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1560

01 STATE WATER RESOURCES CONTROL BOARD

02

03 PUBLIC HEARING

04

05

06 REGARDING STREAM AND WATERFOWL HABITAT RESTORATION PLANS

06 AND GRANT LAKE OPERATIONS AND MANAGEMENT PLAN SUBMITTED BY

07 THE LOS ANGELES DEPARTMENT OF WATER AND POWER PURSUANT TO

07 THE REQUIREMENTS OF WATER RIGHT DECISION 1631

08

09

10

11

12

13 HELD AT:

14 STATE WATER RESOURCES CONTROL BOARD

14 PAUL BONDERSON BUILDING

15 901 P STREET, FIRST FLOOR HEARING ROOM

15 SACRAMENTO, CALIFORNIA

16

16

17

17

18 WEDNESDAY, MAY 7, 1997

18 9:00 A.M.

19

19

20

20

21

21

22

22

23

23

24 Reported by: ESTHER F. WIATRE

24 CSR NO. 1564

25

25

1561

01 APPEARANCES

01 BOARD MEMBERS:

02

02 JOHN CAFFREY, CHAIRMAN

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

03 MARC DEL PIERO

04

04 STAFF MEMBERS:

05

05 JAMES CANADAY, ENVIRONMENTAL SPECIALIST

06 GERALD E. JOHNS, ASSISTANT DIVISION CHIEF

06

07 COUNSEL:

07

08 DAN FRINK

08

09 LOS ANGELES DEPARTMENT OF WATER AND POWER:

09

10 KRONICK MOSKOVITZ TIEDEMANN & GIRARD

10 400 Capitol Mall, 27th Floor

11 Sacramento, California 95814

11 BY: THOMAS W. BIRMINGHAM, ESQ.

12 and

12 JANET GOLDSMITH, ESQ.

13

13 UNITED STATES FOREST SERVICE: (Not present.)

14

14 UNITED STATES DEPARTMENT OF AGRICULTURE

15 OFFICE OF GENERAL COUNSEL

15 33 New Montgomery, 17th Floor

16 San Francisco, California 94105

16 BY: JACK GIPSMAN, ESQ.

17

17 BUREAU OF LAND MANAGEMENT: (Not present.)

18

18 UNITED STATES DEPARTMENT OF THE INTERIOR

19 BUREAU OF LAND MANAGEMENT

19 BISHOP RESOURCE AREA

20 785 North Main Street, Suite E

20 Bishop, California 93514

21 BY: TERRY L. RUSSI

21

22

22

23

23

24

24

25

25

1562

01 APPEARANCES

01

02 PEOPLE FOR MONO BASIN PRESERVATION:

02

03 KATHLEEN MALONEY BELLOMO

03 P.O. Box 201

04 Lee Vining, California 93541

04

05 FIRST PANEL:

05

06 JOHN TURNER

06 DONALD THOMAS

07

07 SECOND PANEL:

08

08 JOHN FREDERICKSON

09 JOE BELLOMO

09 KATHLEEN MALONEY BELLOMO

10

10 ARNOLD BECKMAN: (Not present.)

11

11 DeCUIR & SOMACH

12 400 Capitol Mall, Suite 1900

12 Sacramento, California 95814

13 BY: DONALD MOONEY, ESQ.

13

14 ARCULARIUS RANCH: (Not present.)

14

15 FRANK HASELTON, LSA

15 1 Park Plaza, Suite 500

16 Irvine, California 92610

16

17 RICHARD RIDENHOUR: (Not present.)

17

18 RICHARD RIDENHOUR

18

19 CALIFORNIA TROUT, INC.:

19

20 NATURAL HERITAGE INSTITUTE

20 114 Sansome Street, Suite 1200

21 San Francisco, California 94014

21 BY: RICHARD ROOS-COLLINS, ESQ.

22

22

23

23

24

24

25

25

1563

01 APPEARANCES

01

02 CALIFORNIA DEPARTMENT OF FISH AND GAME:

02

03 NANCEE MURRAY, ESQ.

03 1416 Ninth Street

04 Sacramento, California 95814

04

05 McDONOUGH HOLLAND & ALLEN

05 555 Capitol Mall, Ninth Floor

06 Sacramento, California 95814

06 BY: VIRGINIA A. CAHILL, ESQ.

07

07 CALIFORNIA STATE LANDS COMMISSION:

08 CALIFORNIA DEPARTMENT OF PARKS AND RECREATION:

08

09 MARY J. SCOONOVER, ESQ.

09 1300 I Street

10 Sacramento, California 95814

10

11 MICHAEL VALENTINE

11

12 NATIONAL AUDUBON SOCIETY:

12 MONO LAKE COMMITTEE:

13

13 MORRISON & FOERSTER

14 425 Market Street

14 San Francisco, California

15 BY: F. BRUCE DODGE, ESQ.

15

16

16 ---oOo---

17

17

18

18

19

19

20

20

21

21

22

22

23

23

24

24

25

25

1564

01 INDEX

01

02 PAGE

02

03 PEOPLE FOR MONO BASIN PRESERVATION

03

04 FIRST PANEL

04

05 DIRECT EXAMINATION

05

06 BY MS. BELLOMO 1566

06

07 CROSS-EXAMINATION

07

08 BY MR. BIRMINGHAM 1622

08 BY MR. ROOS-COLLINS 1640

09 BY MS. CAHILL 1644

09 BY MR. DODGE 1663

10 BY BOARD STAFF 1668

10

11 SECOND PANEL

11

12 DIRECT EXAMINATION

12

13 BY MS. BELLOMO 1684

13

14 CROSS-EXAMINATION

14

15 BY MR. BIRMINGHAM 1766

15 BY MS. CAHILL 1799

16 BY MR. DODGE 1803

16 BY BOARD STAFF 1805

17

17 REBUTTAL TESTIMONY

18

18 DIRECT EXAMINATION

19

19 BY MR. DODGE 1815

20

20 CROSS-EXAMINATION

21

21 BY MS. SCOONOVER 1832

22 BY BOARD STAFF 1840

22

23 AFTERNOON SESSION 1661

23

24 ---oOo---

25

1565

01 SACRAMENTO, CALIFORNIA

02 TUESDAY, MAY 6, 1997

03 ---oOo---

04 CHAIRMAN CAFFREY: Good morning and welcome back to

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

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

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

08 sleep. For me that is a record.

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

10 his outfit this morning.

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

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

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

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

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

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

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

18 MS. BELLOMO: Yes, that is correct.

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

20 discussion, allow you one hour for direct within rebuttal

21 for each of those panels.

22 Are you ready to begin?

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

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

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

1566

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

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

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

04 parties that we restrict the rebuttal portion of the hearing

05 to presentation of testimony or other evidence which is

06 intended to rebut evidence presented by another party.

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

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

09 MS. BELLOMO: I tried to consciously prepare an

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

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

12 able to answer.

13 CHAIRMAN CAFFREY: That would be very helpful and we

14 appreciate that.

15 ---oOo---

16 DIRECT EXAMINATION BY

17 PEOPLE FOR MONO BASIN PRESERVATION

18 BY MS. BELLOMO

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

20 MR. TURNER: Good morning.

21 MR. THOMAS: Good morning.

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

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

24 name for the record, please?

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

1567

01 MS. BELLOMO: By whom are your employed?

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

03 and Game and Division Chief of Environmental Services

04 Division.

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

06 People from Mono Basin Preservation requesting your presence

07 here today?

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

09 to thank Jerry very much for the written invitation.

10 MS. JOHNS: Any time.

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

12 Department of Fish and Game?

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

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

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

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

17 FERC, Federal Energy Regulation Commission, and private

18 department projects.

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

20 MR. TURNER: Yes.

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

22 having responsibility for the review of environmental impact

23 documents and mitigation measures?

24 MR. TURNER: Yes, it does.

25 MS. BELLOMO: Can you just explain what mitigation

1568

01 measures means or refers to?

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

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

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

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

06 that out from compensation-type projects which would be

07 fully mitigating or fully compensating for an environmental

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

09 impacts by, maybe, choosing a different alternative or

10 designing projects a different way.

11 MS. BELLOMO: Thank you.

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

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

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

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

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

17 Members would like to see it today.

18 CHAIRMAN CAFFREY: Thank you.

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

20 any time since June 1st of 1993?

21 MR. TURNER: Yes, I have.

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

23 today?

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

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

1569

01 through.

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

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

04 the John L. Turner that signed this document?

05 MR. TURNER: Yes, I am.

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

07 explain what the Paoha Project was.

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

09 by Joseph Keating. Joseph Keating was a small hydro

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

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

12 which this is one.

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

14 placed on Wilson Creek below the Lundy Powerhouse?

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

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

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

18 Creek or Wilson Ditch leading to Wilson Creek.

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

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

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

22 asterisk?

23 MR. TURNER: Yes.

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

25 last sentence in this paragraph where it states:

1570

01 Instream flows necessary to maintain --

02 (Reading.)

03 Let me back up for a moment.

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

05 paragraph. Were you addressing the fish population in

06 Wilson Creek in this paragraph?

07 MR. TURNER: Yes.

08 MS. BELLOMO: Directing your attention to the last

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

10 necessary to maintain this population in good condition are

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

12 the brown trout in Wilson Creek?

13 MR. TURNER: Yes, it is.

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

15 sentence?

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

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

18 Code changed since January 1st, 1993?

19 MR. TURNER: No.

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

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

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

23 foundation that this witness can give a legal conclusion.

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

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

1571

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

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

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

04 understanding is of the requirements of Section 5937?

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

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

07 condition, and that adequate flows are provided for.

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

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

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

11 statement remain true today?

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

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

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

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

16 that provided an obstruction or a dam that would require

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

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

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

20 your opinion continue to be that in stream flows necessary

21 to maintain the population in good condition are required by

22 law?

23 MR. TURNER: Yes.

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

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

1572

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

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

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

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

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

06 below the Lundy Powerhouse, in your opinion?

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

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

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

10 CHAIRMAN CAFFREY: I certainly appreciate your

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

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

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

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

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

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

17 questioning to continue.

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

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

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

21 Section 5943.

22 MR. TURNER: 46, I am sorry.

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

24 MR. TURNER: Yes.

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

1573

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

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

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

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

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

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

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

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

09 asked for a legal conclusion --

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

11 Thank you.

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

13 Because when someone implements, they can seek advice of

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

15 conclusions without being able to.

16 CHAIRMAN CAFFREY: I have noted your objection.

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

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

19 would not be construed as asking strictly for a legal

20 conclusion.

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

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

23 emphasize that.

24 CHAIRMAN CAFFREY: Please.

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

1574

01 Would that be helpful, Mr. Turner?

02 MR. TURNER: Okay.

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

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

05 below the Lundy Powerhouse?

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

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

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

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

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

11 to answer that.

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

13 sections that you have referenced this morning or any other

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

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

16 Conway Ranch?

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

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

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

20 what you are trying to get to.

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

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

23 important fisheries on Wilson Creek. I would also stipulate

24 there are important fisheries on Mill Creek.

25 There is a complexity of projects which have been state

1575

01 and continue to be federal projects that change which code

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

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

04 recommendation here on Keating project, this was a project

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

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

07 We thought it was important to protect the fishery

08 under those kinds of conditions, and that was our

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

10 been some things going on at the Lundy Powerhouse and

11 relicensing. There has been some things we proposed for

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

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

14 record.

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

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

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

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

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

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

21 Wilson Creek?

22 MR. TURNER: Yes.

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

24 California Edison Company were to shut off the water flowing

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

1576

01 involved in with regard to allegation that some

02 environmental wrong had been committed?

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

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

05 Federal Regulatory Energy Commission.

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

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

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

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

10 Creek or any other creek, sure.

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

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

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

14 conduct?

15 MR. BIRMINGHAM: Objection. Calls for speculation.

16 MS. BELLOMO: Asking for his opinion.

17 MR. TURNER: In my opinion --

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

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

20 There have been occasions when Edison has not made

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

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

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

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

25 coordinating with water rights and coordinating some of

1577

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

02 give you a lot of detail.

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

04 made that there have been occasions where operation of the

05 powerhouse has resulted in shutting water off to Mill Creek

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

07 comment?

08 MR. TURNER: Yes.

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

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

11 fish kill in Mill Creek, correct?

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

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

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

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

16 Lundy.

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

18 Fish and Game?

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

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

21 complaints for that.

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

23 has been filed in this proceeding?

24 MR. TURNER: Yes.

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

1578

01 document that is the conceptual agreement related to

02 waterfowl habitat restoration?

03 MR. TURNER: Yes, I have.

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

05 refresh my recollection what exhibit number that is?

06 MR. JOHNS: DWP-68.

07 MR. FRINK: The conceptual agreement relating to

08 waterfowl habitat is 68A.

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

10 Would you agree that under CEQA a project for waterfowl

11 habitat restoration could be defined as waterfowl habitat

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

13 Creek or any other project?

14 MR. DODGE: Objection. Unintelligible.

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

16 objection.

17 MR. DODGE: Unintelligible.

18 CHAIRMAN CAFFREY: Could you restate the question?

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

20 it?

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

22 objection.

23 CHAIRMAN CAFFREY: Could you just restate the question,

24 Ms. Bellomo?

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

1579

01 documents are prepared that there has to be a project

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

03 CEQA document; is that correct?

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

05 process?

06 MS. BELLOMO: Yes.

07 MR. TURNER: Yes.

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

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

10 Mill Creek? Are you aware of that?

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

12 in there, yes.

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

14 document where the project was specified as rewatering of

15 Mill Creek?

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

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

18 bought into the waterfowl restoration process as a list of

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

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

21 processes at that point or any of those projects.

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

23 CEQA compliance and review, including the one for Conway

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

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

1580

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

02 other project.

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

04 answer, please?

05 CHAIRMAN CAFFREY: You may, and she will.

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

07 position that the CEQA review should be looking at waterfowl

08 habitat restoration alternatives, not a CEQA review that

09 specifies that the project is rewatering Mill Creek?

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

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

12 a proposal for improving the habitat for waterfowl on the

13 Conway Ranch. I think that the environmental document

14 should try and lay that out.

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

16 of the agreement?

17 CHAIRMAN CAFFREY: You certainly may.

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

19 you need the document?

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

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

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

23 MR. TURNER: Yes.

24 MS. BELLOMO: Thank you.

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

1581

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

02 The discussion that went on on this agreement was the

03 parties will analyze this proposed project, including its

04 impacts in the north basin consistent with California

05 Environmental Quality Act and the National Environmental

06 Policy Act.

07 I would assume that it would be developed as a

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

09 the project environmental document goes together. It would

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

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

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

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

14 I would assume that all the impacts associated with that

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

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

17 presently is.

18 MS. BELLOMO: Thank you.

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

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

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

22 Water and Power to a fund?

23 MR. TURNER: Yes. Or escrow account.

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

25 Department of Fish and Game normally accept money for

1582

01 mitigation rather than requiring that mitigation itself be

02 performed?

03 MR. TURNER: No.

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

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

06 mitigation rather than requiring mitigation itself be

07 performed?

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

09 where that has occurred.

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

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

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

13 in which money was proposed for increasing the lands that

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

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

16 various places to purchase as far as mitigation. The

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

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

19 purchased a piece of property, or the county actually

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

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

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

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

24 for restoration of Goleta Slough. The money never passed

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

1583

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

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

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

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

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

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

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

08 the department didn't take cash.

09 MS. BELLOMO: Thank you.

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

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

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

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

14 either.

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

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

17 goals for goals monitoring and adaptive management?

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

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

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

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

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

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

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

25 compromise.

1584

01 What we agreed to in the waterfowl section was we

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

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

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

05 adverse impacts and good impacts that each individual

06 project would provide.

07 I think there is time to look at each individual

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

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

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

11 mosaic of how each individual plan fits into the overall

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

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

14 of plan together.

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

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

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

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

19 projects together.

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

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

22 unsolicited telephone call to me that you placed?

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

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

25 subpoenaed. I received a subpoena from Jerry.

1585

01 MS. BELLOMO: And then you contacted me?

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

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

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

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

06 heart if the whole settlement fell apart"?

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

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

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

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

11 restoration process, I am uncomfortable with the fact that

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

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

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

15 MS. BELLOMO: Do you also recall during that

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

17 waterfowl portion of the settlement as being the Mono Lake

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

19 any part of it?

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

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

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

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

24 evaluate each project as it was put together.

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

1586

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

02 MS. BELLOMO: I'm sorry.

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

04 Peter Bontadelli who is my direct boss and represents our

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

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

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

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

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

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

11 each project as it is put together.

12 MS. BELLOMO: Does that complete your answer?

13 MR. TURNER: Yes.

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

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

16 Could I just confirm that you are employed by the

17 Department of Fish and Game?

18 MR. THOMAS: That's correct.

19 MS. BELLOMO: What is your job title.

20 MR. THOMAS: Associate Wildlife Biologist.

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

22 rebuttal witness because you were served with a subpoena by

23 the People From Mono Basin Preservation?

24 MR. THOMAS: Yes.

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

1587

01 employee who the Department of Fish and Game has been

02 relying on for a biological opinion regarding waterfowl

03 habitat proposals in this case, restoration proposals in

04 this case?

05 MR. THOMAS: Yes.

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

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

08 relying on for biological opinions regarding the waterfowl

09 habitat restoration proposal in this case?

10 MR. THOMAS: The answer is no.

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

12 lives in Lee Vining?

13 MR. THOMAS: Yes.

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

15 MR. THOMAS: Affirmative.

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

17 MR. THOMAS: Yes.

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

19 hunters?

20 MR. THOMAS: Yes.

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

22 been referred to throughout the course of this proceedings,

23 including Mono Lake level decisions regarding waterfowl in

24 the Mono Basin?

25 MR. THOMAS: Yes.

1588

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

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

03 County Commission, wildlife commission?

04 MR. THOMAS: I am aware of that.

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

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

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

08 MR. THOMAS: That's correct.

09 MS. BELLOMO: Thank you.

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

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

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

13 may do so.

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

15 MS. BELLOMO: Yes.

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

17 my experience is not consistent with other lawyer's

18 experience, but generally it is my experience when an

19 attorney distributes a proposed exhibit that it is given to

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

21 counsel may have an opportunity to review it to determine

22 whether or not they want to make objections.

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

24 proceeding if we can follow that process.

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

1589

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

02 trying to change the procedural rules during the course of

03 my examination.

04 CHAIRMAN CAFFREY: Even --

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

06 these documents. We do vehemently object to it.

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

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

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

10 internal Fish and Game document dealing with the decision

11 making of the department as to whether to accept a

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

13 internal protected by the evidence code for privilege that

14 extends to settlement agreements which --

15 CHAIRMAN CAFFREY: Which document are you referring to?

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

17 introduce these documents and lay a foundation so we can

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

19 marked.

20 CHAIRMAN CAFFREY: All right.

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

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

23 going to do with it?

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

25 objections are to.

1590

01 CHAIRMAN CAFFREY: Right.

02 MEMBER DEL PIERO: Mr. Chairman.

03 CHAIRMAN CAFFREY: Mr. Del Piero.

04 MEMBER DEL PIERO: My recommendation at this point is

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

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

07 type of intelligible argument on this.

08 CHAIRMAN CAFFREY: You mean after we get them

09 introduced or at least described?

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

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

12 parties an opportunity to review, and they can decide

13 whether or not they have an objection or not.

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

15 Members of the Board.

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

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

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

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

20 them. To at least have some identification of these

21 documents.

22 CHAIRMAN CAFFREY: Mark them. Careful how you describe

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

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

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

1591

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

02 Exhibit 34.

03 MR. DODGE: Which one is 34?

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

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

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

07 Western Lakeview Lodge, attention Bill Banta, and attached

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

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

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

11 Water Resources Control Board Mono Basin Proceeding: The

12 Mono Basin Waterfowl Habitat Restoration Plan and Proposed

13 Conceptual Settlement Agreement. This document has been

14 marked as R-PMBP-34.

15 The second document that I have handed you is a

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

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

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

19 Mono County for the Bridgeport District. He faxed this

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

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

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

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

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

25 into the record today.

1592

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

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

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

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

05 it looks like they are the same document.

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

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

08 that because there are questions being raised of privilege

09 and confidentiality, that it is important that the Board

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

11 certainly relates to what kind of distribution these

12 documents have had.

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

14 at this point, asking that they be marked for

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

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

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

18 document.

19 Would that be possible to ask Mr. Thomas?

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

21 didn't hear your question. I apologize.

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

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

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

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

1593

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

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

03 can deal with it in an inappropriate and adjudicatory

04 setting.

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

06 start again at 10:00.

07 MS. BELLOMO: Thank you.

08 (Break taken.)

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

10 this point, we will hear from the various protesting

11 counsels as regards the two items that were marked.

12 Ms. Cahill, do you wish to begin?

13 MS. CAHILL: Yes.

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

15 respond after they object?

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

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

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

19 taking into consideration what he hears in the next few

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

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

22 Please proceed, Ms. Cahill.

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

24 the documents that have been proffered as an internal

25 Department of Fish and Game memorandum dealing with the

1594

01 settlement agreements. The settlement discussions, both

02 among the parties and within a party deciding whether to

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

04 Code 1152 is the standard statement that there is privilege

05 for settlement discussions.

06 In this particular case, there was further a written

07 stipulation signed by the parties that was filed with this

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

09 related to those settlement negotiations was to be

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

11 authorized to release this document, either by the

12 department or by the other parties to that settlement

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

14 confidentiality that is held by the department.

15 In addition to being concerned with settlement

16 discussions and negotiations, this document gets to the

17 deliberative process of the Department of Fish and Game.

18 The decision of whether to sign this settlement agreement

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

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

21 in reaching his decision.

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

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

24 court determined that mental processes of an administrator

25 in the evidence that he considered in reaching his decision

1595

01 was not discoverable. The theory being that the decision

02 made by an administrative agency stands for itself. All

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

04 reaching that decision is absolutely protected.

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

06 staff cannot be questioned with regard to the decision made

07 ultimately by the agency. This document simply is not

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

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

10 inasmuch as it relates to the settlement agreements and to

11 internal agency decision making, it should not be admitted

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

13 of those copies that have been distributed.

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

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

16 questions regarding their own mental processes in arriving

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

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

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

20 Again, it is apparent this document has left the

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

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

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

24 wholly improper of this Board to take this document into

25 evidence.

1596

01 CHAIRMAN CAFFREY: Thank you, Ms. Cahill.

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

03 have not looked at this document and are generally unaware

04 of what they are.

05 Mr. Birmingham.

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

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

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

09 pursuant to the stipulation that we signed and discussions

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

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

12 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.

13 Mr. Dodge.

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

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

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

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

18 she wants to ask questions critiquing the settlement

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

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

21 memorandum.

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

23 privileged document in order to ask those questions.

24 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.

25 Ms. Scoonover.

1597

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

02 Commission and the Department of Parks and Recreation join

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

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

05 attorney that referenced in this letter that clearly is an

06 attempt to waive attorney-client privilege by an employee

07 who is not able to do so.

08 CHAIRMAN CAFFREY: Thank you, Ms. Scoonover.

09 Mr. Roos-Collins.

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

11 objection.

12 CHAIRMAN CAFFREY: Thank you, sir.

13 Anybody else joining in the objection.

14 Ms. Bellomo, you wish to respond.

15 MS. BELLOMO: Thank you.

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

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

18 exclusively dealing with the settlement agreement and the

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

20 habitat restoration and recommendations that Mr. Thomas

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

22 wildlife biologist in Bishop and Allen Pickard, senior

23 fisheries biologist in Bishop, California.

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

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

1598

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

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

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

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

05 addressing the thought processes of Mr. whatever their

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

07 man has even seen this document, frankly.

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

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

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

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

12 sporting goods store in Bridgeport, California, which means

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

14 interested in waterfowl habitat restoration. There's no

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

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

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

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

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

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

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

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

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

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

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

1599

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

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

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

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

05 the authority to waive the privilege.

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

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

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

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

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

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

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

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

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

15 That concludes my argument.

16 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo.

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

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

19 one point that Ms. Bellomo made?

20 CHAIRMAN CAFFREY: Yes, briefly.

21 MR. BIRMINGHAM: This is a document that clearly

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

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

24 Public Record Act for documents pertaining to litigation.

25 CHAIRMAN CAFFREY: Thank you, sir.

1600

01 (Break taken.)

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

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

04 advice I can.

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

06 ruling.

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

08 proposed settlement agreement that has been discussed in

09 here and has been described as modification of the proposed

10 restoration plans, and, therefore, that settlement is

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

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

13 familiar from a biological standpoint with the subject

14 matter of the agreement, is important evidence for this

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

16 states his opinion.

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

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

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

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

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

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

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

24 final signed memo which is subject to disclosure under the

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

1601

01 here.

02 There is no general exception under the Public Records

03 Act for internal documents. The majority of documents that

04 are generated within this Board are internal documents and

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

06 would apply to the Department of Fish and Game.

07 The stipulation between the parties on the issue of

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

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

10 come across the document from the Department of Fish and

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

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

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

14 to maintain the confidentiality of the document.

15 We are not interested in the mental processes of the

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

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

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

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

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

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

22 think it is admissible.

23 Evidence Code Section 1152, which was mentioned, does

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

25 liability and offers to compromise in settling liability

1602

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

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

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

04 receiving that evidence would not be in accord with the

05 policy of the Public Records Act.

06 Excluding the document would result in an anomaly

07 situation of everybody else in the state who is interested

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

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

10 information in that document. Any privilege that may once

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

12 could have legitimately been claimed anyway. But, I

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

14 however that occurred, through the Department of Fish and

15 Game.

16 The notion that the document should be excluded because

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

18 that argument with regard to almost every document in this

19 proceeding since this proceeding has been subject to appeal

20 and so forth.

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

22 to litigation, excepts it from being admitted into the

23 administrative proceeding. I think the document is

24 admissible, Mr. Chairman.

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

1603

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

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

03 and we will proceed.

04 Ms. Bellomo, please continue with your questioning,

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

06 we have.

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

08 MS. BELLOMO: Thank you.

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

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

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

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

13 memo prepared by you.

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

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

16 Are they different versions or something?

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

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

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

20 essentially the same document.

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

22 you?

23 MR. THOMAS: Yes.

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

25 MR. THOMAS: Yes.

1604

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

02 essentially similar and work off --

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

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

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

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

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

08 Supervisor Inwood is not signed.

09 MR. FRINK: Mr. Chairman.

10 CHAIRMAN CAFFREY: Yes, Mr. Frink.

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

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

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

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

15 be subject to disclosure under the Public Records Act.

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

17 be better to limit ourselves to admission and discovery and

18 discussion of the final signed document.

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

20 CHAIRMAN CAFFREY: Trusting that the Board Members have

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

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

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

24 that what you are telling me?

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

1605

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

02 that she offer only the final document.

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

04 Thank you.

05 MS. BELLOMO: Thank you.

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

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

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

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

10 Lakeview Lodge fax transmittal sheet.

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

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

13 opinion -- let me rephrase it.

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

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

16 record to be clear on this point?

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

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

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

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

21 was written for his information.

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

23 second full paragraph, you state that pursuant to Decision

24 1631, the parties to the proceeding selected three waterfowl

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

1606

01 sentence where you say:

02 The plan provides a good, but somewhat

03 general set of proposals conceived to attempt

04 habitat restoration, focusing on restored

05 diversity of fresh, brackish wetland habitat

06 required by various waterfowl species.

07 (Reading.)

08 Does that continues to be your opinion today?

09 MR. THOMAS: Yes.

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

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

12 paragraph:

13 The rocky substrates and steep gradient in

14 the lower reaches of Mill Creek cause me to

15 agree with T. Russi, BLM biologist, that

16 little or no ponding or soil formation can be

17 expected in a rewatered Mill Creek.

18 (Reading.)

19 Is that your opinion, sir.

20 MR. THOMAS: Yes.

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

22 I conclude that little restoration of

23 critical refuge habitat will result from

24 rewatering Mill Creek. (Reading.)

25 Is that opinion, sir?

1607

01 MR. THOMAS: Yes.

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

03 beginning of the last paragraph, you refer to political

04 pressures that resulted in the inclusion of the rewatering

05 of Mill Creek as plans second priority restoration measures,

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

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

08 Dr. Stine.

09 Who is the scientist that you were referring to?

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

11 was Tom Ratcliff.

12 MS. BELLOMO: Do you --

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

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

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

16 that.

17 MS. BELLOMO: Thank you.

18 Did Mr. Stein tell you that as well?

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

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

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

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

23 paragraph:

24 However, a number of qualified biologists and

25 local citizens are convinced that this

1608

01 measure will provide little in terms of

02 increased habitat for substantial numbers of

03 ducks. (Reading.)

04 Are you referring to restoring the diverted flows of

05 Mill Creek?

06 MR. THOMAS: Yes.

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

08 that.

09 Is it in your capacity as the local field biologist

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

11 opinion on this point?

12 MR. THOMAS: That's correct.

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

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

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

16 waterfowl managers from around the state that work on our

17 Fish and Game wildlife areas.

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

19 individuals, please?

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

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

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

23 body and fresh water marshes adjacent. I believe I

24 discussed this with Pete Blake who manages our Upper Butte

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

1609

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

02 office.

03 MS. BELLOMO: In Sacramento?

04 MR. THOMAS: Yes.

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

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

07 that we just read?

08 MR. THOMAS: In general terms, yes.

09 MS. BELLOMO: You go on to say:

10 Based on my experience with ducks and their

11 habitats, I share this conviction.

12 (Reading.)

13 Does that continue to be your opinion?

14 MR. THOMAS: Yes.

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

16 public opposition to the proposals to restore diverted flows

17 to Mill Creek makes it uncertain whether implementation of

18 the measure will actually occur or would actually occur?

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

20 the first full paragraph on Page 3.

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

22 uncertain if the project will be completed, yes.

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

24 you testified yesterday, that you are desirous to see

25 waterfowl habitat restoration actually occur in Mono Basin?

1610

01 MR. THOMAS: Yes.

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

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

04 paragraph.

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

06 the last full paragraph, you state:

07 My conviction is that much more could be done

08 for water bird habitat for much less money if

09 other projects were chosen. (Reading.)

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

11 much more than could be done with restoring the diverted

12 flows of Mill Creek?

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

14 sentence refers to much more in terms of habitat capacity

15 for numbers of ducks.

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

17 today?

18 MR. THOMAS: Yes.

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

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

21 The result is, in my opinion, a conceptual

22 settlement agreement which fails to include

23 language assuring effective waterfowl habitat

24 restoration. (Reading.)

25 Does that continue to be your opinion today?

1611

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

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

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

04 proposed to the Board that relates to stream and fishery

05 restoration?

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

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

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

09 criticism in this memorandum relates to the portion of the

10 settlement that pertains to waterfowl habitat restoration;

11 is that correct?

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

13 limited to the waterfowl portion.

14 MS. BELLOMO: Thank you.

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

16 4:

17 I must emphasize that excellent opportunities

18 exist to provide habitat for large numbers of

19 ducks, such as existed before the effects of

20 diversion in the Eastern Sierra. (Reading.)

21 Do you continue to believe that statement?

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

23 yesterday, as well.

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

25 expert, that a monetary settlement, lacking firmly stated

1612

01 project goals and assured implementation, is not the

02 appropriate remedy for the documented damage to fish,

03 wildlife, and other public trust resources of California?

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

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

06 stated degree of restoration is the appropriate settlement

07 avenue.

08 MS. BELLOMO: Thank you.

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

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

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

12 flaws of the conceptual agreement? This would be numbers

13 one through nine.

14 You need to answer audibly.

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

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

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

18 quote-unquote, flaws in the conceptual agreement?

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

20 portion.

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

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

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

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

25 Board.

1613

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

02 performance standard of any project proposal is stated or

03 implied.

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

05 agreement on waterfowl habitat restoration?

06 MR. THOMAS: I do.

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

08 specified schedule of implementation for any habitat

09 restoration proposal.

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

11 conceptual agreement?

12 MR. THOMAS: I do.

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

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

15 specified scheduled implementation for restoration

16 proposals?

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

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

19 discussed the current high population levels of ducks in the

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

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

22 newly recreated habitat because of the abundance of birds in

23 the flyway at present.

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

25 time I have left?

1614

01 MR. JOHNS: Eighteen minutes.

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

03 state that, additionally, the lack of stated restoration

04 goals in the settlement language renders the monitoring

05 program pointless. No monitoring program can reveal success

06 or failure of effort with no restoration objective or target

07 exists.

08 Does that continue to be your opinion?

09 MR. THOMAS: Yes.

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

11 provision for adaptive management in response to monitoring

12 results.

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

14 conceptual agreement?

15 MR. THOMAS: Yes.

16 MS. BELLOMO: Retract what sounded like the beginning

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

18 4, you state that:

19 Layers of bureaucracy -- (Reading.)

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

21 if I may.

22 MS. BELLOMO: Please do.

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

24 allows for adaptive management. I see no provision assuring

25 any implementation.

1615

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

02 preferable to have some adaptive management be assured that

03 that occur in whatever the Board adopts?

04 MR. THOMAS: That is my opinion.

05 MS. BELLOMO: Thank you.

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

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

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

09 implementation the program.

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

11 aspect of the conceptual agreement?

12 MR. THOMAS: I do.

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

14 paragraph, you state there is substantial disagreement among

15 the parties regarding restoration projects.

16 Does it continue to be your opinion that there is

17 substantial disagreement among the parties regarding the

18 restoration projects?

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

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

21 critique two other points that you find in the conceptual

22 agreement that leave other aspects uncertain. A pertains to

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

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

25 can be added by a vote at any time.

1616

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

02 agreement?

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

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

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

06 nature of restoration, if restoration could be conducted in

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

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

09 R-PMBP-34 --

10 MR. THOMAS: Where are we?

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

12 You state in the middle of that paragraph:

13 I submit that a reasoned approach is to

14 analyze the restoration of waterfowl habitat

15 in the North Basin. Rewatering Mill Creek

16 logically then would be one of several

17 reasonable alternatives objectively analyzed.

18 (Reading.)

19 Does that continue to be your opinion today?

20 MR. THOMAS: Yes.

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

22 Page 5. You state:

23 A conceptual agreement language creates a

24 barrier to conducting restoration programs

25 outside the basin. (Reading.)

1617

01 Do you continue to hold that opinion?

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

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

04 be very important, are allowed by the conceptual agreement

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

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

07 says in ten years it would be considered restoration in

08 other areas?

09 MR. THOMAS: Yes.

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

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

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

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

14 barrier to conducting restoration programs outside the

15 basin?

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

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

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

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

20 successful, I believe the option to do waterfowl restoration

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

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

23 is in Mono Basin or down Crowley.

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

25 approach that you have testified as being important?

1618

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

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

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

04 jurisdiction of the El Dorado County Superior Court and

05 effectively removing outside oversight of performance.

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

07 that concern you?

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

09 either.

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

11 MR. THOMAS: I am not an attorney.

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

13 opinion on the extent of the El Dorado County Superior

14 Court's jurisdiction.

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

16 admissible document.

17 MR. FRINK: Got me there, Tom.

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

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

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

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

22 the implementation of the Waterfowl Habitat Restoration

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

24 needed in order to implement that plan.

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

1619

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

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

03 I also want to describe what I see as a

04 reasonable, meaningful and cost-effective

05 waterfowl restoration program. (Reading.)

06 Do you see where I am reading from?

07 MR. THOMAS: Yes.

08 MS. BELLOMO: You go on to state:

09 Much of what follows was developed with input

10 from Tom Ratcliff, one of the three

11 scientists who developed the waterfowl plan

12 pursuant to Decision 1631.

13 (Reading.)

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

15 When did you receive the input from Tom Ratcliff that

16 you were referring to?

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

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

19 MS. BELLOMO: It was sometime after the proposed

20 settlement and conceptual agreement had become public

21 documents, that it had filed with the Board?

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

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

24 laboring under some misconceptions about what is public and

25 what is not.

1620

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

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

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

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

05 probably close to that date.

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

07 go through the list of recommendations that you developed

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

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

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

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

12 continues to agree that those are recommendations that he

13 support.

14 MS. BELLOMO: That would be fine.

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

16 recommendations, or I believe these to be reasonable

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

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

19 point. It was part of our discussion.

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

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

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

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

24 did discuss with Mr. Ratcliff?

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

1621

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

02 was a long conversation and I am not sure.

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

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

05 objective is to restore and maintain shallow, fresh or

06 brackish open water ponding to restore diversity?

07 MR. THOMAS: We did discuss that.

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

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

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

11 areas reduce the diversity of wetland habitat?

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

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

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

15 recommend that the monitoring program be specified in

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

17 recall?

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

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

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

21 offer these into evidence or wait until the staff asks

22 questions?

23 CHAIRMAN CAFFREY: I think we have to go potential

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

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

1622

01 time.

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

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

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

05 still your desire?

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

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

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

09 with the City of Los Angeles.

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

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

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

13 our rules, you are entitled to an hour for

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

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

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

17 MR. BIRMINGHAM: Fifteen minutes.

18 CHAIRMAN CAFFREY: I realize it depends on the length

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

20 CROSS-EXAMINATION BY

21 LOS ANGELES DEPARTMENT OF WATER AND POWER

22 BY MR. BIRMINGHAM

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

24 Thomas. Did you distribute this memorandum to anyone

25 outside the Department of Fish and Game?

1623

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

02 and to Mr. Inwood.

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

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

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

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

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

08 members of the public over there.

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

10 of the Exhibit 34. It says:

11 In addition, the El Dorado County Superior

12 Court also retains jurisdiction to further

13 insure performance. (Reading.)

14 Is it your view that the State Water Resources Control

15 Board is incapable of assuring performance?

16 MR. THOMAS: No, it is not.

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

18 Superior Court needs to retain jurisdiction in order to

19 assure performance?

