMO: Good afternoon, Mr. Thomas.
16 MR. THOMAS: Good after, Ms. Bellomo.
17 MS. BELLOMO: What is you current job with
Department
18 of Fish and Game?
19 MR. THOMAS: My title is Associate Wildlife
Biologist,
20 and I am assigned to what we call the Mono County
Wildlife
21 Unit. That is a geographical area that I am
assigned to.
22 MS. BELLOMO: Are you the witness offered by the
23 Department of Fish and Game in this proceeding
regarding
24 waterfowl restoration in the Mono Basin?
25 MR. THOMAS: Yes, I am.
1465
01 MS. BELLOMO: For that purpose -- because of that, I
02 would like to explore with you, briefly, your
experience
03 with waterfowl and waterfowl habitat. And, again,
let's do
04 this briefly.
05 Turning to your resume that is part of your
testimony,
06 that is Exhibit R-DFG-4, between 1970 and 1978, was
any of
07 the work that you itemized here related to
waterfowl?
08 MR. THOMAS: I am not sure that I am on the same
09 edition of my resume that you have. But, yes,
during that
10 period of time I was in the Southern San Joaquin
Valley and
11 had extensive experience with waterfowl.
12 MS. BELLOMO: I noted that, I believe, did wetland
13 evaluation; is that correct?
14 MR. THOMAS: Among other things.
15 MS. BELLOMO: You indicate that you did work related
to
16 petroleum, effective petroleum habitat I assume?
17 MR. THOMAS: Very briefly, there was a major
pollution
18 problem resulting in the loss of a lot of water
birds at
19 that time, and that was one of the major focuses of
the job
20 at that time.
21 MS. BELLOMO: Did this cause you to study ducks and
22 their habits and movements?
23 MR. THOMAS: Yes.
24 MS. BELLOMO: Between January 1978 and 1981, did
your
25 work as the management unit wildlife biologist in
Tulare and
1466
01 Kings County involve any work with waterfowl?
02 MR. THOMAS: Yes, it did, probably more so than the
03 previous job.
04 MS. BELLOMO: Did you do any consulting, as a
05 Department of Fish and Game employee, on duck
operations?
06 MR. THOMAS: I provided information on habitat work
and
07 improvement to various private duck clubs, as well
as some
08 efforts on the federal wildlife areas, yes.
09 MS. BELLOMO: Did you do any work with irrigation
10 districts regarding waterfowl?
11 MR. THOMAS: To a more limited extent, but yes.
12 MS. BELLOMO: From 1981 to the present, I understand
13 from people in Mono county you have been involved
in doing
14 aerial survey work. Can you tell us what that work
15 consisted of?
16 MR. THOMAS: The focus of our helicopter surveys has
17 always been deer counts. But we also look at other
things
18 when we are in the air. And I always would make an
effort
19 to take a look of waterfowl, at least on Bridgeport
and
20 often on Mono, as well.
21 MS. BELLOMO: That includes ducks?
22 MR. THOMAS: Yes.
23 MS. BELLOMO: When you refer on Page 3 of your
resume
24 to habitat project conception and implementation,
has that
25 related to waterfowl?
1467
01 MR. THOMAS: Yes. Wetlands in general, I would say,
02 would be the accurate way to put that.
03 MS. BELLOMO: You also mention, I think, in here
04 somewhere about -- I know you mentioned it during
your
05 direct examination -- about working on joint
ventures. Can
06 you explain what the nature of your work on that
has been
07 with North American Waterfowl Management Plan?
08 MR. THOMAS: The joint venture is a group of
different
09 agencies and private individuals put together to
formulate,
10 and hopefully execute, waterfowl wetland projects
to improve
11 habitat conditions.
12 MS. BELLOMO: Have you been involved -- well,
actually
13 I see you have here in your resume you have been
involved in
14 waterfowl nesting surveys. Have those been in the
Mono
15 Basin?
16 MR. THOMAS: No. Crowley.
17 MS. BELLOMO: For what kind of birds?
18 MR. THOMAS: Ducks. It was mostly mallards and
19 gadwalls, but some teals, as well.
20 MS. BELLOMO: I understand from Roger Porter, our
local
21 scenic area manager, that you were part of the most
recent
22 survey flight with the Forest Service on March 17
in 1997;
23 is that correct?
24 MR. THOMAS: Yeah. I think I added that to my
resume.
25 MS. BELLOMO: While you were doing that aerial work,
1468
01 did you have an opportunity to look at the Mill and
Wilson
02 drainages?
03 MR. THOMAS: Yes.
04 MS. BELLOMO: As part of your job, do you do annual
05 flyovers of Mono Lake?
06 MR. THOMAS: I won't say annual, but it's on an
07 opportunity basis. Most years we take a quick look
at Mono
08 because it is on the way.
09 MS. BELLOMO: How long have you worked in Mono
County?
10 MR. THOMAS: Almost 18 years.
11 MS. BELLOMO: Have you had on-the-ground observation
12 experience of waterfowl at Mono Lake?
13 MR. THOMAS: Yes.
14 MS. BELLOMO: Have you talked over the years, in
your
15 capacity as the local Fish and Game biologist, have
you
16 talked over the years with local people about
waterfowl on
17 Mono Lake?
18 MR. THOMAS: Yes.
19 MS. BELLOMO: Have you had occasion to talk to duck
20 hunters?
21 MR. THOMAS: Yes.
22 MS. BELLOMO: In the local community?
23 MR. THOMAS: Yes.
24 MS. BELLOMO: As the local field biologist for the
25 Department of Fish and Game, do you know how the
local
1469
01 community feels about the proposal to rewater Mill
Creek to
02 create waterfowl habitat restoration?
03 MR. BIRMINGHAM: Objection. Relevance.
04 CHAIRMAN CAFFREY: I didn't hear the objection,
sorry.
05 MR. BIRMINGHAM: Relevance.
06 CHAIRMAN CAFFREY: Would you ask the question again.
07 MS. BELLOMO: My question was: As the local field
08 biologist for Fish and Game, does he know how the
local
09 community feels about the proposal to rewater Mill
Creek for
10 waterfowl habitat restoration? I think it is
relevant
11 because he is making a recommendation to the Board,
and, if
12 he knows, I think he should be telling you what his
13 perceptions are, as the local field biologist.
14 MS. CAHILL: I don't believe that his testimony in
any
15 way --
16 CHAIRMAN CAFFREY: I would sustain the objection.
17 MS. BELLOMO: Do you think it relevant, Mr. Thomas,
18 what the local community, the local hunting
community, feels
19 about the waterfowl habitat restoration?
20 MR. BIRMINGHAM: Objection.
21 MS. CAHILL: She is asking the witness for a legal
22 conclusion.
23 CHAIRMAN CAFFREY: Right.
24 MS. BELLOMO: I am asking is it relevant for him in
25 forming his opinion, which, no doubt, he shared
with the
1470
01 Department of Fish and Game. I need to know; he is
the
02 biologist. Does he, when he tells Fish and Game
what he
03 thinks they should, does he tell them what the
community
04 tells him, or does he think it is not relevant and
did he
05 convey that to the higher-ups?
06 MS. CAHILL: She can ask him if he did consider
local
07 viewpoint in formulating his testimony.
08 CHAIRMAN CAFFREY: Sounds like --
09 MS. BELLOMO: I am happy to do it that way.
10 CHAIRMAN CAFFREY: Why don't you do it that way.
11 MS. BELLOMO: Did you consider local viewpoints on
12 waterfowl habitat restoration measures in making
your
13 recommendation to Fish and Game management?
14 MR. THOMAS: I recently informed my supervisor of my
15 impressions and knowledge regarding that and other
subjects,
16 concerning this process in general.
17 MS. CAHILL: I object. The question here is not what
18 Mr. Thomas has recommended to Fish and Game
management, but
19 what his testimony is in this hearing.
20 CHAIRMAN CAFFREY: I think that is more of an
21 instruction to the witness than it is to the
questionnaire.
22 MS. BELLOMO: I can get at this in another way. I
will
23 just proceed, Chairman Caffrey.
24 MR. FRINK: I wonder if I can comment.
25 CHAIRMAN CAFFREY: Mr. Frink.
1471
01 MR. FRINK: I think some of the problem here may be
Mr.
02 Thomas is appearing as witness under
cross-examination. I
03 know Ms. Bellomo also subpoenaed him.
04 Is that correct?
05 MS. BELLOMO: Yes.
06 MR. FRINK: He could answer just the question now
that
07 he would normally answer under cross-examination,
or he
08 could answer those questions as well as the
questions that
09 Ms. Bellomo wanted to ask on rebuttal if the
parties
10 stipulate. If we try and have a clear break, then
he would
11 have to come back. If the parties are in agreement,
that
12 maybe she could go beyond the normal scope of
13 cross-examination, and he might only have to appear
a single
14 time.
15 That is a little bit of the dilemma we face.
16 CHAIRMAN CAFFREY: Can you determine what the scope
of
17 rebuttal might likely be at this point in time,
that we
18 haven't heard other items yet that are going to be
brought
19 before, another item that is going to be brought
before this
20 Board. That could be a problem.
21 MS. BELLOMO: I am happy to do it as rebuttal. We
22 subpoenaed Mr. Thomas. We paid our 150 fees, so we
23 certainly can call him back as a rebuttal witness.
24 CHAIRMAN CAFFREY: All right. Let's proceed in that
25 fashion then.
1472
01 MS. BELLOMO: On Page 47 -- well, let me back up.
02 Do you have with you a copy of the Mono Basin
Waterfowl
03 Habitat Restoration Plan prepared by the Los
Angeles
04 Department of Water and Power?
05 MR. THOMAS: Yes.
06 MS. BELLOMO: Can I ask you to turn to Page 47 of
the
07 report of the three waterfowl scientists? Can I ask
you --
08 for clarification in the future during my
questioning, when
09 I refer to the three waterfowl habitat scientists
or the
10 three waterfowl scientists, will you understand my
question
11 as referring or my reference as referring to Drs.
Drewien,
12 Reid, and Ratcliff as being the three waterfowl
scientists?
13 MR. THOMAS: Yes.
14 MS. BELLOMO: Turning to Page 47 of the three
waterfowl
15 scientists' report, on the last line, they say,
"Testimony
16 by several waterfowl experts (P. Beedy, Jones and
Stokes, R.
17 Thomas, et cetera) pointed out that," and then
they go on.
18 Are you the R. Thomas that they refer to as being
the
19 waterfowl expert that they are referencing here?
20 MR. THOMAS: Yes.
21 MS. BELLOMO: I note that they state that they
22 concurred with the opinion of you and several
others, and
23 I'm reading here, that the current waterfowl use is
severely
24 restricted by minimal acreage of fresh and brackish
open
25 water wetlands and the decline in the quantity and
quality
1473
01 of hypopycnal environment.
02 You see where I am reading?
03 MR. THOMAS: I am with you on the page. I didn't get
04 the question.
05 MS. BELLOMO: My question is: They say that their
06 assessment -- sorry, that was poorly worded. The
waterfowl
07 report states on Page 48, "Our assessment of
Mono Lake
08 wetlands habitat concurs with their testimony in
that
09 current waterfowl use is severely restricted by the
minimal
10 acreage of fresh and brackish open water wetlands
and the
11 decline in the quantity and quality of the
hypopycnal
12 environment."
13 My question is: Does that accurately reflect the
14 opinion that you shared with the three scientists?
15 MR. THOMAS: Yes.
16 MS. BELLOMO: Turning to your testimony at Page 3,
you
17 state, "It is my opinion that restoration
measures relying
18 solely on natural process are unlikely to restore
lost
19 waterfowl habitat capability."
20 What do you mean by natural processes?
21 MR. THOMAS: Probably the best way I would define
that,
22 at least in my terms, would be letting nature take
its
23 course.
24 MS. BELLOMO: As contrasted -- maybe it would help
if
25 you give an example of what restoration measure
would be
1474
01 that doesn't rely solely on natural processes.
02 MR. THOMAS: Could be any form of human
intervention,
03 from something very minimal with a shovel, to
something very
04 extreme as in wildlife areas, anything that would
involve
05 human intervention.
06 MS. BELLOMO: In your opinion, then, using that
07 definition that you have given us, does rewatering
Mill
08 Creek as a restoration project fall into the
category of
09 relying solely on natural processes?
10 MR. THOMAS: Rewatering of Mill Creek is an example
of
11 restoring a natural process, I believe. But that,
in and of
12 itself, is not solely a natural process because
there are
13 other options as well.
14 MS. BELLOMO: Are you saying -- I am trying to
15 understand your answer. Is rewatering Mill Creek
relying on
16 -- let me rephrase.
17 When you say, in your opinion, that restoration
18 measures rely solely on natural process are
unlikely to
19 restore lost waterfowl, are you referring to Mill
Creek in
20 that sentence, rewatering of Mill Creek?
21 MR. THOMAS: Mill Creek is one example of what I
view
22 as a natural process. The rewatering of Mill Creek
would
23 restore natural process, yeah.
24 MS. BELLOMO: As I noted earlier in my questioning,
you
25 are one of the experts that the three waterfowl
scientists
1475
01 conferred with. My question is: Did you discuss the
report
02 with any of them after it was finalized?
03 MR. THOMAS: Yes.
04 MS. BELLOMO: With which of them?
05 MR. THOMAS: Dr. Drewien has been out of the
country,
06 but I have talked with both Dr. Reid and Mr.
Ratcliff.
07 MS. BELLOMO: Is it your understanding that the
three
08 scientists, when they prepared their February '96
report,
09 gave a preference to restoration that would be by
natural
10 processes as you have defined it?
11 MR. THOMAS: No. Because I believe they provided a
12 wide range of optional restoration projects,
relying on both
13 natural processes and others, as well as other
projects
14 involving human intervention, as I recall it.
15 MS. BELLOMO: When it came to prioritizing the
16 projects, in terms of order of importance to be
done, did
17 they give a preference to projects that would be
restoration
18 by natural processes?
19 MR. THOMAS: I believe that's -- I believe the
answer
20 to that is yes.
21 MS. BELLOMO: Did you talk with Dr. Reid about
whether
22 the distinction between pursuing waterfowl habitat
23 restoration measures -- excuse me for a moment. I
want to
24 rephrase my question here.
25 Did you discuss at any time with any of the three
1476
01 waterfowl scientists the distinction between
pursuing
02 waterfowl habitat restoration measures that rely
solely on
03 natural processes versus pursuing restoration
measures that
04 would be focused on bringing back the greatest
number of
05 ducks?
06 MR. THOMAS: Yes.
07 MS. BELLOMO: Which of them did you talk to about
this
08 distinction?
09 MR. THOMAS: I talked to all three of them on those
and
10 many other subjects from the very start of the
process, from
11 our first field trips throughout the process.
