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