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

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

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

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

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

25 My conviction is that much more could be done

1624

01 for water bird habitat for much less money if

02 other projects were chosen. (Reading.)

03 Is that correct?

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

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

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

07 numbers of ducks?

08 MR. THOMAS: Correct.

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

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

11 could implement waterfowl habitat restoration to satisfy its

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

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

14 CHAIRMAN CAFFREY: I not sure that is a legal

15 conclusion.

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

17 MR. BIRMINGHAM: I will withdraw the question.

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

19 you for rescuing me. Please go ahead.

20 MR. BIRMINGHAM: You say --

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

22 going rephrase the question?

23 CHAIRMAN CAFFREY: I assumed you were.

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

25 the answer to the question.

1625

01 CHAIRMAN CAFFREY: At least one.

02 MEMBER DEL PIERO: Be creative.

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

04 questions.

05 MEMBER DEL PIERO: Okay.

06 MR. BIRMINGHAM: You said that the clarification was

07 that much more habitat capacity could be created for numbers

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

09 MR. THOMAS: Correct.

10 MR. BIRMINGHAM: Projects other than rewatering Mill

11 Creek?

12 MR. THOMAS: That was my meaning.

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

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

15 Mill Creek is going to be rewatered?

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

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

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

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

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

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

22 correct?

23 MR. THOMAS: Understand that to be true.

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

25 have been involved in the review of environmental impact

1626

01 reports; is that correct?

02 MR. THOMAS: Yes, I have.

03 MR. BIRMINGHAM: Have you been involved in the

04 preparation of environmental impact reports?

05 MR. THOMAS: No.

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

07 the review of environmental impact reports prepared under

08 CEQA, that feasible alternatives to a proposed project are

09 considered as part of the review?

10 MR. THOMAS: Yes.

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

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

13 studied under the CEQA process, that other alternatives

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

15 correct?

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

17 experience with CEQA documents, yes.

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

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

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

21 settlement agreement might identify and choose other

22 projects; is that right?

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

24 pursuant to the settlement agreement or whatever plan is

25 adopted by the Board, that that CEQA process would

1627

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

02 alternative, I should say.

03 MR. BIRMINGHAM: It is your conviction that those

04 reasonable range of projects could be implemented for less

05 than $3.6 million?

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

07 important types of water bird habitat could be created

08 utilizing projects other than Mill Creek, yes.

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

10 $3.6 million?

11 MR. THOMAS: Yes.

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

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

14 the document concerning your view that a monetary settlement

15 is not the appropriate remedy for the documented damage to

16 fish, wildlife, and other public trust resources of

17 California.

18 Do you recall her asking you that question?

19 MR. THOMAS: Yes.

20 MR. BIRMINGHAM: The settlement agreement involves

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

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

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

24 CHAIRMAN CAFFREY: Certainly.

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

1628

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

02 MR. THOMAS: I do.

03 MS. BELLOMO: Do you have both documents?

04 MR. THOMAS: I have the waterfowl portion.

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

06 MR. THOMAS: Thank you.

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

08 restate the question.

09 The settlement agreement contains more than a monetary

10 settlement, doesn't it?

11 MR. THOMAS: Yes. The settlement agreement contains

12 monitoring and some allowance for possibility of waterfowl

13 habitat.

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

15 wildlife and other public trust resources. The settlement

16 agreement deals with fish restoration in a particular way.

17 Isn't that correct?

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

19 writing this document, I would take the word "fish" out of

20 there because I did not review the stream plans. That is

21 not my expertise.

22 MR. BIRMINGHAM: If you were rewriting this document,

23 this document refers to R-PBMP-34, you would delete

24 references to fish?

25 MR. THOMAS: Yes. Again, this document was for the

1629

01 purpose of explaining this complex process to my superior

02 and was never intended to be here under this situation.

03 MR. BIRMINGHAM: I appreciate that. We didn't intend

04 it to be here, either.

05 But let's focus, if we can, for a moment on the

06 waterfowl habitat restoration. The settlement agreement, in

07 fact, involves more than the payment of money by DWP,

08 doesn't it, for waterfowl?

09 MR. THOMAS: That is true.

10 MR. BIRMINGHAM: In fact, the settlement agreement with

11 respect to waterfowl says that the Department of Water and

12 Power is going to implement the recommendations of the three

13 scientists in terms of creating waterfowl habitat on Rush

14 Creek; isn't that correct?

15 MR. THOMAS: Maybe I can shorten this. I concede that

16 settlement agreement, as written, contains some important

17 general aspects and provides something of a template for

18 waterfowl restoration. I still believe that there are

19 serious flaws.

20 MR. BIRMINGHAM: Let me see if I can make the point

21 that I am trying to make.

22 Your memo, if read by itself, leaves an individual with

23 the impression that, with respect to restoring waterfowl

24 habitat, all the Department of Water and Power is going to

25 do is pay $3.6 million and walk away from the

1630

01 responsibility.

02 MS. BELLOMO: Objection. I think the question is

03 argument and also Mr. Birmingham is testifying.

04 CHAIRMAN CAFFREY: I don't know if it is even a

05 question yet. I just heard the statement part of it. I

06 don't know how it is going to conclude. But I will note

07 your objection and let me hear the rest of the question.

08 MR. BIRMINGHAM: Isn't it correct, Mr. Thomas, that

09 with respect to waterfowl habitat restoration the Department

10 of Water and Power, under the settlement agreement, is

11 expected to do more than merely pay $3.6 million?

12 CHAIRMAN CAFFREY: I am going to overrule the

13 objection because I think that is all one question, is it

14 not? All right.

15 MR. THOMAS: Yes. And I would clarify that I believe

16 my understanding, the settlement agreement reads that the

17 one project that would be undertaken by DWP is rewatering of

18 the distributaries in Rush Creek, I believe. And if there

19 are other requirements of DWP, then I am not aware of them.

20 MR. BIRMINGHAM: In fact, the Waterfowl Habitat

21 Restoration Plan, is in evidence as LADWP-20, contains a

22 proposal, does it not, that the channels on Rush Creek be

23 reopened for purpose of waterfowl habitat restoration?

24 MR. THOMAS: Yes.

25 MR. BIRMINGHAM: The settlement agreement provides that

1631

01 the Department of Water and Power will implement that

02 recommendation, does it not?

03 MR. THOMAS: Can you point to me that stipulation in

04 the conceptual agreement?

05 MR. BIRMINGHAM: The settlement agreement, I am looking

06 at R-PMBP-38, Page 12, Paragraph 3 (a) (1).

07 MR. THOMAS: Is that this one?

08 MR. BIRMINGHAM: Yes. Page 12, Paragraph 3 (a) (1).

09 Does it state on that page that the Department of Water

10 and Power will carry out the following activities with

11 respect to Waterfowl Plan; number one, reopen Rush Creek

12 channels?

13 MR. THOMAS: Yes, it does. I also believe that a goal

14 statement to provide an assurance of some degree of

15 restoration is an important aspect that is lacking, in terms

16 of acreage or linear channel to be restored or some goal.

17 MR. DODGE: Move to strike everything after, "yes,"

18 nonresponsive.

19 MR. BIRMINGHAM: I would join in that request.

20 CHAIRMAN CAFFREY: I will overrule it.

21 MR. BIRMINGHAM: Mr. Thomas, doesn't the Waterfowl

22 Habitat Restoration Plan that has been prepared by the

23 Department of Water and Power, R-LADWP-20, contain

24 monitoring that will assure that the channels on Rush Creek

25 are, indeed, open for waterfowl habitat restoration?

1632

01 MR. THOMAS: I am unaware of monitoring that will

02 assure that to happen.

03 MR. BIRMINGHAM: I would like to go to Page 12,

04 Paragraph 3 (a) (2).

05 Does the settlement agreement provide that upon the

06 recommendation of the Mono Basin waterfowl habitat

07 restoration that the Department of Water and Power will use

08 its Mill Creek water rights for waterfowl habitat

09 restoration pursuant to Water Code Section 1243 and will

10 petition the State Water Resource Control Board for a change

11 in purpose of use pursuant to Section 1707?

12 MR. THOMAS: Yes, it does. And as stated in the

13 waterfowl plan, that is an insufficient amount of water to

14 substantially restore waterfowl habitat.

15 MR. DODGE: Move to strike everything after "yes" as

16 nonresponsive.

17 CHAIRMAN CAFFREY: I am not going to strike it, but I

18 am going to ask the witness to please be responsive to the

19 question and try not to ad lib and be argumentative.

20 Thank you, sir.

21 MR. BIRMINGHAM: Mr. Thomas, following up on your last

22 answer, doesn't the settlement agreement and Exhibit 68A

23 contemplate that the provision of additional water, water in

24 addition to the water described in Paragraph 3 (a) (2) will

25 be considered as a proposal for the restoration of waterfowl

1633

01 habitat?

02 MS. BELLOMO: Chairman Caffrey, I object. I believe

03 that question calls for the witness to speculate about the

04 intent of the parties to the agreement. I don't know how he

05 can know what a document contemplates. That implies that

06 the parties have some understanding of what is supposed to

07 happen and limited to what is on the face of the document

08 unless he can tell us what he has heard the parties say that

09 they intend.

10 MR. BIRMINGHAM: Let me restate the question.

11 CHAIRMAN CAFFREY: Please do, Mr. Birmingham.

12 MR. FRINK: Mr. Chairman, I wonder if one way of

13 speeding this up is to recognize that the document provides

14 for what the document provides for, and having Mr. Thomas

15 acknowledge what the document provides for doesn't change

16 what is in the document.

17 MR. BIRMINGHAM: Mr. Frink is absolutely correct. But

18 what I am attempting to inquire into is the basis of the

19 opinions that have been expressed by Mr. Thomas in

20 R-PMBP-34. We have already established that Mr. Thomas

21 would modify the document if he were to rewrite it today.

22 When it makes reference to fish, he would modify the

23 document to eliminate references to the retention of

24 jurisdiction by the El Dorado County Superior Court. And I

25 think I am entitled to inquire into Mr. Thomas'

1634

01 understanding of the documents because it certainly relates

02 to the foundation of the opinions expressed in the memo that

03 he drafted, Exhibit 34.

04 CHAIRMAN CAFFREY: I am going to allow you to continue

05 with that line of questioning. I am also going to tell the

06 witness that this is a continuation of what I mentioned

07 before, Mr. Thomas. Your attorney has, certainly, the right

08 to ask you pertinent questions with regard to this line of

09 reasoning and just to her right to redirect. So you don't

10 have to try and become your own lawyer.

11 All right. Please proceed, Mr. Birmingham.

12 MR. BIRMINGHAM: Let me go back. I asked you a

13 question about the dedication of the City's water rights on

14 Mill Creek for the waterfowl restoration purposes, and you

15 said the agreement does provide for that, but that is

16 inadequate water for waterfowl habitat restoration.

17 That is what your response was; is that right?

18 MR. THOMAS: Yes, it was, and I based that on the

19 Waterfowl Plan.

20 MR. BIRMINGHAM: Isn't it right, Mr. Thomas, that

21 Exhibit 68A, Page 3, provides that among the projects that

22 will be studied is providing additional water, water in

23 addition to LADWP's water to Mill Creek for waterfowl

24 habitat restoration?

25 MR. THOMAS: I believe that is true.

1635

01 MR. BIRMINGHAM: And yesterday when answering questions

02 for Ms. Bellomo, you stated that among the things that you

03 would like to see done is continuation of the monitoring of

04 brine shrimp and alkali flies as part of the waterfowl

05 habitat restoration programs.

06 Do you recall saying that?

07 MR. THOMAS: I don't believe continuing is accurate. I

08 believe there has been no recent monitoring of those

09 species. But I certainly support monitoring of those

10 species.

11 MR. BIRMINGHAM: Does the settlement agreement provide

12 that the City of Los Angeles will continue the limitilogical

13 monitoring for a period until ten years after Mono Lake

14 reaches a transition level of 6392 feet?

15 MR. THOMAS: Yes.

16 MR. BIRMINGHAM: So, the Department of Water and Power,

17 it is your understanding, will continue to monitor brine

18 shrimp in Mono Lake?

19 MR. THOMAS: But not brine flies, I believe.

20 MR. BIRMINGHAM: Doesn't the settlement agreement

21 contemplate, here I am referring to LADWP Exhibit 68, that

22 lake productivity, including alkali pond monitoring will be

23 conducted? I am looking at Page 2, Paragraph A.

24 MR. THOMAS: Yes.

25 MR. BIRMINGHAM: So, the settlement agreement, with

1636

01 respect to waterfowl habitat restoration, provides that the

02 Los Angeles Department of Water and Power will do more than

03 merely pay $3.6 million; isn't that correct?

04 MR. THOMAS: That's correct.

05 MR. BIRMINGHAM: One of the flaws is a term I believe

06 that you used. Mr. Thomas, in preparing Exhibit 34, one of

07 the flaws that you have identified, here I am looking at

08 Page 5, Paragraph 7, is that the language of the conceptual

09 agreement presupposes a water allocation to Mill Creek.

10 Then you go to state:

11 I suggest that the objective CEQA analysis,

12 impact analysis, could determine what water

13 now in Wilson drainage is to remain there. I

14 submit that reasoned approach is to analyze

15 the restoration of waterfowl habitat in the

16 North Basin, the rewatering of Mill Creek,

17 logically, then would be one of the several

18 "reasonable alternatives" objectively

19 analyzed. (Reading.)

20 Is that what you wrote?

21 MR. THOMAS: Yes, it is.

22 MR. BIRMINGHAM: Isn't it your understanding, Mr.

23 Thomas, that the settlement agreement, LADWP-68A, provides

24 for the precise process which you have described in

25 Paragraph 7?

1637

01 MR. THOMAS: My concern with this language in the

02 settlement agreement, at the bottom of Page 3, which could

03 be interpreted, to determine the appropriate water

04 allocation. I read that as -- that the -- it could be

05 interpreted that the preconceived decision that, A, an

06 appropriate water allocation for waterfowl in Mill Creek,

07 which is the subject of this paragraph, is the focus.

08 MR. BIRMINGHAM: May I ask for an instruction that the

09 witness answer my question.

10 CHAIRMAN CAFFREY: I believe he -- does it lead to a

11 yes or no answer?

12 MR. THOMAS: I will try. Could I hear the question

13 again?

14 MR. BIRMINGHAM: Why don't you repeat it.

15 (Record read as requested.)

16 MR. THOMAS: I don't believe so, no.

17 MR. BIRMINGHAM: Isn't it correct, in the process as

18 described on Page 3, Paragraph (c) of LA-68A that the CEQA

19 process could lead to a determination concerning water

20 allocation between Wilson and Mill Creek be maintained, the

21 status quo be maintained?

22 MR. THOMAS: Yes. I believe that is implied.

23 MR. BIRMINGHAM: It is implied that the status quo be

24 maintained?

25 MR. THOMAS: It is implied that the CEQA process will

1638

01 determine that decision.

02 MR. BIRMINGHAM: Isn't that the process which you

03 described in Paragraph 7 on Page 5 of R-PMBP-34?

04 MR. THOMAS: Not quite.

05 MR. BIRMINGHAM: Mr. Turner, I have just one question

06 for you.

07 Can you tell me what the position of the Department of

08 Fish and Game is concerning what the State Water Resources

09 Control Board should do in modifying the restoration

10 proposal submitted by the Department of Water and Power as a

11 result of these proceedings?

12 MR. TURNER: My opinion right now is that the

13 settlement submittals that have been introduced to this

14 proceeding, we're in support of and we recommend the Board

15 implement them. And I am sure that the Board is going to

16 continue its jurisdiction over them in terms of making sure

17 that the job gets done.

18 MR. BIRMINGHAM: Thank you very much.

19 MR. TURNER: Can I make one more remark, going back to

20 the testimony?

21 CHAIRMAN CAFFREY: Were you answering a question or

22 testifying?

23 MR. BIRMINGHAM: Do you have any additional remarks,

24 Mr. Turner?

25 MR. TURNER: I have one.

1639

01 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.

02 MR. BIRMINGHAM: About the subject at hand?

03 MR. TURNER: I would like to formally apologize for an

04 off-color remark that was made on the telephone to Ms.

05 Bellomo about the Mono Lake Committee dealing with the full

06 employment from this restoration process. I believe the

07 funds are being put in an escrow account that is neutral.

08 It is not for their personal use. I am personally

09 embarrassed that that got thrown back at me. It tells me

10 that I should choose my words more wisely. So please accept

11 my apologies, particularly Martha Davis, for making that

12 off-color remark and to Bruce Dodge, also.

13 CHAIRMAN CAFFREY: Thank you for that clarification.

14 MR. BIRMINGHAM: Mr. Turner, you and I have something

15 in common. I, too, have often made off-color remarks about

16 the Mono Lake Committee.

17 CHAIRMAN CAFFREY: Probably about this Board.

18 Thank you, Mr. Birmingham.

19 Proceeding down the list, I will just call off in the

20 order.

21 Is there anybody from United States Forest Service

22 wishing to cross-examine?

23 Anyone from Bureau of Land Management?

24 Arcularius Ranch?

25 Richard Ridenhour?

1640

01 Cal Trout?

02 MR. ROOS-COLLINS: Yes, Mr. Chairman.

03 CHAIRMAN CAFFREY: Good morning, sir. As late in the

04 morning as it is, you finally get your opportunity. Again,

05 any estimate -- you have up to an hour, of course. But do

06 you have an estimate of how much time you think you are

07 going to need, Mr. Roos-Collins, for your cross?

08 MR. ROOS-COLLINS: Not more than ten minutes, and Mr.

09 Johns is welcome to ring the bell within that time.

10 CHAIRMAN CAFFREY: We are not holding you. It is just

11 a guideline. We appreciate your estimate.

12 Thank you, sir.

13 CROSS-EXAMINATION BY

14 CALIFORNIA TROUT

15 BY MR. ROOS-COLLINS

16 MR. ROOS-COLLINS: Mr. Thomas, I have a few questions

17 for you regarding the requirements of the settlement

18 agreement that DWP will reopen the Rush Creek channels.

19 Do you have DWP's Waterfowl Plan in front of you?

20 MR. THOMAS: Yes I do.

21 MR. ROOS-COLLINS: Would you please turn to Page 22?

22 Does Page 22 describe DWP's plan to reopen Rush Creek

23 channels?

24 MR. THOMAS: Yes, it does. In fact, I see a note here

25 in my hand that has a big red "good" beside that section.

1641

01 MR. ROOS-COLLINS: You understand that these channels

02 are below the narrows on Rush Creek?

03 MR. THOMAS: I understand that.

04 MR. ROOS-COLLINS: You understand that these channels

05 are in the Rush Creek bottomlands?

06 MR. THOMAS: Yes.

07 MR. ROOS-COLLINS: Now, in response to a question by

08 Mr. Birmingham you testified, I believe, that this

09 commitment does not have a quantified goal or performance

10 standard. Was that your testimony?

11 MR. THOMAS: That is what I said.

12 MR. ROOS-COLLINS: Are you familiar with DWP Exhibit

13 68B?

14 MR. THOMAS: I am afraid that I am not up on those

15 numbers.

16 MR. ROOS-COLLINS: Stating termination criteria for

17 Rush Creek and Lee Vining Creeks?

18 MR. THOMAS: I am afraid I am not with you on that

19 one. I have to get on same page with you.

20 MR. ROOS-COLLINS: Mr. Thomas, I am showing you now

21 LA-68B, Page 3, which is entitled Riparian Vegetation

22 Termination Criteria. Please review that page and then I

23 will continue with questioning when you are done.

24 MR. THOMAS: I have seen this. My review of this has

25 been cursory, I would say.

1642

01 MR. ROOS-COLLINS: Let me read from the settlement

02 agreement, DWP 68, Page 8, which provides that the

03 termination criteria for the Stream Monitoring Plan will be

04 as follows:

05 Point 1, the criteria will describe the

06 qualities which exist in the stream, subject

07 to D-1631 before DWP caused degradation to

08 these streams. For the purpose of the

09 settlement agreement those qualities are

10 preproject conditions. (Reading.)

11 Is it your understanding that the DWP-68B, Page 3,

12 states a termination criteria for riparian vegetation on

13 Rush Creek?

14 MR. THOMAS: Yes.

15 MR. ROOS-COLLINS: Is it your understanding that the

16 page which we are discussing states the acreage of riparian

17 vegetation which existed in each reach of Rush Creek before

18 DWP began diversions in 1941?

19 MR. THOMAS: Yes.

20 MR. ROOS-COLLINS: Is Reach 4 the bottomlands of Rush

21 Creek?

22 MR. THOMAS: Yes.

23 MR. ROOS-COLLINS: Does Page 3 of DWP Exhibit 68B state

24 acreage of riparian vegetation for Reach 4?

25 MR. THOMAS: Yes, it does.

1643

01 MR. ROOS-COLLINS: Is that acreage a quantified goal or

02 performance standard?

03 MR. THOMAS: Yes, it is.

04 MR. ROOS-COLLINS: Return now to PMBP-34, Page 4. You

05 discuss other flaws of the settlement agreement,

06 specifically the waterfowl portion of that settlement

07 agreement.

08 Flaw number two is that there is no specified schedule

09 of implementation for any habitat restoration proposal; is

10 that correct?

11 MR. THOMAS: That's correct.

12 MR. ROOS-COLLINS: Does the waterfowl restoration plan

13 submitted by Los Angeles contain a schedule of

14 implementation for reopening of the Rush Creek Channels in

15 the bottomlands?

16 MR. THOMAS: I didn't see any dates given.

17 MR. ROOS-COLLINS: I ask that you review the section

18 entitled "Implementation Schedule."

19 MR. THOMAS: There is an effort at scheduling for this

20 project. I see nine channels in the first year. I see

21 reference to the course of two or more years.

22 MR. ROOS-COLLINS: Thank you.

23 Finally, the fourth flaw that you identified is that

24 the monitoring program has merits, but lacks detail needed

25 to review cost procedures and purpose. Does the waterfowl

1644

01 plan submitted by DWP estimate the cost of reopening Rush

02 Creek Channels?

03 MR. THOMAS: I don't believe that refers to

04 monitoring.

05 MR. ROOS-COLLINS: I understand.

06 Thank you very much. No further questions.

07 CHAIRMAN CAFFREY: Thank you very much, Mr.

08 Roos-Collins.

09 Department of Fish and Game. Ms. Cahill, do you wish

10 to?

11 MS. CAHILL: Yes, I do. Thank you.

12 CROSS-EXAMINATION BY

13 DEPARTMENT OF FISH AND GAME

14 BY MS. CAHILL

15 MS. CAHILL: I have just a couple quick questions for

16 you, first Mr. Turner.

17 Mr. Turner, is it accurate to say that the Department

18 of Fish and Game relied entirely on Ron Thomas in

19 determining appropriate actions with regard to waterfowl

20 habitat restoration?

21 MR. TURNER: I think we relied heavily on Ron. I was

22 trying to think who else we were talking to.

23 MS. CAHILL: Was there input, for example, from other

24 biologists such as Gary Smith and regional people?

25 MR. TURNER: I think Gary had some opinions when we got

1645

01 into the aquatic issues. Primarily split between Ron doing

02 the waterfowl and Gary doing the aquatic stream.

03 MS. CAHILL: Were the department representatives and

04 their attorneys familiar with the evidence that was

05 presented in this case, including testimony of other experts

06 such as Dr. Fritz Reid?

07 MR. TURNER: Yes.

08 MS. CAHILL: With regard to the Joe Keating project,

09 does Joe Keating still have a license for the Paoha Project?

10 MR. TURNER: I am not even sure about that. He tried

11 to originally do that project in '82 and then he tried again

12 in about '92, and I don't what the status of that project

13 is.

14 MS. CAHILL: I need to find my notes.

15 MEMBER DEL PIERO: We can call Andy Sawyer, and he can

16 tell us all about Mr. Keating.

17 MR. TURNER: I know Mr. Keating is still active in

18 Placerville. He hasn't given up on some of these projects,

19 but I don't know what the status of that one is.

20 MEMBER DEL PIERO: I have to apologize for that.

21 MS. CAHILL: Mr. Turner, with respect to Fish and Game

22 Code Section 5937, it requires that fish be kept in good

23 condition in Mill Creek below Lundy Dam?

24 MR. TURNER: I would say the answer to that is yes.

25 MS. CAHILL: Has the Department of Fish and Game done a

1646

01 stream evaluation report for Mill Creek that provides

02 recommended flows for keeping the fish in good condition?

03 MR. TURNER: Yes, they have.

04 MS. CAHILL: In your opinion, is there sufficient

05 water in the Mill-Wilson system to provide the flows that

06 would be needed to keep the fish in good condition in both

07 Mill and Wilson Creeks?

08 MR. TURNER: I think the short answer to that is,

09 probably no. I would like to qualify the question a little

10 -- qualify the answer a little bit, though. We have

11 completed the project in terms of Mill Creek and making a

12 determination what the instream flow needs would be for Mill

13 Creek, if we were just dealing with Mill Creek.

14 We also did a project for Wilson Creek and the data has

15 been collected. We are still in the middle of doing an

16 analysis, putting together a final report. That report will

17 talk about Wilson Creek. But neither report is an attempt

18 to try to compare one against the other.

19 MS. CAHILL: Would you expect that the environmental

20 document that is proposed under waterfowl conceptual

21 agreement would deal with these issues?

22 MR. TURNER: Yes, I do. And I think it is really

23 critical that both the Wilson and Mill reports get utilized

24 in putting that environmental document together.

25 MS. CAHILL: And you believe --

1647

01 MR. TURNER: Can I make one more -- I would also like

02 to say that there has been some indications, and I am not

03 the expert for this in terms of having seen this, but there

04 are fish kill and there are times when both of those rivers

05 at least partially are dry. And I think that is an

06 indication that running both of those rivers and trying to

07 optimize conditions both for aquatic and waterfowl is a very

08 difficult thing to do. There is going to be a need for

09 doing some really hard choices on that water.

10 MS. CAHILL: Mr. Thomas, in your testimony that you

11 went over yesterday, in Paragraph 12, you state that:

12 Taken in their entirety, the recommendations

13 of the scientists' restoration plan would

14 provide substantial waterfowl habitat

15 restoration. (Reading.)

16 That is still your opinion, is it not?

17 MR. THOMAS: Yes, it is.

18 MS. CAHILL: In the document that was just submitted

19 today, R-PMBP-34, when you address a reasonable, meaningful,

20 and cost effective restoration program, the first step is to

21 develop a list of projects described in detail, using the

22 scientists' plan as a template; is that correct?

23 MR. THOMAS: I am not with you on the same page.

24 MS. CAHILL: Page 6, number one, toward the bottom.

25 MR. THOMAS: Yes.

1648

01 MS. CAHILL: Do you believe the scientists' plan was a

02 reasonable plan to use as a template for restoration?

03 MR. THOMAS: Yes.

04 MS. CAHILL: And then let's go to the scientists' plan,

05 which is the attachment to your waterfowl report, and go to

06 Page 111.

07 Isn't it true that the scientists' plan says that their

08 second priority is rewatering Mill Creek, including

09 important distributaries and raising water table in the

10 flood plain to restore riparian marsh, stream, wet meadow

11 and open water ponds and sloughs and to recreate a

12 hypopycnal environment at the mouth of the stream?

13 MR. THOMAS: That is what they say.

14 MS. CAHILL: So, if you were to use the scientists'

15 plan as a template, wouldn't you at least look at this

16 measure?

17 MR. THOMAS: Yes.

18 MS. CAHILL: Doesn't the settlement agreement do that?

19 MR. THOMAS: Yes.

20 MS. CAHILL: And you have testified that it is good to

21 have a diversity of habitats; is that true?

22 MR. THOMAS: That's true.

23 MS. CAHILL: And you stressed the importance of

24 shallow, open water ponds?

25 MR. THOMAS: Yes.

1649

01 MS. CAHILL: Don't you agree, also, that diversity has

02 a value and to restore some riparian, marsh stream, wet

03 meadow, open water ponds, and hypopycnal would also have

04 value?

05 MR. THOMAS: Certainly.

06 MS. CAHILL: On Page 112 of the scientists' report, the

07 next measure is rewatering the important distributaries in

08 Rush Creek below the narrows. I think we have already dealt

09 with that. Isn't it true that the settlement agreement

10 provides that Los Angeles will do that?

11 MR. THOMAS: Yes.

12 MS. CAHILL: The item is DeChambeau Ponds, County

13 Ponds, Black Point restoration complex project. The third

14 item under that is the feasibility of creating one or

15 several shallow ponds near Black Point.

16 Do you favor that?

17 MR. THOMAS: Yes, I do.

18 MS. CAHILL: Is that provided for in the settlement

19 agreement?

20 MR. THOMAS: It is allowed by the settlement

21 agreement.

22 MS. CAHILL: With regard to DeChambeau Ponds, County

23 Ponds, did you listen to the testimony of Fritz Reid?

24 MR. THOMAS: Yes, I did.

25 MS. CAHILL: What was his current position with regard

1650

01 to rewatering the County Ponds?

02 MR. THOMAS: I believe he was talking -- I am not sure.

03 I believe he was talking about artesian flows there, I

04 think.

05 MS. CAHILL: Do you think his position was that he

06 would recommend doing it, but only if there were artesian

07 flows available?

08 MR. THOMAS: Yes.

09 MS. CAHILL: Yesterday, there was a number that floated

10 by. I can't remember if you agreed or not; something to the

11 effect if you create perhaps some shallow ponds for $6,000

12 an acre.

13 MR. THOMAS: I think we referenced that number in from

14 the scientists' plan. I don't have the exact page.

15 MS. CAHILL: That would certainly not be the number for

16 County Ponds, would it?

17 MR. THOMAS: Certainly not.

18 MS. CAHILL: County Ponds would be considerably

19 higher?

20 MR. THOMAS: With Forest Service water running in there

21 now, I am not sure there would be any further cost. All the

22 cost may have already accrued, and so I don't know what

23 further costs there would be in the future.

24 MS. CAHILL: In any event, that would be one of the

25 items that could be considered in the EIR that deals with

1651

01 waterfowl restoration in the context of the waters to Mill

02 and Wilson Creek?

03 MR. THOMAS: I can't speculate of what all the EIR

04 would include, but those projects are already, in fact, in

05 place and functioning. I don't know that the EIR process

06 would need to include projects that are already

07 completed. I expect they could be by then.

08 MS. CAHILL: They could be included as either the

09 existing environment, if they exist, or as a proposed

10 alternative if they don't yet?

11 MR. THOMAS: Yes.

12 MS. CAHILL: And nothing in the settlement agreement

13 would preclude that?

14 MR. THOMAS: No.

15 MS. CAHILL: The next item that the scientists

16 recommend on Page 112 is a prescribed burn plan. I believe

17 that yesterday you testified that you favored a prescribed

18 burn plan; is that correct?

19 MR. THOMAS: That's correct.

20 MS. CAHILL: Does the settlement agreement authorize

21 burns?

22 MR. THOMAS: It allows burns to happen with no stated

23 goals given.

24 MS. CAHILL: Doesn't it say that the small committee of

25 scientists will set goals for each project?

1652

01 MR. THOMAS: Yes, it does.

02 MS. CAHILL: The fifth item on the scientists' list, if

03 you are going to use it as a template, is to investigate

04 the feasibility of enhancing existing artificial ponds near

05 Simons Springs and the creation of one or several shallow

06 ponds in other lake fringing habitats.

07 Does the settlement agreement indicate that one of the

08 items under open water habitat could be investigate the

09 feasibility of creating one or several shallow ponds in

10 similar lake fringing marsh and wet meadow habitats and, if

11 feasible, those projects qualify for funding?

12 MR. THOMAS: That is what it says.

13 MS. CAHILL: Does the settlement agreement allocate

14 $340,000 for restoring, operating, and maintaining open

15 water habitat?

16 MR. THOMAS: Yes.

17 MS. CAHILL: Is there a time frame that -- this is over

18 at least the next ten years?

19 MR. THOMAS: That is what it says.

20 MS. CAHILL: Let me move to the next item, and what you

21 would recommend in a monitoring plan.

22 The second item is, state specific implementation

23 schedules for all proposals. Did the three scientists state

24 specific schedules for all their proposals?

25 MR. THOMAS: No, they did not.

1653

01 MS. CAHILL: Given that the possibility of rewatering

02 Mill Creek will involve an environmental impact report and

03 considerable analysis, is it possible to come up with a

04 specific time?

05 MR. THOMAS: Regarding Mill Creek?

06 MS. CAHILL: Yes.

07 Could you come up with a specific implementation

08 schedule prior to doing that environmental work?

09 MR. THOMAS: No. Nor could you even assure that the

10 project would be done.

11 MS. CAHILL: Is there any way you could, in fact, do a

12 specific implementation schedule at this time when

13 environmental work hasn't been done?

14 MR. THOMAS: For Mill Creek, no.

15 MS. CAHILL: With regard to monitoring, would you agree

16 that most monitoring projects are probably exempt from CEQA?

17 MR. THOMAS: I believe that is true.

18 MS. CAHILL: Does the settlement agreement allocate

19 $410,000 for monitoring over the next ten years and is there

20 a recommended schedule there?

21 MR. THOMAS: I agree with the amount. You will have to

22 help me with the scheduling.

23 MS. CAHILL: Does the agreement provide that the

24 monitoring will begin immediately upon funding of the

25 Foundation?

1654

01 MR. THOMAS: Yes.

02 MS. CAHILL: There are four monitoring activities

03 listed here. Would you read those please?

04 MR. THOMAS: In the conceptual agreement?

05 MS. CAHILL: Yes.

06 MR. THOMAS: Lists aerial surveys, lists aerial

07 photography, lists waterfowl time activity, and it lists

08 productivity, including alkali fly.

09 MS. CAHILL: Are these the items that you told Mr.

10 Canaday yesterday that you thought should be included in the

11 monitoring program?

12 MR. THOMAS: Yes, and they are based on the scientists'

13 recommendation.

14 MS. CAHILL: Isn't there some implementation schedule

15 also here? Doesn't it say that the monitoring activities

16 will be implemented within the first year of funding of the

17 Foundation and will continue for at least ten years?

18 MR. THOMAS: Yes, it does say that.

19 MS. CAHILL: With regard to quantified targets for

20 each project, that is number three on Page 6, of the PMBP

21 Exhibit 34, states quantified targets for each project. Is

22 it true that the settlement agreement under monitoring

23 states that -- I guess monitoring is measuring a goal --

24 Under open water habitat, isn't it true that the

25 settlement agreement provides that each project shall

1655

01 contain measurable criteria for assessing performance?

02 MR. THOMAS: They are unstated in the conceptual

03 agreement.

04 MS. CAHILL: Doesn't the conceptual agreement provide

05 that each project, as it is selected, will contain

06 measurable criteria for assessing performance?

07 MR. THOMAS: It allows for that, yes.

08 MS. CAHILL: Do you read "shall" to mean "allow"?

09 MR. THOMAS: I'm afraid I'm not with you. I don't know

10 exactly where you are reading.

11 MS. CAHILL: Of Page 3 of the conceptual agreement,

12 after the first full paragraph, there is a single line that

13 says, "each project shall contain measurable criteria for

14 assessing --"

15 MR. THOMAS: That is what it says.

16 MS. CAHILL: Those projects are to be selected and

17 directed by people who are experts in the field of waterfowl

18 and waterfowl habitat; is that correct?

19 MR. THOMAS: That is what it says.

20 MS. CAHILL: And the list of projects here reflects

21 projects that were part of the scientists' plan; is that

22 correct?

23 MR. THOMAS: That is correct, yes.

24 MS. CAHILL: So, Mr. Thomas, going to Page 7 of the

25 document that is PMBP Number 34, you suggested that

1656

01 monitoring plan should have specific monitoring programs

02 detailed in design to assess progress toward a stated goal.

03 Having just walked through with the provisions of the

04 settlement agreement with regard to monitoring, do you now

05 think that the agreement does accomplish what you think it

06 needs to accomplish, with regard to the monitoring program?

07 MR. THOMAS: It allows for it.

08 MS. CAHILL: With regard to adaptive management, why

09 don't you explain what your understanding of adaptive

10 management is?

11 MR. THOMAS: I think we touched on this yesterday. But

12 briefly, adaptive management, to me, involves specifically

13 stated projects which can be implemented in response to the

14 results of monitoring of progress of the initial project.

15 So, it is a second tier of projects that can be implemented

16 if needed, based on results of monitoring.

17 MS. CAHILL: In the conceptual waterfowl plan, is there

18 flexibility to do adaptive management?

19 MR. THOMAS: It would allow it.

20 MS. CAHILL: Until, in fact, the early stages are done,

21 there is no way to know what might need to be done at a

22 future date; isn't that right?

23 MS. BELLOMO: Objection. The question is vague and

24 ambiguous, the early stages of what.

25 CHAIRMAN CAFFREY: Can you rephrase.

1657

01 MS. CAHILL: Yes.

02 With regard to the provisions in the conceptual plan

03 for open water habitat where certain projects are listed, if

04 it proves that one or more of those projects is not

05 feasible, doesn't the settlement agreement allow adaptive

06 management to come up with other measures?

07 MR. THOMAS: It allows it.

08 MS. CAHILL: At this point in time, before we have done

09 some of the these initial projects, do we have anything to

10 do adaptive management on?

11 MR. THOMAS: At this point, no.

12 MS. CAHILL: In other words, at this point in time, we

13 couldn't spell out what the adaptive management might be

14 because we won't know what it is until we started with the

15 listed projects?

16 MR. THOMAS: I disagree.

17 MS. BELLOMO: Objection. The question is

18 argumentative.

19 CHAIRMAN CAFFREY: I'm sorry, I didn't hear the

20 question or the objection. That is my fault.