12 MS. BELLOMO: Did Dr. Reid at any time indicate to
you
13 that it was not his personal choice to pursue
restoration by
14 natural processes as the preferred alternative?
15 MR. THOMAS: I don't recall him ever having said
that
16 in those words.
17 MS. BELLOMO: Did he ever tell you that there was
18 political pressure, quote-unquote, placed on the
scientists
19 to take that approach?
20 MR. THOMAS: I was told that by one of the three
21 scientists, and I don't recall which one now.
22 MS. BELLOMO: Did you ever discuss that with Dr.
23 Stine?
24 MR. THOMAS: I believe we did discuss that.
25 MS. BELLOMO: What did you discuss with Dr. Stine in
1477
01 that regard?
02 MR. THOMAS: It has been some time ago. It was a
windy
03 afternoon walking the shores of Mono Lake. I don't
remember
04 the exact words, but we did talk about the
prioritization of
05 the projects and the history of the formulation of
the duck
06 plan, our perceptions of the various projects in
the plan
07 and other subjects.
08 MS. BELLOMO: Did he mention political pressure, or
did
09 you mention it to him?
10 MR. BIRMINGHAM: Objection. Compound.
11 MR. THOMAS: It was discussed.
12 MS. BELLOMO: Did you at any time express your
concern
13 to any of the three waterfowl scientists before
they
14 prepared the report that you were uncomfortable,
that
15 political pressure might be dictating the outcome
of the
16 report?
17 MR. THOMAS: I discussed, in general terms, that
18 subject and others with the scientists during that
process.
19 MS. BELLOMO: Would it be accurate to say that Fritz
20 Reid told you that it was the preference for
waterfowl
21 habitat restoration by natural processes that made
Mill
22 Creek the second most important recommendation
after raising
23 the lake?
24 MR. THOMAS: Yes.
25 MS. BELLOMO: Did you discuss with him what other
1478
01 restoration by natural processes could be pursued
in the
02 Mono Basin?
03 MR. THOMAS: Would you repeat that again?
04 MS. BELLOMO: Did you talk with Fritz Reid or either
of
05 the other two waterfowl scientists about, other
than Mill
06 Creek, what restoration by natural processes could
be
07 pursued in the Mono Basin?
08 MR. THOMAS: The answer to that would have to be,
yes,
09 because we talked about, I think, I would have to
say as
10 wide range of proposals which pretty much included
all
11 possibilities.
12 MS. BELLOMO: What other opportunities for,
13 quote-unquote, natural processes restoration did
you
14 discuss?
15 MR. THOMAS: We talked about rewatering distributary
16 channels, and, I believe, that would recreate
natural
17 conditions.
18 MS. BELLOMO: In your opinion, are there any other
19 actions that could be taken for waterfowl habitat
20 restoration by natural process in the Mono Basin
other than
21 Mill Creek and rewatering the distributaries that
you just
22 identified?
23 MR. THOMAS: In my opinion, the burn program could
be
24 termed at least mimicking natural process, because,
25 certainly, there were burns in the past. So, that
would be
1479
01 included in that broad definition.
02 MS. BELLOMO: Would you agree that restoration by
03 natural processes, as you defined it, is not
necessarily the
04 method that would bring back the greatest number of
ducks?
05 MR. THOMAS: That is my opinion.
06 MS. BELLOMO: When you say on Page 3, Paragraph 8 of
07 your testimony, that the amount of water DWP, that
the DWP
08 plan would put in Mill Creek is inadequate to
obtain desired
09 waterfowl habitat restoration -- do you see where I
am
10 looking?
11 MR. THOMAS: Yes.
12 MS. BELLOMO: Are you voicing a preference for
13 rewatering Mill Creek or are you saying, if Mill
Creek is
14 chosen as a restoration project, then -- if you're
basically
15 going to do it, you have to do it right, and put
more water
16 in than DWP is proposing?
17 MR. THOMAS: The second of those two scenarios is my
18 meaning, yes. Largely based on Dr. Stine's work, I
concur
19 that to get habitat restoration, nearly natural
flows would
20 probably be needed.
21 MS. BELLOMO: On Page 3, Paragraph 10, you have
22 eliminated the sentence I was going to ask you
about, this
23 regarding DeChambeau and where you said the pond
should not
24 be dependent upon surface water from Mill or
Wilson.
25 What I want to ask you, however, is: Do you believe
1480
01 that the DeChambeau -- let me restate that.
02 Are you -- do you have a preference for restoring
03 DeChambeau Ponds, County Ponds through the use of
well water
04 or pumped water, as contrasted with surface,
irrigation flow
05 water?
06 MR. THOMAS: I have no preference on that. I would
add
07 that I concur with the scientists that it is an
important --
08 costly waterfowl habitat.
09 MS. BELLOMO: Costly, you are relying on drilling
wells
10 and pumping, is that what you mean?
11 MR. THOMAS: Projections were based on different
12 scenarios and I am just quoting the scientists'
plan. I
13 forget what that was based on exactly.
14 MS. BELLOMO: In that Paragraph 10 you refer to the
15 Black Point Project, on Page 3, Paragraph 10.
16 MR. THOMAS: Yes.
17 MS. BELLOMO: What project are you referring to?
What
18 is the Black Point Project you refer to?
19 MR. THOMAS: The scientists talk about putting in a
20 shallow pond there, using an apparently adequate or
21 perceived to be adequate artesian flow.
22 MS. BELLOMO: That would never be dependent on Mill
or
23 Wilson Creek water, would it?
24 MR. THOMAS: Not the way it is described in the
plan,
25 no. And to my knowledge it would not be, no.
1481
01 MS. BELLOMO: In your opinion, why are the
DeChambeau
02 and County Ponds important as part of the waterfowl
habitat
03 restoration efforts in the basin?
04 MR. THOMAS: The reports of residents that were
there
05 for years indicate that it was good duck habitat.
The
06 project is already well under way. I think those
would be
07 my two major reasons.
08 MS. BELLOMO: You state on Page 4, Paragraph 13,
that
09 you believe that the creation of shallow, open
water ponds,
10 fresh or brackish, is the most critical element of
waterfowl
11 habitat.
12 Do you see where I am reading?
13 MR. THOMAS: Thirteen at the top, yes.
14 MS. BELLOMO: Is it your opinion, as you state, that
15 improvement in the quantity and quality of these
shallow
16 open water habitats should be the guiding principle
of
17 waterfowl habitat restoration in the basin?
18 MR. THOMAS: I agree with the scientists on that
19 point.
20 MS. BELLOMO: Please turn to Page 47 of the
scientists'
21 report, the first full paragraph. They state,
"Many
22 ecological changes have resulted from the declining
lake
23 level. For waterfowl the losses and quantity and
quality of
24 most open, fresh and brackish open water habitat
were
25 especially detrimental. These habitats and the open
lake
1482
01 were previously used by up to a million waterfowl
during
02 fall migration periods in the 1960s. Available
evidence and
03 our own habitat surveys indicate that the losses of
these
04 habitats were the primary cause for the large and
05 precipitant decline of fall waterfowl populations
after the
06 mid 1960s."
07 Do you agree with that statement by the scientists?
08 MR. THOMAS: Yes, I do.
09 MS. BELLOMO: They go on to state, "The
combined losses
10 of fresh and brackish open water areas greatly
reduce the
11 diversity of habitat available to the various
waterfowl
12 species and left mainly a hypersaline and
hyperalkaline lake
13 habitat that was primarily attractive to salt
tolerant
14 waterfowl species, such as the Ruddy duck and
Northern
15 Shoveler."
16 Do you agree with that statement?
17 MR. THOMAS: Yes, I do.
18 MS. BELLOMO: Can you explain what is so critical
about
19 having shallow, open water habitats in the basin?
20 MR. THOMAS: I believe, in general terms, that the
21 diversity of habitats is important, so that numbers
and
22 variety of species have habitats that are suitable.
I also
23 believe that due to the frequent and high winds in
the
24 basin, that refuge habitats provided by these fresh
and
25 brackish water open areas, whether lagoons or fresh
water
1483
01 ponds, is likely a critical habitat feature.
02 I believe that it may be that the migrating ducks
can't
03 use the food source of Mono Lake for any length of
time if
04 they don't have habitats such as that to get out of
the big
05 winds that frequently blow.
06 MS. BELLOMO: I assume you are referring to the
winds
07 when the lake becomes too rough for the ducks?
08 MR. THOMAS: Yes.
09 MS. BELLOMO: I would like to explore something with
10 you that confuses me, which is how do the ducks
know not
11 come to the Mono Basin because there is a shortage
of
12 habitat? Do they communicate among themselves? Or
are they
13 flying along and they look down and they don't see
what they
14 need and they keep going, or is it something else?
15 MR. THOMAS: In my opinion, and I just discussed
this
16 with Dr. Reid and others, it is likely that at this
point
17 now, presently, that that population of big number
of birds
18 simply doesn't exist. Because over the years,
without
19 appropriate habitat, that portion of the population
would
20 have solely disappeared. The birds that do come, I
believe,
21 likely can't stay long, for the reason I just
stated. Also
22 because of the reduced diversity of habitat as
stated by the
23 scientists. Various habitat needs would no longer
be
24 supplied for certain species and large numbers.
25 MS. BELLOMO: You emphasized in an earlier answer
the
1484
01 importance of having refugee habitat, correct?
02 MR. THOMAS: Yes.
03 MS. BELLOMO: If a duck is flying along and it looks
04 down and the lake is very rough because it is
windy, then
05 will that duck stop, in your expert opinion? Or
does it
06 look down, and if it can't find refuge habitat,
does it just
07 continue on and pass the basin?
08 MR. THOMAS: Most species of waterfowl are very
09 hesitant to land on very rough water. It is a hard
question
10 to answer absolutely. I believe, if the lake
surface has
11 very large waves, that most ducks would not land on
it.
12 MS. BELLOMO: Do you believe that if they saw refuge
13 habitat that -- are you saying if they saw refuge
habitat
14 then they could stop, but if the lake was too rough
you
15 would expect that they wouldn't stop?
16 MR. THOMAS: That is what I believe, and I think
that
17 is what makes the burn program and other projects
that would
18 result in open water habitat so valuable.
19 MS. BELLOMO: I take it you are familiar with the
wind
20 at Mono Lake?
21 MR. THOMAS: Yes.
22 MS. BELLOMO: How would you characterize the wind
23 there?
24 MR. BIRMINGHAM: Objection. Vague and ambiguous.
25 What period of time?
1485
01 CHAIRMAN CAFFREY: Make your question a little more
02 specific.
03 MS. BELLOMO: Yes, I can break it down.
04 How often does the wind blow at the Mono Lake, in
your
05 opinion?
06 MR. THOMAS: I don't live in the basin, so that is a
07 hard one to answer.
08 MS. BELLOMO: Do you believe that it blows
frequently?
09 MR. THOMAS: Yes.
10 MS. BELLOMO: Have you experienced heavy winds?
11 MR. THOMAS: There are times when I would have liked
to
12 look at the lake shore from the helicopter and
didn't for
13 that reason.
14 MS. BELLOMO: When the wind blows, in your
experience
15 or to your knowledge, does it sometimes blow for
pretty
16 lengthy duration?
17 MR. THOMAS: Throughout the Eastern Sierra, that is
18 true.
19 MS. BELLOMO: Would you agree that that kind of wind
20 can happen, basically, at any time of year?
21 MR. THOMAS: Yes.
22 MS. BELLOMO: What happens if ducks are out on Mono
23 enjoying the lake and suddenly a big wind kicks up
and it
24 becomes very rough, so it's too rough, as you said,
for
25 ducks? Then what do they do?
1486
01 MR. THOMAS: Not only at Mono Lake, but in many
other
02 places I am familiar with, they get up off the big
water and
03 head for shelter.
04 MS. BELLOMO: By shelter, do you mean calm water?
05 MR. THOMAS: Water that is protected or small enough
to
06 be calm.
07 MS. BELLOMO: Ducks aren't likely to want to go sit
in
08 the sagebrush?
09 MR. THOMAS: Not likely.
10 MS. BELLOMO: If they are at Mono Lake and they
can't
11 find any sheltered water to go to, would you expect
them to
12 stay on the lake in the really rough water, or
would you
13 expect them to fly off and leave the basin?
14 MR. THOMAS: I would expect them to fly off and
leave
15 the basin.
16 MS. BELLOMO: Is this one of the reasons you have
for
17 saying that creating as part of our restoration
effort
18 creating refuge habitat is critical?
19 MR. THOMAS: Yes.
20 MS. BELLOMO: The kind of refuge habitat you are
21 talking about, am I correct, that that is shallow,
open
22 water ponded areas, such as the scientists refer
to?
23 MR. THOMAS: Yes.
24 MS. BELLOMO: If DeChambeau Ponds were functioning
as
25 they did in the past, is that a place that you
would
1487
01 consider to be refuge habitat?
02 MR. THOMAS: Yes.
03 MS. BELLOMO: Is that a place you would expect ducks
to
04 go when they needed refuge habitat?
05 MR. THOMAS: Yes.
06 MS. BELLOMO: If Simon Springs were enlarged, is
that a
07 place that you would consider refuge habitat?
08 MR. THOMAS: If open water areas could be created at
09 Simon Springs, I would agree it would become
valuable
10 habitat.
11 MS. BELLOMO: What about at Warm Springs? Would your
12 answer be the same, that if open water habitat
could be
13 created or enlarged on there, that that would
become
14 valuable habitat?
15 MR. THOMAS: Yes. It should be pointed out, too,
there
16 are small, open water areas at both of those
locations now,
17 and they are heavily used.
18 MS. BELLOMO: In your opinion, would it be
beneficial
19 to enlarge them?
20 MS. THOMAS: Yes.
21 MS. BELLOMO: Have you conducted any surveys that
show
22 where ducks go to take refuge when it's windy at
Mono Lake?
23 MR. THOMAS: No.
24 MS. BELLOMO: Have you, at any time, observed ducks
25 having trouble finding suitable refuge at Mono Lake
when it
1488
01 has been windy.
02 MR. THOMAS: No.
03 MS. BELLOMO: You never had any situation where you
04 observed ducks, let's say, crowding into an area of
kind of
05 protected water where it was really too small for
the
06 number of ducks in it?
07 MR. THOMAS: I have seen flights of ducks come off
of
08 the lake and come in and landing on the available
open water
09 spots at both Simons and Warm Springs. I can't say
that I
10 have seen them crowded upon there. That would be a
judgment
11 call or observation that I can't say that I have
made.
12 MS. BELLOMO: Are you testifying that there is a
13 shortage of refuge habitat in the basin?
14 MR. THOMAS: Yes.
15 MS. BELLOMO: Could I just ask how much time I have?
16 CHAIRMAN CAFFREY: You have 30 minutes left.
17 MS. BELLOMO: Thank you.
18 I would like to explore with you the opportunity to
19 enhance as shallow open water habitats in the
basin. And
20 would you agree that DeChambeau Ponds is one such
area?
21 MR. THOMAS: Yes.
22 MS. BELLOMO: Would you agree that County Ponds is
one
23 such area?
24 MR. THOMAS: Yes.
25 MS. BELLOMO: Would you agree that Simon Springs is
one
1489
01 such area?
02 MR. THOMAS: Yes.
03 MR. BELLOMO: Would you agree that Warm Springs is
one
04 such area?
05 MR. THOMAS: Yes.
06 MS. BELLOMO: Would you agree that the creation of
07 additional ponds at Black Point is one such area?
08 MR. THOMAS: Yes.
09 MS. BELLOMO: Do you believe that rewatering of Mill
10 Creek is such an area?
11 MR. THOMAS: Based on what I have read and what I
have
12 seen, especially recently from the air out there,
my opinion
13 is that, although some open water would probably be
14 recreated there, I think it would be of not a great
extent.
15 I want to emphasize the importance, in my opinion,
is
16 not only that is open, also that it is shallow.
17 MS. BELLOMO: Thank you for that clarification.
18 Turning to Page 72 through 75 of the report of the
19 three waterfowl scientists --
20 MR. THOMAS: Page number again?
21 MS. BELLOMO: Actually, I am looking at 74 and 75.
22 Do you agree with them, that the creation of
shallow,
23 fresh water ponds in lake fringing wetlands would
be a cost
24 effective alternative?
25 That is top of Page 75 of their report.
1490
01 MR. THOMAS: Yes, I agree with that.
02 MS. BELLOMO: Do you agree with their estimate that
03 approximately one acre pond could be created for
about
04 $6,500?
05 MR. THOMAS: I would accept their estimate. I have
no
06 personal knowledge of how valid those figures are.
07 MS. BELLOMO: Do you further agree with them where
08 they state that they recommend that the development
of these
09 scrapes be reconsidered if monitoring indicates
other
10 habitat development does not produce desired
results?
11 MR. THOMAS: Could you do that again?
12 MS. BELLOMO: Maybe I will rephrase.
13 Do you believe that these scrapes should be done as
a
14 first priority project, or do you believe, as they
are
15 saying, that they should be considered if
monitoring
16 indicates that other habitat development efforts
haven't
17 produced the desired results?
18 MR. DODGE: Objection. Question is unintelligible.
19 CHAIRMAN CAFFREY: I am having a little trouble
20 understanding it. Could you try it again, Ms.
Bellomo,
21 please?
22 MS. BELLOMO: Do you believe that scrapes should be
23 done at this time?
24 MR. THOMAS: I agree with the scientists on this
point,
25 that scrapes, as they call them or other means of
creating
1491
01 shallow ponds, should be considered in the future
as some
02 sort of adaptive management in response to
monitoring. That
03 is what they said, and I agree with that.
04 MS. BELLOMO: On Page 72 where the scientists refer
to
05 enhancements of the ponds at Diamond Springs, what
is your
06 understanding of the modifications that they
propose here?
07 They refer to them as minor. I would like to know
what your
08 understanding of what the proposal is.
09 MR. THOMAS: I need a moment to review this.
10 These are the ponds that are existing, small and
deep.
11 If you're asking me to explain their concept, is
that --
12 MS. BELLOMO: In the interest of time, let me just
ask
13 you this. I am going to find the right wording
here.
14 Do you agree with them, that these modifications
that
15 they are recommending would greatly improve the
16 attractiveness of these ponds to water birds?
17 The second to lasts --
18 MR. THOMAS: I agree. And, again, it because they
are
19 deep now and they could be made larger and
shallower, and
20 they could, therefore, provide more habitat of
higher
21 quality, yes.
22 MS. BELLOMO: Would you characterize the
modifications
23 that would be necessary, would you characterize
them as
24 minor, which is what the waterfowl scientists
characterize
25 them as?
1492
01 MR. THOMAS: I would agree with the scientists on
that
02 point.
03 MS. BELLOMO: How much do you estimate it could cost
to
04 do that enhancement?
05 MR. THOMAS: Any estimate I would make would be
06 somewhat speculative, but I would think probably in
the area
07 of a few thousand dollars for each pond.
08 MS. BELLOMO: Are you aware that there is a debate
09 that was discussed with the waterfowl scientists
about the
10 interpretation of regulations governing state land
as to
11 whether they would permit, those regulations would
permit,
12 any enlarging of Simons Springs?
13 MR. THOMAS: The way I understand it is that the
14 current interpretation of the policies on state
lands would
15 not allow that kind of project.
16 MS. BELLOMO: Are you basing that on a particular
law
17 or regulation?
18 MR. THOMAS: I am intimately familiar with those
19 policies and regulations, so I can only say that is
my
20 impression.
21 MS. BELLOMO: Is it your impression that that would
22 also prevent doing scrapes on state land?
23 MR. THOMAS: Yes.
24 MS. BELLOMO: So, it sounds like you are telling me
25 that, as you understand it, the state policies, as
they are
1493
01 being interpreted, would not allow any waterfowl
restoration
02 work to be done on state lands; is that correct?
03 MR. DODGE: Calls for a legal conclusion.
04 MS. BELLOMO: I am asking for his understanding.
05 MR. BIRMINGHAM: I will object on the grounds of
06 materiality. His understanding about what the
regulations
07 permit and don't permit is immaterial.
08 CHAIRMAN CAFFREY: I am going to sustain the
09 objection. Please proceed.
10 MS. BELLOMO: Do you believe if Mill Creek is
11 rewatered, as proposed by the State Lands
Commission and
12 others, with most or all of the flow, we are going
to
13 develop the kind of refuge habitat that you have
testified
14 that there is a scarcity of?
15 MR. DODGE: Objection. Unintelligible.
16 CHAIRMAN CAFFREY: Could you restate the question a
17 little more succinctly, please?
18 MS. BELLOMO: What is unintelligible about that?
19 CHAIRMAN CAFFREY: I couldn't hear all, for one
thing.
20 I apologize for that. Try it again.
21 MS. BELLOMO: Do you believe if Mill Creek is
rewatered
22 with the kind of flows that the State Lands
Commission is
23 asking for in this proceeding, that will develop
the kind of
24 refuge habitat that you have testified that there
is a
25 scarcity of?
1494
01 MR. THOMAS: I agree with what I understand to be
Dr.
02 Stine's testimony earlier, that it is going to be
really
03 hard to know at this point. My impression is,
flying the
04 drainage, both Rush and Mill, that areas of open
ponds that
05 would provide that type of refuge habitat, would
probably be
06 small.
07 MS. BELLOMO: Do you have any concern that the
gradient
08 at Mill Creek is one of the reasons that it is not
likely
09 that you would get the kind of refuge habitat that
you are
10 looking for?
11 MR. THOMAS: In looking at it from the helicopter, I
12 believe that Mill Creek, the drainage is much
steeper than
13 Rush; and from a waterfowl habitat perspective, I
think the
14 two creeks are much different.
15 MS. BELLOMO: Have you discussed that with any of
the
16 three waterfowl scientists?
17 MR. THOMAS: Yes, I have.
18 MS. BELLOMO: Can you tell me with which ones?
19 MR. THOMAS: I discussed this with Tom Ratcliff.
20 MS. BELLOMO: Did Dr. Ratcliff agree with you?
21 MR. THOMAS: Correct. Mr. Ratcliff and -- yes, he
22 did.
23 MS. BELLOMO: Did you discuss that with him after
the
24 report was finalized?
25 MR. THOMAS: Yes.
1495
01 MS. BELLOMO: Page 97 of the scientists' report, on
the
02 last five lines, they refer to Dr. Stine's
estimates about
03 14 acres of hypopycnal environment, 16 acres of
riparian
04 wetlands, and 25 acres of riparian vegetation being
05 restored.
06 You see where I am reading?
07 MR. THOMAS: Yes.
08 MS. BELLOMO: My question is: Do you agree with Dr.
09 Stine's estimates?
10 MR. THOMAS: I have no basis to agree or disagree. I
11 would be more likely to concur with his early
testimony
12 today that it would be difficult to know what these
figures
13 might be. I really have no basis to know.
14 MS. BELLOMO: Let me ask you to assume
hypothetically
15 that he is correct and that those numbers are
correct that
16 we just read on the bottom of Page 97. In your
opinion,
17 would this type of habitat be as valuable as the
creation of
18 shallow, open water ponds that you have testified
could be
19 created at DeChambeau, Warm Springs, Simon Springs,
County
20 Ponds, and Black Point?
21 MR. THOMAS: I believe what is projected here on
this
22 page could provide a small area of that beneficial
type. I
23 believe if it was created in other areas we could
know what
24 the results would be in terms of acreages, and I
can't know
25 what will occur at Mill in terms of open water
habitat.
1496
01 MS. BELLOMO: If I understand your answer, are you
02 saying if the work was done at the ponding areas
that I have
03 listed, that you would be able to know how much
habitat you
04 were creating?
05 MR. THOMAS: Yes.
06 MS. BELLOMO: Maybe I am off base on this. You can
07 correct me if I am wrong. My understanding is that
in
08 trying to create restored habitat, that you're
looking to
09 restore an amount of habitat to support a quantity
of birds
10 Boards; is that correct?
11 MR. THOMAS: My professional goal would be to make
12 efforts to get back to the numbers of birds.
Certainly,
13 we'd never get back to a million. The scientists
say that.
14 But if we had a million ducks, we could, to my
mind, the
15 efforts could focus on quantity and quality of
habitats to
16 substantially increase the capabilities to support
larger
17 numbers of ducks, yes.
18 MS. BELLOMO: In your opinion, does rewatering Mill
19 Creek fit that criteria?
20 MR. THOMAS: My opinion is that the rewatering of
Mill
21 Creek will recreate a natural ecosystem that will
support
22 limited numbers and species of ducks.
23 MS. BELLOMO: At the current time, to your
knowledge,
24 does Wilson Creek have waterfowl habitat value?
25 MR. THOMAS: I don't know of any ducks ever being in
1497
01 the creek itself because I have only been there
rarely. I
02 have never failed to see some numbers, varying
numbers, of
03 ducks on the hypopycnal at the mouth of Wilson.
04 I might add that the shelter of the tufa towers
there
05 probably improve the quality of that habitat by
containing
06 that hypopycnal area at present.
07 MS. BELLOMO: Would you agree that if the mouth of
08 Wilson Creek is dried up, assuming hypothetically
that there
09 is no flow down, all the way down to the lake, that
this
10 would cause a loss of the waterfowl habitat at
Wilson that
11 you just testified to?
12 MR. DODGE: Objection. The question is ambiguous as
to
13 whether she means that the mouth of the Wilson is
dry or she
14 means that is no continuous flow down Wilson.
15 CHAIRMAN CAFFREY: Could you clarify?
16 MS. BELLOMO: Thank you for the clarifying question.
17 My question is: If there is no continuous flow down
18 Wilson Creek to the lake, would that, in your
opinion,
19 eliminate the hypopycnal habitat that you just
testified to
20 at the mouth of Wilson?
21 MR. THOMAS: I can't know that. I think further
study,
22 further analysis would have to be completed to know
what the
23 effects would be.
24 MS. BELLOMO: Do you think there might by a
hypopycnal
25 layer at the mouth of Wilson Creek, even if there
is no
1498
01 water flowing down Wilson into the lake there?
02 MR. BIRMINGHAM: I am going to object on the basis
that
03 the question calls for an opinion that this witness
is not
04 qualified to express.
05 MS. BELLOMO: I think all the waterfowl scientists
--
06 CHAIRMAN CAFFREY: Does the witness feel he is
07 qualified to answer that question? Let me ask the
witness
08 because I am not sure.
09 MS. BELLOMO: Maybe we should clarify what he thinks
10 causes a hypopycnal layer. If he doesn't know,
then, fine.
11 CHAIRMAN CAFFREY: Why don't you ask him that.
12 MS. BELLOMO: Mr. Thomas, to your knowledge, what is
13 your understanding of what causes a hypopycnal
layer to form
14 at the mouth of the creek?
15 MR. THOMAS: To my understanding, it is either the
16 stream flows or spring flows, which may be fed by
the
17 springs. So, I'd guess I'd have to say I don't know
and I
18 believe that to get a firm, objective answer to
that
19 question, further analysis is needed.
20 MS. BELLOMO: The reason you don't know is that you
21 don't know if there are springs there contributing
to the
22 hypopycnal layer at the mouth of --
23 MR. THOMAS: I believe there are springs
contributing.
24 I don't know what the source of those springs is.
25 MS. BELLOMO: Do you support a burn program to
enhance
1499
01 waterfowl habitat?
02 MR. THOMAS: Yes, I do.
03 MS. BELLOMO: Do you believe it will be of great
04 benefit for the ducks?
05 MR. THOMAS: I believe it could be very substantial
to
06 the ducks. Unfortunately, the early experiments are
not
07 very encouraging yet, and I think that it may
require
08 extensive effort to achieve benefits. But I think
it is
09 certainly a valuable program worth pursuing.
10 MS. BELLOMO: It is not a substitute for creating
11 shallow, open water ponds, in your opinion?
12 MR. THOMAS: If it is effective, it will create
13 shallow, open water ponds. My concern is how
effective it
14 might be, based on the early experimental burns.
15 MS. BELLOMO: Where will it create shallow, open
water
16 ponds?
17 MR. THOMAS: Any place where the amount of surface
18 water is sufficient to grow dense vegetation, in
theory at
19 least, could be opened up by burning to create
those open
20 ponds. The water is already there. So, eliminating
the
21 vegetation in the mosaic of open areas is the goal.
22 MS. BELLOMO: Do you have any estimates of acreage
that
23 will be created?
24 MR. THOMAS: Again, there is no way to know a stated
25 goal -- no, that can't be known, as far as I
believe.
1500
01 MS. BELLOMO: On Page 4, Paragraph 14, of your
02 testimony, you criticize the Department of Water
and Power
03 plan for not stating quantified goals of
restoration
04 action, and you state that the monitoring program
cannot be
05 meaningful because of the lack of program goals.
06 Do you see where I am looking?
07 MR. THOMAS: Yes.
08 MS. BELLOMO: Do you agree that whatever waterfowl
09 habitat restoration plan the Board adopts, that it
is very
10 important that quantified goals be stated in the
plan?