21 MS. CAHILL: I withdraw that one.

22 It is true, that as we sit here today, we cannot know

23 what might be needed in the way of adaptive management?

24 MR. THOMAS: We cannot know at this point.

25 MS. CAHILL: We could not now specify the projects that

1658

01 you might want to implement as adaptive management at a

02 later point?

03 MR. THOMAS: I disagree, because we can specify those.

04 MS. CAHILL: You could specify them now?

05 MR. THOMAS: Certainly. We could specify projects that

06 could be available as options in the future, if needed.

07 MS. CAHILL: What the agreement does is indicate that

08 if the funds are not needed for the listed projects, the

09 money could be allocated for other restoration or monitoring

10 activities?

11 MR. THOMAS: Yes, it does.

12 MS. CAHILL: You indicated that you -- let me ask you.

13 Would you prefer to see more projects outside the Mono Basin

14 initially?

15 MS. BELLOMO: Question is vague. More projects than

16 what?

17 MS. CAHILL: Than are proposed in the settlement

18 agreement.

19 CHAIRMAN CAFFREY: All right, sir, having heard the

20 rest of the question.

21 MR. THOMAS: Would you repeat that question?

22 MS. CAHILL: Let me ask a different question.

23 Do you understand that the Decision 1631 is focused

24 primarily on waterfowl habitat restoration within the Mono

25 Basin?

1659

01 MR. THOMAS: Absolutely.

02 MS. CAHILL: Do you agree that we ought to take

03 advantage of whatever opportunities exist within basin

04 before we go outside?

05 MR. THOMAS: Absolutely.

06 MS. CAHILL: The settlement agreement does allow us,

07 however, to go outside the basin if it later proves that we

08 can't do adequate restoration within the basin; isn't that

09 correct?

10 MR. THOMAS: It allows it.

11 MS. CAHILL: I may have, Chairman Caffrey, further

12 questions, but I would suggest that we break for lunch now

13 and then I will be hopefully more organized and less paper

14 shuffling when we come back.

15 CHAIRMAN CAFFREY: That is -- I think that is a

16 reasonable request. But before we do that, I just want to

17 say, I just want to reiterate that, of course, we all know

18 this is a lengthy process, hopefully a very worthwhile

19 one. I do intend to finish today, whatever hour that is.

20 We have been about this for some time. We had approved

21 hiatuses, if you will, for the purpose of becoming more

22 efficient and being able to conclude in a reasonable amount

23 of time.

24 So, I want to say that some of the Board Members have

25 other commitments and will not be able to be here, if we go

1660

01 into evening. I know Mr. Del Piero will be here till the

02 bitter end, even if he has to lie down.

03 And I appreciate that, Marc. We will take the time

04 necessary to get done. And to remind you all that we still

05 have another panel. I believe that is one witness.

06 MS. BELLOMO: A panel of three witnesses.

07 CHAIRMAN CAFFREY: I'm sorry. We have another panel

08 with three witnesses. And so, at the rate we are going, it

09 looks like we will go into the evening. I just wanted to

10 let you all know that. If we get to mid or late afternoon,

11 and that is a surety, we will certainly provide some time to

12 move automobiles and do whatever else we need for

13 sustenance, if you will. We will try to keep those breaks

14 to a minimum so that we can keep going.

15 We'll come back at 1:00, then resume. It is now 5 to

16 12, so that gives us a little time for lunch and rest.

17 (Luncheon break taken.)

18 ---oOo---

19

20

21

22

23

24

25

1661

01 AFTERNOON SESSION

02 ---oOo---

03 CHAIRMAN CAFFREY: I hope everybody is ready.

04 When last we met, we were somewhere within Ms. Cahill's

05 cross-examination have these witnesses. Would you like to

06 continue Ms. Cahill?

07 MS. CAHILL: Thank you.

08 Mr. Thomas, in your memorandum do you suggest the

09 possibility of using some of the funds contributed by Los

10 Angeles to try to get matching funds from other sources?

11 MR. THOMAS: Yes.

12 MS. CAHILL: Do you in any way see anything in the

13 settlement agreement from representing the Foundation from

14 doing just that?

15 MR. THOMAS: No.

16 MS CAHILL: Does the agreement, in fact, provide the

17 parties will seek additional funding?

18 MR. THOMAS: Yes?

19 MS. CAHILL: Can you tell us what kind of habitat there

20 are in addition to refuge habitat?

21 MR. THOMAS: The open lake provides feeding habitat.

22 Any shallow, fresh or brackish ponds would provide likely

23 variety of food types, as well as refuge.

24 MS. CAHILL: For example, if there were a hypopycnal

25 layer at the mouth of Mill Creek, that would provide any

1662

01 type of habitat, not refuge habitat.

02 MR. THOMAS: Any hypopycnal habitat around the lake

03 would provide that.

04 MS. CAHILL: Do you agree that the three scientists who

05 did the waterfowl scientists' report are qualified

06 biologists?

07 MR. THOMAS: Absolutely.

08 MS. CAHILL: Do you agree that in their report they,

09 being qualified biologists, recommended the rewatering of

10 Mill Creek as a waterfowl habitat restoration measure?

11 MR. THOMAS: Yes.

12 MS. CAHILL: Would you recommend that we at least study

13 Mill Creek; that is, do the environmental analysis to look

14 at all the impacts of such a project?

15 MR. THOMAS: I think that is the only appropriate way

16 to proceed.

17 MS. CAHILL: Did you consider public opposition to the

18 rewatering of Mill Creek in forming your biological opinion?

19 MR. THOMAS: Yes. That, among other factors, caused me

20 concern regarding the assurance of that project being

21 implemented at all, in addition to what I see as limited

22 benefits there.

23 MS. CAHILL: You wouldn't purport to let public opinion

24 affect the scientific weighing of the project once it has

25 entered into the analysis?

1663

01 MR. THOMAS: No. But CEQA does consider public input.

02 MS. CAHILL: Where the settlement agreement provides

03 for funding for open water habitat and three measures are

04 listed, would you prefer to have flexibility to shift those

05 funds among those three measures or would you have preferred

06 to have looked at a fixed dollar amount for each one?

07 MR. THOMAS: I think the flexibility is desirable.

08 MS. CAHILL: That is all I have.

09 CHAIRMAN CAFFREY: Thank you very much, Ms. Cahill.

10 State Lands Commission, Ms. Scoonover.

11 MS. SCOONOVER: We have no questions.

12 CHAIRMAN CAFFREY: No questions.

13 Mr. Dodge, representing Audubon Society and the Mono

14 Lake Committee.

15 MR. DODGE: Just a few, Mr. Chairman.

16 CROSS-EXAMINATION BY

17 AUDUBON SOCIETY and MONO LAKE COMMITTEE

18 BY MR. DODGE

19 MR. DODGE: Questions for Mr. Thomas.

20 Focusing on Exhibits 34 and 35, sir, I think you have

21 told us that you gave a copy of Exhibit 35 to Mr. Inwood and

22 a copy of Exhibit 34 to Mr. Banta. Correct?

23 MR. THOMAS: That is correct.

24 MR. DODGE: Did you give a copy of either Exhibit 34 or

25 35 to any other person who is not an employee of the

1664

01 Department of Fish and Game?

02 MR. THOMAS: I believe the answer to that is no.

03 Mr. Rick Rockel, I believe, had a copy, but got it from

04 Mr. Inwood, I believe, in Bridgeport.

05 MR. DODGE: Do you know if Mr. Inwood has given copies

06 to anyone else?

07 MR. THOMAS: I know that he has, apparently.

08 MR. DODGE: Besides Mr. Rick Rockel.

09 MR. THOMAS: There is a fax tag on Number 35 or 34,

10 whichever it is, with his name on it.

11 MR. DODGE: Are you aware of any other copies being

12 distributed?

13 MR. THOMAS: No.

14 MR. DODGE: The memorandum went from Mr. Vern Bleich

15 to Mr. Allen Pickard. Do you know whether either of those

16 gentlemen gave a copy of the document to someone who is not

17 an employee of the Department of Fish and Game?

18 MR. THOMAS: I don't know the answer to that.

19 MR. DODGE: As you sit here today, do you believe

20 Exhibits 34 and 35 are photocopies of the documents that you

21 gave respectively to Mr. Banta and to Mr. Inwood?

22 MR. THOMAS: As far as I can tell, yes.

23 MR. DODGE: You testified, sir, about acreages of

24 fresh, shallow, open water providing more ducks on a per

25 dollar basis than Mill Creek.

1665

01 Do you recall generally that testimony?

02 MR. THOMAS: Yes, I do.

03 MR. DODGE: Can you explain to me, physically, how you

04 would create this shallow, fresh open water?

05 MR. THOMAS: There are several ways. In fact, I

06 believe that with moving very little material, with even a

07 shovel by hand, shallow ponds could be created at some

08 locations where existing natural lakes or berms could be

09 repaired with a shovel to contain water. That would be one

10 simple economical way.

11 MR. DODGE: Can you give us some examples of those

12 locations?

13 MR. THOMAS: Yes. I have seen locations like that near

14 Simons Springs. I would guess, but I don't know, there are

15 other locations, as well.

16 MR. DODGE: You don't know that?

17 MR. THOMAS: I don't know that.

18 MR. DODGE: Is it a fact that some locations would

19 require the use of heavier equipment?

20 MR. THOMAS: If the decision was made to put shallow

21 ponds in some locations, that would be the only way to do

22 it, yes.

23 MR. DODGE: Use a bulldozer, right?

24 MR. THOMAS: Or some other equipment, yes.

25 MR. DODGE: In that situation where you used heavy

1666

01 equipment, is it likely that the maintenance of those

02 shallow, fresh water ponds -- excuse me, is it likely that

03 those shallow, fresh water ponds would require maintenance?

04 MR. THOMAS: At some point. I think the scientists'

05 plan talks about a lifespan of ten years or 15 years before

06 management would be required, and I would guess that that is

07 probably true.

08 MR. DODGE: In principle, some maintenance would be

09 required?

10 MR. THOMAS: Yes.

11 MR. DODGE: How much and how often, would depend on a

12 case-by-case basis?

13 MR. THOMAS: Yes, it would. And, also, I would say on

14 the goal of a particular project, in some locations those

15 ponds would probably be inundated by the rising lake level.

16 Of course, there would be no more maintenance there.

17 MR. DODGE: Those that aren't inundated would require

18 maintenance from time to time?

19 MR. THOMAS: Yes.

20 MR. DODGE: If you came in with a bulldozer to create a

21 shallow, fresh water pond, would you agree that that is a

22 heavily engineered project?

23 MR. THOMAS: Not necessarily.

24 MR. DODGE: It could be?

25 MR. THOMAS: Depending on the size of the pond and what

1667

01 size of the pond you needed to create. I would add, though,

02 that particularly on the wildlife areas bordering the Salton

03 Sea, these kinds of habitats are created with very minimal

04 soil disturbance and little equipment use.

05 MR. DODGE: These ponds, the shallow, fresh water ponds

06 that might be created, would you agree with me that those

07 did not exist at Mono Lake -- would you agree with me that

08 these did not exist prediversions? In other words, you are

09 not, by this proposed project, trying to restore the

10 prediversion conditions?

11 MR. THOMAS: Those kinds of projects could restore lost

12 refuge habitat. Those particular ponds did not exist there

13 prediversion.

14 MR. DODGE: They would be equivalent habitat, but

15 different habitat?

16 MR. THOMAS: Functionally equivalent.

17 MR. DODGE: That is all I have.

18 Thank you.

19 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.

20 That completes the cross-examination by the parties.

21 It now takes us to clarifying questions from staff. Are

22 there any?

23 MR. FRINK: Yes, we do have a few, Mr. Chairman.

24 CHAIRMAN CAFFREY: Mr. Frink.

25 //

1668

01 CROSS-EXAMINATION BY

02 BOARD STAFF

03 MR. FRINK: Mr. Thomas, I will start.

04 At the bottom of Page 6 of your April 21st memorandum,

05 it states that a reasonable overall objective is to restore

06 and maintain 200 to 250 acres of shallow, fresh or brackish

07 open water habitat. It goes on to state that this 200 to

08 250 acres would be mitigated for the loss of 213 acres of

09 lagoons and 43 acres of bottomland in the Rush Creek area.

10 Do you see that?

11 MR. THOMAS: Yes.

12 MR. FRINK: Those statements?

13 MR. THOMAS: Yes.

14 MR. FRINK: From those statements, my understanding

15 there is that your recommendation on the number of acres of

16 shallow, open water habitat to be restored was based in

17 large measure on your assessment of the amount of habitat

18 that was lost as a result of the Department of Water and

19 Power's water diversions over the years?

20 MR. THOMAS: Only one correction to that. That is

21 true, except that that is my assessment. It was the

22 assessment of Dr. Stine and the waterfowl scientists that

23 wrote the plan.

24 MR. FRINK: Have you done any studies on the

25 relationship between the amount of waterfowl habitat that

1669

01 presently exists in Mono Basin and the numbers of waterfowl

02 that can be supported on that habitat?

03 MR. THOMAS: In terms of specific study, no. In flying

04 the lake, however, in fact, back in '93 when we did the

05 intensive survey to count every duck on the lake, at least

06 try to, we certainly were able to look at the lake and its

07 habitats and the numbers or distribution of birds. It was

08 interesting that, at that time back in '93, that over half

09 of the total ducks counted, the total was about 8 or 900

10 birds, over half of those were on one ephemeral lagoon,

11 which, again, refuge-type habitat, at Simons Springs.

12 MR. FRINK: Were the County Ponds in functioning

13 condition at that time to provide waterfowl habitat?

14 MR. THOMAS: No.

15 MR. THOMAS: Were the DeChambeau Ponds in functioning

16 condition at that time?

17 MR. THOMAS: I believe at that time, if my memory

18 serves me, that there was some water in the DeChambeau

19 Ponds. I don't remember counting any ducks there. So I am

20 not sure what the extent of the habitat was there at that

21 time.

22 MR. FRINK: The fourth provision, creating a specific

23 number of acres of shallow, open water habitat, in your

24 opinion, would be it reasonable to monitor and evaluate the

25 extent to which waterfowl habitat that has recently been

1670

01 created is being utilized by waterfowl?

02 MR. THOMAS: Would you ask that again?

03 MR. FRINK: Yes. The County Ponds -- excuse me, the

04 DeChambeau Ponds project, it is my understanding, has either

05 recently been completed or nearly completed. Does that

06 provide some of the sort of shallow, open water habitats

07 that you believe is needed?

08 MR. THOMAS: Absolutely.

09 MR. FRINK: Would you be interested in knowing the

10 extent to which waterfowl used DeChambeau Ponds before you

11 commit to creating a specified number of acres of similar

12 habitat?

13 MR. THOMAS: I believe that would be beneficial. I

14 would add that, at present, we already have an idea of the

15 times of heavy use by ducks and presently, as we speak, of a

16 variety of the species of other water birds based not on

17 normal surveys, but on reports of locals. And I don't think

18 I heard that from hunters, but local observers. But, yes,

19 assessment, certainly assessment of an existing restoration

20 project would be recommended before going further with other

21 similar projects.

22 I believe the scientists recommend that in their plan.

23 MR. FRINK: You testified that if the County Ponds were

24 to be maintained using Forest Service water, there may not

25 be substantial additional costs. Is that your opinion?

1671

01 MR. THOMAS: I believe that is true.

02 MR. FRINK: If one objective is to provide shallow,

03 open habitat at a reasonable cost, would you recommend using

04 Forest Service water rights for maintaining the County

05 Ponds?

06 MR. THOMAS: I believe that is a good use of that

07 water, from a waterfowl habitat standpoint.

08 MR. FRINK: Those are all the questions I have.

09 CHAIRMAN SCHNABEL: Mr. Johns.

10 MR. JOHNS: Mr. Turner, these are for you. Since I was

11 helpful to inviting you to this party, I must ask you a few

12 questions.

13 You stated earlier that you have reviewed several CEQA

14 documents in the past, over your career?

15 MR. TURNER: Just a few.

16 MR. JOHNS: More than just a few, I am sure. Have you

17 seen cases where proposed projects are preselected by a

18 development interest and the CEQA process was used to

19 justify the project?

20 MR. TURNER: That is a hard question. I would say the

21 answer to that is sometimes yes. At least there have been

22 some projects in which a lot of emphasis might be pushed on

23 a certain project as being one that they would prefer. I

24 think that what comes out of a public process like that

25 normally, though, is the additional kinds of things that

1672

01 help you make that decision. And so, I think you get things

02 out of an environmental review process that maybe you're

03 surprised at, that you didn't expect when you started.

04 MR. JOHNS: In those cases where a project is

05 preselected, are often times, or sometimes, cases where

06 alternatives to that preselected project are given short

07 shift?

08 MR. TURNER: I would say that is true. It is also up

09 to the reviewer to try to find those and point those out.

10 MR. JOHNS: In those cases, if possible, it is actually

11 legal to comply with the letter of CEQA with not, maybe,

12 satisfying the intent of CEQA, perhaps?

13 MR. TURNER: I would say, yes.

14 MR. JOHNS: Have you also seen cases where the CEQA

15 process was used to openly evaluate alternatives and the

16 proposed project evolved through that process?

17 MR. TURNER: Yes.

18 MR. JOHNS: Which of those two processes do you

19 envision to be used here for Mill Creek evaluation, as set

20 forth in Exhibit 68A?

21 MR. TURNER: I would certainly prefer number two.

22 MR. JOHNS: Is that your understanding of what the

23 process would be like for the CEQA review?

24 MR. TURNER: Yes. My feeling is, and the reason we

25 agreed to the waterfowl portion of this was that this was

1673

01 kind of what I wanted to see in an agreement. It was, make

02 a list, prioritize that list for waterfowl. I am not, by

03 any means, a waterfowl expert. Subject those things to open

04 review and evaluation, including public review and

05 evaluation and pick those projects which seem to provide the

06 best benefit for waterfowl, in this case.

07 MR. JOHNS: Are you familiar with NEPA, the National

08 Environmental --

09 MR. TURNER: Yes.

10 MR. JOHNS: I used to do NEPA documents for your

11 Board.

12 MR. JOHNS: There is a thing in there called a purpose

13 and needs statement. What would the purpose and needs

14 statement look like for this proposal? Would it be to

15 rewater Mill Creek or the purpose and needs statement talk

16 about creating waterfowl?

17 MR. TURNER: I think the purpose and needs statement

18 for this is the loss of waterfowl habitat and waterfowl as a

19 result of LADWP's project, and that what we are trying to do

20 here is restore that.

21 Now, if restoring that means providing water, and one

22 of the projects has Mill Creek/Wilson Creek alternative that

23 would do that, that would be part of that project. I think

24 the goal here is to increase and enhance waterfowl habitat,

25 at least compensate or bring it back, restore.

1674

01 MR. JOHNS: Thank you.

02 CHAIRMAN CAFFREY: Mr. Canaday.

03 MR. CANADAY: Thank you. These are for Mr. Turner, as

04 well.

05 Is it my understanding that the department would

06 support or does support the full evaluation of the Mill and

07 Wilson Creeks in assessing if there was as a proposed

08 project as is described in the agreement, that it would be a

09 full disclosure of the consequences to Mill Creek and Wilson

10 Creek?

11 MR. TURNER: I would like to see that, yes.

12 MR. CANADAY: You mentioned earlier that there is a

13 Mill Creek report out. In fact, it is an exhibit, already

14 been entered as an exhibit here. You mentioned the Wilson

15 Creek report.

16 Do you know when that report will be done?

17 MR. TURNER: I think the last time I talked to Gary, he

18 would like about six weeks of undivided attention to get it

19 done, and he would get it done. And I would like to see it

20 done as any part of kind of an EIR evaluation for the Conway

21 Project and that end of the things. I think it is important

22 we have that.

23 MR. CANADAY: Do you think it needs to be done prior to

24 the CEQA process?

25 MR. TURNER: I think concurrently. I think it would be

1675

01 better prior, so that it becomes part of what they can

02 utilize out of it for information.

03 MR. CANADAY: Mr. Thomas, you had a lot of discussions

04 about open water habitat today, fresh water open habitat.

05 Yesterday I questioned you about the Dombroski Report. Do

06 you remember that?

07 MR. THOMAS: Yes.

08 MR. CANADAY: Do you remember where on the map that Mr.

09 Dombroski may have -- on the lake, approximately where the

10 greatest percentage of waterfowl concentration was?

11 MR. THOMAS: Yes, I do, 45 percent over Rush.

12 MR. CANADAY: Were there any artificial ponds there at

13 that time?

14 MR. THOMAS: Yes.

15 MR. CANADAY: Would you describe the kind of habitat

16 that you believe existed there?

17 MR. THOMAS: Well, from the sound of it, it was

18 artificially created ponds resulting from the diversion and

19 spreading of Rush Creek water, which I would guess created

20 very shallow ponds with emergent vegetation, possibly

21 periods of drying and rewatering.

22 MR. CANADAY: Not unlike what we would expect to do if

23 you were to create waterfowl habitat in the Mono Basin?

24 MR. THOMAS: It is hard for me to imagine, and based on

25 early discussions with the scientists, it is hard for me to

1676

01 imagine that there is a more productive type of habitat to

02 be created for a variety of species.

03 MR. CANADAY: Mr. Turner, have you read the scientists'

04 report on waterfowl?

05 MR. TURNER: Just portions of it.

06 MR. CANADAY: Would you agree with me that the

07 scientists did not consider impacts to other wildlife

08 species, fisheries, or wetlands areas in either Mill or

09 Wilson Creeks in their evaluation.

10 MR. TURNER: Yes.

11 MR. CANADAY: You would agree with me?

12 Mr. Thomas, in your discussion or letter that was

13 submitted today, the memo that you wrote, R-PMBP-34, on Page

14 3, the second full paragraph, I am going to paraphrase.

15 Do you have that document in front of you, sir?

16 MR. THOMAS: Yes, I do.

17 MR. CANADAY: Page 3, second full paragraph.

18 MR. THOMAS: I am with you.

19 MR. CANADAY: The second full paragraph. But the

20 essence of that paragraph is that you were concerned about

21 pressures being applied or motivations as it described a

22 particular project.

23 Would that be a good characterization of that?

24 MR. THOMAS: Yes.

25 MR. CANADAY: In the waterfowl agreement as it is on

1677

01 Page 3, Part C, Mill Creek, the last paragraph, and I will

02 read what it says:

03 The parties -- (Reading.)

04 And the parties meaning the signators to the document.

05 The parties will analyze this proposed

06 project, including its impacts on the North

07 Basin, consistent with the California

08 Environmental Quality Act and the National

09 Environmental Policy Act requirements.

10 (Reading.)

11 Is that something that troubled you, that the parties

12 would actually be the ones analyzing their own project?

13 MR. THOMAS: Yes. That wasn't my primary and initial

14 concern with this paragraph, but yes.

15 MR. CANADAY: So you would prefer the analysis, whether

16 it is CEQA on NEPA, or particularly I will focus on CEQA, by

17 an independent party other than a signatory?

18 MR. THOMAS: Yes.

19 MR. TURNER: Can I add to that?

20 MR. CANADAY: Certainly.

21 MR. TURNER: My feeling through most of this

22 negotiation for this was that the lead agency for doing

23 these projects would be dependent upon that lead agency then

24 that had the most permitting authority or that kind of sort

25 of situation. I don't think there was a discussion that the

1678

01 parties -- in fact, I know there has been some discussions

02 about some projects, parties don't want to be lead agency.

03 MR. CANADAY: We run into that all the time.

04 MR. TURNER: I think the discussion was, the two

05 probably most appropriate parties in many cases would be the

06 State Board or the state process and the county. And then

07 the ramifications, plus or minus of that. There has been

08 some discussions, but I don't think this was to focus in

09 that a project-developer-type of agency, or somebody that

10 had something to lose or gain out of this, was necessarily

11 going to be the lead agency.

12 MR. CANADAY: My question to you then, as a

13 representative of the Department of Fish and Game, you would

14 support the fact that you would like an outside agency,

15 rather than an agency that is signatory, to review this?

16 MR. TURNER: You bet.

17 MR. CANADAY: Mr. Thomas, I know you've read the

18 waterfowl report; I can tell by the tabs. I asked the

19 question of Mr. Turner, and I should have asked you at the

20 same time.

21 The question I asked Mr. Turner was, when the

22 scientists made their report, is it your impression that

23 they did not review the impacts to Mill or Wilson Creeks

24 resources other than waterfowl, whether it was wildlife or

25 fisheries or wetlands?

1679

01 MR. THOMAS: That question was for me?

02 MR. CANADAY: Yes, sir.

03 MR. THOMAS: You have to repeat it. I thought you were

04 directing it Mr. Turner.

05 MR. CANADAY: The question was, from your discussions

06 with the scientists and your reading of the report, is it

07 your impression that the scientists did not, in developing

08 their recommendations, consider the impacts to Wilson Creek

09 or Mill Creek resources that would then include fisheries or

10 wildlife species or wetlands?

11 MR. THOMAS: I believe that is even stated in the

12 report, but that is the case, yes.

13 MR. CANADAY: Mr. Turner, you don't disagree that there

14 is an established fishery in Wilson Creek, do you?

15 MR. THOMAS: No. In fact, it is pretty good fish.

16 MR. TURNER: I draw that conclusion based on Keating's

17 reports and BLM's EA. They said it was slightly less than a

18 lot of Deinstadt's works on a lot of the streams he's

19 analyzed on. And I think that on the Keating project and

20 BLM EA, they talked about the fisheries that ran anywhere

21 from 42 at the steepest portion down to about 1,177 fish per

22 month, which is a lot -- pretty good number of fish.

23 MR. CANADAY: Your letter was written, of course, in

24 1993, the one that was presented today as an exhibit. But

25 your opinion would not change?

1680

01 MR. TURNER: No. I haven't had reason to change.

02 MR. CANADAY: That is all I have.

03 Thank you.

04 MR. BIRMINGHAM: Mr. Chairman.

05 CHAIRMAN CAFFREY: Mr. Birmingham.

06 MR. BIRMINGHAM: For purposes of clarification,

07 following up on a question that was asked by Mr. Canaday

08 with respect to which agency would serve as the lead agency,

09 I believe what Mr. Turner said was absolutely correct. It's

10 always been the understanding of the parties to this

11 agreement that some agency would be selected as lead agency,

12 pursuant to CEQA. That is State Board or County of Mono,

13 that is what the CEQA process will result in. But I don't

14 think the parties contemplated that any party would be the

15 lead agency.

16 CHAIRMAN CAFFREY: Thank you for that clarification,

17 sir.

18 Mr. Dodge.

19 MR. DODGE: I was just going to say, I realized for the

20 first time when Mr. Canaday asked his question that we had

21 poorly worded this particular portion of the conceptual

22 agreement, where it says --

23 MR. TURNER: Bruce did that.

24 MR. DODGE: -- parties will analyze this proposed

25 project, it was contemplated there would be a lead agency

1681

01 who would commission the analysis.

02 CHAIRMAN CAFFREY: All right, sir. Thank you for that

03 clarification.

04 Any questions from the Board?

05 Thank you.

06 Let's see, we are now at the point where we can take up

07 redirect, if any.

08 Do you have any redirect Ms. Bellomo?

09 MS. BELLOMO: No, I do not.

10 CHAIRMAN CAFFREY: No redirect, of course, there will

11 be no recross. That takes us to the point of your right to

12 offer your exhibits now.

13 Let's do it at the end of both panels. Thank you, Mr.

14 Johns.

15 Anything else, Mr. Frink, that I might have forgotten?

16 MR. FRINK: No.

17 CHAIRMAN CAFFREY: Mr. Turner and Mr. Thomas, thank you

18 gentlemen for being here today, although you my not consider

19 yourself having -- the invitation being all that optional.

20 We do appreciate your time and your efforts.

21 Ms. Bellomo, are you ready to --

22 MS. BELLOMO: We would like to present our next panel.

23 I know we just started. Could we take about five minutes to

24 set up; I think it would save time. I have a lot of

25 documents. If I could just get them laid out in a row on

1682

01 the table, and we are going to show some slides, and get

02 that set up, then we will speed through this. Otherwise,

03 I'm shuffling through the boxes.

04 CHAIRMAN CAFFREY: Let's take a ten-minute break.

05 Let's start again at a quarter to two.

06 (Break taken.)

07 (Member John Brown leaves.)

08 CHAIRMAN CAFFREY: We will begin again.

09 Ms. Scoonover.

10 MS. SCOONOVER: I rise just to make a clarification.

11 I spoke to Ms. Bellomo about it during the break. She

12 understands. This is nothing regarding her panel, but

13 rather a clarification of statements that Mr. Birmingham and

14 Mr. Dodge made just before the break with respect to DWP

15 Exhibit 68A, the waterfowl conceptual agreement.

16 Page 3, the language at the bottom on the page, "The

17 parties will analyze this project." There was some

18 discussion with the last panel about the lead agency. I

19 want to make it clear that the parties, as Mr. Birmingham

20 clearly articulated, parties intend to use the existing CEQA

21 and NEPA process for selecting the agency. That is their

22 intent. They have no preselected lead agency in mind.

23 However, that does not rule out that one of the parties

24 to the Foundation, for a particular project in the waterfowl

25 habitat restoration area, may be the lead agency. For

1683

01 example, U.S. Forest Service is the logical federal lead

02 agency for a number of proposed projects. They may very

03 well be the lead agency. It has not been predetermined. But

04 I wanted to make it clear that we are not ruling that

05 possibility out.

06 CHAIRMAN CAFFREY: You don't want us to go away

07 thinking that the parties were excluded in all instances. I

08 understand.

09 MS. SCOONOVER: In addition, the language is written

10 the way that it is because, even if the parties to the

11 Foundation, none of them are the lead agency, many of them

12 have independent CEQA or NEPA responsibilities, either as

13 trustee agencies, as responsible agencies, or cooperating

14 agencies. So, separate and apart from the decision on who

15 is lead agency, many of the state and federal agencies would

16 have their own CEQA and NEPA responsibilities that would

17 have to be met, and that is the purpose for the language at

18 the bottom of Page 3.

19 MR. BIRMINGHAM: Mr. Dodge was the attorney that said

20 it was inartfully drafted, not me.

21 MR. DODGE: I will stand by that.

22 MS. SCOONOVER: Thank you.

23 CHAIRMAN CAFFREY: Thank you for the clarification, Ms.

24 Scoonover.

25 We are now ready for our second panel. And, Ms.

1684

01 Bellomo, you may begin. You have up to one hour.

02 MS. BELLOMO: Thank you.

03 ---oOo---

04 DIRECT EXAMINATION BY

05 PEOPLE FOR MONO BASIN PRESERVATION

06 BY MS. BELLOMO

07 MS. BELLOMO: I will begin with you, Mr. Frederickson.

08 Could you state your name for the record?

09 MR. FREDERICKSON: John Frederickson.

10 MS. BELLOMO: Where do you reside?

11 MR. FREDERICKSON: On Conway Ranch in Mono County.

12 MS. BELLOMO: How long have you lived in Mono County?

13 MR. FREDERICKSON: Since 1972.

14 MS. BELLOMO: Yesterday, you made a policy statement.

15 You referred to having been a part owner of the Conway Ranch

16 property. Can you tell us during what years you were a

17 partner in the Conway Ranch property?

18 MR. FREDERICKSON: In 1980 to March of 1994.

19 MS. BELLOMO: 1994?

20 MR. FREDERICKSON: Right.

21 MS. BELLOMO: During the time you were a part owner of

22 Conway Ranch, did you do some or all of the irrigation on

23 the ranch?

24 MR. FREDERICKSON: Most of it.

25 MS. BELLOMO: I apologize to the Board. We have not

1685

01 rehearsed this, so I hope we can do this pretty smoothly. I

02 told Mr. Frederickson he can refer to the map that is behind

03 him.

04 CHAIRMAN CAFFREY: Mr. Frederickson, if you like, if

05 you are going to have some time to spend with the map, you

06 can take that mike out of that slide and stand there and

07 point to things, if that is your choice.

08 MR. FREDERICKSON: Okay.

09 MS. BELLOMO: I want to ask you, did you irrigate

10 Conway Ranch above -- during the time that you were

11 irrigating Conway Ranch, did you irrigate Conway Ranch above

12 Wilson Creek? Let me back up. Do you understand what I

13 said when I was referring to Conway ranch above Wilson Creek

14 or north of Wilson Creek?

15 MR. FREDERICKSON: Yes.

16 MS. BELLOMO: Approximately what percentage of the

17 meadow property is that Conway Meadow?

18 MR. FREDERICKSON: The part of the ranch --

19 CHAIRMAN CAFFREY: Mr. Frederickson, please excuse me

20 for interrupting you. Could you maybe stand to the side so

21 the Board Members can see.

22 MS. BELLOMO: It is my recollection that there is

23 testimony in this record that approximately 85 percent of

24 the ranch land is to the north of Wilson Creek. Does that

25 sound approximately accurate to you?

1686

01 MR. FREDERICKSON: Yes, that would be right.

02 MS. BELLOMO: My question is: During the time that you

03 irrigated Conway Ranch, did you irrigate this approximately

04 85 percent of the ranch land that is above Wilson Creek, did

05 you irrigate that land exclusively with Virginia Creek water?

06 MR. FREDERICKSON: No.

07 MS. BELLOMO: What source of water did you use to

08 irrigate that approximately 85 percent of the ranch land?

09 MR. FREDERICKSON: Partially with Virginia Creek,

10 partially with Virginia Creek water, and some artesian

11 water.

12 MS. BELLOMO: You just said "partially with Virginia

13 Creek water," twice, I think.

14 MR. FREDERICKSON: Wilson -- I am sorry. Partially

15 with Wilson Creek water, partially Virginia Creek water, and

16 some artesian water.

17 MS. BELLOMO: Can you tell us, between 1980 and 1994,

18 is that an accurate statement for the time period 1980 to

19 1994?

20 MR. FREDERICKSON: Yes.

21 MS. BELLOMO: Can you point on the map that is there --

22 Maybe I could just ask Mr. Johns if that is an

23 exhibit.

24 CHAIRMAN CAFFREY: Yes, that is exhibit.

25 Can you give us the number, Mr. Frink?

1687

01 MR. FRINK: The map was earlier identified as State

02 Lands Commission, Department of Parks and Recreation Exhibit

03 424.

04 MS. BELLOMO: Thank you.

05 If I can, I ask you to look at the map that is Exhibit

06 424, State Lands Commission 424, can you trace on there for

07 us where the source of the water was and how you conveyed it

08 onto Conway Ranch, water from Conway Ranch property from

09 Wilson Creek?

10 MR. FREDERICKSON: If you -- the ranch was purchased in

11 three parcels. There was Gladys Conway, Ritchie Conway, and

12 Katie Conway. And so if you could imagine the ranch broken

13 up into three parcels. There was a 222 acre parcel which

14 belonged to Katie Conway. A 358 parcel belonged to Gladys;

15 and about 250 to 80 acres to Ritchie Conway.

16 As the maps sits here, this area roughly in here was

17 Katie Conway's property.

18 MS. BELLOMO: So the record is clear, where is that in

19 relation to Wilson Creek?

20 MR. FREDERICKSON: Actually, most of Katie's property

21 was on Wilson Creek. Again, it actually started right about

22 here and ran over into this area. And I think there was one

23 cut out here. Most of Wilson Creek ran through that 222

24 acres.

25 The upper part of the ranch, which would be closest to

1688

01 Highway 395 and north, say this area right in here, or

02 basically here and here. I don't want to draw on this. I

03 wish I had brought my own map. Anyway, that area, about 358

04 acres, belonged to Gladys. And this section was Ritchie

05 Conway.

06 MS. BELLOMO: You are pointing to the -- what direction

07 would that be? To the east?

08 MR. FREDERICKSON: Ritchie's would be northeast corner

09 of the property.

10 The Katie's property was the easiest to irrigate

11 because Wilson Creek ran through it and ditches were fairly

12 easy to operate. Gladys' property was irrigated by the

13 Lower Conway Ditch. And in the early part of our purchase

14 of the ranch, which goes back 15 years ago, we were able to

15 get some water in the Upper Conway Ditch, which could be

16 disbursed on the upper part of the ranch. But most of the

17 years, in the early years when there was a lot of water, in

18 the early eighties, '83 we used the Virginia Creek water

19 because it was adequate at that point.

20 MS. BELLOMO: For which portion of the ranch?

21 MR. FREDERICKSON: That would be the Virginia Creek

22 water irrigated Gladys Milner's property and Ritchie

23 Conway's property most of the season.

24 And then there are a couple artesian springs and quite

25 a bit of wetlands up in this area, too, that would naturally

1689

01 stay green or pretty much. In the latter years, the late --

02 let's say, I mean, the mid eighties through 1994, during the

03 drought years, very difficult to get enough water,

04 impossible to get enough water in the upper ditch to the

05 upper part of the ranch.

06 Certain years we could water through what is called the

07 Lower Conway Ditch, across Brett Hill and irrigate this

08 portion of Gladys Milner's property.

09 MS. BELLOMO: How would you describe that? Is the

10 northwest portion, more or less?

11 MR. FREDERICKSON: Southwest portion.

12 MS. BELLOMO: North of Wilson Creek.

13 MR. FREDERICKSON: North of Wilson Creek, right.

14 During the drought years, we pretty much had to neglect

15 Ritchie Conway's property, which would be the northeast

16 corner of the ranch, because we couldn't get enough water

17 out of the Virginia Creek Ditch to get it all the way over

18 and to irrigate Ritchie's property. We were able to

19 irrigate the upper part of Gladys' property, which is the

20 northwest corner.

21 And we've also had enough water, because of Wilson

22 Creek, to irrigate Katie Conway's property, which is this

23 section down here, the southeast corner, I guess you would

24 say.