11 MR. THOMAS: That is my conviction.
12 MS. BELLOMO: Can you please explain why?
13 MR. THOMAS: It is my belief to have a measure of
14 assurance that restoration of waterfowl habitat
will occur,
15 that a reasonable plan should contain a performance
standard
16 or goal or target figure in terms of open water
habitat
17 acreages because, without that sort of a measure, I
can't
18 understand how a plan could ever, or the reviewers
or the
19 public could ever know if a plan has been
successful or if
20 it is making progress or failing. I also believe
that
21 monitoring, it doesn't have much value if we are
not
22 measuring progress based on some stated target.
23 MS. BELLOMO: Do you have a problem with regard to
24 rewatering Mill Creek, that there haven't been
quantitative
25 goals stated by anyone?
1501
01 MR. THOMAS: I am concerned with most of the
projects
02 proposed because they have what I consider to be a
fault.
03 MS. BELLOMO: Do you know if any of the three
waterfowl
04 scientists agree with you on that?
05 MR. THOMAS: Yes.
06 MS. BELLOMO: Which of them?
07 MR. THOMAS: Again, Mr. Ratcliff and I have
discussed
08 this.
09 MS. BELLOMO: Was that after the preparation of the
10 report?
11 MR. THOMAS: Yes.
12 MS. BELLOMO: You refer to adaptive management a
little
13 earlier in your testimony. Can you explain what you
mean by
14 adaptive management?
15 MR. THOMAS: My meaning of adaptive management is
the
16 stipulations for adaptive management would be
project
17 proposals in the plan that would be initiated as
adaptive
18 measures in response to monitoring if monitoring
showed that
19 progress toward the stated goal was not being
achieved, or
20 was not being achieved on some agreed upon
schedule, or in
21 an extreme case, I suppose, in the event of failure
of any
22 progress and no movement toward the stated target.
23 MS. BELLOMO: Does Paragraph 15 of your testimony on
24 Page 4 set forth your recommendation of how
restoration
25 goals and a monitoring plan should be established
for
1502
01 waterfowl restoration in the basin?
02 MR. THOMAS: I need to reread this. It's been some
03 time.
04 MS. BELLOMO: You state a realistic program to
restore
05 quantifiable waterfowl habitats in the Mono Basin
would be
06 based on goals clearly stated in terms of acreages
and
07 habitat types, specified monitoring actions to
objectively
08 assess progress and result and appropriate optional
measures
09 to be pursued in the event of inadequate progress
as
10 determined by monitoring.
11 Does that continue to be your opinion today?
12 MR. THOMAS: Yes. In fact, I think this says it
13 better that I just tried to ad-lib it.
14 MS. BELLOMO: Do you believe that the projects that
15 could be done do create shallow, open water ponding
could be
16 done at a cost of less than $3.6 million?
17 MR. THOMAS: Yes, I believe that.
18 MS. BELLOMO: Will you please identify what you
19 recommend that the Water Board order be done for
waterfowl
20 habitat restoration in the basin?
21 MR. THOMAS: I would recommend that any plan
adopted,
22 first, contain measurable quantified goals with an
23 appropriate, pertinent monitoring program to assess
progress
24 toward the goals. I would state those goals in
terms of
25 acreages of fresh water habitat, especially
focusing on
1503
01 refuge areas that would shelter ducks from
inclement
02 weather.
03 CHAIRMAN CAFFREY: I think you have about five
minutes
04 left, Ms. Bellomo. Mr. Johns?
05 MR. JOHNS: That is correct.
06 CHAIRMAN CAFFREY: Five minutes.
07 MS. BELLOMO: Thank you.
08 I remind you that you're under oath and the
seriousness
09 of this proceeding. I ask you, Mr. Thomas, did Mr.
10 Ratcliff at any time tell you that he was not happy
that the
11 Waterfowl Restoration Plan that was finalized put
Mill Creek
12 as the number one restoration priority project
after raising
13 the lake level?
14 MR. BIRMINGHAM: That question is terribly
15 argumentative.
16 MS. BELLOMO: I can certainly say it again without
the
17 preface.
18 Did Mr. Ratcliff ever tell you that he was not
happy
19 that the Waterfowl Restoration Plan, as finalized,
had the
20 restoration of Mill Creek as the second most
important thing
21 to do after raising the lake level?
22 MR. THOMAS: In specific terms, no. What he said, he
23 said, "Just get out there start doing
something on the
24 ground, is I remember one quote that that
particular
25 scientist stated.
1504
01 MS. BELLOMO: What did he mean by that?
02 MR. BIRMINGHAM: Objection. Calls for speculation.
03 CHAIRMAN CAFFREY: Sustained.
04 MS. BELLOMO: Did he clarify what that meant?
05 MR. THOMAS: I understood it to mean the other
projects
06 in the plan. But I don't know that he clarified
that, no.
07 MS. BELLOMO: Thank you very much. I have no further
08 questions.
09 CHAIRMAN CAFFREY: Thank you, Mr. Bellomo.
10 Ms. Bellomo was the only party asking to
cross-examine
11 this witness. I assume that is still the case.
12 Is there any desire for redirect, Ms. Cahill?
13 MS. CAHILL: No redirect.
14 CHAIRMAN CAFFREY: Then there is no recross. I think
I
15 skipped staff, didn't I? I apologize.
16 MR. FRINK: I believe staff has a few, brief
17 questions.
18 CHAIRMAN CAFFREY: Have at it, gentlemen.
19 CROSS-EXAMINATION BY
20 BOARD STAFF
21 MR. FRINK: Mr. Thomas, you indicated some
uncertainty
22 about the effectiveness of a burn frame in
restoring
23 waterfowl habitat. I wonder if you can explain the
cause of
24 your uncertainty about the benefits of a burn
program.
25 MR. THOMAS: In looking at the results of the
1505
01 experimental burns with others in the room,
including Dr.
02 Barry who I considered to be an expert, my
impression was,
03 and I think it was shared by others, that there was
less
04 open water and the persistence of the open water
created was
05 less than what was hoped for. What I am saying is
that the
06 area of open water did not persist over time. It
regrew
07 very quickly and we didn't get open water for much
period of
08 time.
09 In that case, then my concern was that it would
either
10 take very intensive and repetitive efforts and/or
much
11 greater financial investment. The cost could go up
a great
12 deal.
13 MR. FRINK: There was a great deal of testimony in
the
14 earlier hearings about the importance of the
hypopycnal
15 areas at the mouth of Lee Vining and Rush Creek,
and I also
16 believe it was discussed in the three waterfowl
scientists'
17 report.
18 From flying over the Mono Basin, have you noticed
that
19 those hypopycnal areas have been restored with the
20 resumption of flow in Rush and Lee Vining Creek in
recent
21 years?
22 MR. THOMAS: I am not able to make that judgment. My
23 flights are too infrequent and are not focused on
the
24 particular areas, so I am afraid I am not capable
because I
25 don't have the information.
1506
01 MR. FRINK: Have you noticed if ducks are inhabiting
02 areas around the mouth of --
03 MR. THOMAS: Ducks definitely choose those areas.
04 MR. FRINK: That is all at this time.
05 CHAIRMAN CAFFREY: Go ahead, Mr. Johns.
06 MR. JOHNS: Mr. Thomas, in your testimony you stated
07 that you have experience with a joint venture
program?
08 MR. THOMAS: Yes, I do. In fact, I was one of the
few
09 agency people that worked on forming the
Intermountain West
10 Joint Venture group over there.
11 MR. JOHNS: You worked with that program for how
long?
12 MR. THOMAS: We started our efforts to get up and
13 going about five years ago.
14 MR. JOHNS: Is one of the purposes of that program
to
15 create additional waterfowl habitat, to support
increased
16 waterfowl populations?
17 MR. THOMAS: Yes, it is under. Under the direction,
I
18 might add, of the North American Waterfowl
Management Plan,
19 which is an international treaty.
20 MR. JOHNS: In that effort, do you also seek
additional
21 water supplies to create that habitat or to support
that
22 habitat?
23 MR. THOMAS: Well, the joint venture is formed with
a
24 goal and a result in sight, so mostly method that
will get
25 us there in cooperation with the other parties is
fair game,
1507
01 as far as the group is concerned. I might add, too,
we work
02 with -- we incorporate a variety of other bodies
and private
03 landowners and citizens and work on a concurrence
basis. So
04 we must think project potentially is doable under
that
05 group.
06 MR. JOHNS: So when you are out there looking at
07 creating waterfowl habitat, does that include water
supplies
08 to support that waterfowl habitat?
09 MR. THOMAS: It would have to. In most cases we have
10 quite a list of, I think, very worthy projects in
the
11 Eastern Sierra now. And in most cases what those
involve is
12 either managing water a little differently, say on
a private
13 cattle ranch, which is one of our projects, or
opening up
14 through control burning. We have a proposal to do
that on
15 one location. Usually places where the water
already is
16 present, but habitat could be improved through
different
17 management techniques.
18 MR. JOHNS: Are you familiar with any proposal that
you
19 have been through with a joint venture where you've
looked
20 at, perhaps, dewatering a stream or taking
waterfowl
21 benefits from one area and creating waterfowl
benefits in
22 another as a proposal for a joint venture program?
23 MR. THOMAS: We don't have any project that would
24 involve that now on the table. I suppose it is
possible,
25 but we don't have one like that.
1508
01 MR. JOHNS: You haven't done any of those in the
last
02 five years for the joint venture program?
03 MR. THOMAS: Unfortunately, we haven't received any
04 grants yet, so we have a bunch of good projects on
the
05 table, but no money.
06 MR. JOHNS: Do any of those projects on the table
07 include that type of language or habitat conversion
from
08 stream habitat conditions, say, to waterfowl
habitat or --
09 MR. THOMAS: We have a large enough number on the
10 table; I am not sure I can answer that with full
knowledge.
11 We probably have 25 projects, and I don't know the
details
12 of every one of them. I don't know of one like that
at
13 present.
14 CHAIRMAN CAFFREY: Mr. Canady.
15 MR. CANADAY: Thank you.
16 Mr. Thomas, to carry on with what Mr. Johns was
talking
17 about. In your experience with the waterfowl in the
east
18 side of the Sierras, what kinds of projects are
being done,
19 let's say, around Crowley Lake and around
Bridgeport
20 Reservoir?
21 MR. THOMAS: Both of those locations in years past
we
22 did, and this before the joint venture, we did
goose nesting
23 boxes, and those have been used as much by great
blue herons
24 and other water birds as they have been by geese.
That is
25 kind of -- that is in the past.
1509
01 We created new ponds at Crowley. I don't know of
any
02 ever at Bridgeport. We did create new ponds at
Crowley. In
03 fact, that is where the nesting surveys are that we
did at
04 Crowley. This was some work in cooperation with DWP
back
05 then, I believe. It was just about the time I
started over
06 there, so I am not sure about that, but open water
ponds
07 created there. In addition to that, on our own
wildlife
08 area up at Walker where I am stationed, we blasted
ponds and
09 had quite a lot of duck and goose use now, nesting
use on
10 those ponds up there.
11 MR. CANADAY: It's been your experience that some of
12 this manmade created, shallow, fresh water, open
fresh water
13 areas do attract ducks?
14 MR. THOMAS: Oh, yes.
15 MR. CANADAY: Are you familiar with the Dombroski
16 Report?
17 MR. THOMAS: Yes, I am.
18 MR. CANADAY: In that report is one of the reports
that
19 was referred to by the waterfowl scientists, that
indicates
20 the potential numbers that have been identified to
use in
21 Mono Lake; is that correct?
22 MR. THOMAS: That's correct.
23 MR. CANADAY: What were the predominant species, as
far
24 as number?
25 MR. THOMAS: At one point, I don't think it was at
the
1510
01 time of the greatest number of birds surveyed, but
at one
02 point I know Dombroski said he had 80 percent
shovelers and
03 ruddies. There is still a lot of other species, of
course,
04 a lot of other numbers.
05 MR. CANADAY: Would you expect that to be unusual
06 finding?
07 MR. THOMAS: No, I don't think so, depending on how
08 much habitat diversity. The number of species would
vary
09 depending on how much diversity of habitat. And I
would
10 think that, as the diversity of habitat decrease,
you would
11 get more shovelers and ruddies because they would
tend to be
12 more open lake birds that would feed on those feed
13 organisms. But, no, I am not too surprised by that
result.
14 MR. CANADAY: You just stated that the shovelers
were
15 more open water, open lake species. Are those the
kinds of
16 species that would expect to use the bottomlands
areas?
17 MR. THOMAS: Definitely. Especially the shovelers.
To
18 be clear, I would -- shovelers would use the lake.
They are
19 species that would utilize the shrimp and the
flies. They
20 would use the lake, to a large degree, for that
reason.
21 They would still need refuge habitats, say, of the
Rush
22 Creek bottomlands. They also have a variety -- it
is known
23 that the eat seeds and other things, as well. So,
the
24 bottomlands would be important especially for the
shovelers,
25 and the ruddies, too, to a lesser degree.
1511
01 MR. CANADAY: In your testimony you had some
problems
02 with proposed monitoring program. A hypothetical
would be
03 that you could design a monitoring program, you
would be the
04 lone person to design it.
05 What would you have in a monitoring program?
06 MR. THOMAS: Considering my focus, my conviction
about
07 the importance of the shallow water habitats, the
first
08 thing I would want to do would be to have baseline
data on
09 how much there is there, and varying efforts to
increase
10 that habitat component; measure the acreage of what
you have
11 on an annual basis and see where you are going.
Because,
12 again, I want to emphasize that habitat component,
I
13 believe, is vital for both numbers and variety of
species on
14 the lake, to be able to use the lake.
15 MR. CANADAY: What about some other things that you
16 would like?
17 MR. THOMAS: I would certainly monitor the shrimp
and
18 fly, the trends in the shrimp and the fly
abundance,
19 salinity along with that, although I am not well
versed on
20 that aspect, particularly.
21 I would want to do aerial photos as a means to
assess
22 the acreage that I referred to earlier.
23 MR. CANADAY: What kind of frequency?
24 MR. THOMAS: At least annual. I would also, during
the
25 aerial surveys, I would also want to make careful
1512
01 assessments of numbers of ducks and where they are
using. I
02 would also want to look, and the scientists
referred to
03 this, I believe, I would also want to look at
Crowley and
04 Bridgeport nearby in an effort to assess relative
benefits
05 at Mono, in comparison to what is going on with the
other
06 birds in the immediate flyway.
07 MR. CANADAY: That would be a simultaneous
assessment?
08 MR. THOMAS: Yes.
09 MR. CANADAY: Anything else?
10 MR. THOMAS: I can't recall. I agreed with the list
11 that the scientists proposed. I think I've touched
on all
12 of those.
13 MR. CANADAY: That is all I have.
14 CHAIRMAN CAFFREY: Thank you, Mr. Canaday.
15 Any questions from the Board Members?
16 MEMBER DEL PIERO: I have one question.
17 CHAIRMAN CAFFREY: Mr. Del Piero.
18 MEMBER DEL PIERO: You may not be able to answer
this.
19 In terms of the quantification of the magnitude of
expansion
20 of hypopycnal areas, do you have a recommendation
as to how
21 that can be quantified at this point? Is there a
technique
22 by which you can judge that in relationship to a
value for
23 ducks?
24 MR. THOMAS: Well, certainly in the course of
surveys
25 you could measure duck use, in terms of numbers of
duck on
1513
01 the hypopycnals. It is not too difficult under
certain
02 circumstances to assess the area of the
hypopycnals. You
03 can see the wave line where the salt water breaks
against
04 the fresh. I've wondered, and maybe -- Dr. Stine
and I
05 never talked about this, if it won't be possible to
measure
06 the size of hypopycnals during the extreme cold
periods in
07 the winter when they freeze, and assess changes
that way.
08 Just a thought. I don't know if it is doable or
not.
09 MEMBER DEL PIERO: You have something that should be
10 evaluated as part of the ongoing monitoring
program?
11 MR. THOMAS: It certainly could be.
12 MEMBER DEL PIERO: Whether it is possible to be
done,
13 set that issue aside. If it is possible, would that
be
14 something that would be appropriate in terms of
evaluating
15 the incremental impact on habitat?
16 MR. THOMAS: I think from the duck habitat
standpoint,
17 it would be good to know of the trends in the
hypopycnal
18 areas, yes.
19 MEMBER DEL PIERO: Thank you.
20 CHAIRMAN CAFFREY: Thank you, Mr. Del Piero.
21 Ms. Cahill, do you wish to offer your exhibits into
22 evidence at this time?
23 MS. CAHILL: Yes, I would. That would be DF&G
Exhibits
24 1 through 10.
25 CHAIRMAN CAFFREY: Any objection?
1514
01 Does that meet with your approval, Mr. Johns, in
terms
02 of the accuracy of the enumeration?
03 MR. JOHNS: Okay with me.
04 CHAIRMAN CAFFREY: The exhibits are accepted into
the
05 record.
06 Thank you very much, Ms. Cahill.
07 Thank you very much, Mr. Thomas, for your time and
08 trouble. We appreciate your being here.
09 I believe, and I will look to Mr. Frink to correct
me
10 if I err, but I believe we have reached that point
in the
11 proceeding where we will hear an explanation or
presentation
12 on the settlement agreement by some of the parties.
Is that
13 correct?
14 MR. FRINK: Yes. I think that is the next item on
the
15 agenda.
16 CHAIRMAN CAFFREY: Why don't we take about a
17 five-minute break before we do that. And is Mr.
Dodge going
18 to be the presenter in that regard?
19 MR. BIRMINGHAM: Maybe we can discuss that during
the
20 five-minute break.
21 CHAIRMAN CAFFREY: Thank you very much. What is your
22 pleasure, gentlemen. Lets give it ten minutes.
23 (Break taken.)
24 CHAIRMAN CAFFREY: We are back.
25 This is time in the hearing for presentation or
1515
01 submittal. If you will, Mr. Dodge.
02 MR. DODGE: I may suggest before we get on to the
03 settlement, Mr. Roos-Collins will address the Board
on his
04 letter where he expressed a concern of the
termination
05 criteria on the Stream Monitoring Plan.
06 I understand those concerns have been alleviated,
but I
07 think we ought to make that clear on the record.
08 CHAIRMAN CAFFREY: Is that part of the presentation?
09 MR. BIRMINGHAM: Yes, it is.
10 CHAIRMAN CAFFREY: Mr. Roos-Collins.
11 We are in the beginning of the presentation on the
12 settlement agreement among some of the parties.
13 MR. ROOS-COLLINS: Mr. Chairman and other Members of
14 the Board, California Trout submitted a letter on
April
15 25th, reserving our right to conduct further
examination of
16 our witnesses and to make them available for
17 cross-examination. At that time, California Trout
and the
18 other signatories to the March 28th settlement
agreement had
19 not reached agreement on quantified termination
criteria.
20 Since California Trout submitted that letter, we
have
21 reached agreement on quantified termination
criteria as
22 provided on Pages 8 and 9 of the underlying
settlement
23 agreement. I have the mutually agreeable
termination
24 criteria with me for submittal, along with the
settlement
25 agreement itself, to this Board.
1516
01 MEMBER DEL PIERO: That is good Mr. Roos-Collins. I
02 asked for it this morning. I was wondering when it
was
03 going to show up.
04 MR. DODGE: Mr. Johns, did you assign an exhibit
number
05 to this?
06 MR. FRINK: I think we have a question, as to
whether
07 the settlement agreement is considered an exhibit.
08 CHAIRMAN CAFFREY: You are not presenting witnesses
on
09 this agreement; is that correct?
10 MR. DODGE: That is correct.
11 CHAIRMAN CAFFREY: If that is the case, it does not
12 need a number.
13 MR. DODGE: It needs a number. It shouldn't be
14 introduced into evidence, but it should have a
number, I
15 believe.
16 CHAIRMAN CAFFREY: This is a semantically point. We
17 can certainly give it a number for ease of
identification.
18 It will not be a part of the evidentiary record,
per se. It
19 will be part of the hearing record.
20 With that understanding, we can assign a number.
21 Mr. Johns, do you wish to do that?
22 MS. BELLOMO: Can I ask for clarification?
23 The settlement documents of these parties haven't
been
24 given numbers yet? The settlement documents
themselves do
25 not have numbers, do they, yet?
1517
01 CHAIRMAN CAFFREY: I am not aware that the
settlement
02 document has.
03 Am I wrong, Mr. Dodge?
04 MR. DODGE: I believe that one of the correspondence
I
05 got from you assigned numbers to the two settlement
06 documents.
07 CHAIRMAN CAFFREY: Mr. Johns; is that correct?
08 MR. JOHNS: That's correct.
09 CHAIRMAN CAFFREY: There are numbers assigned. And
Mr.
10 Johns will now assign one in some sequential order,
if that
11 is not a redundancy, to this document.
12 MR. FRINK: It will be identified for identification
13 purposes only as LADWP-68B. The proposed settlement
14 agreement --
15 CHAIRMAN CAFFREY: I am sorry, LADWP-68?
16 MR. FRINK: 68B. The proposed settlement agreement
17 itself was identified for identification only as
LADWP
18 Exhibit 68. The conceptual agreement regarding
waterfowl
19 habitat, the Waterfowl Habitat Restoration
Foundation,
20 again, was identified for identification only at
LADWP-68A.
21 CHAIRMAN CAFFREY: Thank you, Mr. Roos-Collins.
22 Is there anything else?
23 Mr. Birmingham.
24 MR. BIRMINGHAM: I would like to make a couple
comments
25 about the settlement agreement, if I may.
1518
01 CHAIRMAN CAFFREY: Please, sir.
02 MR. BIRMINGHAM: We are here this afternoon. We are
03 not going to present any witnesses on the proposed
04 settlement agreement. But we are here and available
to
05 answer any questions that the Board might have,
Board staff
06 might have, concerning the settlement agreement or
any other
07 party might have concerning clarification of the
settlement
08 agreement.
09 It is our view, when I say "our," I am
speaking
10 collectively for the State Lands Commission, Los
Angeles
11 Department Water and Power, the Mono Lake
Committee,
12 National Audubon Society, California Trout, the
Department
13 of Fish and Game, and the United States Forest
Service, that
14 this document can be adopted by the Board as a
proposed
15 modification of the DWP restoration plans based
upon the
16 evidence that is currently in the Board's record.
17 It is being submitted for the Board's approval, and
it
18 is in that context in which it is being presented.
We will
19 submit a closing brief, which refers to the
evidence in the
20 record which supports the elements of the
settlement
21 proposal.
22 CHAIRMAN CAFFREY: All right. Thank you very much,
23 Mr. Birmingham.
24 Anything else on the presentation?
25 Mr. Dodge, do you have something?
1519
01 MR. DODGE: I agree with everything that Tom said.
The
02 one point I would want to add is that we all
believe at this
03 point, that it is not a matter of further
testimony, in
04 terms of the settlement agreement, but it is a
matter for
05 argument as to whether the settlement agreement is
or is not
06 a good idea. We think that once any questions are
responded
07 to, that it is just a matter of post hearing
briefing and
08 argument as to whether this Board should or should
not adopt
09 the agreement.
10 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.
11 MS. BELLOMO: Chairman Caffrey.
12 CHAIRMAN CAFFREY: Ms. Bellomo.
13 MS. BELLOMO: I just wanted to ask for clarification
as
14 I am not familiar with your rules here. Since the
15 settlement documents are not in evidence, I just
don't
16 understand what status they have for purposes of
briefing or
17 whatever. I don't understand. Are they just
presentation
18 made -- perhaps Mr. Birmingham was addressing that.
And
19 because I wasn't involved in early parts of the
proceeding,
20 I don't understand what he is saying.
21 CHAIRMAN CAFFREY: Mr. Birmingham has arisen, so we
22 will hear from him, and then I am going to turn to
Mr. Frink
23 for explanation of what perhaps the Board's, let's
call it,
24 options might be with regard to such a document.
25 Please, Mr. Birmingham.
1520
01 MR. BIRMINGHAM: Again, I would just like to present
02 our perspective. The issue that was presented in
the notice
03 of this hearing was whether or not the restoration
ambulance
04 plans of the City of Los Angeles Department of
Water and
05 Power were adequate, and if they were not adequate,
how they
06 should be modified.
07 The settlement agreed represents the view of
signatory
08 parties concerning what should be done in order to
make the
09 plans comply with D-1631. As Mr. Dodge stated, the
parties
10 will argue as to whether or not this is an
appropriate
11 document for the Board to adopt as part of an
order. But it
12 is a proposal that would be made through argument
and,
13 although it has been given an exhibit number, what
the
14 parties will do is, the parties that have signed it
will
15 submit to the Board that this should be adopted as
the
16 Board's order concerning the modification of DWP's
plans as
17 described in the settlement documents themselves.
18 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.
19 Mr. Frink, could you give us a little dissertation
on
20 the relationship to this document to both our
procedure and
21 what the Board's alternatives are to use it as an
instrument
22 in its decision process?
23 MR. FRINK: I would agree with the parties
submitting
24 the agreement that if they are submitting it as
evidence in
25 the hearing, that it is not a part of the
evidentiary
1521
01 record, per se. Rather, it is a suggested
modification of
02 the restoration plans that Los Angeles previously
submitted,
03 that they believe is supported by the evidence in
the
04 record.
05 I think the Board can take the proposed settlement
06 agreement into consideration, just as it would take
the
07 proposal of a party or joint proposal of several
parties
08 into consideration if the proposal were set forth
in legal
09 briefs at the conclusion of this hearing.
10 CHAIRMAN CAFFREY: What about the use of the
rebuttal
11 argument process? I suppose that is an appropriate
place
12 for the non signatory parties to raise concerns
about the
13 settlement agreement.
14 Is that correct?
15 MR. FRINK: Yes. My understanding is that the
proposed
16 settlement is submitted as a suggested modification
of the
17 original restoration plans. To the extent that
anyone has
18 rebuttal evidence that they still wish to present,
in view
19 of proposal settlement, or that they would have
presented
20 with regard to other aspects of the restoration
plans, I
21 think that rebuttal evidence is still appropriate.
22 CHAIRMAN CAFFREY: Thank you, Mr. Frink.
23 Anybody else have any further comments?
24 Questions or clarifications?
25 Let me ask the Board staff if they have any
clarifying
1522
01 questions with regard to the settlement agreement
documents
02 as proposed?
03 They are going to confer for a moment.
04 MR. FRINK: Staff does have a few questions.
05 MR. CANADAY: I don't know who I am addressing this
to,
06 cast of thousands.
07 CHAIRMAN CAFFREY: This is the portion of the
08 proceeding where we ask clarifying questions.
09 Mr. Frink, the staff in the rebuttal process would
have
10 an opportunity to question, to raise questions of
the
11 various witnesses as well; is that not our
procedure?
12 MR. FRINK: Any witnesses or exhibits that are put
on
13 rebuttal, staff could ask questions. I think these
14 questions just go to try to determine some
ambiguities in
15 the agreement, just trying to clarify what was
intended.
16 CHAIRMAN CAFFREY: I will look to you to be the
guide
17 of that.
18 Please proceed, Mr. Canaday.
19 MR. CANADAY: Referring to the Mono Lake Settlement
20 Agreement, the main document, Page 2, where it
talks about
21 Item H, channel maintenance flows, refers to a copy
of
22 attached Exhibit A. We do not have that copy of
Exhibit A.
23 It was never provided.
24 MR. DODGE: Exhibit A is Exhibit 1 to the testimony
of
25 William J. Trush, our Exhibit 6; and that is the
addendum to
1523
01 the document. Someone can provide you with a copy
of that.
02 It is in evidence in various places.
03 MR. CANADAY: The question that we had relative to
04 that, though, was which flow scenario were you
talking
05 about? My recollection of that particular exhibit,
there
06 are three recommendations, and which recommendation
is the
07 one that is being represented in that document?
08 MR. DODGE: It is the one at the top of Page 4 for
Rush
09 Creek and then for Lee Vining Creek.
10 MR. CANADAY: It would be instructive, I think, if
the
11 parties could provide us a copy of that, that would
identify
12 which one it is.
13 MR. BIRMINGHAM: We will do that.
14 MR. CANADAY: I would appreciate it. That is a lot
15 easier to follow then.
16 MR. BIRMINGHAM: I wonder, Mr. Chairman, if it would
be
17 appropriate for us to respond in writing to the
questions
18 that they have or to submit a written document to
supplement
19 the agreement, to respond to the questions the
Board staff
20 may have?
21 MR. DODGE: Mr. Chairman, I think that is an
excellent
22 suggestion.
23 CHAIRMAN CAFFREY: I would like the suggestion, just
so
24 -- maybe I am the only person in the room with this
problem,
25 but I am just wondering if the very next thing on
our order
1524
01 of proceeding is rebuttal testimony, and if that is
an
02 opportunity for non signatory parties to ask
questions.
03 It seems to me that what you are asked, this
04 clarification that Mr. Canaday is asking for, needs
to be
05 available to the non signatory parties. Tomorrow is
our
06 last day for this hearing.
07 Have I missed something?
08 MR. DODGE: I would agree that the clarification
should
09 come before the post hearing briefs, so that the
matter
10 could be argued. I don't think you need
clarification in
11 order to rebut.
12 CHAIRMAN CAFFREY: Do you agree with that Mr. Frink?
13 MR. FRINK: I think it depends in part on the views
of
14 the other parties. Do you feel you need
clarification on
15 these alternative stream flow scenarios?