25 MS. BELLOMO: Based on your experience, do you have an

1690

01 opinion as to whether there is sufficient flow in Virginia

02 Creek to irrigate the approximately 85 percent of Conway

03 meadow above Wilson Creek, to do thorough irrigation all

04 summer?

05 MR. FREDERICKSON: Not easily. Like I said, the past

06 several years it has been very difficult to get enough water

07 over to Ritchie Conways's property, which is two to three

08 cfs.

09 MS. BELLOMO: When you say not easily, are you saying

10 because sometimes there is not enough water in the Virginia

11 Creek flow?

12 MR. FREDERICKSON: Two cfs of water in the type of soil

13 up here, by the time you got to two cfs or three over into

14 this area, there wasn't much left. Then again, if you are

15 doing that, then you don't have the water to irrigate

16 Gladys' property or the northwest corner of the ranch.

17 MS. BELLOMO: Is it your testimony that if you have --

18 let me back up.

19 If you have water, nondrought condition water year flow

20 off Virginia Creek, and in your experience, if you are just

21 going to irrigate exclusively with Virginia Creek water, do

22 you have to make a choice between one of those two, which of

23 those two parcels north of Wilson Creek you were going to

24 irrigate?

25 MR. FREDERICKSON: Yes. With the amount of water that

1691

01 you can get down from Virginia Creek, and the amount you've

02 got to have, you can't irrigate both parcels of the upper

03 part of the ranch at the same time. I think Terry Russi

04 clarified that there is six cfs of water rights out of

05 Virginia Creek, but you can only get about two or three down

06 to the ranch because of the old irrigation ditch.

07 MS. BELLOMO: In your experience, what happened -- let

08 me back up.

09 Was there ever a time when you didn't have enough water

10 to irrigate as fully as you wanted to on Conway Ranch?

11 MR. FREDERICKSON: Yes.

12 MS. BELLOMO: What happened to the meadow at times when

13 you didn't have sufficient water to irrigate fully?

14 MR. FREDERICKSON: Just turned brown.

15 MS. BELLOMO: Does irrigation on the -- let me back up

16 for a moment.

17 You indicated that you live at Conway Ranch. Can you

18 clarify for the Board, is there a subdivision somewhere in

19 relationship to Conway Ranch?

20 MR. FREDERICKSON: Yes, there is.

21 MS. BELLOMO: Can you tell us where it is located?

22 MR. FREDERICKSON: A 40-acre subdivision, and it is

23 located down in this corner of the ranch, right here, which

24 would be the southeast corner.

25 MS. BELLOMO: At this time, how many homes are in that

1692

01 subdivision?

02 MR. FREDERICKSON: Six.

03 MS. BELLOMO: Are there lots -- I don't know quite how

04 the zoning works, but is it zoned or approved for more homes

05 to be built?

06 MR. FREDERICKSON: Yes.

07 MS. BELLOMO: How many?

08 MR. FREDERICKSON: I think 36 more.

09 MS. BELLOMO: Does the irrigation on Conway Ranch, to

10 the extent to which you do or do not irrigate on Conway

11 Ranch, have any effect on the habitat around the houses in

12 that subdivision?

13 MR. FREDERICKSON: Repeat that question.

14 MR. BIRMINGHAM: Objection.

15 MS. BELLOMO: I am trying to determine if you don't

16 irrigate Conway Ranch, in your opinion, is there any impact

17 on the plant life around on the subdivision?

18 MR. FREDERICKSON: Oh, yes.

19 MS. BELLOMO: Can you explain why that is?

20 MR. FREDERICKSON: Well --

21 MS. BELLOMO: Are you irrigating, actually irrigating

22 some of the property around the subdivision?

23 MR. FREDERICKSON: Oh, yeah. When the subdivision was

24 approved, part of the plan for the subdivision was -- and

25 there is all county easements on it. There is small

1693

01 irrigation ditches like at Bishop, if anybody is familiar

02 with Bishop, there's a lot of ditch irrigation, water

03 running through private lots.

04 When the subdivision was designed, it was designed to

05 have irrigation water running through the lots to help with

06 shrubbery because it is a high desert area. And one of the

07 ideas was that the willows like the water out there. And

08 willows were an obvious plant choice to green up the

09 subdivision.

10 So each one of the lots on this Conway Ranch

11 subdivision had a streambed designed through it. And when

12 there isn't enough water, obviously, we couldn't run it

13 through the ditches.

14 MS. BELLOMO: Is there still water at the current time

15 running through any of the ditches? In the irrigation

16 season does water still run through any of those irrigation

17 ditches through the subdivision?

18 MR. FREDERICKSON: Yes.

19 MS. BELLOMO: Are you and your neighbors in the other

20 homes on that subdivision concerned about what impact

21 dewatering Wilson Creek might have on the plant life, the

22 vegetation surrounding your homes?

23 MR. FREDERICKSON: Yes, we are.

24 MS. BELLOMO: Are you acquainted with John Pelochowski?

25 MR. FREDERICKSON: Yes, I am.

1694

01 MS. BELLOMO: Is he actually currently an employee of

02 yours?

03 MR. FREDERICKSON: Yes, he is.

04 MS. BELLOMO: Was John Pelochowski responsible for

05 irrigation on the Conway Ranch at any time in the past?

06 MR. FREDERICKSON: From 1994 until late summer last

07 year.

08 MS. BELLOMO: Did you ever do any irrigation with John

09 Pelochowski on the Conway Ranch during that time period?

10 MR. FREDERICKSON: Yes, I did.

11 MS. BELLOMO: Can you tell us what you did?

12 MR. FREDERICKSON: We repaired irrigation ditches,

13 constantly.

14 MS. BELLOMO: Did you help show John Pelochowski or

15 teach John Pelochowski how to irrigate Conway Ranch?

16 MR. FREDERICKSON: Yes, I did.

17 MS. BELLOMO: Did John Pelochowski, during the time

18 that he was irrigating, irrigate the ranch with the same

19 methods and using the ditches that you have just explained

20 to the Board in your previous answer?

21 MR. FREDERICKSON: Pretty much.

22 MS. BELLOMO: He always used Mill Creek water to

23 irrigate portions of the ranch?

24 MR. FREDERICKSON: Yes, he did.

25 MS. BELLOMO: Yesterday, during your policy statement,

1695

01 you referenced a pond that is on, or I guess you'd say on,

02 Wilson Creek as it flows passed your house.

03 Do you recall that statement?

04 MR. FREDERICKSON: Yes, I do.

05 MS. BELLOMO: It was not on the record, so I need to

06 ask you now. Is it correct that ducks use the pond behind

07 your house?

08 MR. FREDERICKSON: Yes. It's a diversion to -- it is

09 called the upper diversion to the DeChambeau Ranch. And

10 there is a headgate, right behind my house, on Wilson Creek,

11 and it backs the water up, and it ponds in that area

12 there. And I hadn't really thought about this before Ron

13 had mentioned yesterday, that when the weather is bad on

14 Mono Lake, I wondered why all the ducks came at certain

15 times. If it is a bad weather day or a real windy day, yes,

16 there is a lot of ducks in Wilson Creek and in that pond

17 behind my house.

18 MS. BELLOMO: Approximately how large is that pond,

19 would you estimate?

20 MR. FREDERICKSON: Maybe three or four times as big as

21 this room?

22 MS. BELLOMO: As the hearing room we are in?

23 MR. FREDERICKSON: Yes.

24 MS. BELLOMO: Yesterday, I believe you made a statement

25 that you had seen as many as, and you gave a number of ducks

1696

01 landing during windy weather on the pond. Can you tell us

02 what type numbers of ducks you have seen landing on that

03 pond during windy weather?

04 MR. FREDERICKSON: Several hundred.

05 MS. BELLOMO: At a time?

06 MR. FREDERICKSON: Yes.

07 MS. BELLOMO: Were you involved in any fish rearing

08 operations that have taken place on Conway Ranch, that have

09 been conducted on Conway Ranch in the past?

10 MR. FREDERICKSON: Yes. I helped build the ponds and

11 the raceways.

12 MS. BELLOMO: Can you briefly explain to us -- are

13 these dirt raceways?

14 MR. FREDERICKSON: Yes, they are.

15 MS. BELLOMO: Did you have anything to do with taking

16 care of the fish, feeding them or anything?

17 MR. FREDERICKSON: Yes, I worked with Beak

18 Environmental Engineers here in Sacramento to design the

19 ponds and the raceways. Going back to the mid to late

20 eighties, was when the first concept started, and then we

21 built the raceways, I believe, in late '90 and started off

22 operating them in late '91.

23 MS. BELLOMO: So, were you involved until the -- did

24 your involvement with the fish rearing activity end when

25 your ownership in the ranch terminated in '94?

1697

01 MR. FREDERICKSON: Yes.

02 MS. BELLOMO: Did you consider that -- well, let me

03 back up. Was this a fish rearing venture for profit?

04 MR. FREDERICKSON: No. It was more an experimental

05 project at that time to make sure it worked. There was a

06 lot of questions by Fish and Game and other agencies, if we

07 could sustain fish during the winter months. It was a kind

08 of an experimental project that nobody really had any idea.

09 Fish and game didn't feel the fish would feed during the

10 winter months because of cold water. So, in a way, it was

11 an innovative project. We proved that we were growing fish

12 from roughly a half pound to two pounds in a year.

13 MS. BELLOMO: Is that good, based on your experience as

14 a marine manager?

15 MR. FREDERICKSON: From what I gather from Fish and

16 Game, it was successful.

17 MS. BELLOMO: Thank you.

18 I have no further questions of you, Mr. Frederickson.

19 Before I begin of my questions of Mr. Bellomo, I have a

20 couple of housekeeping things to take care of. One was,

21 yesterday, R-PMBP-33 was marked, and I think I was asked if

22 I would kind of try to keep things in order. Perhaps I will

23 just lay a foundation for this document at this time.

24 Should I introduce myself for the record?

25 CHAIRMAN CAFFREY: Yes.

1698

01 MS. BELLOMO: My name is Kathleen Maloney Bellomo. I

02 am a resident of Mono County, and I am testifying here as

03 member of the People from Mono Basin Preservation.

04 At this time I wanted to address, lay the foundation

05 for document R-PMBP-33, which was distributed yesterday.

06 This is a document that I received from the Planning

07 Department of Mono County. It was part of their files on

08 the Conway Ranch development proposal and was part of their

09 file on the draft environmental review process. And this is

10 offered in support of our position in rebuttal to the

11 proposal to rewater Mill Creek and potentially dewater

12 Wilson Creek. Because the Department of Parks and

13 Recreation found and stated in their document, which is

14 Exhibit 33, that disturbance of historic Conway Ranch would

15 be of concern and we concur that it is of concern and concur

16 with the Department of Parks and Recreation's finding or

17 statement that the Conway family history goes back far into

18 the 1880's and is related to the history of Bodie, which is

19 a state historic park which is directly up the road and

20 attracts many, many visitors to the eastern side of the

21 Sierras every year. With that, I have concluded with my

22 foundation for Exhibit 33.

23 CHAIRMAN CAFFREY: Thank you.

24 MS. BELLOMO: The next housekeeping matter I had is

25 that we had transmitted to all parties a letter that set

1699

01 forth corrections to the testimony of Joseph H. Bellomo.

02 This was pursuant to instructions from the Board at the time

03 that Mr. Bellomo testified on his direct testimony. He was

04 trying to make a couple corrections to his testimony, and he

05 was unsuccessful at finding the place he wanted to correct.

06 We were told to send this letter in.

07 And if I can inquire of -- Mr. Frink seemed to have

08 received this letter.

09 MR. FRINK: Yes, I have received it. Mr. Johns has it

10 right now.

11 MR. JOHNS: We received that on March 6th, 1997.

12 MR. DODGE: May I ask the date of the letter?

13 MR. JOHNS: The letter is actually undated. We

14 received it on the 6th of March.

15 MS. BELLOMO: It was cc'd to all parties. I do not

16 have copies with me, but if there is any party who did not

17 get this document, I will be happy to make copies

18 available. It was mailed to all parties.

19 CHAIRMAN CAFFREY: Thank you.

20 MS. BELLOMO: If I could ask to have this marked as

21 next exhibit in order.

22 CHAIRMAN CAFFREY: You want to number that, Mr. Johns?

23 MR. JOHNS: It would be number -- it will be 36.

24 MS. BELLOMO: If you can just tell me, in the interest

25 of saving time, do I need to go through the corrections with

1700

01 Mr. Bellomo on the record or is it sufficient that he has

02 submitted these corrections in writing?

03 MR. BIRMINGHAM: We will stipulate to the admission of

04 those corrections.

05 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.

06 Is that satisfactory to the other parties?

07 MR. DODGE: I don't remember seeing it. But if it is

08 good enough for him, it is good enough for me.

09 MR. BIRMINGHAM: We did receive a copy of it.

10 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham. If

11 anybody -- although you all appear to be stipulating, if you

12 don't recall a copy, we will have them for you. Ms. Bellomo

13 has offered to do that.

14 MS. BELLOMO: I have handed a copy to Mr. Dodge. If

15 you would like to look at it while I am doing my

16 examination, he could let us know if he has any problems.

17 CHAIRMAN CAFFREY: Thank you.

18 MS. BELLOMO: Now, turning to our next witness, Joseph

19 Bellomo.

20 Would you state your name for the record?

21 MR. BELLOMO: Joe Bellomo.

22 MS. BELLOMO: Where do you reside?

23 MR. BELLOMO: I live in Mono City, Mono County,

24 California.

25 MS. BELLOMO: Did you previously testify in this

1701

01 proceeding in the direct portion of our case?

02 MR. BELLOMO: Yes, I did.

03 MS. BELLOMO: Do you recall testimony that was given

04 earlier in this proceeding by Mr. Vorster regarding a

05 situation where there might be -- where there would be a

06 power outage at the Lundy Powerhouse and would have an

07 affect on the flows in Wilson Creek?

08 MR. BELLOMO: Yes, I do.

09 MS. BELLOMO: Is the powerhouse fully manual on

10 hydraulics?

11 MR. BELLOMO: The powerhouse at Lundy is a manual

12 powerhouse. To change the water flows, it has to be

13 manually done via hand-operated valve.

14 MS. BELLOMO: When there is power outage, does the

15 water shut off and affect the flow in Wilson Creek?

16 MR. BELLOMO: There is, basically speaking, no flow

17 change in Wilson Creek.

18 MS. BELLOMO: Do you recall the testimony of Dr. Barry

19 yesterday regarding trees blowing over in Thompson Meadow

20 because Thompson Meadow is, in his opinion, over irrigated?

21 MR. BELLOMO: Yes, I do.

22 MS. BELLOMO: Have you visited Thompson Meadow

23 frequently in your time living in the basin?

24 MR. BELLOMO: Many times.

25 MS. BELLOMO: Could you describe -- let me preface

1702

01 that. Do you have any knowledge of wind velocities in the

02 Mono Basin?

03 MR. BELLOMO: We have extremely high winds in Mono

04 Basin on a fairly regular basis.

05 MS. BELLOMO: What is the highest winds that you have

06 ever heard of?

07 MR. BELLOMO: The highest winds I've heard of is up at

08 Ellery [phon] Lake. We used to have an anemometer up there

09 that would register up in 150 range. That is not in the

10 basin itself. That's up at 9,000 foot elevation.

11 MS. BELLOMO: Was there someone who lived in Mono City

12 who had an anemometer that failed at a certain wind

13 velocity?

14 MR. BELLOMO: Person by the name of Chuck Meredith.

15 Hasn't been in the area for quite a while, but he owns the

16 house that the Karls live in. Had one on that house, and it

17 blew off at 125 miles an hour.

18 MS. BELLOMO: Thank you.

19 How often have you seen trees on Thompson Meadow blown

20 over with the roots pulled out of the ground?

21 MR. BELLOMO: Very, very seldom. And I would have to

22 say I don't think I've ever seen a live tree that was blown

23 over.

24 MS. BELLOMO: Do you see -- when high winds occur, do

25 you see cracked off dead parts of trees?

1703

01 MR. BELLOMO: You see cracked off dead parts of trees

02 and cracked off live parts of trees. But the trees are

03 broken off above the ground level, quite a few feet.

04 MS. BELLOMO: Have you seen trees where the roots

05 remained in the ground, but the rest of the tree cracked off

06 and broke over, and roots remained in the ground?

07 MR. BELLOMO: There are several to the right side of

08 the driveway as you go into the park right now.

09 MS. BELLOMO: But the roots are still in the ground?

10 MR. BELLOMO: The roots are still in the ground.

11 MS. BELLOMO: Those were dead trees?

12 MR. BELLOMO: I believe live trees.

13 MS. BELLOMO: Did that occur during the very high wind

14 we had approximately two months ago?

15 MR. BELLOMO: Yes, it did. I believe it was in

16 January.

17 MS. BELLOMO: Do you recall the photograph of the tree

18 that I was questioning Dr. Barry about yesterday that was

19 uprooted and the roots were actually sticking up in the

20 ground next to an irrigation ditch in Thompson Meadow?

21 MR. BELLOMO: Yes, I do.

22 MS. BELLOMO: Did you go out and look at that tree

23 after we received Dr. Barry's testimony?

24 MR. BELLOMO: Yes.

25 MS. BELLOMO: Did that tree appear to have been dead

1704

01 when it fell over?

02 MR. BELLOMO: It appeared to be dead. It had grass

03 still in the roots that were still up. So, I would assume

04 that the tree hadn't been on its side too long, with the

05 grass hanging in the roots; and you could also see where

06 somebody was cutting on the limbs for firewood already.

07 MS. BELLOMO: Was that because -- was the wood dry like

08 dead wood or was it green?

09 MR. BELLOMO: It was a dead wood when I saw the tree.

10 MS. BELLOMO: Have you hunted in the past in the Mono

11 Basin?

12 MR. BELLOMO: Yes.

13 MS. BELLOMO: Did you actually -- have you actually

14 hunted quite a bit there?

15 MR. BELLOMO: Hunted in the Mono Basin since 1977.

16 MS. BELLOMO: Just for the record, have you basically

17 been up bird hunting since we got married?

18 MR. BELLOMO: Basically.

19 MS. BELLOMO: Have you cooked any ducks at our house?

20 MR. BELLOMO: No, none.

21 MS. BELLOMO: Can you -- we are focusing here on birds,

22 not deer or anything of that nature, what kind of waterfowl

23 have you hunted for in the Mono Basin?

24 MR. BELLOMO: Ducks and geese.

25 MS. BELLOMO: Can you describe what a typical duck and

1705

01 goose hunting day was like in the past for you. How does a

02 person go about hunting for --

03 MR. BIRMINGHAM: A great deal of fun.

04 MS. BELLOMO: Does it involve driving around and

05 looking at a lot of spots?

06 MR. BELLOMO: After 20 years of hunting in the same

07 area, I pretty well know where I want to go, to go hunting.

08 MS. BELLOMO: Does this involve creeping around

09 stealthily?

10 MR. BELLOMO: I do a lot of watching with a telescope,

11 and, yes, when you find something, it takes a lot of

12 crawling to get where you are going. It is a pretty flat

13 area.

14 MS. BELLOMO: Have you done any hunting in the area of

15 Wilson Creek and below Black Point?

16 MR. BELLOMO: I've done a lot of hunting in the area

17 below Black Point.

18 MS. BELLOMO: Have you spent time down in the area of

19 Mill Creek, below the County Road down to the lake?

20 MR. BELLOMO: No.

21 MS. BELLOMO: Are you familiar with that area?

22 MR. BELLOMO: Yes.

23 MS. BELLOMO: Have you walked in that area?

24 MR. BELLOMO: I've walked in that area, swam in that

25 area, and done all kinds of things down in that area. But

1706

01 it is not a hunting area.

02 MS. BELLOMO: Do you have any opinion -- let me

03 rephrase that.

04 I believe we had testimony from Mr. Thomas yesterday

05 that he was concerned, and I think it was in his Exhibit

06 R-PMBP-34, that he was concerned that the gradient of Mill

07 Creek is too steep to allow for ponding. My question is:

08 Do you agree with that statement?

09 MR. BELLOMO: I have never seen any ponding in the

10 lower sections of Mill Creek. And I have seen, basically

11 speaking, almost all kind of flows in that creek, from no

12 flow to, I believe, in excess of 500 second feet.

13 MS. BELLOMO: As a waterfowl hunter --

14 MR. BIRMINGHAM: Former waterfowl hunter.

15 MS. BELLOMO: Exactly.

16 -- former waterfowl hunter, do you agree with Mr.

17 Thomas' testimony that waterfowl in the Mono Basin need

18 refuge habitat when it becomes very windy?

19 MR. BELLOMO: Yes. When we would hunt on windy days,

20 we would make it a point to hunt the area below Black Point.

21 Because those short tufa towers coming up out of the water,

22 it was an area where you could get way back up into the tufa

23 towers in the lake, that would break the wind and break the

24 wave action. We would also hunt a section of Wilson Creek

25 below Highway 395 and coming into the top of Conway Ranch

1707

01 section of BLM property. The area down around the

02 DeChambeau Ranch, below the ranch on the northeast

03 shoreline, I guess, of the lake, several large springs out

04 in there that are fairly protected from the wind. That had

05 real good ponding down below those. Those were always an

06 exceptional area.

07 MS. BELLOMO: I believe -- seems like many months now,

08 when Peter Kavounas testified. I believe he said on

09 redirect something to the effect that he didn't understand

10 why the County Ponds was critical waterfowl habitat.

11 And what I would like to ask you is to explain why, in

12 your opinion, based on your observations of the County

13 Ponds, why that is such good waterfowl habitat, or can be

14 such good waterfowl habitat?

15 MR. BELLOMO: I can't say why it would be good

16 waterfowl habitat. I can say that it is good waterfowl

17 habitat because they are there, when there is water.

18 MS. BELLOMO: In the past when County Ponds was

19 functioning, was the water -- source of the water,

20 irrigation water, from DeChambeau Ranch?

21 MR. BELLOMO: I believe it was tailwater off the ranch

22 that ended up down there. I am not exactly sure where the

23 water came from. It wasn't coming out of a well or pump.

24 MS. BELLOMO: Did the level at County Ponds fluctuate?

25 MR. BELLOMO: Yes.

1708

01 MS. BELLOMO: Can you explain the cycle of fluctuation?

02 MR. BELLOMO: Basically, at the end of winter,

03 normally, or a lot of years, it was almost dry. And as the

04 spring would come on the pond, the pond would fill. After

05 they basically cut the irrigation back, the pond levels

06 would start to slowly drop.

07 MS. BELLOMO: As the pond levels started to slowly

08 drop, did that reveal vegetation that was, like, food

09 vegetation?

10 MR. BELLOMO: Covered vegetation in the bottom.

11 MS. BELLOMO: Was that utilized by waterfowl?

12 MR. BELLOMO: I believe so. That and bugs and

13 everything else in that water.

14 MS. BELLOMO: As a hunter, did you consider that to be

15 an area where you observed birds feasting on that type of

16 vegetation and bug life?

17 MR. BELLOMO: Yes.

18 MS. BELLOMO: Did you observe the fish rearing efforts

19 at the Conway Ranch in the approximately past three years?

20 MR. BELLOMO: Yes, I have; many times.

21 MS. BELLOMO: Did you go out there with John

22 Pelochowski?

23 MR. BELLOMO: Yes.

24 MS. BELLOMO: Was John Pelochowski running the fish

25 operation for Mr. Beckman at that time?

1709

01 MR. BELLOMO: I believe it was for Mr. Beckman.

02 MS. BELLOMO: At any rate, he was --

03 MR. BELLOMO: He was responsible for it, and he worked

04 for Mr. Beckman.

05 MS. BELLOMO: Because you have responsibility for flows

06 out of Lundy Powerhouse in your capacity as a

07 hydro-operator, and I believe you testified to that

08 previously before the Water Board, is it for that reason

09 that you had to work closely with Mr. Pelochowski, to keep

10 him informed about the flows out of the powerhouse?

11 MR. BELLOMO: Yeah. We had to keep flows at a rate

12 where he could keep his fish going, and we couldn't shut his

13 water off. He would lose his whole crop of fish.

14 MS. BELLOMO: You worked with him to informa him of the

15 water changes that you were going to do so he could make

16 necessary adjustments in the raceways to protect the fish?

17 MR. BELLOMO: When we made flow changes, he had to make

18 his flow changes to match the system, the ditch system that

19 he used.

20 MS. BELLOMO: Are you acquainted with Tim Alpers, our

21 past supervisor?

22 MR. BELLOMO: Yes.

23 MS. BELLOMO: Does Mr. Alpers raise fish

24 professionally?

25 MR. BELLOMO: Yes, he does.

1710

01 MS. BELLOMO: Is that at the Alper's Ranch?

02 MR. BELLOMO: Alpers Ranch, on Upper Owen River.

03 MS. BELLOMO: Are his fish famous in the Eastern

04 Sierras, the fish that he raises, for being very high

05 quality?

06 MR. BELLOMO: He raises very high quality fish.

07 MS. BELLOMO: Have you been out to the Conway Ranch

08 property recently with Mr. Alpers to discuss his effort and

09 interest in raising fish on the Conway Ranch?

10 MR. BELLOMO: Yes, I have.

11 MS. BELLOMO: Did Mr. Alpers inform you that he has a

12 short-term contract with Mr. Beckman to raise fish on Conway

13 Ranch this season?

14 MR. BELLOMO: Yes, he does. That is what he told me.

15 MS. BELLOMO: Did you go out there to check creek flows

16 with him?

17 MR. BELLOMO: Went out and checked creek flows and to

18 make sure that he understood how the gate system works.

19 MS. BELLOMO: Did you understand that he is planning to

20 put fish in the pond within the next couple of weeks?

21 MR. BELLOMO: It is my understanding that he has fish

22 in there at this time, but I have not seen them myself.

23 MS. BELLOMO: Did he tell you if it is his expectation

24 that he will be able to raise similar high quality trout as

25 he raised at the Conway Ranch?

1711

01 MR. BELLOMO: I would think he could, as John

02 Pelochowski did.

03 MS. BELLOMO: Has Mr. Alpers stated that he expects to

04 be able to?

05 MR. BELLOMO: He expects to do the same thing.

06 MS. BELLOMO: Do you recall when Mr. Porter testified

07 that -- when he was last at the Board testifying that there

08 were approximately five days left to completion of the

09 DeChambeau Ponds project to spread bentonite?

10 MR. BELLOMO: Yes.

11 MS. BELLOMO: Has that project been completed?

12 MR. BELLOMO: No, it has not.

13 MS. BELLOMO: As far as you can see, has anything

14 changed out there with regard to spreading of bentonite

15 since the time that Mr. Porter testified?

16 MR. BELLOMO: As far as I can tell, there hasn't been

17 any change at all.

18 MS. BELLOMO: Is there any more water in the ponds, the

19 DeChambeau Ponds, now than at the time when Mr. Porter

20 testified?

21 MR. BELLOMO: If there is, it's very insignificant.

22 MS. BELLOMO: The source of that would be from hot

23 water?

24 MR. BELLOMO: From the hot water.

25 MR. FRINK: Excuse me, I wonder if you can clarify that

1712

01 answer a little bit. The source would be from where?

02 MR. BELLOMO: There is a hot well out there, at the

03 ranch itself. It is geothermal, but it is an artesian. And

04 I did say that there was significantly no change, but the

05 Forest Service has done some work out there on the well

06 itself, and I believe they've increased the flow some on

07 that. I would let you talk to Roger about it.

08 MR. FRINK: I just wanted to know the source of the

09 water.

10 MS. BELLOMO: Mr. Johns, could you tell me how much

11 time I have?

12 MR. JOHNS: Twenty-three minutes.

13 MS. BELLOMO: At this time, if we can dim the lights,

14 we would like to show the slides that are illustrative of

15 what Mr. Bellomo is going to testify to regarding work on

16 the ditches at DeChambeau Ranch that has taken place since

17 the time of the last hearing.

18 CHAIRMAN CAFFREY: Are these existing exhibits, these

19 slides?

20 MS. BELLOMO: No, they are not.

21 MR. BIRMINGHAM: May I inquire as to the relevance of

22 this line of testimony?

23 CHAIRMAN CAFFREY: Yes, you may.

24 MS. BELLOMO: There was significant questioning last

25 time around when Mr. Porter was testifying about whether the

1713

01 Forest Service was utilizing its Wilson Creek water right on

02 DeChambeau ranch, and Mr. Porter testified that it was not.

03 That has changed, and we are updating the record.

04 He also testified as to how -- to the extent that it

05 was and was not feasible to get irrigation water onto

06 DeChambeau Ranch. And I know that he testified to

07 feasibility problems with doing that. And, in fact, at this

08 time, irrigation water is flowing on Conway Ranch through

09 the ditches. So, the record needs to be corrected on that.

10 Mr. Porter is in agreement with the record being updated,

11 really an update of the record. And he asked me, rather

12 than testifying, if I would present a letter that he wrote

13 to our group, which I will do, updating what the Forest

14 Service is doing out there.

15 He also asked me and agreed with me that it was

16 necessary to put in two environmental documents that Forest

17 Service prepared in the past that support the Forest

18 Service's decision to use their water on DeChambeau Ranch

19 which they were not doing at that time that he testified.

20 MR. BIRMINGHAM: We will accept that as an offer of proof

21 and stipulate to the admission of documents which Ms.

22 Bellomo has referred to.

23 CHAIRMAN CAFFREY: In an effort not to have to sit

24 through the slides? Is that the point?

25 MR. BIRMINGHAM: I am happy to sit through the slides,

1714

01 but we do want to finish today.

02 MS. BELLOMO: We can do this very quickly. I have an

03 hour, and I keep asking. I've never run over today.

04 Everybody else goes longer than me, it seems like. If we

05 can just -- I am doing this very quickly.

06 CHAIRMAN CAFFREY: All right. I appreciate the gesture

07 that you have made, Mr. Birmingham. I think in fairness I

08 am pretty much obliged to let Ms. Bellomo use her hour as

09 she wants to.

10 I presume you are going to offer these slides as

11 evidence, and we are going to have to enumerate them; is

12 that right?

13 MS. BELLOMO: I believe that the record will be

14 sufficient with testimony from Mr. Bellomo explaining what

15 we are doing, and the slides can be used for illustrative

16 purposes if that is easier and faster?

17 CHAIRMAN CAFFREY: Is that acceptable, Mr. Frink?

18 MR. FRINK: It is acceptable to me. They could be

19 marked and introduced, or they could just be used for to

20 help illustrate the testimony.

21 CHAIRMAN CAFFREY: Let's try that it that way. If it

22 does, we can take it up.

23 (Discussion held off record.)

24 MS. BELLOMO: I will handle that in my questioning.

25 CHAIRMAN CAFFREY: You are going to describe each

1715

01 slide?

02 MS. BELLOMO: Let's give it a try. I will do that.

03 CHAIRMAN CAFFREY: Let's try it that way. How much

04 time is left Mr. Johns?

05 MR. JOHNS: We have 19 minutes.

06 MS. BELLOMO: Mr. Johns, could you tell me when we get

07 to ten minutes?

08 MR. JOHNS: You bet.

09 CHAIRMAN CAFFREY: I am just curious, how many slides

10 are there?

11 MR. BELLOMO: About 40.

12 CHAIRMAN CAFFREY: You want to be notified at ten

13 minutes?

14 MS. BELLOMO: Yes.

15 Mr. Bellomo, since the time that Mr. Porter testified,

16 did people from the -- members from People for Mono Basin

17 Preservation go and ask the Forest Service if they could

18 just go out there, do the work themselves to start

19 irrigating DeChambeau Ranch?

20 Are you listening to my question?

21 MR. BELLOMO: Yes, yes. I am sorry. I thought you

22 were making a statement.

23 MR. BIRMINGHAM: We now know the answer to the question

24 asked of Ms. Bellomo in cross-examination by Mr. Dodge.

25 MR. DODGE: The question referred to who is supervising

1716

01 whom.

02 MR. BELLOMO: Yes.

03 CHAIRMAN CAFFREY: It works that way at my house, too.

04 MS. BELLOMO: Does this -- are we looking at a slide

05 for the illustrative purpose of showing the Board the work

06 that the community has done on Conway Ranch, digging ditches

07 and putting in headgates?

08 MR. BELLOMO: Yes.

09 MS. BELLOMO: Who constructed that headgate?

10 MR. BELLOMO: Rick Noles constructed the headgate with

11 Forest Service material.

12 MR. DODGE: I don't like to interrupt, but I thought we

13 were hearing about DeChambeau Ranch.

14 MS. BELLOMO: Excuse me, I meant DeChambeau Ranch.

15 MR. DODGE: You said Conway.

16 We are talking about DeChambeau Ranch?

17 MS. BELLOMO: Yes.

18 CHAIRMAN CAFFREY: Thank you.

19 MS. BELLOMO: Did people, including you, do work on the

20 plume where the water comes off of Wilson Creek in order to

21 get it down to DeChambeau, into the DeChambeau Ditches?

22 MR. BELLOMO: We worked on the whole ditch system from

23 Wilson Creek all the way on the ranch.

24 MS. BELLOMO: Over the course of what period of time

25 did you and other men in the community do this physical work?

1717

01 MR. BELLOMO: I believe it was over, like, three

02 weekends.

03 MS. BELLOMO: Can we proceed on, please?

04 Onward. And is --

05 MR. BELLOMO: This is the diversion on Wilson Creek.

06 MS. BELLOMO: In order to do that, did you have to back

07 up the diversion of Wilson Creek so you could get high

08 enough flow to get it into the ditch?

09 MR. BELLOMO: Yes.

10 MS. BELLOMO: Onward, please.

11 And before you did this work, were the ditches dry

12 leading down from Wilson Creek to DeChambeau Ranch?

13 MR. BELLOMO: Yes, they were.

14 MS. BELLOMO: Onward, please.

15 Did Mr. Noles do the bulk of the backhoe work that was

16 done to clean up the old ditches?

17 MR. BELLOMO: Mr. Noles did a lot of it with a backhoe

18 and the Forest Service did some, too.

19 MS. BELLOMO: Did Mr. Noles use the backhoe that was

20 contributed free of charge for one whole weekend by Jeff

21 Hansen who lives in Mono Basin?

22 MR. BELLOMO: Yes.

23 MS. BELLOMO: Proceed onward.

24 Did Mr. Noles -- was there quite an extensive amount of

25 ditch work that he did?

1718

01 MR. BELLOMO: Quite extensive.

02 MS. BELLOMO: Was he doing it in the area of the old

03 ditches?

04 MR. BELLOMO: Yes. He basically followed the old ditch

05 lines because they were already level.

06 MS. BELLOMO: Continue on. Continue on. Continue on.

07 Did you have to put in sandbags and mix cement to

08 reinforce some of the old ditch areas?

09 MR. BELLOMO: There were several areas along there that

10 had blow outs. We reinforced those areas with cement-filled

11 sandbags.

12 MS. BELLOMO: Onward, please.

13 Was the vegetation along the area of the old ditches

14 where they no longer been having water, as Mr. Roger

15 testified, they hadn't irrigated for a number of years, did

16 all the riparian vegetation die, or essentially?

17 MR. BELLOMO: I wouldn't say it is all dead, but it is

18 not in very good shape at all. We will have to see about it

19 later in the year, what comes back.

20 MS. BELLOMO: Did you, in order to clean out the

21 ditches, have to remove a lot of dead willow?

22 MR. BELLOMO: Yes.

23 MS. BELLOMO: Onward, please.

24 Can you identify where this particular picture is?

25 MR. BELLOMO: That is on Lower Wilson Creek.

1719

01 MS. BELLOMO: No, this is--

02 MR. BELLOMO: Lower Mills, down below the County Road.

03 MS. BELLOMO: Are you sure?

04 MR. BELLOMO: Yes.

05 MS. BELLOMO: Is that an area where we are expecting

06 meadows in the future, according to Dr. Stine? Is that one

07 of the areas that he identified as an old channel?

08 MR. BELLOMO: That is a channel. That is in the old

09 area. I don't know.

10 MS. BELLOMO: Onward, please.

11 And is the bentonite that Ducks Unlimited is supposed

12 to be spreading out in the pond still sitting out there in

13 bags covered by tarps?

14 MR. BELLOMO: Yes.

15 MS. BELLOMO: Is there a lot of garbage that has been

16 left there that has been blowing around in the wind?

17 MR. BELLOMO: Yes.

18 MS. BELLOMO: At times, have you observed Mono Lake to

19 become very rough when it is windy?

20 MR. BELLOMO: Yes, I have.

21 MS. BELLOMO: At those times, have you found, as an

22 experienced hunter, that you do not see waterfowl on the

23 lake when it is very rough?

24 MR. BELLOMO: No, you don't.

25 MS. BELLOMO: Onward, please. On, please.

1720

01 And here is Mr. Porter. Let's go on. Go on. There

02 is Mr. Ford.

03 Is there now water flowing through whatever you call

04 that?

05 MR. BELLOMO: Through the headgate.

06 MR. DODGE: The record should reflect that there were

07 two pictures of Mr. Porter, and in neither of the pictures

08 was he holding a shovel.

09 MS. BELLOMO: Onward, please.

10 MR. BELLOMO: DeChambeau Ranch, again.

11 This is a duck nest, but it didn't -- you can see the

12 eggs in there if you figure out where to look, exactly.

13 MS. BELLOMO: Does that happen to be next to the --

14 MR. BELLOMO: Right next to the headgate going off of

15 Wilson Creek onto the DeChambeau Ranch.

16 MS. BELLOMO: Which Mr. Porter informed us scared him

17 after he was there for a number of minutes when ducks flew

18 out.

19 So, are the ponds still in a state of -- well, without

20 water, but evidence of earth work, earth moving?

21 MR. BELLOMO: There hasn't been any change that I know

22 of in the ponds.