16 MS. BELLOMO: We did not on this Exhibit A.
17 MR. FRINK: I think submitting it within five days
of
18 the close of the hearing would be adequate and
people could
19 then address it in any briefs that they have.
20 CHAIRMAN CAFFREY: Thank you.
21 Mr. Canaday, please proceed.
22 MR. CANADAY: Bottom of Page 3, Point 4, where it
23 states DWP will not irrigate for Parker and Walker
Creeks
24 during the channel maintenance flows at Rush Creek.
25 Is that above or below the points of diversion on
1525
01 Parker and Walker Creek, or -- I am trying to
understand
02 where this is going to occur.
03 MR. BIRMINGHAM: DWP will not irrigate creeks during
04 the period from which it is attempting to maximize
channel
05 maintenance flows, either above or below the
conduit.
06 MS. BELLOMO: Could I ask a question, Mr. Caffrey?
07 CHAIRMAN CAFFREY: Yes, for clarification?
08 MS. BELLOMO: Yes.
09 CHAIRMAN CAFFREY: Please.
10 MS. BELLOMO: I think it would give Mr. Canaday a
11 chance to look. My question is whether the parties
have
12 actually provided signed versions of the settlement
13 agreement yet? Last I knew there was no signed
version and
14 there was possibility that some parties might not
sign.
15 Has it now been signed and presented to the Board?
16 CHAIRMAN CAFFREY: Mr. Frink, do we have signed
copies
17 in hand?
18 MR. FRINK: I don't believe we have received a
signed
19 copy.
20 Are the parties intending to present a signed copy
and
21 when would that be?
22 MR. DODGE: Mr. Birmingham has sent me a copy for
23 signature, and I gave it to my client today to get
it
24 signed. The Mono Committee and National Audubon
Society
25 intend to sign the document and provide it the
Board.
1526
01 MR. BIRMINGHAM: The agreement has been approved by
the
02 Board of Water and Power Commissioners of the City
of Los
03 Angeles, and it's been approved by the City Council
of the
04 City of Los Angeles, and it will be executed by the
05 appropriate city officials.
06 MS. BELLOMO: Could I also just ask for
clarification,
07 whether what has been signed and approved is the
same
08 document as we have as Exhibit 68 and 68A, as I
understood
09 there was as some subsequent version that was
circulated
10 around a few days ago. I would like to know we have
--
11 before we write the briefs, do we have the
settlement?
12 MR. DODGE: There is no subsequent version. You were
13 misinformed.
14 MR. FRINK: When do the parties believe that they
could
15 get a signed copy of the agreement into the Board
and served
16 on the other parties?
17 MR. BIRMINGHAM: The State Lands Commission will
18 consider the agreement at its May 12, 1997 meeting
in Los
19 Angeles, and it would be shortly after that date,
presuming
20 that the State Lands Commission approves the
document.
21 CHAIRMAN CAFFREY: It goes before the Lands
Commission
22 itself? It is not the Executive Officer's purview
to
23 approve it? Is it required to go to the Lands
Commission?
24 MR. VALENTINE: Yes. Michael Valentine, staff
counsel
25 for the State Lands Commission.
1527
01 It does require a vote of the State Lands
Commission.
02 They have not delegated to the Executive Officer
the
03 signator of accepting the settlement agreement.
That is the
04 purpose of our request to them to delegate for this
purpose,
05 for this agreement.
06 CHAIRMAN CAFFREY: You are asking them to delegate
that
07 authority to the Executive Officer for the purpose
of this
08 agreement?
09 MR. VALENTINE: Yes. As we do in every other
10 settlement agreement.
11 MEMBER DEL PIERO: They have to act on it.
12 MR. VALENTINE: They have to act on it. They have to
13 approve it and they have to authorize the Executive
Officer
14 to sign it on their behalf.
15 CHAIRMAN CAFFREY: So it really is a two step
matter.
16 They still are approving it?
17 MR. VALENTINE: Yes.
18 MR. FRINK: Mr. Chairman.
19 CHAIRMAN CAFFREY: Yes, Mr. Frink.
20 MR. FRINK: I suggest that the Board request that
the
21 parties to the proposal settlement agreement serve
a signed
22 copy of the agreement on the Board if it is signed
by the
23 15th of May and advise us of the status of it if it
isn't
24 signed by that day, and serve a copy on the other
parties to
25 the hearing as well.
1528
01 CHAIRMAN CAFFREY: That will be the order.
02 Is that date acceptable, reasonable to the parties?
03 MR. ROOS-COLLINS: Yes.
04 MR. BIRMINGHAM: Yes.
05 MR. DODGE: Yes.
06 CHAIRMAN CAFFREY: Where are we?
07 MR. CANADAY: Staff has no more request for
08 clarification.
09 CHAIRMAN CAFFREY: Please go ahead, Mr. Canaday.
10 MR. CANADAY: We are done.
11 CHAIRMAN CAFFREY: Are there questions from the
Board
12 Members?
13 We will then --
14 MEMBER DEL PIERO: One.
15 CHAIRMAN CAFFREY: Mr. Del Piero.
16 MEMBER DEL PIERO: In regards to the termination
17 criteria for Rush Creek and Lee Vining Creek, the
18 quantitative estimate -- I guess the question is
for Mr.
19 Roos-Collins, or whoever can answer it.
20 The quantitative estimates for Rush Creek are for
the
21 main channel, length gradient as well as sinuosity?
As part
22 of the discussions, does this include adequate
water for
23 side channels that exist in lower reaches? Does
this
24 include the areas for the side channels?
25 MR. BIRMINGHAM: The restoration plan contemplates
that
1529
01 side channels will be rewatered; and the answer to
that
02 question is yes.
03 MEMBER DEL PIERO: So the acreages that I see here
on
04 the various reaches of Rush Creek include the
riparian
05 corridors for those side channels as well?
06 MR. BIRMINGHAM: That's correct. In fact, if you
look
07 at Page 3 of the termination criteria, there is
reference to
08 the recreation or restoration of specific acreages
and what
09 will happen in the event those acreages are not
achieved.
10 MEMBER DEL PIERO: I saw that, and I just wanted to
11 confirm that those acreages are not simply the
riparian
12 acreages for the main channel; it includes the side
13 channels, as well.
14 MR. BIRMINGHAM: That is correct.
15 MEMBER DEL PIERO: Thank you.
16 CHAIRMAN CAFFREY: Thank you, Mr. Del Piero.
17 Any other questions from the Board?
18 All right. I believe then, the next step in our
19 proceedings would be to begin the presentation of
rebuttal
20 witnesses.
21 Let's have some discussion about timing. Is that
22 something that we want to begin this afternoon? I
have no
23 idea how much time this is going to take. I think
we need
24 to -- let's put it this way, we intend to finish
tomorrow
25 and to go until we are finished. I have no way of
gauging
1530
01 how long the rebuttal presentation may take.
02 Is it the desire of the parties to stop now and
begin
03 fresh tomorrow. Or should Lee go for about another
hour and
04 half?
05 Ms. Bellomo, and then Mr. Birmingham.
06 MS. BELLOMO: I know that I indicated in my letter
to
07 the Board that we have rebuttal witnesses. I don't
know if
08 anybody else does. Maybe we can start finding out
if
09 anybody else does have rebuttal witnesses.
10 CHAIRMAN CAFFREY: Mr. Birmingham.
11 MR. BIRMINGHAM: We have one.
12 CHAIRMAN CAFFREY: You have one rebuttal witness?
13 MR. BIRMINGHAM: Yes.
14 CHAIRMAN CAFFREY: Mr. Roos-Collins.
15 MR. ROOS-COLLINS: California Trout has no rebuttal
16 witnesses. We do, however, intend to introduce
three
17 exhibits as rebuttal evidence.
18 CHAIRMAN CAFFREY: Mr. Dodge.
19 MR. DODGE: We may have one rebuttal witness, and I
am
20 going to cogitate overnight on it. If we do, it
will be
21 very brief.
22 CHAIRMAN CAFFREY: We haven't, or maybe we have and
I
23 just don't know it, I am not sure we've talked
about any
24 reasonable limitations on presentation of direct
and
25 redirect within the rebuttal context.
1531
01 Mr. Frink, do you have any comments on that?
02 MR. FRINK: I believe the notices from the Chair did
03 advise the parties that any rebuttal evidence
should be
04 directed at other evidence of proposals that have
been
05 specifically made to the Board, and that the party
06 presenting the rebuttal evidence should identify
what it is
07 that they are responding to.
08 CHAIRMAN CAFFREY: I'm sorry, that wasn't clear. I
was
09 talking in terms of timewise.
10 MR. FRINK: I'm sorry, no, we haven't stated any
time.
11 CHAIRMAN CAFFREY: Let's talk a little bit about
what
12 is reasonable.
13 MEMBER DEL PIERO: Mr. Chairman.
14 CHAIRMAN CAFFREY: Mr. Del Piero.
15 MEMBER DEL PIERO: Why don't we hear from State
Lands
16 Commission and Fish and Game, whether or not they
have any
17 rebuttal witnesses? Once we quantify the people
that are
18 going to show up, we can figure out how much time.
19 CHAIRMAN CAFFREY: We can do that. They didn't stand
20 up. Maybe I wrongly assumed you didn't have any.
Please --
21 MS. SCOONOVER: We may have a single rebuttal
witness.
22 As with Mr. Dodge, we will contemplate overnight
and there
23 is a chance we will present some.
24 CHAIRMAN CAFFREY: Ms. Cahill.
25 MS. CAHILL: The Department of Fish and Game does
not
1532
01 intend to call rebuttal witnesses.
02 MEMBER DEL PIERO: That is three, if you include
Dodge,
03 and I don't know about Ms. Bellomo.
04 CHAIRMAN CAFFREY: How many witnesses are you going
to
05 present, Ms. Bellomo. Is it a panel? Is it a --
06 MS. BELLOMO: We subpoenaed Mr. Turner and Mr.
Thomas,
07 and then we have a panel of three people who are
Mono Basin
08 residents.
09 CHAIRMAN CAFFREY: So, two separate sets.
10 MS. BELLOMO: Right.
11 MR. BIRMINGHAM: May we inquire into the length of
12 time? The reason I ask, Mr. Caffrey, is, as the
Board
13 knows, the ACWA Conference, the Association of
California
14 Water Agencies is starting tomorrow. I have a
meeting that
15 is scheduled at 10:00 in the morning, which, if
this hearing
16 continues, I will reschedule. But because it
involves
17 people who are in South Lake Tahoe for that
conference, it
18 would be very convenient if we could do it tomorrow
morning.
19 If they don't anticipate taking terribly long, we
can
20 conclude this this evening.
21 CHAIRMAN CAFFREY: I was going to suggest the time.
22 Perhaps it is -- let's see how you all feel about
it. One
23 could argue that rebuttal might be defined as not
having to
24 be as lengthy as direct and redirect because it is
more
25 specific. On the other hand, I am not sure that is
always
1533
01 the case. What about a half hour for each set of
02 witnesses?
03 MS. BELLOMO: We are going to need more than that,
04 Chairman Caffrey. Because the difference between
direct
05 here is that the rest of the presentations have
been put in
06 writing. That is why direct examination could be
very
07 brief. Cross-examination, people have their choice
on. But
08 we definitely need more time than that.
09 CHAIRMAN CAFFREY: How much time do you need?
10 MS. BELLOMO: I would propose, first of all, we not
11 start on ours until tomorrow morning. I will work
now that
12 we have done what we have today. I can try to
narrow down
13 some of my rebuttal. But a couple of hours to do
all of the
14 witnesses. So, I couldn't do it in half an hour for
each
15 panel.
16 CHAIRMAN CAFFREY: I think that is too long. Is
there
17 some way that we can accommodate in the closing
statements
18 or the briefs, Mr. Frink?
19 MR. FRINK: The arguments can be made in the closing
20 statements and the briefs. But to the extent that
they have
21 witnesses who they had to subpoena and couldn't
work with in
22 advance at all, I think it is very hard to restrict
them to
23 a short amount of time. Essentially, you have the
parties
24 who are still participating in the hearing; you
have the
25 majority of them in support of a proposed
settlement; and
1534
01 you have another party who opposes it.
02 I am sure she can be brief as possible, but I don't
03 know that two hours is unreasonable.
04 CHAIRMAN CAFFREY: All right. Thank you, Mr. Frink.
05 MEMBER DEL PIERO: Mr. Chairman, it is 4:00. By my
06 count, there are not more than seven witnesses
total, four
07 of whom, maybe five, you may have, Ms. Bellomo?
08 MS. BELLOMO: Yes, I think so.
09 MEMBER DEL PIERO: You know, I mean, I know some
people
10 don't like going into evening. But it strikes me --
I
11 assume all of your witnesses are present?
12 MS. BELLOMO: Yes.
13 MS. CAHILL: In fact, we would prefer to have the
Fish
14 and Game witnesses, in particular Mr. Turner,
handled today
15 under subpoena. We would rather not make him come
back
16 another day.
17 CHAIRMAN CAFFREY: Before everybody makes up their
18 mind, I should remind you that the order of direct
testimony
19 within the rebuttal is different. There is not
necessarily
20 -- it is what we have been following today with
regard to
21 cross-examination. We would start with the City of
Los
22 Angeles. That was the order in which we did the
direct in
23 the beginning of these proceedings. The order would
be the
24 City of Los Angeles. I realize that some of these
parties
25 aren't here. The old order shows the U.S. Forest
Service,
1535
01 Bureau Of Land Management, then People for Mono
Basin
02 Preservation, Arcularius Ranch, Richard Ridenhour,
03 California Trout, Department of Fish and Game,
State Lands
04 and Parks and Rec, and the National Audubon Society
and
05 Mono Lake Committee. In that order is what we could
follow.
06 It sounds like the Board still wants to go for some
07 time this evening.
08 Mr. Brown.
09 MEMBER BROWN: I would, whatever we do this evening,
10 but we can figure that out, but I would like to
start
11 earlier in the morning if that accommodates the
parties, say
12 8:00.
13 CHAIRMAN CAFFREY: I don't think 8:00 is something
that
14 I will be here for. 9:00 is --
15 MEMBER BROWN: I change my suggestion.
16 CHAIRMAN CAFFREY: Mr. Brown, I'd appreciate it. I
was
17 up at the crack of dawn this morning for an 8:00
hearing and
18 others things, and, frankly, I am a little tired. I
would
19 like not to start before nine.
20 Mr. Stubchaer.
21 MEMBER STUBCHAER: My two cents worth is I think we
22 ought to postpone the rebuttal till the morning.
23 MEMBER DEL PIERO: All of it?
24 MEMBER FORSTER: How about the person that is on
25 subpoena?