23 MS. BELLOMO: On, please.

24 Are there two ponds that still have water in them at

25 DeChambeau Ponds?

1721

01 MR. BELLOMO: Yes.

02 MS. BELLOMO: Are they anywhere near the size that they

03 were originally?

04 MR. BELLOMO: No.

05 MS. BELLOMO: Go on. Go on. Go on.

06 Now, to the culmination of this wonderful story. Do we

07 now have water on DeChambeau Ranch thanks to the efforts of

08 the community and Mr. Porter, I would say, by the way? Yes?

09 MR. BELLOMO: Yes, we do have water on the ranch and

10 it is being irrigated?

11 MS. BELLOMO: Who is actively irrigating right now?

12 MR. BELLOMO: Larry Ford and I am sure Rick Noles is

13 down at least twice a day.

14 MS. BELLOMO: Is Larry Ford the Forest Service person

15 working with Roger Porter, who has been working quite hard

16 along side you all to make it happen?

17 MR. BELLOMO: Yes.

18 MS. BELLOMO: Along with Mr. Porter?

19 MR. BELLOMO: Yes, along with Mr. Porter.

20 MS. BELLOMO: You are irrigating portions of the ranch

21 that go all around the ranch building; is that correct?

22 MR. BELLOMO: Yes. The ditch runs in the upper portion

23 of the ranch. Gravity feeds down into the lower portion.

24 MS. BELLOMO: Let's continue on.

25 Are you doing -- when I say you, I mean the group of

1722

01 people that are out there working. Are you doing some flood

02 irrigation out there?

03 MR. BELLOMO: That is basically the technique that has

04 been used there for years, that is what is going on now.

05 MS. BELLOMO: On, please.

06 Are you finding any trees that still have signs of life

07 in them where you are now putting water?

08 MR. BELLOMO: Yes. Many of the trees are showing signs

09 of life.

10 MS. BELLOMO: Where they were not?

11 MR. BELLOMO: It would sound pretty amazing, but when

12 we started the project, everything looked dead. But as soon

13 as we put water on it, the next day there was leaves coming

14 out. I know that is just a coincidence. It's just the way

15 it happened to happen.

16 MS. BELLOMO: Onward, please.

17 Are your headgates -- have you had any trouble with the

18 headgates that Mr. Noles built?

19 MR. BELLOMO: We have been working with them.

20 MS. BELLOMO: Have you gotten to where they are

21 holding?

22 MR. BELLOMO: Well, when I left, they were all still

23 holding. We seemed to be getting a line on how to do

24 headgates.

25 MS. BELLOMO: I don't recall if you said, but is Bill

1723

01 Banta down there helping while you are gone?

02 MR. BELLOMO: Bill Banta, Rick Noles, Alex Anderson.

03 There is quite a few people.

04 MS. BELLOMO: Monitoring the situation?

05 MR. BELLOMO: Monitoring the situation.

06 MS. BELLOMO: Onward, please.

07 Is it your expectation that once the ditches get used

08 to having water in them again and the headgates get well

09 steaded, that it will, more or less, run itself? You are

10 not expecting to get run off and whatnot?

11 MR. BELLOMO: I feel that once we get a system that is

12 up and functional, I don't think we will have too many

13 problems.

14 MR. JOHNS: Ten minutes left.

15 MS. BELLOMO: Go on. Go on. Go on. Go on.

16 Thank you very much. That concludes our slides. If

17 you resume your seat. Don't waste any time here.

18 Have you seen any evidence of wildlife using the water

19 now that you've got water on the ranch?

20 MR. BELLOMO: Yes. There seems to be a lot more bird

21 activity down there than there was, prior to the water.

22 MS. BELLOMO: Can you tell us what kind of birds you

23 have seen, any that you can identify?

24 MR. BELLOMO: We have seen ducks down on the -- there

25 is one area that is already ponding, very shallow pond. We

1724

01 have seen ducks on that. One morning we saw cattle egrets

02 down in there, two cattle egrets in the area.

03 MS. BELLOMO: Are those the white egrets?

04 MR. BELLOMO: Those are the white smaller egrets.

05 There is deer tracks down around the ditches every morning.

06 MS. BELLOMO: Have you seen any sage hen tracks?

07 MR. BELLOMO: Dallas has, I haven't.

08 MS. BELLOMO: Are there doves on the ranch?

09 MR. BELLOMO: Many doves.

10 MS. BELLOMO: Are there quail?

11 MR. BELLOMO: Yes, we found quail on the ranch.

12 MS. BELLOMO: Is water currently going into DeChambeau

13 Ponds?

14 MR. BELLOMO: No, it is not.

15 MS. BELLOMO: Would it be possible to put water into

16 DeChambeau Ponds at the current time from the irrigation

17 ditches that you have testified now have water in them?

18 MR. BELLOMO: Very easily.

19 MS. BELLOMO: Why is that not happening?

20 MR. BELLOMO: We are putting all the water on the

21 ranch, trying to green up the ranch. We also, at this

22 point, can't put any water down in the ponds because the

23 project isn't completed, and they won't be able to spread

24 the bentonite that is down there if the ponds get wet.

25 MS. BELLOMO: Were you told by Mr. Porter that it was

1725

01 necessary to wait until the Ducks Unlimited finished their

02 bentonite spreading before any water could be put in the

03 ponds or allowed to go into the ponds?

04 MR. BELLOMO: Or allowed to even filter down that way.

05 MS. BELLOMO: So, at this point, it is being diverted

06 away from the ponds?

07 MR. BELLOMO: Being put on the ranch.

08 MS. BELLOMO: Do you anticipate in the future that the

09 Forest Service will be taking over responsibility for

10 maintenance of this irrigation at DeChambeau Ranch?

11 MR. BELLOMO: I would think so, to a point. Community

12 is more than willing to help.

13 MS. BELLOMO: Do you, the people that have been doing

14 the work out there, expect to remain available for trouble

15 shooting in special circumstances where they need some

16 expertise of people that have had experience irrigating?

17 MR. BELLOMO: Yes.

18 MS. BELLOMO: How much has it cost to get water down to

19 DeChambeau Ranch at this time?

20 MR. BELLOMO: A few cases of beer and a little diesel

21 fuel.

22 MS. BELLOMO: And the donated time of the backhoe?

23 MR. BELLOMO: Backhoe, yes.

24 MS. BELLOMO: Whatever cost the Forest Service had for

25 the backhoe work they did?

1726

01 MR. BELLOMO: For the backhoe, yes.

02 MS. BELLOMO: Have you used materials for wood and

03 whatnot from the area that they call "The Bone Yard" at the

04 Forest Service where they have leftovers in, basically --

05 MR. BELLOMO: Their scrap pile.

06 MS. BELLOMO: -- their scrap pile?

07 MR. BELLOMO: Yes. Actually, most of the material that

08 we have used down there has been the wood from the -- the

09 redwood from the walkways that went down to Mono Lake, as

10 the lake has been rising.

11 MS. BELLOMO: At this time, would it be possible to put

12 water into the County Ponds from a physical standpoint?

13 MR. BELLOMO: I believe so. I think it would take a

14 short section of ditch. We have to see what it does. It'll

15 kind of be an experiment.

16 MS. BELLOMO: Chairman Caffrey, I am going to have to

17 ask -- I am going to ask your indulgence to give me a few

18 extra minutes to put in -- I have some other documents I

19 have to put in, and I have all these letters from people

20 that have asked that they be entered into the record, from

21 Congressmen Doolittle and Senator Leslie, and I'm working as

22 fast as I can.

23 CHAIRMAN CAFFREY: Are you talking about additional

24 testimony or just the amount of time it takes to describe

25 these documents?

1727

01 MS. BELLOMO: I would like to finish putting in a

02 little bit of additional testimony from me, and then I just

03 need time to mark all of these letters and documents.

04 CHAIRMAN CAFFREY: I guess -- why don't you take the

05 five minutes that remains for your testimony, and then we

06 will just mark these document as fast as we can.

07 Mr. Dodge.

08 MR. DODGE: There is a letter from Congressman Leslie

09 need not be marked. Isn't that part of your public comment?

10 CHAIRMAN CAFFREY: It's already in the file. It is

11 available to the Board and available to all the parties,

12 whether or not -- I suppose it is Ms. Bellomos's right to

13 offer it as an exhibit in evidence.

14 Mr. Frink, do you have anything to add to that?

15 MR. FRINK: Not really. It is not now an exhibit.

16 MS. BELLOMO: Is it necessary because Congressman

17 Doolittle's aide, John Martini, specifically requested that

18 these letters be put into evidence. I don't know if he felt

19 that he had gotten some understanding that it was necessary

20 to put them into the record.

21 CHAIRMAN CAFFREY: There is a difference between

22 evidence and the record. There is evidentiary record and

23 there is a general record.

24 Where is it now, Mr. Frink?

25 MR. FRINK: It is not now in the general record. The

1728

01 Board maintains a correspondence file of these things. It

02 wouldn't be considered evidentiary.

03 MR. DODGE: We would object to it going into evidence.

04 I don't see the point of marking it.

05 MS. BELLOMO: Let's proceed with my testimony.

06 CHAIRMAN CAFFREY: We will proceed with your testimony

07 and take up the documents and hear the arguments. Please,

08 proceed.

09 MS. BELLOMO: We are now talking about a document that

10 I would like to have marked as next exhibit in order.

11 MR. JOHNS: Thirty-seven.

12 MS. BELLOMO: This is a declaration prepared by me and

13 handwritten notes of a telephone conversation that I had on

14 April 22, 1997, with Thomas Ratcliff at the Modoc National

15 Forest, and I have transcribed my telephone conversation

16 notes with him.

17 On April 22, 1997, I called Thomas Ratcliff at the

18 Modoc National Forest and left a message. He was not in.

19 On April 23, 1997, at approximately 9:30 a.m., Thomas

20 Ratcliff returned my call. I introduced myself. I

21 explained I was a concerned citizen, and I informed him that

22 I was an attorney. We then proceeded to talk for

23 approximately 30 to 35 minutes. And Mr. Ratcliff talked to

24 me and answered my questions about the Waterfowl Habitat

25 Restoration Plan that has been proposed in this case, and

1729

01 Attachment A are the handwritten notes of my telephone

02 conversation with Mr. Ratcliff that I took during the

03 conversation that I had with him.

04 And I immediately, when I got off the phone, went into

05 my office and typed up the notes, filling in with everything

06 that I remembered from my conversation and this is

07 Attachment B. At the conclusion of my telephone

08 conversation with Mr. Ratcliff, I told him that I would be

09 coming here, and I asked him would he object that I was

10 going to tell the Board that I had talked to him and to

11 solicit his opinions about waterfowl habitat restoration in

12 the basin; and he said that he understood that, and that I

13 should indicate to the Board that I had called and talked

14 with him about his recommendations for waterfowl habitat

15 restoration.

16 What is most germane about Mr. Ratcliff's -- the

17 information that he gave me was that he told me that he did

18 not believe that Mill Creek would provide significant

19 waterfowl habitat, and that the Mill Creek recommendation

20 resulted as the number two priority after raising the lake

21 level as a result of political pressures that were placed

22 upon the waterfowl scientists, and that he was very --

23 essentially, he was not happy with the settlement. And he

24 was very, very happy to hear that the community wanted to

25 see waterfowl habitat restoration done.

1730

01 He said that he was concerned that this Mill Creek

02 thing would stew along endlessly, and in the meantime he

03 gave me the name of Bruce Ivy, I believe, in Lone Pine, from

04 Ducks Unlimited, and said, "Why don't you get in touch with

05 him? Maybe you guys can just start figuring out how to do

06 some waterfowl habitat restoration yourself."

07 What he said needed to be done was shallow pond

08 habitat.

09 MS. CAHILL: I would like to interject an objection at

10 this point. I know the Board is very flexible with regard

11 to hearsay. But to deliberately solicit hearsay from a

12 person who is not appearing as witness for cross-examination

13 and using that as a substitute for calling that person and

14 asking those questions, I think is inappropriate. I think

15 this is not what the Board's regulations, with regard to

16 hearsay, contemplates. I don't believe that it contemplates

17 that you go out and have a conversation with someone and

18 then come in and testify about it.

19 MS. BELLOMO: May I respond, Chairman Caffrey?

20 CHAIRMAN CAFFREY: Let me first ask Mr. Frink.

21 Mr. Frink.

22 MR. FRINK: The Board's regulations allow for admission

23 of hearsay if it is the sort of information that responsible

24 people rely on in the conduct of serious affairs. In this

25 instance, Ms. Bellomo has qualified how she got the

1731

01 information. The Board could admit the information,

02 recognizing the fact that it is hearsay would go to the

03 weight to be attributed to the information.

04 CHAIRMAN CAFFREY: If it goes to the Board --

05 MS. BELLOMO: Can we turn the clock off, Mr. Johns?

06 MR. JOHNS: It is off.

07 MS. BELLOMO: Thank you.

08 CHAIRMAN CAFFREY: It goes to the Board to assign the

09 weight of evidence.

10 Mr. Dodge.

11 MR. DODGE: Well, I believe it's been pointed out that

12 the Board has subpoena power. I think a responsible person

13 who wanted to get Mr. Ratcliff's testimony before this Board

14 would subpoena Mr. Ratcliff and bring him here.

15 I think this is just totally outrageous.

16 MS. BELLOMO: May I lay comment, Chairman Caffrey?

17 CHAIRMAN CAFFREY: Go ahead, Ms. Bellomo.

18 MS. BELLOMO: I think that responsible parties who have

19 the money and the funds to hire these experts to prepare

20 these reports would have brought these three waterfowl

21 scientists here before the Board. This group does not have

22 the money to pay to get all of these people to come here. I

23 called Mr. Ratcliff, and he was very upset with this. And

24 to say that responsible people would not do this,

25 responsible people would not present this kind of waterfowl

1732

01 plan and not bring Mr. Ratcliff here.

02 You heard Mr. Thomas; he knows Mr. Ratcliff does not

03 agree with this plan, and Mr. Ratcliff talked to me for 45

04 minutes because he knows this plan was politically

05 motivated, and he doesn't want to see it done. There is no

06 way for us to get these people to come here. We can't

07 afford it. We don't have any way to do it, and Mr. Ratcliff

08 did not want to come here. He did not want to come here

09 because it would be professionally embarrassing and

10 uncomfortable for him. And I was not in a position to

11 compel him to come here. He knew I was doing this. He said

12 that I could come here and tell you that I had talked to him

13 and present you ideas that he had about how waterfowl

14 habitat restoration, what should be done. He does not

15 believe the plan.

16 CHAIRMAN CAFFREY: Well, are you -- do you need some

17 time to compose yourself, Ms. Bellomo? You are obviously

18 very upset.

19 MS. BELLOMO: I would appreciate that.

20 CHAIRMAN CAFFREY: Mr. Birmingham.

21 Let's take two or three minutes. I want to keep going

22 here, and then I am going to make a ruling in just a moment.

23 MS. BELLOMO: Thank you.

24 CHAIRMAN CAFFREY: Please try to compose yourself. We

25 try not to make these hearings emotional if we can possibly

1733

01 avoid it.

02 (Break taken.)

03 CHAIRMAN CAFFREY: We are back.

04 MS. BELLOMO: I just want to make a statement for the

05 record. I am not apologizing for my breakdown because we

06 are working under extraordinary circumstances here. I just

07 want the record to reflect that I am very disturbed that we

08 are going to be limited in the amount time we have to put in

09 our evidence. So, I have to rush through this and worry not

10 about how there is not enough time to say what our concerns

11 are. When the aligned parties for every hour that our group

12 has, these parties that are all joined together go at same

13 issue from every angle. For every hour that we have that

14 have five or six hours on the same subject. It is just an

15 impossible task. We are -- it is not an impossible task.

16 We are doing an incredible job, I think, frankly.

17 I am trying to put in a quantity of evidence that these

18 people have had an opportunity to do on their direct

19 testimony in writing in advance and now I am trying to rebut

20 it, and I have one hour to do it. Every time they want to

21 cross-examine somebody, they get an hour each to make all

22 the same points that I get one to do.

23 Frankly, I am just going to have to ask you, and I know

24 you may deny it, but I am going to have to ask you to give

25 me a little latitude to get the rest of the documents in

1734

01 that I have here.

02 MR. BIRMINGHAM: Mr. Caffrey, I have been in that same

03 circumstance and I willing stipulate, as I did earlier, to

04 the admission of all of these documents, including the

05 declaration that she has offered, and --

06 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.

07 Let me first say that I think that we, at this Board,

08 have been very fair, and I think we tried to accommodate you

09 in every way we can. There are limits to how much time we

10 can allow any party. And also goes to the Board in its

11 deliberations to assign the weight of evidence. So length

12 of time that somebody receives to present their evidence is

13 not in any way proportional to what impresses us in our

14 individual thinking and the basis upon which we make our

15 decision.

16 I want everybody to know that. That is very, very

17 important.

18 Having said that, I have a concern about this exhibit,

19 Ms. Bellomo, because, while we do allow hearsay -- it is not

20 a criticism of you. I understand the sincerity of your

21 effort, and I clearly understand your description of the

22 stress and pressure under which you work. But I do feel

23 that this is a stretch of the definition of what our

24 regulations would allow as admissible hearsay. So I am

25 going to rule against the inclusion of this as an

1735

01 evidentiary exhibit. But I will, as an alternative, allow

02 you, if you would like, a reasonable length of time to

03 describe into the record, as part of your testimony, a

04 hearsay description of your conversations with the

05 gentleman, if you wish to do that.

06 MS. BELLOMO: Yes, I will do that. Thank you.

07 CHAIRMAN CAFFREY: Having said that, we did take a

08 break when I think you had at least five minutes to go.

09 MR. JOHNS: Two minutes according to this.

10 CHAIRMAN CAFFREY: The amount of time that you need to

11 describe it, whatever other exhibits that you may wish to

12 admit, I will treat that as time necessary to take outside

13 of your testimony.

14 So how much additional time do you feel you need, Ms.

15 Bellomo, for your direct presentation, including your

16 description of your telephone conversation with Mr.

17 Ratcliff?

18 MS. BELLOMO: I would estimate a maximum of ten

19 minutes.

20 CHAIRMAN CAFFREY: I will allow you ten more minutes,

21 short of a massive uprising and objection on the part of any

22 of the other parties.

23 Hearing and seeing none, please take ten more minutes.

24 How much time, just for the record, do you think you will

25 need to describe all the documents you wish to enter as

1736

01 exhibits?

02 MS. BELLOMO: Five or ten minutes.

03 CHAIRMAN CAFFREY: I think that is reasonable. Why

04 don't you take ten minutes for the rest of your oral

05 presentation and then we will consider the exhibits.

06 MS. BELLOMO: Thank you.

07 For the sake of the Court Reporter, I will try to speak

08 slower.

09 MR. DODGE: Chairman Caffrey.

10 CHAIRMAN CAFFREY: Mr. Doge.

11 MR. DODGE: If I may address you, I don't understand

12 the ruling, candidly. If the document is inadmissible, then

13 an oral summary of it is equally inadmissible. If you are

14 going to allow an oral summary, I would say lets spare us

15 that and put the document in.

16 MR. FRINK: I think that the objection of Ms. Cahill

17 went to the degree of hearsay that this was. Throughout the

18 proceeding, numerous witnesses have described what other

19 people have told them. Ms. Bellomo did the same thing

20 orally, as well as submitting a written record or her notes

21 on the conversation of when the person told them that. In

22 that way, perhaps a recollection of what the person told

23 them, is more reliable than a lot of other hearsay

24 statements we have had.

25 If the concern, though, is the degree of hearsay, the

1737

01 detail of statements and so forth that she is repeating from

02 another person, then your ruling to not allow the notes in

03 would be in accord with what we have done with other

04 witnesses?

05 CHAIRMAN CAFFREY: My understanding of the basis of Ms.

06 Cahill's objection.

07 Was I wrong, Ms. Cahill?

08 MS. CAHILL: I believe this is equivalent to having an

09 exhibit from an expert that you don't call and then you

10 don't admit it. You know, we could have a signed

11 declaration from Mr. Ratcliff, and we don't even have

12 that. I think there were ways of, if he had a viewpoint

13 that he wanted this Board to have, for it to be submitted.

14 I just think this is a way of manufacturing.

15 MS. BELLOMO: Ms. Cahill, could I inquire or to any of

16 the parties why you did not bring the other two waterfowl

17 scientists before the Board? I feel the Board would like to

18 hear from these people. Why were they not brought here?

19 CHAIRMAN CAFFREY: Anyone wish to answer that?

20 MR. BIRMINGHAM: I will answer the question,

21 absolutely. Because this is a plan that was prepared on

22 behalf of the Department of Water and Power of the City of

23 Los Angeles. The question that is before the Board is: If

24 the plan is not adequate, in what way should it be

25 modified? There is substantial evidence in the record as to

1738

01 whether or not the plan is adequate and, if not, how it

02 should be modified.

03 All of the witnesses who have submitted evidence

04 concerning the plan prepared by Drs. Reid, Ratcliff, and

05 Drewien have said they agree with what those three

06 scientists proposed doing. We saw no reason to bring Mr.

07 Ratcliff here to just add more evidence to what is a very

08 large record.

09 MR. DODGE: Mr. Chairman.

10 CHAIRMAN CAFFREY: Yes.

11 MR. DODGE: May I address an issue, please?

12 CHAIRMAN CAFFREY: Yes.

13 MR. DODGE: Mr. Frink refers to our receiving hearsay

14 or your receiving hearsay from time to time, as surely you

15 have done. My objection to this document is slightly

16 different than what you attribute to Ms. Cahill.

17 Here is one of the three scientists who prepared the

18 waterfowl plan. And if he had a problem with the Plan, I

19 think that -- and someone wanted to call that to this

20 Board's attention, he should be brought here and be

21 cross-examined. He is a central player. This is not

22 incidental hearsay that might come in on another witness.

23 This is someone who was part of the three-man group who did

24 the plan, and we should have him here and hear his views.

25 MS. BELLOMO: Yes, we should.

1739

01 MR. DODGE: She wants to bring his testimony in here,

02 she is obligated to subpoena him, and she knows that.

03 MS. BELLOMO: Chairman Caffrey, at this point, I was

04 next in order.

05 CHAIRMAN CAFFREY: Just a moment. I believe you stood

06 up first, Mr. Birmingham.

07 MR. BIRMINGHAM: Thank you. I have gotten along so

08 well during the course of the last two days with Mr. Dodge,

09 I hate to disagree him on this point.

10 I have no objection to the admission of this document

11 because, quite frankly, what -- it really has very little

12 evidentiary weight with respect to any of the issues that

13 the Board has to decide with respect to the adequacy of the

14 plan.

15 Ultimately, what the Board is going to be asked to do

16 is to approve a process. And if Mr. Ratcliff has concerns

17 about any particular project that is going to be considered

18 during that process, then he can raise them at that time and

19 as can the people from Mono Basin Preservation. So, the

20 fact that this is hearsay, certainly, ought to go to the

21 weight that is given by the Board. But the materiality also

22 is affected by the issues that are before the Board. So I

23 do have to respectfully disagree with Mr. Dodge and Ms.

24 Cahill. It's my view this document ought to come in.

25 CHAIRMAN CAFFREY: Thank you very much, Mr.

1740

01 Birmingham.

02 And lastly, Ms. Bellomo, and sorry for the lastly. I

03 will hear from you, finally and lastly, Ms. Cahill.

04 Ms. Bellomo.

05 MS. BELLOMO: I would just state that I assume all of

06 the parties in this proceeding want to have before the Board

07 the best possible evidence for you to make your decision.

08 And unless there is someone here who thinks that I am lying

09 under penalty of perjury, Mr. Ratcliff told me that he does

10 not believe that rewatering Mill Creek is a suitable project

11 that is being to produce waterfowl habitat of the type that

12 should be done. So, unless people think that I am here

13 perjuring myself, this is a fact. And this is -- nothing

14 could be more germane to you.

15 This is not a game of who can come up with the best

16 legal objections to keep things out of evidence. This is

17 not a case of civil liability where two can hire the best

18 lawyer to put in the best record to win their point. This

19 record has to be fully developed. If this can't come in,

20 then I submit that the Water Board should conclude the

21 hearings today and have a day when they call Mr. Ratcliff

22 and Dr. Drewien in here because this goes to the heart of

23 everything. It goes to the settlement proposal, which is to

24 rewater Mill Creek. It goes to the DWP plan, which is to

25 rewater Mill Creek.

1741

01 CHAIRMAN CAFFREY: Thank you. Ms. Bellomo.

02 And, Ms. Cahill, do you wish to say something?

03 MS. CAHILL: Yes. Just a further objection. This is

04 handed to us on the spot. We haven't read it. We haven't

05 had a chance to read it. It could have been provided in

06 advance. If there was an issue of some change of heart of

07 one of the waterfowl experts, that could have been -- the

08 parties could have put on notice.

09 To walk in, hand us a document, and say, "I had a

10 conversation with a potential witness who I am not calling,

11 but I will just tell you what he said," where we can't exam

12 him, I really don't think is the way we ought to be

13 proceeding.

14 MS. BELLOMO: Maybe I committed an error, but I cannot

15 believe that there is not --

16 CHAIRMAN CAFFREY: Ms. Bellomo --

17 MR. BELLOMO: I would just like to say, Mr. Caffrey, I

18 can't believe --

19 CHAIRMAN CAFFREY: Ms. Bellomo --

20 MS. BELLOMO: -- that there is not a party in this room

21 who knows --

22 CHAIRMAN CAFFREY: Ms. Bellomo --

23 MS. BELLOMO: -- that Mr. Ratcliff didn't agree with

24 this.

25 CHAIRMAN CAFFREY: Ms. Bellomo, I ask you to respect

1742

01 the Chair. When I am speaking, I ask you not to speak.

02 Now, thank you all for you arguments. Thank you for

03 yours as well, Ms. Bellomo.

04 I am going to stay with my original ruling. I think it

05 goes to the question of degree, and we have set the

06 precedent that we allow certain amount of description of

07 hearsay. I am going to allow you to describe your

08 conversation briefly, and I am not going to accept this

09 exhibit into evidence.

10 MS. BELLOMO: Fine. Thank you.

11 CHAIRMAN CAFFREY: Please proceed. You have ten

12 minutes.

13 MS. BELLOMO: I spoke with Mr. Ratcliff when he

14 returned my call on April 23, 1997. And he informed me that

15 the three scientists tempered what they would have proposed

16 because of the opposition of the Mono Lake Committee, the

17 Audubon Society, and other agencies to any kind of open

18 water ponding. He said this ended up in the back of their

19 basin restoration plan. He said that what could and should

20 be done to significantly increase water waterfowl, and I am

21 quoting directly from him, is the following: "Create ponded

22 fresh water habitat." All waterfowl drink and bathe in

23 fresh water, he told me. They can't use Mono Lake for these

24 functions.

25 He said that when DeChambeau was functioning at Simons

1743

01 Springs, every bird in the basin goes there to drink and

02 bathe once a day, and these are the only open water places

03 for them at the current time. He said that the parties had

04 told the waterfowl scientists that they didn't want,

05 quote-unquote, unnatural appearance in their restoration

06 efforts.

07 He said that he had told them that this was

08 nonsensical, that the Mono Basin is one of the most

09 physically altered places that he has worked, and he asked

10 them what component there is natural, and that was never

11 answered. He said that -- he asked me if I realize that

12 there is a gravity fed water right totally available for use

13 of the Forest Service, but they won't use it at DeChambeau

14 because of political pressure that were placed upon them.

15 He said that the three scientists discussed what

16 restoration project to propose, based upon, in his words,

17 political feasibility. He said Mill Creek has such a

18 gradient that it would be extremely difficult to have any

19 ponding there without putting in structures. He said that

20 the scientists had discussed the possibility of putting in

21 concrete structures, and that that wasn't acceptable because

22 it wasn't natural enough.

23 He said that Mill Creek will not produce the habitat

24 that Rush Creek had, ever. He said this was due to the

25 gradient. He said that the proposing to rewater Mill Creek

1744

01 as the top project was, and these are his words, a

02 concession to putting water in the lake. We supported Mill,

03 knowing full well they wouldn't get Rush Creek waterfowl

04 habitat, unquote. He said that the whole Mill Creek

05 argument is almost "completely divorced from waterfowl

06 habitat." He said that restoration efforts could do

07 significant things to help waterfowl. He said that whatever

08 benefit for waterfowl that comes out of rewatering Mill

09 Creek will be, in his words, "a default type of health."

10 Anything that comes out of increased flows is by default.

11 He said that the hypopycnal layer that would be created

12 at Mill Creek is "not necessarily better than Wilson."

13 Though he did say the Mill gradient at the entry may be

14 different in some way, and so he said that there may be more

15 acres of hypopycnal layers at the mouth of Mill Creek. He

16 said that their job was not to look at the entire

17 environmental effect of the proposal, but just to look at

18 the waterfowl restoration.

19 He said that if he was a land management person in the

20 basin, he would be looking at the Boards's edict to restore

21 waterfowl habitat, and he would note there has been a gross

22 loss of shallow water habitat in the basin. He said that he

23 was in favor of creating about one-half-acre ponds around

24 Simons and Warm Springs. He said he cannot understand how

25 that is objectionable for visual effect, but he was told by

1745

01 the state agency people that it is "not natural enough." He

02 said that creating ponds is "something other than making

03 L.A. refill the basin and pay us to measure and monitor."

04 He felt that that was what the objection was. He said that

05 waterfowl habitat enhancement didn't fit the agenda of

06 "making L.A. refill the basin and pay us to measure and

07 monitor."

08 He said that rewatering Mill Creek would be good for

09 waterfowl, but the big bang for the buck, quote-unquote, is

10 burning and fresh water ponded habitat. He said that you

11 want ponding near the lake so birds have open water

12 protection so that -- and there needs to be lake fringing,

13 better than not lake fringing because Mono Lake is a major

14 foraging area for birds. His recommendations lists that he

15 knew that I was going to present to the Water board was:

16 create ponding at Simons Springs; make the ponds at Warm

17 Springs bigger. To do that you would remove one-half to

18 one-half acre opening in the existing vegetative map and

19 discourage vegetation from filling in. You would deepen the

20 water a little bit or open up the area to cause permanent

21 flooding.

22 He said this would not be an expensive project on a

23 comparative scale. But he said, "Heads up." The Mono Lake

24 Committee and the State Parks see enhancing ponds as ugly,

25 quote-unquote, and not natural, and we should expect them to

1746

01 oppose this. He said that at Simons Springs there are old

02 blasted out pot holes that still serve a function but they

03 need to be made larger and, ideally, they should have more

04 open surface and less depth. He said a third project he

05 suggested is County Pond. He said, "Look real hard at

06 County Ponds." They can be developed with minimal

07 excavation. You can use surface waters so you don't need to

08 pump. Use the Forest Service water right, he said. He said

09 the County Ponds may need a little bit of sealing done to

10 them. He said that the Forest Service does not use its

11 water right for the ponds for "political reasons."

12 He said that the Water Board, in his opinion, needed to

13 issue a strong decision that gave a finding that the Forest

14 Service use of its water at DeChambeau Pond is "a beneficial

15 use."

16 The fourth project that he proposed was at Black

17 Point. He referred to the existing pond at Black Point Mine

18 below -- he referred to them as trailers. There is actually

19 a little house. He said he had seen ducks using it. He

20 said that more of these ponds could be created below these

21 ponds. He said that he and the other scientists had

22 actually had preliminary discussions with the mine operator

23 out there, who has a lot of heavy equipment, who had said he

24 might even help them create the ponds.

25 He said that there is water for those ponds from an

1747

01 artesian source above the Black Point Mine Road, and he said

02 that he thought that it was about 80 gallons per minute, but

03 he actually wasn't sure. He couldn't remember the number.

04 He said that a series of ponds could be put at Black Point

05 between existing ponds and the lake. He said that this was

06 a "ready-made" place for ponds in an area that is already

07 wet and very full of vegetation.

08 And I am almost concluded here, Chairman Caffrey.

09 He then referred me to the Ducks Unlimited people in

10 our area, and said maybe we could just get going and try to

11 get some waterfowl habitat started the way we were doing out

12 at DeChambeau Ranch with irrigation on our own, because he

13 said -- he felt -- he was concerned that this process and

14 this Mill Creek argument was going to go on so long that in

15 the meantime there wasn't going to be any waterfowl habitat

16 restoration taking place, while it really should be

17 happening now.

18 That concludes my summary of my conversation with Mr.

19 Ratcliff.

20 CHAIRMAN CAFFREY: Thank you.

21 That concludes your testimony?

22 MS. BELLOMO: If I could just take one moment here. I

23 have four other documents I want to mark that don't require

24 any testimony with them, and then the letters.

25 CHAIRMAN CAFFREY: All right. Under my definition, you

1748

01 have concluded your testimony, and we are now just --

02 MS. BELLOMO: They need explanation as to why I am

03 offering them.

04 CHAIRMAN CAFFREY: That is appropriate. Please

05 proceed.

06 MS. BELLOMO: I want to mark as exhibits two documents

07 that are pages from the Mono Lake Committee Newsletter; one

08 is of spring of 1997 and the other is fall of 1996.

09 Could I ask what numbers those would be?

10 MR. JOHNS: 38 and 39.

11 MS. BELLOMO: Make the fall of '96, 38; and spring of

12 '97, which is a two-page document, 39.

13 MR. DODGE: Mr. Chairman, I was doing something else.

14 What are the numbers, again?

15 CHAIRMAN CAFFREY: 38 and 39? 38 was for the -

16 MS. BELLOMO: The 1996.

17 CHAIRMAN CAFFREY: Does everybody have copies?

18 MS. BELLOMO: The next documents that I would like to

19 mark would be numbers --

20 CHAIRMAN CAFFREY: Are you going to describe these or

21 was there some --

22 MS. BELLOMO: You want me to explain the relevance?

23 CHAIRMAN CAFFREY: That would be appropriate. Let's do

24 it with each of these, so we don't get -- would you agree,

25 Mr. Frink?

1749

01 MR. FRINK: That is appropriate.

02 CHAIRMAN CAFFREY: Please describe why you are offering

03 these as exhibits.

04 MS. BELLOMO: Exhibit 38 is the fall 1996 Mono Lake

05 Committee Newsletter, and it indicates that the New Eastern

06 Sierra Policy Director is Heidi Hopkins. We are concerned

07 that the Policy Director, who is making policy decisions at

08 this time, and this is what the Mono Lake Committee consists

09 of, in our views, who makes the decisions, that the Policy

10 Director joined in the fall of 1996, and we're concerned,

11 that although she has excellent credentials, she doesn't

12 know the area.

13 With Exhibit 39, similarly, this is from Mono Lake

14 Committee Newsletter, and it is an interview with Francis

15 Spivy, who is the new Executive Director of the Mono Lake

16 Committee. Again, we think she looks like she has excellent

17 qualifications, but as she indicates on Page 2:

18 My husband had not been to Mono Lake in

19 35 years, and I have never been until I

20 came to interview for the job. (Reading.)

21 We are concerned that these two people are the policy

22 decision makers for the Mono Lake Committee, and Ms. Spivy

23 told me that that was the case. And that Ms. Spivy was

24 never in the Mono Basin until she interviewed for the job

25 sometime in December or January. So that is the relevance.

1750

01 It goes to our concern about the settlement and the

02 propriety of the membership of the Foundation.

03 CHAIRMAN CAFFREY: Next exhibit or next offering, I

04 should say.

05 MS. BELLOMO: Now I have two documents. Should I

06 describe them and say which number?

07 CHAIRMAN CAFFREY: Are these the letters, by any

08 chance?

09 MS. BELLOMO: No, there are two others letters.

10 CHAIRMAN CAFFREY: Describe them. Pass them out to the

11 other parties first.

12 MS. BELLOMO: Before I describe them?

13 CHAIRMAN CAFFREY: Describe them while you are passing

14 them out. I want to make sure they get them first.

15 MS. BELLOMO: Document one is a facsimile document on

16 fax sheet from Morrison and Forester, and a five-page

17 document. I would ask the Board to not read the portion

18 that has been crossed out. The only reason this is offered

19 is that we have concerns about the settlement process, and

20 the settlement should not be adopted in part because of the

21 fact that the public was -- the community was excluded from

22 the process. This is referenced in letters you received.

23 The purpose of this document is to show that we were

24 sent a draft copy of the settlement document and, in it, it

25 references the Mono Basin Waterfowl Habitat Restoration

1751

01 Trust concept agreement. At that point, I called Heidi

02 Hopkins, saying, "Oh, great, they are showing it to us. So

03 we get to participate."

04 I was told that we weren't supposed to have it. It was

05 faxed to us in error by Mr. Dodge's office. And then the

06 next document is a letter from Heidi Hopkins, sent to me,

07 cc'ing to Bruce Dodge, and it is reminding me that this is a

08 confidential document. We, subsequently, several times,

09 asked Ms. Hopkins if we could have the Foundation agreement,

10 and asked the status of things. And we were told that we

11 weren't allowed to participate in the settlement discussion

12 because we had opted out of the settlement that they had

13 proposed at the time we were at the Board.

14 So this is offered to refute the notion that the People

15 from Mono Basin Preservation were given an opportunity to

16 participate in the settlement.

17 So, if we could have the facsimile marked as --

18 CHAIRMAN CAFFREY: You have numbers, Mr. Johns.

19 MR. JOHNS: That would be 40.

20 MR. FRINK: Mr. Caffrey.

21 CHAIRMAN CAFFREY: Go ahead, Mr. Frink.

22 Mr. Frink: In this instance --

23 CHAIRMAN CAFFREY: We haven't accepted any of this yet.

24 You want to wait until we get to that point?

25 MR. FRINK: I would have an objection to accepting one

1752

01 of these two documents. You can hear it now or after she

02 has identified them all.