1536
01 MEMBER STUBCHAER: What I was thinking, two hours
02 rebuttal Ms. Bellomo has and then the
cross-examination.
03 MEMBER DEL PIERO: We have one witness. Get him out
04 of the way.
05 CHAIRMAN CAFFREY: I agree. Mr. Birmingham has a
06 difficulty. He says he needs a half hour. Could you
have
07 Ms. Goldsmith here for you tomorrow if you present
tonight?
08 MR. BIRMINGHAM: If the Board is include to go
09 tomorrow, then my schedule can certainly be
rearranged to
10 accommodate that. My rebuttal should take no more
than five
11 minutes, my examination of rebuttal witness.
12 MEMBER DEL PIERO: That is my opinion. Why don't get
13 started tonight. I appreciate you indicating that
your
14 schedule will be flexible in regards to what we
want to do,
15 but let's do it.
16 CHAIRMAN CAFFREY: Let's see how much we can do up
to
17 about 5:30.
18 Ms. Bellomo.
19 MS. BELLOMO: One other thing, Chairman Caffrey, I
know
20 in that Mr. Frink is aware of this, but several
people have
21 traveled over from Mono County who did not have an
22 opportunity to -- no one has had an opportunity to
comment
23 in a policy way, make policy comments on the
settlement
24 itself. And two of the people that we have, two to
three of
25 these people wanted to make a maximum of five
minute policy
1537
01 statements regarding the settlement.
02 CHAIRMAN CAFFREY: When do they want to do this?
03 MS. BELLOMO: They can do it now, or they can do it
04 tomorrow.
05 CHAIRMAN CAFFREY: Are you going to be here
tomorrow,
06 ladies and gentlemen?
07 You are in any case going to be here tomorrow. That
08 gives us certain flexibility.
09 MS. BELLOMO: I want to give you that option.
10 CHAIRMAN CAFFREY: We will certainly allow you to do
11 that, probably tomorrow. So we can begin with the
rebuttal
12 testimony.
13 That being the case, Mr. Birmingham, would you like
to
14 begin.
15 MR. BIRMINGHAM: Sure. The Department of Water and
16 Power of the City of Los Angeles would like to call
Katie
17 Bellomo.
18 CHAIRMAN CAFFREY: Ms. Bellomo, I believe I saw you
19 take the oath this morning. Is that correct?
20 MS. BELLOMO: Yes, it is.
21 MR. BIRMINGHAM: Ms. Bellomo --
22 MS. BELLOMO: Just one moment.
23 Am I entitled to require to be subpoenaed and get a
24 witness fee, because I've had to subpoena witnesses
of other
25 parties and pay witnesses fees? I guess I am
feeling like I
1538
01 don't want to testify without a subpoena and a
witness fee,
02 either.
03 CHAIRMAN CAFFREY: Mr. Frink, what do you think?
04 MR. BIRMINGHAM: She is here, Mr. Caffrey. She is
05 within the jurisdiction and scope of the Board's
long
06 arm. And I don't -- I believe she is here; she is
sworn. I
07 don't need a subpoena. I am glad to pay her the
$150
08 witness fee if that is her concern.
09 MS. BELLOMO: It would be nice for our group to get
our
10 fee back for Mr. Turner and Mr. Thomas. That was
$300 right
11 there. You know, just, fair is fair.
12 Also, can Mr. Porter be required to testify from
the
13 Forest Service when he wasn't subpoenaed, and we
would want
14 to ask him questions, and he's been here and he's
here? He
15 said, "Well, since I wasn't subpoenaed, I
don't have to
16 testify."
17 CHAIRMAN CAFFREY: Are you willing to testify on the
18 basis of Mr. Birmingham's pledge to reimburse you
$150 for
19 your testimony?
20 MS. BELLOMO: Only if other parties can be called as
21 witnesses without being subpoenaed, and I can call
them and
22 make them testify tomorrow.
23 MR. BIRMINGHAM: I certainly do not want to act on
24 behalf of the United States. But there is a federal
25 statutory procedure which must be complied with
before
1539
01 either a state court or state agency can subpoena a
federal
02 employee. That procedure would require the approval
of the
03 Secretary of the Department of Agricultural for the
Forest
04 Service before a federal employee could be asked or
05 compelled to testify before this Board or state
court.
06 MS. BELLOMO: What is interesting, then, is, I guess
07 just for clarification, if I testify today, then
tomorrow I
08 can ask Mr. Dodge and the attorney for Fish and
Game, the
09 attorney for DWP, and any of these other
signatories to the
10 settlement to sit up here and answer questions from
me,
11 correct, without subpoena because they are parties
and they
12 are present?
13 CHAIRMAN CAFFREY: Mr. Frink, is that correct or is
14 that not correct?
15 MR. FRINK: Since Ms. Bellomo was not subpoenaed, if
16 she wants to refuse to testify, I believe she can
do so.
17 Mr. Birmingham could, however, ask her questions on
18 cross-examination tomorrow when she appears as a
rebuttal
19 witness for People from Mono Basin Preservation.
20 MS. BELLOMO: Limited to the subject of my
testimony,
21 correct, tomorrow?
22 MR. FRINK: Not necessarily under the Board
23 regulations. Limited to any relevant matter within
your
24 knowledge.
25 MS. BELLOMO: I would prefer to go that route, then.
1540
01 CHAIRMAN CAFFREY: All right. That would be the
order
02 then.
03 MR. BIRMINGHAM: That is fine.
04 CHAIRMAN CAFFREY: Anything else, Mr. Birmingham?
05 MR. BIRMINGHAM: No, that is all.
06 CHAIRMAN CAFFREY: Thank you, sir.
07 MEMBER BROWN: Didn't take long, Mr. Chairman.
08 MEMBER DEL PIERO: It may take longer tomorrow.
09 CHAIRMAN CAFFREY: I think we will find tomorrow it
10 will take quite a bit longer.
11 Ms. Scoonover, I saw you stand. Was there something
12 you wished --
13 MS. SCOONOVER: I reconsidered.
14 MR. BIRMINGHAM: There is one point that I would
like
15 to make with respect to a comment Ms. Bellomo made.
16 Ms. Bellomo at the beginning of this hearing made a
17 major effort to establish that she was not here
acting as an
18 attorney on behalf of the People from Mono Basin
19 Preservation. I think if we go back and look at the
20 transcript, she made that observation a couple of
times.
21 If she wants to call me as a witness, I will
vigorously
22 oppose any effort, whether subpoenaed or not, that
she makes
23 to have me testify. I am an attorney for the City
of Los
24 Angeles, and, as an attorney, I cannot within the
ethical
25 limitations imposed by the rules of professional
conduct,
1541
01 testify in a proceeding without first obtaining a
written
02 approval, a written waiver, of the potential
conflict that
03 could result from the city.
04 MS. BELLOMO: If I could just comment on that. I
would
05 expect that you're a percipient witness to certain
facts and
06 conversations that you didn't hear in your
attorney-client
07 privileged relationship.
08 Secondly, I'd be just as happy to call Mr. Kavounas
09 tomorrow without a subpoena and ask him questions
about the
10 settlement, possibly. The point being that, yes, I
am an
11 attorney, I am not representing People from Mono
Basin
12 Preservation as an attorney. You're calling me as a
13 percipient witness and many of you are percipient
witnesses
14 to things that we would have liked to know about
for quite a
15 while now. And it is no different.
16 MR. BIRMINGHAM: Mr. Caffrey, the People from Mono
17 Basin Preservation had every opportunity to
participate in
18 the discussions which resulted in the settlement
agreement
19 which has been marked for identification as LADWP
Exhibit
20 68A and B. The People from Mono Basin Preservation
declined
21 the invitation of the other parties to participate
in those
22 discussions. And had they participated, perhaps Ms.
Bellomo
23 would have the information that she is interested
in having.
24 MS. BELLOMO: That is simply not true, and it must
be
25 corrected, Chairman Caffrey. I can't permit that to
go by.
1542
01 That is simply not true. We were never allowed to
02 participate in any settlement negotiations. The day
that
03 you were told there was a settlement and you all
left the
04 room, and we were told in complete secrecy what the
05 settlement was. At that point in time, we were
given a
06 take-it-or-leave-it offer. That was not a
negotiation. We
07 were not told we could negotiate. We were told,
"We, the
08 aligned parties, have arrived at a settlement.
Would you
09 like to join?"
10 That is not being invited into negotiations. And in
11 the ensuing weeks now, after that hearing, even
though Mr.
12 Johns, I think it was, asked me under oath if we
were
13 willing to continue to discuss and negotiate, we
never saw
14 another shred of paper and we weren't allowed to
know
15 anything.
16 I talked to Mr. Haselton a few days ago. He told me
17 that he wasn't even supposed to be telling me what
was in
18 the documents that were going back and forth
between them.
19 We haven't been allowed to be in any negotiations.
As soon
20 as we said, "We don't like the deal you've
struck," we were
21 out of it again.
22 CHAIRMAN CAFFREY: I think we may be into semantics.
I
23 don't want to further complicate things. I think
you both
24 eloquently put your position on the record. I would
25 observe, if my memory serves me, and I am not
looking at a
1543
01 copy of the transcript, I would observe that my
memory, at
02 least my recollection, is that when offered within
the
03 record, within the discussion that we had, when
offered to
04 be a party to the settlement, I thought that you
had
05 indicated that you did not want to be part of those
06 discussions, Ms. Bellomo, and perhaps what you are
07 perceiving on the part of the others is that that
was their
08 understanding and so did not invite you into the
discussion
09 on that basis. I am just making an observation.
Maybe I am
10 wrong.
11 MS. BELLOMO: I read the record on that point,
Chairman
12 Caffrey, and it very clearly is not that point. Mr.
Johns
13 asked me, would we still be open to discussions,
and I said
14 something along the lines of, yes, if they were
willing to
15 change their position. And he said, or if they are
willing
16 to convince you to change your mind. I said, yes.
17 After that we were not allowed in on any
discussions.
18 They continued to have meetings, et cetera. Didn't
send us
19 anything. Didn't talk to us. Mr. Haselton told me
20 something was sent out just the other day and it
was called,
21 quote-unquote, final settlement, which is why I had
asked,
22 "Do we actually have the final version?"
23 Because Mr. Haselton looked through it and told me,
"I
24 can't tell you what is in it, but there is some
different
25 thing in here. And so, no, we weren't part of the
1544
01 negotiations. We weren't asked if we like anything
they
02 were talking about. They were having problems with
Cal
03 Trout. Who knows about what? We weren't knowing
what was
04 going or asked what our views were. No, we were
not.
05 CHAIRMAN CAFFREY: Thank you.
06 Mr. Dodge.
07 MR. DODGE: With all due respect to everyone, this
is
08 disintegrating. It is really shedding more smoke
than
09 light. Whether or not they were invited, and by the
way,
10 they never asked to join our discussion. But
whether or not
11 they were invited is quite beside the point. The
basic
12 point here is we have a settlement agreement, which
a lot of
13 parties have agreed to. Does it make sense to go
forward on
14 that basis or does it not? I think the rest of this
is not
15 helpful, Mr. Chairman.
16 CHAIRMAN CAFFREY: Your are quite right, Mr. Dodge.
I
17 think we are going to conclude this discussion at
this
18 point, and I am going to ask Mr. Birmingham, does
he have
19 anything else that he would wish to offer as
rebuttal
20 tomorrow?
21 MR. BIRMINGHAM: No.
22 CHAIRMAN CAFFREY: Thank you, sir.
23 I don't think anybody is here from U.S. Forest
24 Service. Is that correct?
25 Sir, do you wish to offer any rebuttal evidence?
1545
01 MR. PORTER: No.
02 CHAIRMAN CAFFREY: Anyone here from the Bureau of
Land
03 Management?
04 Nobody. All right.
05 People from Mono Basin Preservation.
06 Ms. Bellomo, you had said you wanted to present
your
07 witnesses tomorrow morning?
08 MS. BELLOMO: Yes, I would prefer to do that.
09 Although, if Mr. Turner doesn't want to be here
tomorrow, I
10 could do Mr. Turner today.
11 Are you going to be here tomorrow anyway?
12 CHAIRMAN CAFFREY: Without objection, why don't we
hear
13 from you tomorrow.
14 No one has heard from Arcularius Ranch; is that
correct?
15 MS. BELLOMO: Excuse me, you ask -- Mr. Thomas are
you
16 indifferent? Are you going to be here tomorrow?
17 MR. THOMAS: Yes.
18 MR. FRINK: Ms. Bellomo, you indicated earlier that
you
19 had some speakers on policy matters that you would
prefer to
20 get through today. Is that still the case? Or do
you want
21 to hold those till tomorrow?
22 MS. BELLOMO: I just thought if you wanted to make
use
23 of time, they are here, and you can do that
discreet, short
24 event.
25 CHAIRMAN CAFFREY: You do have -- you are talking
about
1546
01 the policy statement?
02 MS. BELLOMO: The five-minute policy statements
could
03 occur. They are not part of the rebuttal
presentation. It
04 seems like something you could get out of the way,
if you
05 want.
06 CHAIRMAN CAFFREY: I understand, and they are going
to
07 be available.
08 Let me continue down through the list here for a
09 moment.
10 Richard Ridenhour is not here.
11 Cal Trout, do you have some evidence you wish to
12 offer?
13 MR. ROOS-COLLINS: Yes, Mr. Chairman.
14 Mr. Chairman, California Trout has no rebuttal
15 witnesses. We do have three exhibits to introduce
as
16 rebuttal evidence. I have marked these Exhibits
CT-6, 7,
17 and 8. Before I go further, Mr. Chairman, I need to
clarify
18 the identification of Dr. Mesick's supplemental
testimony.
19 That is also marked as CT-6. I ask the Board'
permission to
20 remark that as CT-1A. And, therefore, the rebuttal
evidence
21 will be CT-6 through 8.
22 CHAIRMAN CAFFREY: Any objection?
23 You are going to describe the exhibits, I presume,
Mr.
24 Roos-Collins?
25 MR. ROOS-COLLINS: Yes, Mr. Chairman.
1547
01 CHAIRMAN CAFFREY: Please proceed.
02 MR. ROOS-COLLINS: CT-6 is an excerpt from the book
03 Better Trout Habitat, written by Christopher
Hunter, who has
04 testified here before this Board. That exhibit
discusses
05 monitoring protocols for fish population.
06 CT-7 is a 1988 article prepared by Dr. Platts
regarding
07 fish populations in various streams in the western
states.
08 Including Eastern Sierra. Dr. Platts has also
testified in
09 this hearing.
10 CT-8 is a letter from Mark Hill, an employee of Don
11 Chapman Consultants to Jim Edmondson, the Executive
Director
12 of California Trout, regarding the fish populations
in Rush
13 and Lee Vining Creeks.