03 CHAIRMAN CAFFREY: Why don't we just get them all in,

04 get identification numbers on them, and then we will go to

05 them, because Ms. Bellomo is going to, at some point, offer

06 all these into evidence.

07 Go ahead.

08 MS. BELLOMO: The next document is a letter from Roger

09 Porter directed to the People from Mono Basin Preservation,

10 Roger Porter of the Forest Service, and it sets forth the

11 Forest Service's plans regarding irrigation of DeChambeau

12 Ranch during the spring and summer of 1997. This document

13 was mentioned earlier during our presentation.

14 MR. JOHNS: This will be 42.

15 MS. BELLOMO: This is offered to support our

16 understanding that we have testified to, that irrigation not

17 only is going on at DeChambeau Ranch, but it will be

18 permitted to continue.

19 The next document -- I don't know if you want to mark

20 this as one document or two documents. Mr. Porter had this

21 photocopied for us after we consulted with Mr. Frink about

22 having official notice taken and for the convenience of

23 everyone, we have copies for everyone. I don't know if that

24 is necessary. We want everyone to have them.

25 They are the U.S. Department of Agricultural Forest

1753

01 Service Environmental Assessment for the DeChambeau

02 Enhancement Project. That is one document. And stapled to

03 it is the decision notice and finding of no significant

04 effect concerning the environmental assessment for the

05 DeChambeau Enhancement Project. This is a U.S. Forest

06 Service document. We are asking to have official notice of

07 these two documents taken. And we also relied on them in

08 our belief that it was appropriate to irrigate at DeChambeau

09 Ranch.

10 CHAIRMAN CAFFREY: Just a minute.

11 Other exhibits that you wish to offer?

12 MS. BELLOMO: Do we need numbers? I didn't get numbers

13 for these.

14 MR. JOHNS: The N.O.I., the last document there was --

15 MS. BELLOMO: One is an environmental assessment and

16 the other is the decision notice.

17 CHAIRMAN CAFFREY: You are just asking for us to take

18 official notice of those two documents?

19 MR. JOHNS: They need to have numbers. The

20 environmental one will be 43, and the decision notice will

21 be 44.

22 MS. BELLOMO: The back four pages I believe are the

23 decision notice.

24 Do you see it, Mr. Dodge?

25 MR. DODGE: I do, but I don't see why we just don't

1754

01 have one number for them, since they were delivered to us

02 this way.

03 CHAIRMAN CAFFREY: That is a question Ms. Bellomo

04 raised. I don't know that it matters.

05 MR. FRINK: Ms. Bellomo, is it agreeable to give them a

06 single number?

07 MS. BELLOMO: That is fine.

08 CHAIRMAN CAFFREY: Give them a single number.

09 MS. BELLOMO: They are 43.

10 MR. JOHNS: That's correct.

11 CHAIRMAN CAFFREY: 43.

12 MR. BELLOMO: The final document that I have that is

13 not -- the letters here, is a document that I got from Roger

14 Porter, Scenic Area from Charles Simast, and it is a

15 document that shows wind records that they have started

16 keeping as of -- it shows on here the date that they

17 started, back in February of 1997, when they placed an

18 anemometer on top of the Visitors Center in Lee Vining and

19 they take 24 hour peak record reads once a day. That is

20 what this document is.

21 CHAIRMAN CAFFREY: You have a number for that, Mr.

22 Johns?

23 MR. JOHNS: That would be 44. Again, I would like to

24 see it.

25 CHAIRMAN CAFFREY: Please continue. Is everything

1755

01 ready for the next?

02 MS. BELLOMO: The next document I think Mr. Frink

03 distributed a letter from Congressman Doolittle, John T.

04 Doolittle, to yourself, Chairman Caffrey. I think it was

05 distributed yesterday.

06 CHAIRMAN CAFFREY: I believe we have received more

07 letters than that. I am not inclined to mark any of these

08 letters as evidence. I would be happy to treat them as

09 policy statements, but not part of the evidentiary record.

10 It will be part of the total hearing record.

11 MS. BELLOMO: Do they need numbers or anything?

12 CHAIRMAN CAFFREY: Not if they are policy statements.

13 Do they need numbers if they are policy statements, Mr.

14 Frink?

15 MR. FRINK: Not if they are policy statements.

16 CHAIRMAN CAFFREY: I believe we already have that

17 letter in Mr. Johns' folder, and available to parties in the

18 public.

19 MEMBER DEL PIERO: We have a letter from --

20 CHAIRMAN CAFFREY: State Senator Leslie.

21 MS. BELLOMO: I could just go through my pile. I know

22 I have a couple you don't have. Is that agreeable?

23 CHAIRMAN CAFFREY: If you just want to tell us who they

24 are from.

25 MS. BELLOMO: The letter from Senator Tim Leslie,

1756

01 addressed to yourself, Chairman Caffrey.

02 A letter addressed to Chairman Caffrey from Dale

03 Sandel, People for the West, Bishop Chapter.

04 CHAIRMAN CAFFREY: I have that one, as well, in Mr.

05 Johns' folder.

06 MS. BELLOMO: I think they distributed them yesterday.

07 We have copies if people want them.

08 A letter to Chairman Caffrey from Don Rake, President,

09 People for the West, Mammoth area chapter.

10 CHAIRMAN CAFFREY: That may be the one that I have.

11 MEMBER DEL PIERO: That one I have seen.

12 CHAIRMAN CAFFREY: We are accepting these as policy

13 statements.

14 MS. BELLOMO: You have copies?

15 MEMBER DEL PIERO: One way or the other.

16 CHAIRMAN CAFFREY: We will see them.

17 MS. BELLOMO: I have a letter that I checked with Mr.

18 Frink or Mr. Johns, I can't recall, yesterday. It was

19 suggested that I hold on to this until we did our

20 presentation today. I have the original of a letter from

21 Joanne Ronci, who is Mono County Supervisor, District 3,

22 which is addressed to Chairman Caffrey. And Joanne Ronci

23 made some copies, but I don't know that she made enough

24 copies for everyone in the room. That will just have to be

25 done subsequently.

1757

01 MR. JOHNS: What was the date of that letter?

02 MR. BELLOMO: May 5th.

03 And I also have a letter that I was asked to deliver

04 from Edward J. Inwood, Mono County Supervisor, District 4,

05 which is dated 5/1/97, and also addressed to Mr. Caffrey.

06 And Mr. Inwood made some copies, but probably not enough for

07 everyone.

08 CHAIRMAN CAFFREY: Give the original to Mr. Johns. You

09 can give me a copy when you get one.

10 MS. BELLOMO: I have a copy for you. I don't know how

11 you deal with this. This is a minute order from the Office

12 of the Board of Supervisors, Mono County, regarding their

13 decision to oppose the conceptual agreement in the Mono

14 Basin proceeding.

15 CHAIRMAN CAFFREY: Could it be attached to the letter?

16 Don't we have a letter from the -- could we attach it to a

17 letter or do we take it as an exhibit?

18 MR. FRINK: It could be attached to the letter, but

19 since it is a document representing an official act of a

20 governmental agency, we could take official notice of it and

21 give it an exhibit number.

22 CHAIRMAN CAFFREY: We will take official notice of it

23 and give it number. Would that be 45?

24 MR. JOHNS: That is correct.

25 CHAIRMAN CAFFREY: Number 45.

1758

01 MS. BELLOMO: And I have a letter from the Mammoth

02 Lakes Chamber of Commerce dated April 30, 1997, addressed to

03 Chairman Caffrey, signed by Emile Rummel.

04 CHAIRMAN CAFFREY: That will be a policy statement.

05 MS. BELLOMO: Do you have this document already? Has

06 this been distributed to people?

07 CHAIRMAN CAFFREY: I don't think I have seen that

08 one. I don't recall for sure. We will see it. We will

09 take another look at it.

10 MS. BELLOMO: I ask you, Mr. Johns, what was the date

11 of the letter that I just told you from the Chamber of

12 Commerce?

13 CHAIRMAN CAFFREY: April 30.

14 MS. BELLOMO: Thank you.

15 CHAIRMAN CAFFREY: Was that 45?

16 MR. JOHNS: That was 46.

17 MS. BELLOMO: Do we have as a policy statement the

18 letter of Mono County to the Water Board, dated January 22,

19 1997, addressed to Mr. Pettit, signed by Tom Farnetti?

20 CHAIRMAN CAFFREY: We have this one already.

21 MS. BELLOMO: Then I believe you have this. I think I

22 got this from the staff this morning. A letter from the

23 Mono County Board of Supervisors, dated May 6, 1997, and

24 signed by Tom Farnetti and addressed to Chairman Caffrey and

25 Members?

1759

01 MR. JOHNS: Yes, we do. Faxed this morning.

02 CHAIRMAN CAFFREY: Again, a policy statement.

03 MS. BELLOMO: I think that concludes all of the letters

04 that I was asked to distribute.

05 CHAIRMAN CAFFREY: Thank you.

06 MS. BELLOMO: That concludes everything that I need to

07 mark.

08 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo.

09 Let me find out now from Mr. Frink what his comment was

10 now that we have all of these marked.

11 Do you have concern about one of these?

12 MR. FRINK: I had concern about the attachment on

13 People from Mono Basin Preservation, Exhibit Number 40. I

14 wouldn't say there is any problem with the admission of the

15 fax cover sheet or the cover memo from Mr. Dodge. It is

16 dated March 14th, 1997.

17 As Ms. Bellomo indicates, that gives some idea of the

18 interchange of communication between the parties in the

19 hearing and who was or wasn't included in the settlement

20 negotiations. But I don't believe that the X'd out portion

21 of the exhibit that was a draft of an early version of the

22 settlement agreement is admissible. The parties intended

23 that it be confidential. I don't believe that Ms. Bellomo

24 intends that we look at it, but rather than just have it X'd

25 out, I suggest that we remove it and not include it in the

1760

01 file at all.

02 MS. BELLOMO: That sounds like a good idea. I just

03 didn't know if I should give it to you or not.

04 CHAIRMAN CAFFREY: Tear it off and destroy it before we

05 see it.

06 MR. BIRMINGHAM: Can we have a moment to confer?

07 CHAIRMAN CAFFREY: You certainly may. I was going to

08 ask if there were objection to these exhibits. So, please

09 takes a few moments, if you need it.

10 Are there objection to these exhibits?

11 MR. DODGE: Let me address that.

12 CHAIRMAN CAFFREY: Mr. Dodge.

13 MR. DODGE: Thank you. Exhibits 38 and 39 are excerpts

14 from the Mono Lake Committee Newsletter. I can't believe

15 that these are proper rebuttal, but in the interest of the

16 shortness of life, I am not going to object.

17 CHAIRMAN CAFFREY: Thank you for you kindness, sir.

18 MR. DODGE: Exhibit 40, we've dealt with.

19 Exhibit 41, again, rebuts nothing, but I don't object

20 to it.

21 And the 42, I don't object to.

22 Exhibit 43, of course, I can't have read this document

23 in the time alloted, but assuming it is what counsel

24 indicates it is, I have no objection.

25 MS. BELLOMO: Just for clarification, that is just for

1761

01 official notice, is it? 43 is the Forest Service document?

02 CHAIRMAN CAFFREY: We received this for official

03 notice; is that correct, Mr. Frink?

04 MR. FRINK: Yes. We are giving it an exhibit number

05 and the Board can take official notice of it.

06 MR. DODGE: No objection to that.

07 No objection to Exhibit 44.

08 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.

09 Anybody else?

10 Mr. Roos-Collins.

11 MR. ROOS-COLLINS: In the interest of concluding this

12 hearing, California Trout does not object to the

13 introduction of any of the marked exhibits. However, I do

14 wish to express my concerns as to the weight that this Board

15 may grant some of them.

16 As to Exhibits 38 and 39, I understood Ms. Bellomo to

17 offer them to impeach the competency of the Mono Lake

18 Committee to negotiate an agreement and to offer that

19 agreement to this Board. That is a slippery slope that is

20 wholly irrelevant to this Board's decision, and, further,

21 would be very dangerous as a precedent in relations between

22 the parties in any hearing.

23 If we questioned either each other's competency,

24 motives, and so forth, even to being present, there would be

25 no way for this Board to ever reach the end of any dispute.

1762

01 So while I do not object to the introduction of these

02 exhibits, I believe they are entitled to no weight.

03 As to Exhibit 41, this is apparently intended to show

04 that the People from Mono Basin Preservation were excluded

05 from negotiations. I note simply that is simply disputed

06 issue of fact. Again, I fail to see its relevancy to a

07 decision. I note that California Trout takes the position

08 that every party who expressed any interest in participation

09 in the negotiation was allowed to participate. Therefore, I

10 disagree emphatically with the inference that People from

11 Mono Basin Preservation attempt to draw from this exhibit.

12 And I have no comments regarding the remainder.

13 CHAIRMAN CAFFREY: Thank you, Mr. Roos-Collins.

14 Anybody else?

15 MS. BELLOMO: Chairman Caffrey, I just think I need to

16 respond to what Mr. Roos-Collins said, very briefly because

17 he misunderstood the purpose of these two documents.

18 CHAIRMAN CAFFREY: I think you need to -- he didn't

19 object to it. And I would like to hear from the parties.

20 You may run the risk of having somebody object to it.

21 MS. BELLOMO: I am willing to run that risk.

22 CHAIRMAN CAFFREY: Let's see if there are any other

23 objections, first.

24 Are there any further objections -- nobody has

25 objected, excuse me.

1763

01 Does anybody else wish to offer any comments or

02 objections?

03 Mr. Dodge, are you rising again?

04 MR. DODGE: Yes. Just to note, I think we all

05 understand --

06 MEMBER DEL PIERO: He is thinking about it.

07 MR. DODGE: Just to note that Exhibit 40 now consists

08 of the first two pages that Ms. Bellomo handed us.

09 CHAIRMAN CAFFREY: That is correct, minus the X'd out

10 pages? Is that what you are referring to?

11 MR. DODGE: Yes, sir.

12 CHAIRMAN CAFFREY: Yes, sir, you are correct.

13 Ms. Bellomo, do you wish to clarify at the risk of

14 further argument?

15 MS. BELLOMO: Yes. I just want to clarify that Mr.

16 Roos-Collins misunderstood that in any way was I offering

17 Exhibits 38 and 39 as any sort of insult or challenge to the

18 integrity or competence of the Mono Lake Committee staff. I

19 tried to point that out, that they have both -- the people

20 referenced in these documents have very great resumes and

21 background.

22 The point we were trying to make is that the Foundation

23 proposed -- it is proposed that the Foundation be composed

24 of parties including the Mono Lake Committee, and the

25 parties are charged with this very important task of

1764

01 deciding what waterfowl habitat restoration work should be

02 done and supervising and whatever, however one chooses to

03 construe their responsibilities under that agreement.

04 We feel it is important for the Board to know that the

05 two head decision makers are not familiar with the area.

06 But this is not an attack on them or on their motives.

07 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo.

08 All right. Without objection then we will accept what

09 we have identified as exhibits into the record. And we have

10 identified those letters as policy statements, and they will

11 be part of the hearing record and not the evidentiary

12 record.

13 Mr. Johns.

14 MS. CAHILL: Chairman Caffrey, Exhibit Number 37,

15 however, is governed by your prior ruling.

16 CHAIRMAN CAFFREY: I'm sorry, tell me what 37 is.

17 MS. CAHILL: 37 was the one you ruled would not be

18 admitted.

19 CHAIRMAN CAFFREY: That's correct. Thank you for that

20 clarification, Ms. Cahill.

21 Mr. Johns.

22 MR. JOHNS: I want to go over this one at a time to

23 make sure -- there are a couple of these I am not sure you

24 are going to accept.

25 CHAIRMAN CAFFREY: Are you sure you want to do this?

1765

01 MEMBER DEL PIERO: Let me help you out. 37 was not

02 accepted. Everything else the Chairman just indicated he is

03 prepared to accept into the record.

04 MR. JOHNS: Except we do have Exhibit 35, a draft of a

05 letter of 34, which I thought we were not going to accept

06 because of was a draft letter?

07 MS. BELLOMO: I had not offered it.

08 MEMBER DEL PIERO: That had actually been withdrawn.

09 CHAIRMAN CAFFREY: We had withdrawn that.

10 MR. FRINK: Which of those two are we taking?

11 MR. JOHNS: We are taking 34.

12 MS. BELLOMO: The signed copy.

13 CHAIRMAN CAFFREY: Thank you for the clarification,

14 Mr. Johns.

15 MR. JOHNS: We have Exhibit 33, which we talked about

16 yesterday, which I assume we are accepted at this time, as

17 well?

18 MS. BELLOMO: I would be offering it at this time.

19 MR. JOHNS: Does your ruling include 33, which is a

20 letter from --

21 CHAIRMAN CAFFREY: It does without objection.

22 MR. DODGE: Could we hear what it is?

23 MR. JOHNS: It is a letter from Robert Macomber,

24 Department of Parks and Recreation to Bonnie Porter, dated

25 8/15/88.

1766

01 CHAIRMAN CAFFREY: The 1988 Macomber letter.

02 MR. DODGE: No objection.

03 CHAIRMAN CAFFREY: That also is accepted into the

04 record as an evidentiary exhibit.

05 CHAIRMAN CAFFREY: Does that complete that bit of

06 housekeeping?

07 It is now time for cross-examination of these

08 witnesses. Let's take about a five-minute break for Esther,

09 and then we will come back with cross-examination.

10 (Break taken.)

11 CHAIRMAN CAFFREY: Mr. Birmingham.

12 CROSS-EXAMINATION BY

13 LOS ANGELES DEPARTMENT OF WATER AND POWER

14 BY MR. BIRMINGHAM

15 MR. BIRMINGHAM: Thank you very much, Mr. Caffrey.

16 Mr. Frederickson, I have just a couple of questions for

17 you. You described the use of water on the Conway Ranch

18 during your direct testimony, and you described the

19 development of a fish rearing project on Conway Ranch.

20 Is that correct?

21 MR. FREDERICKSON: Yes.

22 MR. BIRMINGHAM: When did you begin the fish rearing

23 project on Conway Ranch?

24 MR. FREDERICKSON: I believe they applied, or we

25 applied for the permits in 1991. And we started digging

1767

01 ditches in late '91 or early '92.

02 MR. BIRMINGHAM: What permits did you apply for?

03 MR. FREDERICKSON: Fish and Game aquaculture permits.

04 MR. BIRMINGHAM: Am I correct that the water rights for

05 Conway Ranch are decreed water rights?

06 MR. FREDERICKSON: Yes.

07 MR. BIRMINGHAM: They are decreed by the Mono County

08 Superior Court?

09 MR. FREDERICKSON: Well, I --

10 MEMBER DEL PIERO: Do you understand the question,

11 sir?

12 MR. FREDERICKSON: I kind of do, but remember, I have

13 been out of this for a few years, and I would have to go

14 back.

15 CHAIRMAN CAFFREY: Just answer as best you can.

16 MR. FREDERICKSON: No, I don't understand.

17 MR. BIRMINGHAM: Well, let me ask you this: When you

18 began your fish rearing project in 1991 or 1992, did you, or

19 anyone on your behalf, go to the Superior Court in Mono

20 County to ask the court to modified the purposes of use

21 described in the decree which establishes the water rights

22 for Conway Ranch?

23 MR. FREDERICKSON: Yeah. I believe our attorneys did.

24 MR. BIRMINGHAM: Mr. Bellomo, I have a couple of

25 questions for you.

1768

01 During the presentation of the slides, you described

02 and depicted in those slides some work that was recently

03 done on Wilson Creek and ditches to return flows to

04 DeChambeau Ranch.

05 Is that correct?

06 MR. BELLOMO: That's correct.

07 MR. BIRMINGHAM: Did that work involve placing a

08 diversion facility in Wilson Creek?

09 MR. BELLOMO: The diversion facility was already there.

10 MR. BIRMINGHAM: Did you do any work on the diversion

11 facility?

12 MR. BELLOMO: Put some tin in the bottom of one of

13 them.

14 MR. BIRMINGHAM: Did you do any excavation in

15 connection with the work you did?

16 MR. BELLOMO: No, we did not.

17 MR. BIRMINGHAM: Did you work any -- you described work

18 being done by a backhoe; is that correct?

19 MR. BELLOMO: That was on the ranch.

20 MR. BIRMINGHAM: And did you inquire as to whether or

21 not a 1601 permit from the Department of Fish and Game was

22 required in order to do that work?

23 MR. BELLOMO: I spoke with Roger Porter, and I am not

24 positive if one was required or one was not.

25 MR. BIRMINGHAM: Did you obtain one?

1769

01 MR. BELLOMO: I don't believe there was one.

02 MR. BIRMINGHAM: Among the exhibits that were

03 identified by Ms. Bellomo during her testimony was

04 R-PMBP-43, which is a Forest Service environmental

05 assessment. Do you know -- was there any environmental

06 assessment done for the project that you implemented, other

07 than the environmental assessment that was prepared back in

08 1993?

09 MR. BELLOMO: I have no idea.

10 MR. BIRMINGHAM: Did you provide notice to any of the

11 other parties to this proceeding, other than the Forest

12 Service, that you were going to undertake the work in order

13 to restore flows to DeChambeau Ranch?

14 MS. BELLOMO: Just object. I think this

15 mischaracterizes the situation that should be clarified.

16 This is the Forest Service's ranch, and the people provided

17 volunteer labor to the Forest Service. You are allowed to

18 sign up and do volunteer work.

19 So, there was nobody who had any authority to be

20 notifying people who are applying for anything in the

21 community. It was the Forest Service land.

22 CHAIRMAN CAFFREY: But I still think the question can

23 be answered. Please answer the question.

24 MR. BELLOMO: Can you please restate it?

25 MR. BIRMINGHAM: Did you provide notice to any of the

1770

01 parties to this proceeding, other than the Forest Service,

02 before you undertook the work?

03 MR. BELLOMO: I did not apply to anybody.

04 MR. BIRMINGHAM: Did you provide notice, not apply?

05 Did you tell anybody else that you were going to do this

06 work?

07 MR. BELLOMO: I am kind of lost here in the question.

08 Who would I tell?

09 MR. BIRMINGHAM: Did you tell the Department of Water

10 and Power, the City of Los Angeles that you were going to go

11 out and do this work?

12 MR. BELLOMO: No, we did not.

13 MR. BIRMINGHAM: Did you tell the representatives of

14 the Mono Lake Committee that you were going to go do the

15 work?

16 MR. BELLOMO: Roger Porter was dealing with the Mono

17 Lake Committee.

18 MR. BIRMINGHAM: Did you tell --

19 MR. BELLOMO: I didn't tell anybody.

20 MR. BIRMINGHAM: Let me ask you a different question.

21 What is the basis of your statement that Roger Porter was

22 dealing with Mono Lake Committee? Did he tell you that he

23 had spoken with the Mono Lake Committee?

24 MR. BELLOMO: Roger Porter told me that he was checking

25 with other parties, I believe is the words he used.

1771

01 MR. BIRMINGHAM: Ms. Bellomo. If you would like to

02 answer these questions, you are certainly welcome to.

03 MS. BELLOMO: May I?

04 MR. BIRMINGHAM: Sure. Absolutely.

05 MS. BELLOMO: I would just add that Rick Noles and

06 Roger Porter told me that they were out on the ranch looking

07 around before the work was done, and Heide Hopkins was

08 there. And one day I was walking on the County Road with

09 Heidi Griffin, and the people that drove by first were some

10 of the community men that were going to be doing the work.

11 And then Heidi Hopkins drove by and then the Forest Service

12 drove by and stopped and talked to us. They said they were

13 all out there looking at it. They were explaining to Ms.

14 Hopkins what they were going to be doing out there and

15 getting input from them. And they walked around with her

16 and with Janelle O'Connor, I think her name is. She is

17 their biologist. So, they got the input from Ms. Hopkins, I

18 guess, as to what her concerns were. And I know she had

19 correspondence with the Forest Service saying that the Mono

20 Lake Committee supported the Forest Service's decision to

21 irrigate out there. And that they just expressed their

22 desire that the Forest Service keep records about how much

23 water was being used, or some such thing.

24 MR. BIRMINGHAM: Mr. Bellomo or Mrs. Bellomo, either

25 one of you, was part of your motivation in performing this

1772

01 work to initiate some kind of project that would benefit

02 waterfowl in the Mono Basin?

03 MS. BELLOMO: I am sorry, I didn't hear the question.

04 I was reading something.

05 MR. BIRMINGHAM: May I ask you to read the question

06 back?

07 (Record read as requested.)

08 MR. BELLOMO: Not particularly. It was more to keep

09 the ranch from dying while somebody made up their mind as to

10 what they were going to do.

11 MR. BIRMINGHAM: So, in other words, while this Board

12 was considering what kind of project should be implemented

13 with the water to be allocated from Wilson to Mill, you

14 decided that you would initiate this project to keep the

15 ranch from dying?

16 MS. BELLOMO: I can answer from my view and the views

17 of some others.

18 MR. BIRMINGHAM: Let me withdraw the question. It was

19 argumentative, I am sorry. I will withdraw.

20 CHAIRMAN CAFFREY: I guess -- all right.

21 MR. BIRMINGHAM: I should not have asked that question.

22 I apologize.

23 Ms. Bellomo, I have some questions that I would like to

24 direct to you, if I may.

25 Am I correct that your group's fundamental objection to

1773

01 the Department of Water and Power's Waterfowl Habitat

02 Restoration Plan is that the plan contains proposals, the

03 environmental effects of which have not been adequately

04 studied?

05 MS. BELLOMO: I think there are so many different bases

06 for the proposal, that it could take me a while to

07 enumerate. Maybe I wouldn't be able to be complete, because

08 we have such a diverse group of people, with all

09 backgrounds, types and ages. There is every kind of concern

10 that you ever heard mentioned.

11 There are some people whose primary concern, some of

12 the older residents, is the loss of historical values that

13 is posed because they're very concerned, for instance, about

14 Mattly Meadow, which some people here have indicated that

15 they don't even know where it is. To them, that is an

16 important historical area that is related to their families.

17 There are people who are, hundreds for instance, who

18 are alarmed that the idea that or they view it as absurd

19 that anyone would think that waterfowl habitat will result

20 if you rewater Mill Creek. I am not saying that they are

21 right or not. They are just really upset that that is what

22 is being proposed for waterfowl habitat restoration, and

23 they want to see waterfowl habitat restoration done.

24 There are others who are concerned about the way the

25 process has been gone about, and they are really upset that

1774

01 the county isn't being involved properly.

02 There are others whose primary interest is in having

03 the county raise fish on Conway Ranch. I don't know if --

04 some of them may not care about anything else. They're

05 concerned that if you don't have enough water on Conway

06 Ranch, you can't raise fish there.

07 There are people in Mammoth who are concerned about the

08 impact that is affecting the scenic quality of the area

09 along 395, which is the Scenic Byway and would have on

10 tourism with people that come up to the area. It just goes

11 on and on.

12 MR. BIRMINGHAM: Let me refer back to your original

13 direct testimony. You were selected by the People from Mono

14 Basin Preservation to be one of their two spokesmen at this

15 proceeding; is that correct?

16 MS. BELLOMO: Yes.

17 MR. BIRMINGHAM: Going back to your original direct

18 testimony, R-PMBP-29, on Page 3 you state you are somewhat

19 confused, that with the exception of BLM, no party to date

20 has raised publicly serious concerns about the effects of

21 making changes to Wilson Creek flows on Conway.

22 Among those effects that you are describing are

23 environmental effects; is that correct?

24 MS. BELLOMO: I should probably look at my testimony,

25 actually, because it is late in the day and I am not -- just

1775

01 to do justice to your question, I really should look at my

02 testimony.

03 MR. BIRMINGHAM: Let me give you my copy.

04 MS. BELLOMO: No. I have my copy here, if you could

05 just tell me what page.

06 MR. BIRMINGHAM: On Page 7, at the bottom of Page 7.

07 MS. BELLOMO: Okay. I am with you.

08 MR. BIRMINGHAM: In fact, the question says: Do the

09 documents pertaining to environmental review at Conway Ranch

10 increase the People from Mono Basin Preservation's concern

11 regarding the environmental consequences to Conway and

12 Thompson Meadows if LADWP plan is adopted?

13 MS. BELLOMO: I read the question.

14 MR. BIRMINGHAM: Your response to that question is that

15 you're confused because with the exception of BLM no party

16 to date has raised publicly serious concerns about the

17 effects of making changes to Wilson Creek flows on Conway.

18 And my question is, the effects that you are referring

19 to in that answer are the environmental effects; is that

20 correct?

21 MS. BELLOMO: Well, let me see here. I would have to

22 really read the whole context this was written in, but I

23 know environmental effects were one of them. And we also

24 have been concerned about the historical consequences. So,

25 I don't know in the context here exactly if that was the

1776

01 question that specifically was just eliciting the concern

02 about the environmental concerns. But there certainly were

03 other concerns, as well.

04 MR. BIRMINGHAM: Let me ask my first question again. I

05 will rephrase it.

06 Is it your group's concern or among your group's

07 concern that the Waterfowl Habitat Restoration Plan proposed

08 by the Department of Water and Power is inadequate because

09 it fails to adequately consider the environmental

10 consequences of the proposed restoration measures identified

11 in the plan?

12 MS. BELLOMO: I am sorry, I literally slept three hours

13 last night getting ready for this, copying all these

14 documents. I really have to ask to have the question read

15 again; I can't follow you.

16 (Record read as requested.)

17 MS. BELLOMO: I haven't read the Department of Water

18 and Power proposed -- the plan, the restoration plan, that

19 your -- in quite some time, the February 29, 1996 plan. I

20 haven't read that in quite some time. I have been focusing

21 on the settlement and the other documents. But, I did read

22 it one time. I've read various parts a number of times.

23 But my answer to that is that I am not a CEQA expert.

24 I do understand there would be environmental review, and

25 that is probably what you are getting at. It is not that we

1777

01 don't think there is any sort of environmental review

02 process that would have to be engaged in. But one of our

03 concerns, I recall, as a group, was that if the Water Board

04 chooses -- that the choice of plans, sort of along the

05 lines of the question that I think Mr. Johns was asking Mr.

06 Turner this morning, that the choice of projects can have

07 some impact on the outcome. And that we didn't like the

08 choice of projects that were being heavily emphasized in

09 your plan. And we are concerned, the group was concerned,

10 being composed of nonenvironmental experts, just lay people,

11 concerned, based on experience of looking at the outcomes of

12 other environmental reviews, that that choice of plans could

13 affect the outcome of the Board's decision. And we thought

14 it was off to a bad start.

15 Does that answer your question?

16 MR. BIRMINGHAM: Close enough.

17 Is it your view that before any specific proposal is

18 implemented that an environmental study should be conducted

19 to determine the potential impacts --

20 THE COURT REPORTER: I am losing you.

21 MR. BIRMINGHAM: Is it your view that before any

22 specific proposal is implemented, an environmental study

23 should be conducted to determine the potential impacts of

24 the proposal on the environment and cultural resources of

25 the basin?

1778

01 MS. BELLOMO: I have to ask you, what do you mean by

02 "implemented," because I am not an environmental lawyer or

03 environmental specialist. When you say "implemented," do

04 you mean actually, let's say, turn off Wilson Creek and put

05 it all in Mill? Is that what you mean by "implemented"?

06 MR. BIRMINGHAM: Or any of the proposals that are

07 identified in the restoration plan.

08 MS. BELLOMO: What -- I don't even think what I think

09 should be done has anything to do with it. It is going to

10 boil down to what is required by the law. And I, frankly,

11 at this point, haven't had time to bone up on that, to find

12 out what the next stage of the fight might be here.

13 MR. BIRMINGHAM: Let me just ask a question very, by

14 throwing out all the rules of cross-examination. What is it

15 that you would like the State Water Resources Control Board

16 to do in reviewing the proposal that was submitted by the

17 Department of Water and Power of the City of Los Angeles and

18 the proposed modifications of that contained in the

19 settlement agreement?

20 MS. BELLOMO: We had certainly hoped originally that

21 the Department of Water and Power would have liked our

22 proposal. And our proposal was said in the testimony of Mr.

23 Bellomo. Because we felt that the Department of Water and

24 Power has been a really good land manager, regardless of

25 what has happened to the lake in the past, we always felt

1779

01 DWP was a very good land manager in the basin and maintained

02 Cain Ranch in a marvelous condition and maintained Thompson

03 Meadow in a marvelous condition; we wanted to see the Board

04 consider the possibility of doing some really good waterfowl

05 habitat restoration that wouldn't have to cost a lot of

06 money because we don't care how much DWP has to spend, does

07 or doesn't have to spend, in the Mono Basin to do it. But

08 we wanted the Board to consider reasonable plans that

09 wouldn't be restoration, as people are calling it

10 restoration by destruction, because we think so many good

11 things could be done.

12 We have a proposal that is in Joe Bellomo's testimony

13 and supported by affidavits of other residents, and Mr.

14 Noles specifically, that has things like put water in

15 DeChambeau Ponds, put water in County Ponds. You would have

16 to go back and look at that proposal. That was what we were

17 trying to convey.

18 MR. BIRMINGHAM: If I understand your answer, if the

19 analysis of waterfowl habitat restoration program is to

20 implemented, were to consider the alternative that you have

21 proposed in Mr. Bellomo's testimony, you would be satisfied

22 with that?

23 MS. BELLOMO: I am not just going to answer yes to

24 that. Because as I said, I don't understand the

25 environmental review process enough to know if you can --

1780

01 the way you are phrasing that I really don't know if there

02 is going to be one priority project that is Mill Creek and

03 looking at other alternatives, or are we looking, like Mr.

04 Turner, I think, testified, waterfowl habitat restoration in

05 the basin with everything being on a clean slate and looked

06 at fairly and evenly or are they going to be weighted.

07 MR. BIRMINGHAM: If the project were described as a

08 Waterfowl Habitat Restoration Plan, the objective of which

09 was to help mitigate for the loss of waterfowl habitat due

10 to the diversion of water under the City of Los Angeles'

11 water right licenses, and it were to include, among the

12 alternatives, the proposal set forth in Mr. Bellomo's

13 testimony, and an analysis were to be done under CEQA,

14 which I will represent to you requires that all feasible

15 alternatives, all reasonable feasible alternatives be

16 considered, would that satisfy your concern?

17 MS. BELLOMO: I have to answer that our group being

18 such as it is, we don't -- we are not elected officials or

19 compensated, given authority to make decisions on the spot,

20 that's certainly not something we have discussed in our

21 group. I don't think I can speak for the People from Mono

22 Basin Preservation to that. I think there'd have to be a

23 learning curve for people to understand what it is you're

24 talking about since I don't really understand it well

25 myself, and I am a lawyer. I can't answer for the group on

1781

01 that.

02 MR. BIRMINGHAM: Let me ask you a question about some

03 of the letters that have been received by the Board

04 objecting to the plan. For instance, the letter from

05 Congressman Doolittle and the action taken by Mono County,

06 which is in the record --

07 MS. BELLOMO: Let me just find the letter, if I can.

08 MEMBER DEL PIERO: I caution Mr. Birmingham not to go

09 too far afield in terms of the policy statement issues.

10 There has been policy statements entered into the record. I

11 don't know that you want to --

12 MR. BIRMINGHAM: I am happy --

13 MEMBER DEL PIERO: You know what I am saying; you don't

14 want to go there.

15 MR. BIRMINGHAM: I am happy to have them introduced

16 into evidence, but I will take the --

17 MEMBER DEL PIERO: Let me rephrase that. I don't want

18 to go there.

19 CHAIRMAN CAFFREY: I said you might have to lie down

20 before the light.

21 MR. BIRMINGHAM: Did you solicit those letters?

22 MS. BELLOMO: I couldn't be happier that you had asked

23 this. Because Congressman Doolittle got very interested in

24 this issue and, no, we did not solicit it because he became

25 very interested when he was somehow led astray into

1782

01 somehow initially supporting a NAWCA grant for the purchase

02 of the Conway Ranch that would have given $2,000,000 to take

03 the water off Conway Ranch for waterfowl restoration. And

04 when the community found out --

05 MR. BIRMINGHAM: So, you did not solicit that letter?

06 MS. BELLOMO: No. -- he got very actively involved and

07 has sent his aide over to Mono County many times.

08 CHAIRMAN CAFFREY: Ms. Bellomo, we are trying to be

09 lenient here. We may only be halfway through this day, as

10 late as it is now, so other people have rebuttal testimony

11 to present. I am sorry I am taking so long with this.

12 Please be brief with your answer. Just answer the question.

13 Don't testify.

14 Thank you.

15 MS. BELLOMO: Okay.

16 MR. BIRMINGHAM: So, if I understand it, Ms. Bellomo,

17 you don't have a specific proposal to make to the Board

18 concerning how the Department of Water and Power's

19 restoration plan should be modified to comply with the

20 requirements of D-1631?

21 MS. BELLOMO: I guess I have to go back and read Mr.

22 Bellomo's testimony to know that satisfies that. I mean,

23 that might be a proposal for modification. I am not quite

24 sure. But I also am assuming that, as part of the brief in

25 this, that, based on the evidence in the record, we can make

1783

01 proposals to the Board at that time. That is my

02 understanding.

03 MR. BIRMINGHAM: I would like to take a couple of

04 minutes and go through the Mono Basin Habitat Restoration

05 Conceptual Agreement that has been introduced into evidence

06 -- excuse me, has been identified as Restoration-LADWP-68A.

07 Have you had an opportunity to review 68A?

08 MS. BELLOMO: I am sure I have. Let me find it. That

09 is the April -- came with the cover letter from April 8 from

10 Mary Scoonover; is that correct?

11 MR. BIRMINGHAM: Yes.

12 MS. BELLOMO: And it is a five-page document.

13 MR. BIRMINGHAM: Yes.

14 MS. BELLOMO: Yes, I have the document. And your

15 question is?

16 MR. BIRMINGHAM: Can you show me in this document where

17 it says that Wilson Creek will be dewatered and that the

18 water will be diverted back into Mill Creek?

19 MS. BELLOMO: Did I ever say that it said that? Do

20 you believe it is in here, because I don't want to spend

21 time reading it? I don't think it is in there.

22 MR. BIRMINGHAM: I don't believe it is in there. I

23 thought I understood you to be opposed to the dewatering of

24 Wilson Creek, and from some of your answers I thought you

25 were under the impression that the document provided that

1784

01 water would be diverted from Wilson Creek and returned to

02 Mill Creek.

03 MS. BELLOMO: Maybe I could refer to Page 3 of the

04 document. One of the things that we object to is that the

05 agreement specifically says that the parties agree that the

06 proposed project, consistent with the scientists'

07 recommendations, is rewatering Mill Creek with year-round

08 flows, including, and then it has high springtime and

09 summertime flows, naturally high flows during the late

10 summer and fall, rewatering of channels in the bottomland --

11 I am not going to read all that.

12 But that is one of the things that we objected to

13 because that -- if that being the goal, that, in our

14 opinion, would have an impact on Wilson Creek, if that were

15 accomplished.

16 MR. BIRMINGHAM: What does the final sentence on Page 3

17 state?

18 MS. BELLOMO: I think the document speaks for itself.

19 MR. BIRMINGHAM: Maybe you can read the final sentence

20 for me, because I have a question for you about that

21 sentence.

22 MS. BELLOMO: A final decision will not be made prior

23 to the conclusion of the CEQA and NEPA process.

24 MR. BIRMINGHAM: As I understand your testimony today,

25 you don't have a firm understanding of CEQA/NEPA process; is

1785

01 that correct?

02 MS. BELLOMO: That's correct.

03 MR. BIRMINGHAM: So you don't know what that last

04 sentence means about making a final decision or not making a

05 final decision concerning this proposal, prior to the

06 conclusions of the CEQA/NEPA process?

07 MS. BELLOMO: What I would say is that I am not an

08 expert on that. And, therefore, it wouldn't be appropriate

09 for me to testify. But let me assure you that I do have

10 friends who are attorneys, some that I even work with at the

11 PUC, who are CEQA experts. So it is not that we don't have

12 assess to, people to consult with, but I am not expert on

13 that subject.

14 MR. BIRMINGHAM: You don't know what is required under

15 CEQA with respect to the consideration of alternatives to a

16 proposed project?

17 MS. BELLOMO: I have a vague idea, but I certainly

18 would not rely upon my impression of that to advise the

19 group, or to advise you.

20 MR. BIRMINGHAM: Among the comments that is contained

21 in the letters received as policy statements by the Board

22 from various individuals is a statement to the effect that

23 local stakeholders had no opportunity to participate in the

24 creation of the settlement agreement.

25 MS. BELLOMO: Can we look at document you are

1786

01 referring to?

02 MR. BIRMINGHAM: Sure.

03 MS. BELLOMO: Tell me what it is, and I will pull it

04 out.

05 You may want this, so I will just get my own. Senator

06 Leslie's letter; is that correct?

07 MR. BIRMINGHAM: That is among the letters that I am

08 showing you, yes.

09 MS. BELLOMO: Let me find where you are here. I now

10 have the document, and what was the question?

11 MR. BIRMINGHAM: Are you aware of comments to the

12 effect that opposition to the proposed settlement agreement

13 is based upon the fact that local stakeholders had no

14 opportunity to participate in the creation of the agreement?

15 MS. BELLOMO: By comments, you are referring to letters

16 that have been sent to the Water Board?

17 MR. BIRMINGHAM: Among others.

18 MS. BELLOMO: I would like to be specific about what it

19 is we are talking about. Are you asking me: Do I know if

20 people complained to the Water Board about that? I really

21 don't understand the question.

22 CHAIRMAN CAFFREY: If you don't understand --

23 MR. BIRMINGHAM: If she doesn't understand the

24 question, I will rephrase it.

25 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.

1787

01 MR. BIRMINGHAM: Ms. Bellomo, are you aware of any

02 statement in opposition to the proposed settlement agreement

03 that is based upon an understanding that local stakeholders

04 had no opportunity to participate in the creation of the

05 settlement agreement?

06 MS. BELLOMO: I have not read all of these letters

07 closely. Frankly, I have not had an opportunity. For

08 instance, I did not really read the one that the county

09 faxed yesterday. I just got it this morning.

10 But my understanding of, and I know the Rod and Gun

11 Club, in fact, we probably forgot to put that in, the Rod

12 and Gun Club from Bishop sent one in, and I can't remember

13 what they said in that.

14 MR. BIRMINGHAM: If you give me the letter from the Rod

15 and Gun Club, I will put it in.

16 MS. BELLOMO: I don't even know if I have it. They

17 never sent it to me.

18 CHAIRMAN CAFFREY: Could you just answer the question,

19 if you are aware of any. He didn't ask you to enumerate all

20 of them. He just said, "Are you aware of any instance."

21 MS. BELLOMO: My answer is that I haven't read them

22 all. But of those that I have read and that I recalled,

23 having talked to the people who wrote them or their

24 representatives, I could have some confusion about what

25 their positions were and what they put specifically in the

1788

01 letters. But I am not aware of anyone who's objected, whose

02 only objections that was expressed to me was because the

03 local people weren't allowed to participate in the creation

04 of the settlement agreement. I don't know anywhere where

05 that was the sole basis of their objection. That sounds

06 like that is your question.

07 MR. BIRMINGHAM: Let me restate the question so that

08 there is no misunderstanding. Are you aware of any person

09 who has objected to the proposed settlement agreement on

10 grounds, including an understanding, that local stakeholders

11 had no opportunity to participate in the creation of this

12 agreement?

13 MS. BELLOMO: I am aware, for instance, that Senator

14 Leslie sent this letter based on his understanding that we

15 told him that we had tried to get information about the

16 negotiation process and we were not given any of the drafts,

17 and that BLM told us that Ms. Scoonover had announced to the

18 parties that they were not allowed to talk to us about the

19 document, and that Mr. Leslie and his aides and some of

20 these other people heard from us that Mr. Haselton also told

21 us that he was really sorry, but he couldn't tell us what

22 was going on, and that the Mono Lake Committee would not

23 give us the Foundation document, that we didn't ever see any

24 of the documents prior to their being filed with the Board,

25 with the exception of the one document that we have in

1789

01 evidence that was faxed inadvertently by Mr. Dodge's office

02 and Ms. Hopkins, when I called and said, "Oh, great, where

03 is the Foundation agreement that goes with it?" said, "My

04 God, how did you get this thing? You are not supposed to

05 have this."

06 So, yes, these people knew that we were not involved in

07 the process.

08 MR. BIRMINGHAM: I think that answers my question.

09 Thank you, Mr. Caffrey.

10 On February 24, 1997, the parties, including the

11 Department of Water and Power, the Mono Lake Committee --

12 MS. BELLOMO: Can you start over again? I missed the

13 date.

14 MR. BIRMINGHAM: On February 24th, 1997, the parties,

15 including the Department of Water and Power, Mono Lake

16 Committee, National Audubon Society, the Department of Fish

17 and Game, State Lands Commission, the Department of Parks

18 and Recreation, and the United States Forest Service,

19 described to you an agreement in principle that had been

20 reached to resolve the issues currently before the Board.

21 Is that correct?

22 MS. BELLOMO: Is that the meeting where we were, for

23 the first time, told of the agreement that you had reached?

24 While we were in the middle of hearings and we hadn't been

25 invited to the negotiations yet, is that the meeting you are

1790

01 talking about?

02 MR. BIRMINGHAM: Perhaps if I give you a copy of the

03 transcript from the hearing dated February 24th, 1997, it

04 will refresh your recollection. And I am not trying to

05 introduce this into evidence; it is in evidence. Maybe if

06 you could just take a moment and read the transcript at the

07 page that I am handing to you, it might refresh your

08 recollection.

09 MS. BELLOMO: What part do you want me to read?

10 MR. BIRMINGHAM: Start at the bottom of Page 1249 and

11 go on.

12 MS. BELLOMO: I've read it, and now I kind of know what

13 is here so I can look if I need to.

14 MR. BIRMINGHAM: Let me restate the question and I'll

15 omit the reference to all the parties.

16 Is it correct that on February 24, 1997, the parties

17 that I previously mentioned described to you a settlement

18 agreement that had been reached in principle?

19 MS. BELLOMO: It was described to us and offered to us,

20 in fact, as a take-it-or-leave it proposal. Did we want to

21 join in it, take it or leave it. It had been arrived at.

22 That is what initially what we were told.

23 I thought what we did in that room when the Board was

24 sent out was confidential because -- do you want to get into

25 talking about what went on at that meeting that we had?

1791

01 MR. BIRMINGHAM: She's answered my question.

02 CHAIRMAN CAFFREY: He's just asking you a question

03 whether you --

04 MS. BELLOMO: He's characterizing what happened in the

05 meeting, and I am not trying to open it up. I am just

06 saying, is that where we are headed, because I thought we

07 weren't supposed to talk about it. I have never talked

08 about that with anyone.

09 CHAIRMAN CAFFREY: You have answered his question, Ms.

10 Bellomo.

11 Go ahead, Mr. Birmingham.

12 MR. BIRMINGHAM: This was stated publicly on the

13 record, Ms. Bellomo. I think if you review the transcript

14 you will be able to discover this. At that time it was

15 proposed that the parties wanted to continue these

16 proceedings, to provide an opportunity for the parties to

17 put the agreement that had been reached in principle into

18 writing; is that correct?

19 MS. BELLOMO: I recall something along those lines,

20 yes.

21 MR. BIRMINGHAM: It was understood by all of the

22 parties at the time that if a party did not agree with the

23 ultimate form of the written document that a party would not

24 be bound by the settlement agreement. Isn't that correct?

25 MS. BELLOMO: You have to say that again, I am sorry.

1792

01 I really didn't get that.

02 (Record read as requested.)

03 MS. BELLOMO: That was not my understanding. My

04 understanding was that only those that agreed -- when it was

05 offered to us, that only if we agreed to the concept of the

06 settlement would we be allowed to participate in the

07 drafting of it. That is why later we were told that we

08 couldn't see the document until the Water Board got it.

09 Heidi Hopkins told me that several times. No, no, that was

10 not my understanding. My understanding was we couldn't

11 participate if we didn't agree at the outset. There was not

12 going to be any discussion, changes, that we could say

13 anything we wanted. It was take it or leave it, or you are

14 out of the process. That is what happened.

15 MR. FRINK: Mr. Birmingham, I question the relevance of

16 continued discussion of the settlement negotiations and what

17 the understandings of the parties were and so forth. On the

18 one hand, the parties who participated agreed it was

19 confidential; and on the other hand, how the proposal was

20 reached in terms of who understood what isn't necessarily

21 the issue before the Board. Rather, the issue is, do the

22 restoration proposals as set forth in the settlement

23 agreement meet the requirements of Decision 1631.

24 MR. BIRMINGHAM: Let me explain, if I may, Mr. Frink,

25 and to the Board why I am going into this line of questions.

1793

01 And, unfortunately, it appears that we are going to have to

02 go into significant detail into the transcript from the 25th

03 in our argument, in written argument. But I have been

04 involved in proceedings before this Board, and the Bay Delta

05 proceeding is a prime example, where there have been

06 settlement discussions and a party was excluded from the

07 settlement discussions, and because they were excluded from

08 the settlement discussions, litigation was initiated. A

09 prime example is the decision today, this very day, of the

10 Third District Court of Appeal in which Stockton East Water

11 District and Central Delta Water Agency challenged Water

12 Rights Decision 95-6 in part on the grounds that they were

13 excluded from the settlement discussions which resulted in

14 the agreement that was presented to this Board which

15 resulted in the 1995 Water Quality Control Plan and the

16 Water Rights Decision 95-6.

17 Significant opposition exists to the settlement

18 proposal because there is perception that parties were

19 excluded. I understand that Ms. Bellomo feels that her

20 client was excluded from the settlement discussions.

21 MS. BELLOMO: I don't have a client in this case.

22 MR. BIRMINGHAM: It is Ms. Bellomo's perception that

23 People from Mono Basin Preservation were excluded from the

24 settlement discussions. I think that the record will speak

25 for itself, but it is entirely different than that. Ms.

1794

01 Bellomo says that the way it happened was, if people

02 participated in the settlement discussions, they had to take

03 it or leave it. She knows that is the way it was.

04 In fact, we know from the record that is not the way

05 that it was. Frank Haselton participated in the settlement

06 discussions and he is not a party to the agreement because

07 he disagreed with the ultimate form. Mr. Roos-Collins, on

08 behalf of California Trout, Inc., participated in the

09 settlement discussions, and it was only on Monday, it was

10 only on Monday that they were finally able to conclude,

11 based upon on the settlement discussions, that they were

12 going to agree to the settlement.

13 I want to make this record very, very clear that there

14 was no party that was excluded from these settlement

15 discussions because I don't want any basis for some party

16 challenging the decision of this Board approving the

17 settlement agreement.

18 MS. BELLOMO: Mr. Chairman, can I very, very briefly

19 respond.

20 CHAIRMAN CAFFREY: Just a moment.

21 Mr. Frink.

22 MR. FRINK: Yes, Mr. Chairman. I think --

23 CHAIRMAN CAFFREY: Mr. Frink, come up here, please.

24 (Break taken.)

25 CHAIRMAN CAFFREY: Thank you for your argument, Mr.

1795

01 Birmingham.

02 Mr. Frink, go ahead.

03 MR. FRINK: I was just going to say --

04 CHAIRMAN CAFFREY: We had a little counsel up here and

05 I asked Mr. Frink to explain something.

06 MR. FRINK: I was just going to say, Mr. Chairman, I

07 think both Mr. Birmingham and Ms. Bellomo have expressed

08 their views on how the settlement negotiations proceeded. I

09 think the one thing I agree with that Mr. Birmingham said is

10 that the record speaks for itself. I think we should move

11 on.

12 CHAIRMAN CAFFREY: And this question can be briefed by

13 both parties, all parties, after we finish today's

14 proceeding and leave the record open.

15 Is that not the case?

16 MR. FRINK: Yes, it may be briefed.

17 CHAIRMAN CAFFREY: Mr. Birmingham, I would ask you to

18 conclude this line of questioning with that understanding,

19 that you will obviously be allowed to brief this and could

20 we go onto some other line of questioning, if you have

21 another line.

22 How much time does Mr. Birmingham have left, Mr. Johns?

23 MR. JOHNS: Twenty-one minutes.

24 MR. BIRMINGHAM: Ms. Bellomo --

25 MS. BELLOMO: Yes.

1796

01 MR. BIRMINGHAM: -- the Mono Basin Waterfowl Habitat

02 Foundation Conceptual Agreement, or R-LADWP-68A, talks about

03 the creation of a waterfowl habitat restoration Foundation.

04 Is that your understanding?

05 MS BELLOMO: If I could just pull out the document

06 again. You are asking if it talks about the creation of a

07 Foundation?

08 MR. BIRMINGHAM: Yes.

09 MS. BELLOMO: Yes, that is my understanding.

10 MR. BIRMINGHAM: Have you asked to become a party to

11 that Foundation or to the agreement?

12 MS. BELLOMO: I am trying to remember, and I want to be

13 completely -- I want to be completely accurate, obviously,

14 because I am under oath. I recall some time, a month or so

15 ago, going -- I can't recall if this happened when I was at

16 the house of Heidi Hopkins and Frances Spivy was there and

17 we went over to meet her during, I think, maybe her second

18 visit or third visit to the Mono Basin, or if it was just in

19 conversations I had with Ms. Hopkins --

20 CHAIRMAN CAFFREY: I don't know that we need to know

21 that.

22 MEMBER DEL PIERO: Do you want to direct the witness?

23 CHAIRMAN CAFFREY: Just answer the question.

24 MEMBER DEL PIERO: A litany of the residents of the

25 Mono Basin is interesting, obviously, but it is not

1797

01 responsive.

02 CHAIRMAN CAFFREY: Agreed.

03 MEMBER DEL PIERO: The answer is yes or no, did she

04 solicit membership.

05 CHAIRMAN CAFFREY: You either can or you can't remember.

06 MS. BELLOMO: That is not --

07 CHAIRMAN CAFFREY: You are under oath.

08 MS. BELLOMO: It can't be answered as a yes or no

09 question. Because we have a lot of discussions at the Mono

10 Lake Committee, and I know we have talked about things like,

11 well, we are really upset at the idea that nobody can be on

12 this unless they agree with the Foundation. I've had

13 discussions to that effect.

14 MEMBER DEL PIERO: Mr. Chairman.

15 CHAIRMAN CAFFREY: Mr. Del Piero.

16 MEMBER DEL PIERO: Ms. Bellomo, the Chairman admonished

17 you before. My tolerance is far shorter. That probably is

18 why he is the chairman and I am not. Let's leave it at

19 that.

20 Mr. Birmingham, may I make a suggestion through the

21 Chair, if I might?

22 CHAIRMAN CAFFREY: Go ahead, Mr. Del Piero.

23 MEMBER DEL PIERO: If it is a problem in terms of this

24 line of questioning, perhaps what you ought to do is ask

25 whether or not, or ask if she knows to whom show would

1798

01 solicit membership on the committee. I am not advising you

02 how to ask questions. Maybe you can get a yes or no out of

03 that.

04 MR. BIRMINGHAM: Ms. Bellomo, do you know to whom you

05 should solicit membership on the Foundation?

06 MS. BELLOMO: I don't mean to nitpick, do you mean

07 after the Foundation was formed?

08 MR. BIRMINGHAM: Excuse me, I have no further

09 questions.

10 Thank you.

11 CHAIRMAN CAFFREY: I apologize. Did I disrupt your

12 line of questioning by my counseling up here, Mr.

13 Birmingham?

14 MR. BIRMINGHAM: No. I just have no further

15 questions. We will cover all of this in the closing brief.

16 CHAIRMAN CAFFREY: Thank you, sir.

17 I apologize for the delay.

18 There is no one from U.S. Forest Service; is that still

19 the case?

20 Bureau of Land Management, I believe no one is here.

21 Arcularius Ranch, same thing.

22 Richard Ridenhour.

23 Cal Trout, do you wish to cross-examine?

24 MR. ROOS-COLLINS: No questions, Mr. Chairman.

25 CHAIRMAN CAFFREY: Ms. Cahill, the Department of Fish

1799

01 and Game, do you wish to cross-examine?

02 MS. CAHILL: I do, very briefly. Mr. Johns can set the

03 timer for ten minutes, and if I am not finished by then, I

04 will sit down in any case.

05 CHAIRMAN CAFFREY: That is an interesting offer, Ms.

06 Cahill. Please take what time you need, as long as it is

07 ten minutes.

08 CROSS-EXAMINATION BY

09 DEPARTMENT OF FISH AND GAME

10 BY MS. CAHILL

11 MS. CAHILL: Mr. Frederickson, were you a partner in

12 the Conway Ranch when the property was subdivided?

13 MR. FREDERICKSON: Yes.

14 MS. CAHILL: At this time, do you own only the lot on

15 which you live or do you own some of the unsold lots in the

16 subdivision?

17 MR. FREDERICKSON: No, just the lot I live on, right.

18 MS. CAHILL: What was the historic use of the Conway

19 Ranch?

20 MR. FREDERICKSON: Agricultural.

21 MS. CAHILL: Would the conversion of part of the ranch

22 to a 40-unit subdivision cause a change in the historic use

23 of that part of the ranch?

24 MR. FREDERICKSON: Yes, it did.

25 MS. CAHILL: Would it cause a change in the appearance,

1800

01 the historic appearance of Conway Ranch?

02 MR. FREDERICKSON: Yes.

03 MS. CAHILL: Would it cause, in fact, a significant

04 change in the appearance of Conway Ranch?

05 MR. FREDERICKSON: Yes.

06 MS. CAHILL: Were you involved in the Joe Keating Paoha

07 project?

08 MR. FREDERICKSON: No.

09 MS. CAHILL: Does Mill Creek have a fishery in it?

10 MR. FREDERICKSON: Well, can I go back on that last

11 question? Joe Keating, at the time that he was proposing

12 the project, came to the Conway Ranch Partnership and

13 offered the partnership a piece of action in the proposed

14 project.

15 MS. CAHILL: That was accepted?

16 MR. FREDERICKSON: No.

17 MS. CAHILL: Was not accepted?

18 MR. FREDERICKSON: Right.

19 MS. CAHILL: So the Conway Ranch Partnership was not a

20 partner in that project?

21 MR. FREDERICKSON: No.

22 MS. CAHILL: Is there a fishery in Mill Creek?

23 MR. FREDERICKSON: Yes.

24 MS. CAHILL: Are there times when Mill Creek does not

25 flow all the way to Mono Lake?

1801

01 MR. FREDERICKSON: I don't know that.

02 MS. CAHILL: Do you know that, Mr. Bellomo, are there

03 times when Mill Creek does not flow all the way to Mono Lake?

04 MR. BELLOMO: That is correct.

05 MS. CAHILL: With regard to the recent taking of water

06 back to DeChambeau Ranch, what is the purpose of

07 reirrigating the ranch?

08 MR. BELLOMO: Aesthetic.

09 MS. CAHILL: Is there a crop being produced?

10 MR. BELLOMO: No. Part of a scenic area.

11 MS. CAHILL: Prior to the rewatering of DeChambeau

12 Ranch, was water in Wilson Creek flowing all the way to Mono

13 Lake?

14 MR. BELLOMO: Pardon me?

15 MS. CAHILL: Prior to your efforts to rewater

16 DeChambeau Ranch, was water in Wilson Creek flowing all the

17 way to Mono Lake?

18 MR. BELLOMO: Yes.

19 MS. CAHILL: Was it still, after you took the water and

20 put it on DeChambeau Ranch?

21 MR. BELLOMO: Yes.

22 MS. CAHILL: Would you expect it to flow all the way to

23 Mono Lake all summer long if DeChambeau Ranch remains

24 watered?

25 MR. BELLOMO: That would purely be a guess on my part.

1802

01 MS. CAHILL: That you, no further questions.

02 CHAIRMAN CAFFREY: Thank you, Ms. Cahill.

03 MR. BELLOMO: Actually, Ms. Cahill, I would like to

04 answer that. As long as they stay within their water

05 rights, water will flow all the way to the lake. As long as

06 they're irrigating the ranch with their amount of water and

07 they are taking their water at the proper time, there will

08 be no impact on that creek. If anything, it will be an

09 improvement for that creek.

10 MS. CAHILL: This is the Forest Service's water right?

11 MR. BELLOMO: That's correct.

12 MS. CAHILL: Which went unused for how many years?

13 MR. BELLOMO: I believe three.

14 MS. CAHILL: Thank you.

15 CHAIRMAN CAFFREY: Thank you, Ms. Cahill.

16 Ms. Scoonover, do you have some cross-examination?

17 MS. SCOONOVER: We have no questions.

18 CHAIRMAN CAFFREY: Mr. Dodge.

19 MR. DODGE: How much time did Ms. Cahill take?

20 MR. JOHNS: Two and a half minutes.

21 MR. DODGE: Set the clock for two and a half minutes.

22 Don't start; I haven't started yet. I have been accused by

23 Ms. Bellomo of taking an hour with each of her panel. I

24 took four minutes with her prior panel.

25 MEMBER DEL PIERO: I was a witness to the truth of

1803

01 that accusation on more than one occasion.

02 CROSS-EXAMINATION BY

03 NATIONAL AUDUBON SOCIETY and MONO LAKE COMMITTEE

04 BY MR. DODGE

05 MR. DODGE: Mr. Frederickson, would you turn around

06 please?

07 MR. FREDERICKSON: Sure.

08 MR. DODGE: State Lands Commission Exhibit 424 shows

09 the ranch there, right?

10 MR. FREDERICKSON: Yes, sir.

11 MR. DODGE: Conway Ranch?

12 MR. FREDERICKSON: Right.

13 MR. DODGE: How many acres is that?

14 MR. FREDERICKSON: 876 acres.

15 MR. DODGE: Turning to the time that you were involved

16 in irrigation, about how many acres were irrigated each

17 year?

18 MR. FREDERICKSON: Oh, in the early part of partnership

19 up to 19, probably, 85, when the first drought started. The

20 whole ranch.

21 MR. DODGE: And after that?

22 MR. FREDERICKSON: Depending on the water, we had a

23 program with the Department of Water and Power to share the

24 water for the other ranches, so we came up with a plan at

25 the beginning of every year how much water we would use, and

1804

01 that was during the drought years, which lasted almost all

02 the way up to the end of my partnership.

03 MR. DODGE: During those years, a lot fewer acres were

04 irrigated?

05 MR. FREDERICKSON: Yes, depending on the water.

06 MR. DODGE: Is there some document that you have that

07 could tell us exactly how much was irrigated?

08 MR. FREDERICKSON: On the Conway Ranch or on all the

09 ranches?

10 MR. DODGE: On the Conway Ranch.

11 MR. FREDERICKSON: No, just my memory.

12 MR. DODGE: Approximately how many acres were irrigated

13 during the drought years?

14 MR. FREDERICKSON: Well, during the drought, it was

15 awful difficult to get water over on to Ritchie Conway's

16 property. So that would eliminate roughly 250 acres. So

17 maybe 5, 600.

18 MR. DODGE: Were you also involved in the irrigation on

19 the Mattly Ranch?

20 MR. FREDERICKSON: Yes, I was.

21 MR. DODGE: How many acres comprised the Mattly Ranch?

22 MR. FREDERICKSON: 160.

23 MR. DODGE: Approximately how many acres were

24 irrigated, if you know?

25 MR. FREDERICKSON: I think on the ranch you could

1805

01 irrigate --

02 MR. DODGE: Not could, were. How many acres were

03 irrigated?

04 MR. FREDERICKSON: 100 to 150.

05 MR. DODGE: During what time frame, sir?

06 MR. FREDERICKSON: We usually turn that on somewhere in

07 early to mid March.

08 MR. DODGE: During which years?

09 MR. JOHNS: Couldn't do could it, could you, Bruce?

10 MR. DODGE: During which years of the 100 to a 150

11 acres were irrigated on the Mattly Ranch? I am trying to

12 determine what years you are referring to.

13 MR. FREDERICKSON: That would be all the years.

14 MR. DODGE: 1980 to 1994?

15 MR. FREDERICKSON: Yeah, roughly.

16 MR. DODGE: Thank you.

17 No further questions.

18 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.

19 MR. DODGE: Questions from staff?

20 MR. FRINK: I have a couple, Mr. Chairman.

21 CROSS-EXAMINATION BY

22 BOARD STAFF

23 MR. FRINK: Mr. Bellomo, is there now a structure in

24 place that allows the Forest Service to measure the quantity

25 of water diverted from Wilson Creek into the ditch leading

1806

01 to DeChambeau Ranch?

02 MR. BELLOMO: It should probably be current metered,

03 with a current meter.

04 MR. FRINK: Right now, is the Forest Service able to

05 determine the amount of water diverted into the ditch?

06 MR. BELLOMO: I don't believe they are.

07 MR. FRINK: How much work would be required to improve

08 the diversion structure so they could regulate the flows

09 that are diverted?

10 MR. BELLOMO: They can regulate the flow.

11 MR. FRINK: They can measure the flow that gets

12 diverted?

13 MR. BELLOMO: They can go up right now with a current

14 meter and measure the flow. All they have to do is bring a

15 current meter up there and do it.

16 MR. FRINK: Based on your experience in judging rate of

17 flow of water diversion as a hydro project operator, do you

18 believe that the current rate of diversion is within the

19 Forest Service's water rights?

20 MR. BELLOMO: Oh, yes, very much so. I would estimate

21 somewhere in the three to six range, cfs.

22 MR. FRINK: Now, the work that the local citizens did,

23 that was described as being volunteer work that the citizens

24 did on Forest Service project?

25 MR. BELLOMO: That is correct.

1807

01 MR. FRINK: Is that project that is described in the

02 environmental assessment and decision notice that the People

03 from Mono Basin Preservation introduced into evidence?

04 MR. BELLOMO: I don't know that.

05 MR. FRINK: Ms. Bellomo, do you know if that is the

06 project, restoring flow to the DeChambeau Ranch was the

07 project that was evaluated in the Forest Service

08 environmental assessment?

09 MS. BELLOMO: I believe so. They looked at a number of

10 different scenarios, and the decision notice said something

11 like 11 cfs of water would be available for irrigation. I

12 think, yes.

13 MR. FRINK: Thank you.

14 CHAIRMAN CAFFREY: Mr. Canaday.

15 MR. CANADAY: Mr. Frederickson, what would be the

16 typical irrigation season for the Conway property and Mattly

17 property?

18 MR. FREDERICKSON: March through October.

19 MR. CANADAY: That would be an average water year?

20 MR. FREDERICKSON: That would be on an average water

21 year.

22 MR. CANADAY: That was March through the beginning of

23 October or the end of October?

24 MR. FREDERICKSON: Towards the end of October when the

25 sheep left. We would keep water on, to keep water for the

1808

01 sheep. Not necessarily all being irrigated at that time.

02 MR. CANADAY: The fishing growing facility that is

03 currently on the Conway property, that is intended to be a

04 year-round facility?

05 MR. FREDERICKSON: Yes, it was.

06 MR. CANADAY: You will hold fish over the winter?

07 MR. FREDERICKSON: There have been, yes, for several

08 years.

09 MR. CANADAY: Mr. Bellomo, you testified earlier, as a

10 hunter, you observed waterfowl or ducks at Black Point, near

11 the area of Black Point, where the County Ponds would be

12 near DeChambeau Ranch.

13 Could you identify what kinds of ducks those were?

14 MR. BELLOMO: There were usually quite a few teal and

15 ruddy ducks down around Black Point in the tufa towers on in

16 along that marshland. At the DeChambeau Ponds were

17 primarily mallards, and a lot of geese use the ponds there.

18 MR. CANADAY: White geese or Canadian?

19 MR. BELLOMO: Canadian geese. You get very few white

20 geese in the Mono Basin.

21 The area down north of, along the springs on the north

22 side of DeChambeau Ranch -- not -- yeah, the north shore of

23 the lake beyond DeChambeau Ranch are primarily the geese,

24 and the ponds had a lot of just mixed ducks, a lot of teal.

25 MR. CANADAY: What about the -- you mentioned the BLM

1809

01 property. Do you recall what kind of ducks you saw there?

02 MR. BELLOMO: That was teal, mallards, a few pintail.

03 Those seemed to be the favorite ducks in that creek area.

04 MR. CANADAY: That is all I have.

05 CHAIRMAN CAFFREY: Thank you, Mr. Canaday.

06 Mr. Johns, you didn't have any questions?

07 MR. JOHNS: No, sir.

08 CHAIRMAN CAFFREY: Mr. Del Piero.

09 MEMBER DEL PIERO: Mr. Bellomo, have you observed ducks

10 over Simons Springs?

11 MR. BELLOMO: Yes, I have.

12 MEMBER DEL PIERO: What types?

13 MR. BELLOMO: Basically, the same; very mixed numbers

14 of ducks, and the same goes for the Warm Springs area.

15 MEMBER DEL PIERO: Ms. Bellomo, have you ever received

16 an invitation to join the group that was working on the

17 settlement agreement?

18 MS. BELLOMO: No.

19 MEMBER DEL PIERO: Have you ever written formally, a

20 letter requesting membership?

21 MS. BELLOMO: I am sorry, you mean during the time that

22 the negotiations were happening?

23 MEMBER DEL PIERO: I mean at any time since the group

24 -- since you became aware that the group was in existence,

25 have you ever written a formal request to any party involved

1810

01 in the group, soliciting membership?

02 MS. BELLOMO: In the negotiation process, no.

03 MEMBER DEL PIERO: Thank you.

04 CHAIRMAN CAFFREY: Mr. Del Piero, thank you.

05 I believe that completes the cross-examination portion.

06 Do you have any redirect, Ms. Bellomo?

07 MS. BELLOMO: I just had one question. If I can do it

08 from sitting here.

09 CHAIRMAN CAFFREY: Certainly.

10 MS. BELLOMO: Mr. Bellomo, you testified that, in

11 response to a question from one of the prior attorneys, that

12 the purpose of putting water back on DeChambeau Ranch was

13 for aesthetic purposes.

14 Was there any other purpose?

15 MR. BELLOMO: Environmental, keep the trees and stuff

16 alive.

17 MS. BELLOMO: Was there any purpose among any of the

18 people doing the work in hoping to get the water back into

19 DeChambeau Ponds and County Ponds, ultimately?

20 MR. BELLOMO: It has been talked about. That is kind

21 of depending on what the Forest Service chooses to do with

22 their water right.

23 MS. BELLOMO: I have no further questions.

24 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo.

25 MS. BELLOMO: Any recross, Mr. Birmingham?

1811

01 MR. BIRMINGHAM: No.

02 CHAIRMAN CAFFREY: Cal Trout, any recross?

03 MR. ROOS-COLLINS: No, Mr. Chairman.

04 CHAIRMAN CAFFREY: Ms. Cahill.

05 MS. CAHILL: No recross.

06 CHAIRMAN CAFFREY: Ms. Scoonover.

07 MS. SCOONOVER: No.

08 CHAIRMAN CAFFREY: Mr. Dodge.

09 MR. DODGE: No.

10 CHAIRMAN CAFFREY: My eye sight is going; did I miss

11 anybody?

12 I don't think I missed anybody.

13 Thank you.

14 Questions from staff?

15 MR. FRINK: No.

16 CHAIRMAN CAFFREY: Mr. Del Piero. Anything else?

17 All right.

18 MEMBER DEL PIERO: I do, Mr. Chairman, have one

19 question in regards to the notice by Federal Government on

20 the project at DeChambeau.

21 What were the expressed purposes noticed. I have not

22 had a chance to review that. Everybody seemed to be asking

23 Mr. Bellomo what the intent of the federal agency was.

24 What were the expressed intents in that notice?

25 CHAIRMAN CAFFREY: Who are you asking, Mr. Del Piero?

1812

01 Our staff?

02 MEMBER DEL PIERO: Actually, I am asking of Ms. Bellomo

03 because she introduced it into the record.

04 MS. BELLOMO: It is an environmental assessment

05 document, not a notice.

06 MEMBER DEL PIERO: What was the projection

07 characterized as? What was the intent of the project?

08 MS. BELLOMO: For the Forest Service to consider an

09 approach both to enhance, restore, and management of

10 wildlife habitat on DeChambeau Pond, and to manage heritage

11 resource values of DeChambeau Ranch compound through

12 interpretation and to provide for semipermanent recreation

13 opportunities.

14 MEMBER DEL PIERO: Included wildlife enhancement and

15 management.

16 Thank you.

17 CHAIRMAN CAFFREY: Thank you, Mr. Del Piero.

18 I believe that, correct me if I am wrong, Mr. Frink, I

19 believe that we still have exhibits to accept from the first

20 panel, or did we accept those. I thought we put it off till

21 we finished both panels.

22 MR. FRINK: We may have. Just so the record is clear,

23 Mr. Johns, could you list the one through however many

24 exhibits were offered and accepted and identify the ones

25 that were not accepted.

1813

01 MR. JOHNS: We have hearing exhibits PMBP-33 through 45

02 that were introduced, and all of those were accepted -- I

03 meant 45. Try it again. 33 through 45 were the ones

04 introduced. All were accepted, except 35 and 37.

05 CHAIRMAN CAFFREY: I think I got a little confused.

06 Somehow I thought we had not accepted the exhibits from the

07 first panel.

08 Am I wrong?

09 MR. FRINK: I think that is correct.

10 CHAIRMAN CAFFREY: We got them all in.

11 MR. FRINK: Exhibits 1 through 32 have been submitted;

12 is that correct?

13 CHAIRMAN CAFFREY: That is what I am asking. Have

14 they been accepted into the record?

15 MR. JOHNS: Those were accepted in February.

16 CHAIRMAN CAFFREY: I believe that completes our work,

17 if you will, with Ms. Bellomo's two panels.

18 Thank you very much, Mr. Frederickson, Mr. Bellomo, and

19 Ms. Bellomo. It's been a long day for all, and it is not

20 over yet.

21 I think that we probably ought to break around 5:30 as

22 there are cars to move. First let me get an idea of --

23 MR. DODGE: I am hopeful that we will be finished by

24 seven.

25 CHAIRMAN CAFFREY: That would be good. Let's see, we

1814

01 still have rebuttal testimony from, I believe, Ms.

02 Scoonover. You had indicated you wished to offer rebuttal;

03 is that correct?

04 MS. SCOONOVER: We do not wish to offer rebuttal.

05 CHAIRMAN CAFFREY: Mr. Dodge, do you wish to offer

06 rebuttal?

07 MR. DODGE: I am not next, Mr. Chairman.

08 CHAIRMAN CAFFREY: You are not next.

09 MR. DODGE: I am not next on the list, I don't think.

10 CHAIRMAN CAFFREY: I believe you are. I believe you

11 are last on the list.

12 MR. DODGE: Have you passed Fish and Game?

13 CHAIRMAN CAFFREY: Fish and Game declined yesterday.

14 MEMBER DEL PIERO: Set that watch for two and a half

15 minutes.

16 CHAIRMAN CAFFREY: Set the timer for two and a half

17 minutes.

18 MR. DODGE: I have a short rebuttal witness.

19 CHAIRMAN CAFFREY: You have a short rebuttal witness?

20 MR. BIRMINGHAM: No, he doesn't. He has a rebuttal

21 witness.

22 CHAIRMAN CAFFREY: Do you think, Mr. Dodge, your

23 rebuttal is of such a length as we might take a chance of

24 continuing here without a break?