14 I offer these exhibits for the purpose of
supporting
15 the settlement agreement including the amendment
that we
16 provided to the Board today.
17 CHAIRMAN CAFFREY: All right. Is there any objection
18 to taking these exhibits into the record?
19 MR. BIRMINGHAM: No objection.
20 MS. BELLOMO: No objection.
21 CHAIRMAN CAFFREY: Hearing and seeing no objection,
we
22 will accept these.
23 MR. ROOS-COLLINS: Thank you, Chairman Caffrey.
24 CHAIRMAN CAFFREY: Thank you, sir.
25 Department of Fish and Game.
1548
01 MS. CAHILL: No rebuttal.
02 CHAIRMAN CAFFREY: State Lands Commission and
03 Department of Parks and Recreation, Ms. Scoonover.
04 MS. SCOONOVER: We have no rebuttal. At this time
Mr.
05 Valentine is trying to ascertain whether we will
have
06 rebuttal tomorrow.
07 CHAIRMAN CAFFREY: You would like to hold off until
08 tomorrow?
09 MS. SCOONOVER: I would.
10 CHAIRMAN CAFFREY: National Audubon and Mono Lake
11 Committee, Mr. Dodge, anything?
12 MR. DODGE: My position is the same as it was 15
13 minutes ago. I would like to think about it
overnight. I
14 may have one witness. It won't take long if I do.
15 CHAIRMAN CAFFREY: If we are going to be
accommodating
16 as ever, we have potentially two presentations of
rebuttal
17 tomorrow, perhaps three when we find out from Ms.
18 Scoonover's contact.
19 Perhaps now we could, if there is no objection,
maybe
20 we could go to some policy statements. Anybody have
a
21 problem with that?
22 These are five minute limitation policy statements;
is
23 that right, Ms. Bellomo?
24 MS. BELLOMO: That is correct.
25 CHAIRMAN CAFFREY: You have how many parties who
wish
1549
01 to?
02 MS. BELLOMO: Three, I believe.
03 CHAIRMAN CAFFREY: Three policy statements.
04 Mr. Johns you will time us. I would ask the parties
to
05 please be cognizant of the time and respect our
need to be
06 efficient. You each have five minutes. I have no
name
07 cards, so I don't know who we are going to be
hearing.
08 Perhaps, you could stand and introduce the
individuals in
09 the order you would like to present them, Ms.
Bellomo.
10 These are policy statements.
11 MS. BELLOMO: Actually, why don't I introduce the
12 people that have traveled over from Mono City. They
are not
13 all giving policy statements. They wanted to
consolidate to
14 save time for you.
15 We have here Floyd Griffin, Heidi S. Griffin,
Bonnie
16 Noles, John Frederickson, and Tim Alpers, our
illustrious
17 ex-supervisor of our district. I believe Mr.
Griffin,
18 followed by Ms. Noles, and then Mr. Frederickson
will make a
19 statement.
20 CHAIRMAN CAFFREY: You actually have three
five-minute
21 presentations.
22 MS. BELLOMO: Yes.
23 CHAIRMAN CAFFREY: One of them being presented by
more
24 than one person; is that right?
25 MS. BELLOMO: No. I just introduced them all, one
1550
01 after another. They may take less than five
minutes.
02 CHAIRMAN CAFFREY: Welcome to all of you.
03 Sir, are you first? Please come forward. Please
04 pronounce your name for the record and spell it.
05 POLICY STATEMENTS BY
06 PEOPLE FOR MONO BASIN PRESERVATION
07 MR. GRIFFIN: Floyd Griffin; F-l-o-y-d
G-r-i-f-f-i-n.
08 Afternoon, Mr. Chairman and fellow Board Members. I
09 really appreciate the chance to be here and to be
heard.
10 There hasn't been much public input on these plans,
so it is
11 a real treat for me to be here. I have been a basin
12 resident for 29 years. I am a duck and goose
hunter,
13 recreational duck and goose hunter. And I support
Ducks
14 Unlimited and the creation of waterfowl habitat
where it is
15 practical.
16 The settlement proposal and, in fact, the entire
17 concept of shifting stream restoration and
waterfowl
18 enhancement to the North Basin is not practical. In
the
19 first place, the city did not damage any streams in
the
20 North Basin, so why the shift in the restoration
plan?
21 The effected areas were Rush, Parker, Walker, and
Lee
22 Vining Creeks. I know some scientist said nothing
could be
23 done with the southern streams. They are too badly
24 damaged. But I heard a panel, the panel here this
morning,
25 say that some black willow and cottonwoods are
already
1551
01 coming back in those stream beds.
02 Perhaps the damage in Rush and Lee Vining, the
major
03 creeks, aren't as bad as were originally thought.
It's just
04 not right to let the city fund this Foundation to
the tune
05 of three point something million dollars and walk
away from
06 the problems in the southern basin. It is pretty
obvious
07 why they are in favor of this settlement agreement.
I would
08 be, too, in their boat.
09 The proposal to rewater Mill Creek at the expense
of
10 Wilson Creek is bizarre. Nobody with any common
sense,
11 after seeing the effected areas, would agree with
this grand
12 experiment. And after listening to the panel this
morning,
13 it is pretty obvious to me that rewatering Mill
Creek is an
14 experiment. They as much as said so. It is pretty
obvious
15 that Dr. Stine's focus is what Mill Creek was
10,000 years
16 ago. I don't have the time to wait to see if that
works
17 out.
18 The Wilson Creek drainage from Conway Ranch to
19 DeChambeau Ranch is a beautiful and diverse
habitat. From
20 trout raising to waterfowl habitat is unique and
21 irreplaceable. The DeChambeau ponds and County
Ponds could
22 be duck habitat, the envy of the Eastern Sierra if
the
23 Forest Service would utilize to the fullest extent
their
24 water rights, their existing water rights to Wilson
Creek
25 water, and also apply for some winter water. That
winter
1552
01 water rights are up for grabs. I would like to see
the
02 Forest Service apply for those and maintain the
DeChambeau
03 and County Ponds.
04 The City of Los Angeles could be given restoration
05 credit for helping to restore the DeChambeau area
instead of
06 along Mill Creek stream. Most of the residents of
the Mono
07 Basin do not care what Mill Creek looked like
10,000 years
08 ago, or have the time to wait a hundred years to
see if it
09 happens again. We like what we have now.
10 I would further urge the Water Board not to give up
11 control of water issues in the Mono Basin to a
Foundation
12 with questionable motives.
13 Thank you very much.
14 CHAIRMAN CAFFREY: Thank you, sir, very much for
your
15 being here. Appreciate your input.
16 Next speaker. Good afternoon, welcome. Please
17 identify yourself for the record, spell your name
for the
18 stenographer.
19 MS. NOLES: My name is Bonnie Noles. B-o-n-n-i-e
20 N-o-l-e-s. I am a descendant of six generations
that
21 originally settled in the Mono Basin in 1885. My
family,
22 the Filosenas and LaBraques, along with the Conways
and
23 DeChambeaus and other pioneer families worked on
their
24 ranches to clear sagebrush and establish irrigation
ditches
25 which created the green meadows we enjoy today in
the north
1553
01 end of the basin.
02 When I heard about the proposal to rewater Mill
Creek
03 at the expense of Wilson Creek, I became greatly
alarmed,
04 for I knew the destruction which would occur. I am
enraged
05 to think that people who don't live in the area
think they
06 have the authority to come into the basin and
destroy my
07 heritage.
08 To dry up Wilson Creek, a self-sustaining brown
trout
09 fishery and its entire ecosystem and cease
irrigating the
10 meadows my ancestors helped create, really disturbs
me.
11 For when these people have rerouted the water and
dried up
12 our meadows, they have not lost their heritage.
These
13 people have nothing to lose.
14 Those who claim to be residents will pick up their
bed
15 rolls and leave with pay checks in their pockets
and a gold
16 star for their resumes. While the local citizens
remain,
17 living with the devastating results.
18 I have traveled here today to oppose the adoption
of a
19 settlement that would create a Foundation whose
purpose is
20 to rewater Mill Creek. Others in the community
share my
21 feelings. With nearly 400 signatures on petitions
which
22 oppose rewatering Mill Creek at the expense of
Wilson Creek,
23 I can say there is large community outcry.
24 If this Foundation is created, it cuts the public,
25 including our county, out of the process. We, the
local
1554
01 citizens, are the ones who live here, which have to
live
02 with the results. We should be a part of the
decision
03 making process.
04 I am asking you, the Board Members, to travel over
to
05 the Mono Basin and see for yourself the areas of
concern
06 before you adopt restoration plans for the north
end of the
07 basin. If you do, you will see for yourselves what
you
08 would be destroying if you approved in the
settlement the
09 rewatering of Mill Creek. You would understand why
the
10 community is outraged. If you come to the Mono
Basin, you
11 could go to DeChambeau Ranch and see what the
citizens have
12 done there to bring water back to the ranch to
support all
13 the habitat there.
14 When you see the ranch, you will agree that this is
a
15 beneficial use of water for habitat, with water
immediately
16 available for the ponds. We must remember the whole
issue
17 we're addressing here is waterfowl restoration.
This, you
18 will see, is a choice area for waterfowl
restoration. While
19 you were here, you could also visit Cain Ranch. You
would
20 see it dying, and you will know that you cannot
approve a
21 plan that will create more of the same kind of
environmental
22 devastation.
23 Please remember that thousands of people visit the
24 basin each year and enjoys these acres that will be
ruined
25 if the settlement is approved and the Foundation
gets its
1555
01 way. The local residents will be left living with
the
02 devastating results. I am asking you, the Water
Board, to
03 retain our control over restoration decisions in
the north
04 end of the basin. Please don't give your authority
away to
05 the self-appointed group that has its own agenda,
which has
06 been made clear - it is not waterfowl habitat or
restoration
07 as its main focus.
08 Thank you for giving me the opportunity to oppose
the
09 settlement agreement and the self-appointed
Foundation which
10 is endangering the environment which I have lived
in all my
11 life. I at least know that I have tried to convince
you
12 that this is truly a destructive plan and that I
have tried
13 to save the basin from another environmental
nightmare.
14 CHAIRMAN CAFFREY: Thank you very much, Ms. Noles,
for
15 being here and taking the time to share your strong
concerns
16 with us. We appreciate that.
17 MEMBER DEL PIERO: Mr. Chairman.
18 CHAIRMAN CAFFREY: Mr. Del Piero.
19 MEMBER DEL PIERO: For Ms. Noles' information, I
have
20 been at all the locations mentioned in your
presentation.
21 MS. NOLES: I am glad to hear that.
22 MEMBER DEL PIERO: I can't say that I have walked
the
23 entire length of the streams. That was the question
Ms.
24 Bellomo was asking a number of people. I don't know
that
25 there are many people in Mono City or Lee Vining
that could
1556
01 ever say they walked the entire length of those
streams. I
02 have been on all of the property and along all the
water
03 courses that you talked about.
04 CHAIRMAN CAFFREY: Thank you, Mr. Del Piero.
05 And we have one more presenter. Good afternoon,
sir,
06 welcome. Please give us your name and spell it for
the
07 stenographer.
08 MR. FREDERICKSON: My name is John Frederickson.
It's
09 F-r-e-d-e-r-i-c-k-s-o-n.
10 I came over here today because I have some real
11 concerns about this idea and what the Foundation
would do.
12 I bought the Conway Ranch in 1980. The first third
of it
13 from Katie Conway. It is Katie Conway Bell. And I
bought
14 the remainder of the ranch with my partner, Arnold
Beckman,
15 in 1983. And I have lived on the ranch. I have
lived in
16 Mono County for 25 years. I run the June Lake
marina. I
17 run Crowley Lake for the Department of Water and
Power, and
18 I run 30 campgrounds and facilities for the U.S.
Forest
19 Service.
20 I am real familiar with the area and all of the
21 streams. I live right above Wilson Creek, and
behind my
22 house is a diversion to the DeChambeau Ranch, and
there is a
23 pond there. And I have watched the waterfowl over
the years
24 land there, and we were talking about what the
waterfowl do
25 on stormy days. Well, I will tell you; several
hundred of
1557
01 them land on the pond behind my house.
02 I just can't see the reason for dewatering Wilson
Creek
03 to put it back into Mill Creek. It is a real viable
04 habitat. I did all -- I worked on all the
environmental
05 studies when the ranch was trying to develop a fly
fishing
06 resort. I am real knowledgeable on the creek, and
it would
07 just be a crime to do what was proposed to do.
08 So, I'll let you know I am against the Foundation
and
09 dewatering Wilson Creek.
10 Thank you.
11 CHAIRMAN CAFFREY: Thank you, sir, very much for
being
12 here to express your concerns. We appreciate it.
13 I am inclined at this point, it's 25 minutes to 5,
to
14 call it a day and we come back tomorrow. We can
begin with
15 the people from Mono Basin Preservation. Then we
would go
16 to Ms. Scoonover and then to Mr. Dodge, being the
order that
17 we have followed in direct.
18 I would also like to apologize to Mr. Brown when he
19 made his suggestion a little while ago about 8:00.
That was
20 all my fault. I am kind of grumpy today. Mr. Brown
is a
21 good friend and has very good suggestions. Under
normal
22 circumstances, 8:00 would probably have been good.
I
23 apologize, John, that was uncalled for.
24 MEMBER BROWN: Not necessary, Mr. Chairman.
25 Thank you.
1558
01 CHAIRMAN CAFFREY: Thank you.
02 With that, then, ladies and gentlemen --
03 MEMBER DEL PIERO: Nobody is supposed to be that
04 grumpy, except me.
05 CHAIRMAN CAFFREY: I had to deal with the
Legislature.
06 Before we leave Mr. Johns has something.
07 We will start tomorrow morning at 9:00 a.m.
08 Thank you all very much.
09 (Hearing adjourned at 4:40 p.m.)
10 ---oOo---
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1559
01 REPORTER'S CERTIFICATE
02
03
04 STATE OF CALIFORNIA )
04 ) ss.
05 COUNTY OF SACRAMENTO )
05
06
06
07
08 I, ESTHER F. WIATRE, certify that I was the
09 official Court Reporter for the proceedings named
herein,
10 and that as such reporter, I reported in verbatim
shorthand
11 writing those proceedings;
12 That I thereafter caused my shorthand writing to be
13 reduced to typewriting, and the pages numbered 1370
through
14 1558 herein constitute a complete, true and correct
record
15 of the proceedings.
16
17 IN WITNESS WHEREOF, I have subscribed this
certificate
18 at Sacramento, California, on this 23rd day of May
1997.
19
20
21
22
22
23 ______________________________
23 ESTHER F. WIATRE
24 CSR NO. 1564
24
25
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