25 MR. DODGE: Yes, sir.

1815

01 CHAIRMAN CAFFREY: We will give it a try.

02 MR. DODGE: We would call Dr. Scott Stine.

03 CHAIRMAN CAFFREY: Five-minute break.

04 (Break taken.)

05 CHAIRMAN CAFFREY: We are back.

06 Please, Mr. Dodge.

07 DIRECT EXAMINATION BY

08 NATIONAL AUDUBON SOCIETY and MONO LAKE COMMITTEE

09 BY MR. DODGE

10 MR. DODGE: Dr. Stine, Ron Thomas testified on more

11 than one occasion that the creation of open, fresh water

12 ponds is key to returning large numbers of waterfowl to Mono

13 Lake. My question to you is: Was fresh, open water a major

14 part of the conditions that supported ducks prior to 1940?

15 DR. STINE: As part of my work on waterfowl habitat in

16 the Mono Basin, which I believe is -- in fact, it is indeed

17 part of the DWP waterfowl plan; is in there as an appendix,

18 I totaled the amount of open, fresh water habitat that

19 existed prior to 1940. The total acreage of fresh water,

20 open habitat, prior to 1940, was 1.2 acres.

21 We have already gained a huge amount of fresh, open

22 water habitat in the Mono Basin. It is far more abundant

23 today than it was prior to 1940. What was driving the

24 habitat in the Mono Basin prior to 1940 was not fresh water

25 pond or fresh water marsh. It was the lake itself. And if

1816

01 I could be allowed to, I would like to read, slowly, but

02 over a period of no more than a minute or a minute and a

03 half, hear several accounts from the locals: Dombroski,

04 McPherson, Preston, among others, Don Banta, as well, about

05 that waterfowl habitat, because they are very, very clear on

06 what was driving the duck habitat in the Mono Basin prior to

07 1940. I can find no dissent among the long time residents

08 of the Mono Basin on this point.

09 Dombroski stated that in the absence of wind the

10 hunting was poor since the birds "remained far from shore

11 where they could feed and obtain water from the fresh water

12 springs in the lake."

13 McPherson, Wally McPherson, remembered that "when the

14 wind blew, why, you had good duck hunting because the wind

15 would drive the ducks off the lake. If you didn't have any

16 wind, you might as well stay home."

17 Preston said that "when the wind was right, there were

18 so many ducks along the shore, that they'd move out all

19 together. It looked like the entire shore was moving out."

20 McPherson again noted that the ducks were abundant and

21 the duck hunting was good on the lake.

22 This is not a quote, but he refers to ducks being so

23 thick 200 yards off shore that "you'd go out there in a boat

24 and it looked like they were going to run ashore in a sand

25 bar. There were so many birds."

1817

01 McPherson again stated that -- pardon me. Banta, Don

02 Banta said that "shovelers were by far the most numerous.

03 They stayed almost entirely on the lake, utilizing fresh

04 water springs on the land nearer to the shoreline. They fed

05 mainly on insect life on the lake itself."

06 And then, finally, McPherson here gets to, I think, a

07 very, very important point which relates to this 1.2 acres

08 of fresh water pond that I alluded to here. He is talking

09 here about Simons Springs. But he says that at Simons

10 Springs the lake was "up to the spring, practically, and all

11 that swamp area that is there now, wasn't there. The lake

12 had it covered up."

13 This was the situation, not only at Simons Springs, but

14 at virtually all of the areas that are today fresh water

15 marshlands. This then goes to the concern of many of the

16 people that I have been working with on this, including, to

17 a large extent, Fritz Reid, but certainly Ted Beedy, who I

18 have worked with before, a waterfowl expert himself, Ph.D.

19 in waterfowl, essentially. We are concerned that to bring

20 waterfowl back in the Mono Basin we're going to be doing

21 things in the Mono Basin that were never there, rather than

22 allowing nature to actually restore the conditions that used

23 to be out there.

24 MR. DODGE: Dr. Stine, do you remember Mr. Thomas

25 testifying on that point and saying that natural processes

1818

01 would not be enough to bring back duck habitat which

02 occurred prior to 1940?

03 Let me ask --

04 DR. STINE: Yes, I do.

05 MR. DODGE: Let me ask you to focus on the major

06 habitat for waterfowl that supported waterfowl prior to

07 1940. Which ones will and which ones will not be restored

08 through natural processes?

09 DR. STINE: Hypopycnal areas were probably the most

10 important, based on all of the accounts from the long time

11 residents of Mono Basin, written and spoken, as well as the

12 Dombroski map. Hypopycnal areas were probably the most

13 important.

14 Now, D-1631, in its wisdom, has more water going down

15 Rush and Lee Vining Creeks in the winter -- pardon me, in

16 the fall and winter than would be going down those streams

17 under natural condition. We are not only going to have

18 hypopycnal areas return to Mono Lake, but we are going to

19 have bigger ones than existed under nature. So, that will

20 be taken care of on Rush and Lee Vining Creeks.

21 In terms of shoreland lagoons, there were small

22 ephemeral shoreland lagoons prior to 1940. When the lake

23 started to fall, right around 1940, in the mid 40s, we

24 started to lose that. A falling lake doesn't build these

25 ephemeral lagoons. And I am referring here to ephemeral

1819

01 lagoons of the type that are illustrated on my Exhibit 420.

02 If I could, in referring to these, the full thing here is

03 R-SLC/DPR-420. If I could just refer to my exhibits by the

04 three numerals there I would appreciate it.

05 In any case, on Exhibit 420 I have here a photograph

06 taken with Dr. Beedy of the type of habitat that is now

07 forming out there and that will continue to form as the lake

08 rises to and then fluctuates about lake level 6391, 6392.

09 We are going to have a lot of this stuff. We are going to

10 have more of this than existed prior to 1940. Indeed, we

11 are going to have many tens, dozens of acres of this kind of

12 habitat, particularly when the lake rises up in a wet year

13 and then backs off a little bit in the ensuing normal years

14 of dry years. We are going to have an awful lot of this

15 material here. We don't have to raise a shovel; we don't

16 have to pay a dime. That is the second type.

17 The third type is the hypopycnal rias. Now, hypopycnal

18 rias did not exist prior to 1940. But they are a bonus. It

19 is something that the City of Los Angeles has, in a sense,

20 given back to us. They caused the streams to incise, but

21 now there are these elongated embayment that the lake can

22 rise into when it rises. These are going to be still water

23 coves, fresh water skims overlying this invertebrate rich

24 brine. A total of approximately 40 acres of it when the --

25 MR. DODGE: Associated with which streams?

1820

01 DR. STINE: This would be Rush Creek and Lee Vining

02 Creek, which would constitute a little bit over half of

03 that. We would then have -- thank you for the correction

04 --- if Mill Creek were rewatered, we would get an

05 additional, I believe, it is 14 acres of hypopycnal ria

06 there. Again, we don't lift a finger; we just allow the

07 lake to rise on Lee Vining and Rush Creeks. If we rewater

08 Mill Creek, we will get two hypopycnal rias that will

09 contribute a great deal of habitat of the type that has been

10 described as being beneficial to ducks.

11 MR. DODGE: If you rewater Mill Creek and dewater

12 Wilson Creek, will you lose hypopycnal ria?

13 DR. STINE: You will not. There will not be a

14 hypopycnal ria on Wilson Creek because there is no ria on

15 Wilson Creek. There was no delta for Wilson Creek to incise

16 when Mono Lake fell. That, as you guys know, is because

17 Wilson Creek is not a natural stream. It built no delta

18 during the last 10,000 years.

19 May I go with those types of habitats that will come

20 back due only to natural process?

21 MR. DODGE: Try to complete your answer quickly.

22 DR. Stine: There are a couple more. The still water

23 coves and no one can predict exactly how much still water

24 coves along the shoreline there is going to be. I can't

25 predict it. I pointed out that these things are going to

1821

01 form, but it all depends on how much the shoreline bevels as

02 the lake rises, and I have no way of predicting that. There

03 will be still water coves along the shoreline.

04 The last thing is bottomlands. Bottomlands were used

05 by ducks prior to 1940. If Mill Creek is restored, making

06 up for the irreparably lost bottomlands on Rush Creek, it

07 will be almost a wash. We will be back to almost where we

08 were prior to 1940 in terms of bottomlands. All of this for

09 nothing.

10 MR. DODGE: Does that complete your answer?

11 DR. STINE: It is complete enough.

12 MR. DODGE: Let me move to a new subject.

13 Mr. Thomas, and I believe others, have expressed a concern

14 that the gradient on Mill Creek is such that if it were

15 rewatered that fresh water ponds or marshes would be less

16 likely, for example, to form on Mill Creek than on Rush

17 Creek.

18 Do you have an opinion on that subject?

19 DR. STINE: Yes, I do. Reference was made to the

20 average gradient on Rush Creek versus Mill Creek. And I've

21 drawn this analogy before, if Bill Gates was to walk into

22 this room right now, the average value of everyone in here

23 would go up about $500,000,000. Averages don't work when we

24 are talking about streams and ponds along streams. It is

25 the breaks in the stream profile that determine where you

1822

01 get the ponds. Having hiked up and down Mill Creek many

02 times with, in some cases, people in this room, I can

03 testify to the fact that there will be lots of places, as

04 many places per mile on Mill Creek that will contain ponds

05 as there will be on Rush Creek, once Rush Creek is

06 restored. Not as many miles of it, but there will be as

07 many places per mile.

08 The gradient of Mill Creek, I should make clear, is a

09 little steeper than Rush Creek. It is not as steep as Lee

10 Vining Creek. It is between the two, actually closer to

11 Rush Creek than it is Lee Vining Creek.

12 MR. DODGE: Let me move to a new topic, sir. The

13 Bellomos have asserted in their testimony that the

14 restoration of Mill Creek will take, I can't remember

15 exactly how long, but many, many years to accomplish after

16 the rewatering.

17 Do you have an opinion as to how long it will take

18 restored Mill Creek to provide waterfowl habitat?

19 DR. STINE: Yes, I do. And there will be a number of

20 different types of waterfowl habitat provided. So let me

21 break it down very briefly. Ponds, if you were to put most

22 of the water back into Mill Creek, as I have suggested in my

23 report there, those kinds of amounts, you would have ponds

24 within hours. You would have hypopycnal layers within a few

25 more hours. You would have willows, as we know from what

1823

01 has gone on Rush Creek and on Lee Vining Creek, the

02 explosive growth as it has been very correctly called.

03 Willows, willow thickets, dense willow thickets in two to

04 three years with anastomozing channels running between

05 them.

06 Cottonwoods, well, the cottonwood establishment is

07 already going on on Mill Creek. So the cottonwood

08 establishment is under way. Those trees do take a long time

09 to reach maturity; 20 years, 40 years, 60 years, something

10 like that. So mature cottonwood forest, not for a while.

11 Did that answer your question?

12 MR. DODGE: If you are finished, it does.

13 DR. STINE: I think it does.

14 MR. DODGE: Much has been talked about various

15 witnesses about the significance of the bottomlands in Mill

16 Creek vis-a-vis waterfowl habitat. Mr. Bellomo talked on

17 that subject and so have others.

18 In your view, what is the value to waterfowl of

19 rewatering the Mill Creek bottomlands?

20 DR. STINE: The bottomlands -- I am glad you asked,

21 because it is something that has to be cleared up. I have

22 made statements that I stick by that have been quoted by Joe

23 Bellomo correctly; that is, that the bottomlands will

24 provide habitat for hundreds, but not thousands or tens of

25 thousands of ducks. I stick by that.

1824

01 They are important, however. Fritz Reid determined

02 that they were important. The locals used to talk about

03 jump hunting in these bottomlands. So, we know they were

04 important to ducks. They were part of a complex of

05 habitats. But what is overlooked here in these numerous

06 quotings of Stine, is that there is an indirect benefit of

07 bottomlands that is forgotten.

08 If you want to maximize, or even come close to

09 maximizing, hypopycnal area at the mouth of the stream,

10 which may be the thing that is running the duck motor out

11 there prior to 1940, the best way to do it is to fill up

12 those bottomlands, which are essentially big sedimentary

13 sponges, with water. You do that by not allowing large

14 amounts of water to flow through the bottomlands, but

15 spreading it out in as many channels as you possibly can,

16 that then raises the water table in the bottomlands to the

17 point where, after flows naturally drop to levels in the

18 fall -- when I say flows here, talking about the surface

19 flows of Mill Creek naturally drop to low levels in fall,

20 you have that huge sponge that is essentially being wrung

21 out down at the mouth of the stream.

22 I have seen in 1980, '82, '83, and '86, all very wet

23 years, when water went down simply one channel on Mill

24 Creek, huge amounts of spring water emanating from the

25 sediments very close to the mouth of Mill Creek. And it is

1825

01 on that basis, plus what I have seen at other streams, that

02 I talk about here about the importance of filling up that

03 bottomlands. Otherwise --

04 MR. DODGE: Are you saying, in effect, that filling up

05 the bottomlands through very high flows has an effect later

06 in the year, in the fall, at a different part of the stream?

07 DR. STINE: Yes. At the mouth of the stream. So, you

08 are just storing water in this groundwater reservoir that

09 then slowly ekes through, increasing pretty dramatically

10 then the amount of water that it has contributed to the

11 hypopycnal layer later in the year when the waterfowl are

12 out there. That is the point, in the fall of the year,

13 fall to early winter of the year.

14 MR. DODGE: Let me move to a different subject. Mr.

15 Thomas was asked yesterday to suppose that there was no

16 longer a continuous flow in Wilson Creek. And he was asked

17 a question as to how that would affect the hypopycnal layer

18 in Wilson Creek. And I ask you the same question.

19 DR. STINE: Yes. There will still be water at the

20 mouth of the Wilson Creek because of the natural spring

21 system that is at the mouth of Wilson Creek.

22 I don't have to go into that. I was told yesterday by

23 one learned party that I went into too much detail on that,

24 so I won't again. In any case, there are natural springs

25 there at the mouth of Wilson Creek. But I would also ask

1826

01 you to think back to that same explanation of the exhibit

02 that I pointed to yesterday. The mouth of Mill Creek where

03 the water would be lies just 500 feet west of the mouth of

04 Wilson Creek.

05 The water will be -- the hypopycnal ends will

06 essentially be in the same place, except there will be more

07 water, importantly, coming down Mill Creek than there is

08 coming down Wilson Creek and, secondly, the Mill Creek

09 hypopycnal layer will be part of a habitat continuum that

10 goes from the hypopycnal lens to the willow thicket going

11 upstream -- pardon me -- the hypopycnal lens on the lake

12 into the hypopycnal ria, then into the willow thicket just

13 upstream, and finally into the bottomlands. We don't have

14 that kind of continuum on Wilson Creek because, A, there is

15 no hypopycnal ria on Wilson Creek and, B, there is no

16 bottomlands on Wilson Creek.

17 MR. DODGE: Is that the continuum to which Dr. Reid

18 testified?

19 DR. STINE: I believe he referred to this as a complex.

20 I always have referred to it as a continuum. But we are, I

21 think, saying essentially the same thing.

22 MR. DODGE: I am not sure you answered the initial

23 question. Under my hypothetical where there is no

24 continuous water down Wilson Creek, is there still any

25 hypopycnal lens there or not?

1827

01 DR. STINE: There will be a hypopycnal lens

02 attributable solely to the spring water coming off of Wilson

03 Creek.

04 MR. DODGE: It would be much diminished, but there?

05 DR. STINE: Much diminished, but there, but overlapped

06 by the new hypopycnal area. The Wilson Creek hypopycnal

07 area is very, very close to the Mill Creek hypopycnal area.

08 They essentially occupy the same spot.

09 MR. DODGE: Mr. Thomas referred yesterday, I believe,

10 to a conversation with Tom Ratcliff about, basically, the

11 politicizing of the waterfowl restoration program. He also

12 referred to a conversation with you about politicizing the

13 waterfowl restoration program.

14 Did you have such a conversation with Mr. Thomas?

15 DR. STINE: Yeah. I would clarify. He wasn't accusing

16 me, of course, of politicizing it. But we had a

17 conversation; he is right. It was one of those windy,

18 wonderful, late afternoon Mono Basin days when everything is

19 just sort of starting to glow out there. We were out at

20 Simons Springs, and it was one of those guy times, knock

21 around, push one around down in the mud, but we were not --

22 he was talking about the politics. He was lamenting the

23 politics of the process. I was lamenting certain aspects of

24 the three scientists' report, which overall I think is quite

25 good.

1828

01 I just wish that they, and I wish then to him, that

02 they could have been a little bit more explicit about the

03 role of standing fresh water on the shorelands, exactly what

04 I talked about here when I began. But I wasn't talking

05 about the politicization or the politics of this. Ron

06 Thomas was lamenting it.

07 MR. DODGE: My final set of questions for you.

08 DR. STINE: Who I like very much, by the way.

09 MR. DODGE: If you would look at the People for the

10 Preservation of Mono Basin Exhibit 31.

11 DR. STINE: I don't know what that is.

12 MR. DODGE: It's a quote attributed to you.

13 MR. BIRMINGHAM: Can we take a 30-second recess?

14 (Break taken.)

15 MR. DODGE: Ms. Bellomo read that into the record

16 during one of the days you were not here. I would ask you

17 to read Exhibit 31 and to tell me, first, whether that is

18 something that you said.

19 DR. STINE: You want me to, first, read it -- and I can

20 say that it is, indeed, something I said. And that I will

21 be more than happy to read it. I would add, however, it is

22 taken out of context.

23 MR. DODGE: First read it. I am supposed to ask the

24 questions.

25 DR. STINE: Trying to remember that.

1829

01 Quote, Stine:

02 I want to make one thing -- (Reading.)

03 Pardon me, I wasn't being very articulate then.

04 I want to make one other thing by way of

05 context clear here, and that is that -- and I

06 guess it was raised, perhaps, a couple times

07 here already. The matter of ducks is

08 continuously discussed here, and I think

09 assumed that rewatering Mill Creek is because

10 of ducks. Is just because of ducks. The

11 reason that this is being discussed in terms

12 of ducks is that the waterfowl issue has been

13 raised by the State Water Board. There are

14 lots of us, who for a long time, have been

15 seeing that in terms of environmental issue,

16 in terms of a species issue, in terms of a

17 nature issue, Mill Creek is the big issue

18 left in the Mono Basin. Not just because of

19 waterfowl, but for lots and lots and lots of

20 reasons. So I would -- just want to make it

21 clear that by putting water back into Mill

22 Creek is not being suggested simply because

23 of waterfowl. I would say that there's a

24 relatively one of, perhaps even one minor

25 element, of a whole bunch of different

1830

01 elements of why to rewater Mill Creek, why to

02 put Mill Creek back to the way it has been

03 for the past 10,000 years. (Reading.)

04 MR. DODGE: You started to tell me that you felt that

05 that statement has been taken out of context. Would you

06 explain that, please?

07 DR. STINE: Yes. That day Nelson Matthews, Peter

08 Vorster, I, Heidi Hopkins, and a number of other people

09 attended two meetings. The first meeting was an afternoon

10 meeting with a select group of Mono Basin residents. The

11 second meeting was before the townspeople of Mono Basin at

12 the firehouse.

13 At both meetings, and in between the two meetings,

14 there seemed to be a prevalent misconception. And that

15 misconception is this. If you leave water where it is on

16 Wilson Creek, you have habitat for coyotes, for ducks, for

17 geese, for passerine birds, for deer, for antelope, and for

18 a whole bunch of different creatures. Whereas, if you take

19 it from there and put it back into Mill Creek, what you will

20 have is dubious habitat for a few ducks.

21 What I was trying to point out here is that the

22 benefits of rewatering Mill Creek go way, way beyond simply

23 ducks. That we would be restoring an ecosystem, as Ron

24 Thomas himself said today, and that within any complex

25 ecosystem like that ducks are going to be a minor part of

1831

01 it. So, I simply didn't want there to be this conception

02 that Mill Creek was good for everything that lives -- pardon

03 me, Wilson Creek was good for everything that lives; we were

04 going to lose all of that if we made duck habitat on Mill

05 Creek. That was the context here.

06 The 10,000 years, by the way, which is a number that

07 has come up a couple other times there, I am not trying to

08 put the stream back as it was 10,000 years ago. The stream

09 has been essentially that way. Mill Creek has been

10 essentially that way for the last 10,000 years, throughout

11 Holocene time.

12 MR. DODGE: In fact, was essentially that way about a

13 hundred years ago?

14 DR. STINE: Absolutely, yes.

15 MR. DODGE: That is all I have.

16 Thank you.

17 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.

18 Mr. Birmingham, do you wish to cross-examine?

19 MR. BIRMINGHAM: With great regret, I wish --

20 CHAIRMAN CAFFREY: With great regret you wish to

21 cross-examine.

22 MR. BIRMINGHAM: With great regret, given my long

23 history of examining Dr. Stine, having been given this last

24 opportunity, I have no questions.

25 MEMBER DEL PIERO: Mr. Caffrey, you understand the

1832

01 significance of that?

02 CHAIRMAN CAFFREY: I have only been at this for about

03 ten days. You've had --

04 MEMBER DEL PIERO: For years you couldn't have kept him

05 in his chair.

06 CHAIRMAN CAFFREY: Thanks, Mr. Birmingham.

07 Let's see, Ms. Bellomo, any cross-examination?

08 MS. BELLOMO: I have no questions.

09 CHAIRMAN CAFFREY: Mr. Roos-Collins.

10 MR. ROOS-COLLINS: No questions, Mr. Chairman.

11 CHAIRMAN CAFFREY: Ms. Cahill.

12 MS. CAHILL: No questions.

13 CHAIRMAN CAFFREY: Ms. Scoonover.

14 MS. SCOONOVER: Yes, Mr. Chairman.

15 CHAIRMAN CAFFREY: Please begin.

16 CROSS-EXAMINATION BY

17 STATE LANDS COMMISSION

18 and

19 DEPARTMENT OF PARKS AND RECREATION

20 BY MS. SCOONOVER

21 MS. SCOONOVER: I have some areas that I would like to

22 talk to you about, Dr. Stine. First one, Mr. Terry Russi of

23 BLM testified in late January that soils on Mill Creek are

24 inappropriate to support marshland and riparian vegetation.

25 Do you recall that testimony?

1833

01 DR. STINE: I do.

02 MS. SCOONOVER: In your opinion, will the soils on Mill

03 Creek support marshland and riparian vegetation?

04 Dr. STINE: Yes, they will.

05 MS. SCOONOVER: On what do you base that opinion?

06 DR. STINE: I base that opinion on many miles walked

07 and many hours and days spent on Mill Creek. And what I

08 have observed there, if I may, is a washed-out channel that

09 has been -- that has come as a result of a loss of the

10 vegetation due to the dewatering of Mill Creek, and that

11 wash, as I call it, is composed of fist and larger-sized

12 cobbles and boulders. The fine sediments have been largely

13 washed out of that wash. Fine sediments will come back to

14 that wash if the stream is allowed to flow in a more natural

15 way than it has during the past, essentially, hundred years.

16 What happens on that stream is that you have deluges

17 separated or sort of intercalated with droughts. So that

18 the water is either on or it is off.

19 And very often what happens is that the high flows

20 scour out the fine sediments. They are turned off,

21 essentially, rather than that water being allowed to recede

22 as it would naturally. During recessions of a river, as the

23 velocity slows, finer and finer and finer material is

24 settling out.

25 So, if the stream is put back and furnished with more

1834

01 natural flows, we are going to very rapidly get back fine

02 sediment, even on that wash. I separate the wash from the

03 rest of the stream here, because there are multiple channels

04 in the Rush Creek bottomlands that are still in awfully good

05 shape. If you look at those multiple channels today, they

06 are composed of the fine sediments that have been there for

07 a long, long time. So, we don't have to refurnish fine

08 sediment to those multiple channels. It is already there.

09 The fine sediment is there.

10 CHAIRMAN CAFFREY: Mr. Dodge, do you rise?

11 MR. DODGE: Mr. Chairman, yes. I heard Dr. Stine

12 refer to the Rush Creek bottomlands. My question is: Did

13 he mean to refer to Mill Creek?

14 DR. STINE: I apologize. I was trying to refer to Mill

15 Creek there. All of what I've said in this answer is Mill

16 Creek.

17 CHAIRMAN CAFFREY: Thank you for that clarification,

18 Mr. Dodge.

19 MS. SCOONOVER: Dr. Stine, I assume then, your

20 estimates of the amount of time it would take on Mill Creek

21 for a variety of habitats to return was based on your

22 knowledge of the soils as well as the other physical

23 conditions and water that you expect on Mill Creek?

24 DR. STINE: That is correct. And could I clear up one

25 other thing?

1835

01 MS. SCOONOVER: Certainly.

02 DR. STINE: Mr. Russi's statement, I believe, was

03 something to the effect that if you wanted the vegetation of

04 the type that Stine says is going to come back, to come

05 back, you would need to have different soils. The soils

06 that are there today are inappropriate.

07 In fact, though, the vegetation that I have talked

08 about is coming back. The cottonwoods are coming back, and

09 we have dozens of pretty good shaped cottonwoods coming back

10 on Mill Creek. Is that enough to bring ducks back?

11 Absolutely not. But we have a good start there at least on

12 the cottonwoods since 1980 because we have had such a large

13 number of release years since then.

14 MS. SCOONOVER: Dr. Stine, the other area that I want

15 to probe with you is a question that Mr. Johns asked of, I

16 believe it was, Mr. Thomas this morning. And it was

17 something to the effect of whether or not Mr. Thomas was

18 aware of any of the programs or projects identified by the

19 Intermountain Joint Venture as being of a nature to

20 sacrifice or damage one environment and in favor of another.

21 Do you remember that exchange?

22 DR. STINE: I believe it was expressed, perhaps, as a

23 tradeoff, and I think that was yesterday rather than this

24 morning.

25 MS. SCOONOVER: It is all a blur.

1836

01 Yesterday, but it was Mr. Johns exchanged with Mr.

02 Thomas?

03 DR. STINE: Yes, it was.

04 MS. SCOONOVER: Did you understand Mr. Johns' question

05 to be referring to a tradeoff that may be expected to occur

06 if the proposal to rewater Mill Creek were adopted?

07 DR. STINE: That is the way I understood it.

08 MS. SCOONOVER: What is your opinion of this of what

09 such a tradeoff would entail? What would occur, in your

10 opinion?

11 DR. STINE: Well, there are a number of resources

12 associated with and, to one extent or another, dependent on

13 water in some amount being in so-called Wilson Creek. Part

14 of this is irrigated acreage. Part of it is a fishery.

15 Part of it is vegetation along Wilson Creek. These are all

16 real concerns, and they are concerns that I wholeheartedly

17 understand.

18 If I may opine here. It does seem to me there has

19 been an awful lot of emotion and an awful lot of sides on

20 this, and that people haven't really stepped back to figure

21 out what of the resources over there on Wilson Creek could

22 be kept while still returning Mill Creek to a near natural

23 condition.

24 And I have played with a number of figures with my

25 friend and colleague, Peter Vorster, among other people, and

1837

01 it is clear that we can have green fields of historical size

02 at Conway Ranch and still return Mill Creek to near nature.

03 We can maintain the vegetation along Wilson Creek that Terry

04 Russi is concerned with and still maintain or still return

05 Mill Creek to a near natural condition. I will cut this

06 short, I think that the one thing that we can't have, where

07 the conflict does lie, and this is perhaps what the question

08 was aimed at, is a fishery in both streams. I don't see how

09 we can have a viable fishery in both streams. I don't --

10 MS. SCOONOVER: Excuse me, Dr. Stine. Is that a

11 year-round fishery?

12 DR. STINE: A year-round fishery. I think that if we

13 are going to establish, re-establish, Mill Creek, such that

14 it supports waterfowl both in its bottomlands and much more

15 importantly at the hypopycnal stream at the mouth of the

16 stream, it is going to be very difficult to maintain a

17 year-round fishery in Wilson Creek. So, in that respect, I

18 would agree with Mr. Johns, that there will be a tradeoff,

19 but I don't think that this tradeoff is environmental

20 disaster in regard to everything now dependent on Wilson

21 Creek, at all.

22 MS. SCOONOVER: Dr. Stine, am I correct that you have

23 spent an extensive amount of time both along Wilson Creek,

24 as well as along Mill Creek?

25 DR. STINE: Yes. I have walked them both with

1838

01 apologies to John Frederickson. I have walked Mill Creek a

02 couple times, although that was in the early eighties when

03 it didn't seem to matter. I haven't been on there since.

04 I have walked Mill Creek many times. Indeed, from the

05 headwaters up in the Lundy Canyon area all the way down to

06 the lake, and I have done on a number of occasions.

07 MS. SCOONOVER: If, as you predict, Dr. Stine, the

08 year-round fishery is actually moved from Wilson Creek to

09 Mill Creek, in your opinion, would there be a loss of

10 fisheries habitat, an overall loss of fisheries habitat from

11 that move?

12 DR. STINE: I think that there will be an overall gain

13 of fishery habitat, and I base that on length of channel,

14 which I am capable of measuring, and have, indeed, measured

15 width and depth of the water, particularly in the multiple

16 channels on Mill Creek. I also, however, base it on

17 conversations with Allen Pickard and Gary Smith, both of the

18 California Department of Fish and Game, who have been

19 forthcoming, at least in Allen's case, in a public meeting

20 in pointing out that Mill Creek, despite a hundred years of

21 degradation, today supports a fishery that, in fact,

22 produces more fish, bigger fish, greater concentration of

23 fish than Wilson Creek, which has been supplemented for the

24 last hundred years. So, I would expect that if we are to

25 restore Mill Creek with near natural flows that the fishery

1839

01 values would flourish all the more.

02 MS. SCOONOVER: Finally, Dr. Stine, if we were to

03 reopen the bottomland channels of Mill Creek, how much heavy

04 equipment would be required in order to do so? How much

05 heavy -- would you describe the project as being heavily

06 engineered? How much work would have been to done in order

07 to reopen the bottomland channels of Mill Creek as you

08 proposed?

09 DR. STINE: Well, Ms. Bellomo will be refreshed to know

10 that I am not an engineer. But at the same time, I have

11 worked with Scott English and I would want to defer to

12 someone like Scott English on this. I can tell you this,

13 that he has opened a number of channels on Rush Creek that

14 were far more clogged because of the quarrying operation

15 that existed above the narrows on Rush Creek, far more

16 clogged with debris than any of the channels are on Mill

17 Creek.

18 My suspicion is that to open the channels on Mill Creek

19 you could do it with a team of shovel holders or you could

20 do with two or three people and one of these little

21 bobcat-like affairs.

22 MS. SCOONOVER: Thank you. That is all.

23 CHAIRMAN CAFFREY: Thank you, Ms. Scoonover.

24 Any redirect, Mr. Dodge?

25 MR. DODGE: No.

1840

01 CHAIRMAN CAFFREY: I am sorry, I did it again, I

02 apologize.

03 Questions from the staff.

04 MR. FRINK: Staff does have a few.

05 CHAIRMAN CAFFREY: Please.

06 CROSS-EXAMINATION BY

07 BOARD STAFF

08 MR. FRINK: Dr. Stine, from your testimony about the

09 benefits of rewatering Mill Creek, would I be correct in

10 assuming that you would recommend rewatering Mill Creek even

11 if Decision 1631 did not require preparation of a waterfowl

12 habitat restoration plan?

13 DR. STINE: I am sorry?

14 MR. FRINK: Would you recommend rewatering of Mill

15 Creek even if this Board had not directed preparation of a

16 waterfowl habitat restoration plan?

17 DR. STINE: I would -- I guess what I would do would be

18 to point out to those people who have the power to rewater

19 it, that there are some real environmental gains to be made

20 by rewatering Mill Creek. We got an ecosystem there of the

21 type that has existed in less than a dozen places throughout

22 the whole great basin. I think that from the standpoint of

23 biodiversity, those were probably the most these deltaic

24 bottomlands were probably --

25 MR. FRINK: Sorry to interrupt, all I wanted was an

1841

01 answer if you recommend it or not.

02 DR. STINE: I would on that basis.

03 MR. FRINK: Did you ever propose rewatering Mill Creek

04 before Decision 1631 was entered?

05 DR. STINE: Yes, I probably did propose rewatering. I

06 believe it was before this Water Board. I think that I was

07 saying, in fact, in response to a line of questioning by

08 Hugh Smith, I believe, that we could make up partially for

09 the approximately 44 acres of bottomlands that were

10 irreparably -- if that is the right word, no it isn't but

11 you get the point -- lost in Rush Creek by rewatering Mill

12 Creek.

13 So, if only for bottomlands, yes, I would recommend

14 it, yes. And I believe I did on that occasion to you

15 folks.

16 MR. FRINK: Thank you.

17 I believe you testified earlier that with respect to

18 waterfowl habitat, the most important reason to restore Mill

19 Creek would be to increase the amount of hypopycnal area at

20 the mouth of the Mill Creek as it enters Mono Lake. Is that

21 correct?

22 DR. STINE: Yes, it is. And what I said, I think, was

23 that this was the type of habitat, in combination with

24 existing refuge habitat, that drove the waterfowl population

25 at Mono Lake.

1842

01 MR. FRINK: You also testified that, under the flows

02 that will be required and are being required under Decision

03 1631, that you would expect that the hypopycnal areas at the

04 mouth of Rush and Lee Vining Creek to be greater then they

05 were 1940; is that correct?

06 DR. STINE: To be greater than they were under natural

07 conditions, is what I said.

08 MR. DODGE: I believe his testimony was during certain

09 months of the year.

10 DR. STINE: In the fall when the waterfowl are there,

11 yes.

12 MR. FRINK: During the period that is important for

13 waterfowl habitat, the flows under Decision 1631 will

14 provide larger hypopycnal areas than were there before under

15 natural conditions?

16 Dr. Stine: And were there under natural conditions,

17 yes.

18 MR. FRINK: Thank you.

19 CHAIRMAN CAFFREY: Mr. Johns.

20 MR. JOHNS: One question.

21 You mentioned the amount of acreage that were

22 irreparably lost, or would be irreparably lost in Rush

23 Creek, I assume it is due to the incision of the channel?

24 DR. STINE: That's correct.

25 MR. JOHNS: Do you have an estimate for the loss on Lee

1843

01 Vining Creek of bottomland habitat?

02 DR. STINE: I do. I don't have it at my finger tips,

03 but it wasn't nearly as great as on Rush Creek for reasons

04 that you don't want me to get in. Involves a volcanic

05 eruption 600 years ago.

06 MR. JOHNS: Thank you.

07 CHAIRMAN CAFFREY: Mr. Canaday.

08 MR. CANADAY: Just a follow-up on Mr. Johns' question.

09 Wouldn't those numbers likely be in our technical

10 report number one that you prepared on riparian vegetation,

11 historic?

12 DR. STINE: Come to think of it, yes. They are in

13 something I have written somewhere.

14 MR. CANADAY: Dr. Stine, I know the answer to this, but

15 I am not sure that the Board does. I think they need to

16 understand, because we talked about Wilson Creek quite a bit

17 in the hearing.

18 MEMBER DEL PIERO: Mr. Canaday, we know the answer to

19 everything. Didn't you know that?

20 MR. BIRMINGHAM: Excuse me. I have to share this with

21 the Board, a story. Relates to Judge Finney's retirement

22 party. Judge Finney recounted the time to the several

23 thousand people that were gathered at his retirement. He

24 recounted the time that a witness, an expert witness, turned

25 to him and said, "your Honor, I would explain this, but I

1844

01 don't think you could understand it."

02 And Mr. Dodge was very nice to point out that it was

03 one of my witnesses.

04 CHAIRMAN CAFFREY: Is that witness still living in this

05 state, by any chance? Living at all?

06 MR. DODGE: The first and last thing we always said to

07 every witness we were going to put on the stand was, "Don't

08 turn to Judge Finney and say, "This is complicated," or "You

09 may have a problem with this."

10 MEMBER DEL PIERO: I am sorry, Mr. Canaday, I started

11 that. I deeply apologize. Please proceed.

12 MR. CANADAY: You owe me one, Mr. Del Piero.

13 MEMBER DEL PIERO: Big time. I owe you more than that.

14 MR. CANADAY: I want to be clear of what the historic

15 Wilson Creek was versus the current Wilson Creek. You have

16 the map, 424, which is your map, I believe. Would you,

17 first of all, describe and use that map to show where the

18 historic watershed for Wilson Creek was?

19 MR. JOHNS: You mark on that map, I keep it.

20 DR. STINE: It is yours. I thought it was yours,

21 anyway, to tell you the truth.

22 MR. JOHNS: I have one in the record.

23 MR. CANADAY: Would you mark with dotted lines, I

24 suppose, in yellow where the historic watershed was for the

25 Wilson Creek prior to augmentation for Mill Creek water?

1845

01 DR. STINE: Not the watershed, as I understand it. You

02 want the stream course?

03 MR. CANADAY: The stream course. What stream courses

04 contributed to what we call Wilson Creek?

05 DR. STINE: On Exhibit 424 here is the north arrow to

06 get everybody oriented, so this line here is running

07 east/west. In the northeastern corner of what is blocked

08 out here as Conway Ranch you can sort of see here Rattle

09 Snake Gulch and Bacon Gulch. This is a deteriorated,

10 granite arroyo system that carries water during the snow

11 melt season of the year. Usually dry by June, in any case.

12 Probably a little wet a little bit later in very wet years.

13 It was in this area right through here that water was

14 generated for flow down natural Wilson Creek.

15 MR. CANADAY: Dr. Stine, we will provide you with a red

16 pen.

17 DR. STINE: I will put a red, dashed line -- that is

18 much better -- around the proximate watershed as I can

19 define it on this map for natural Wilson Creek. As I say,

20 it was high ephemeral. The stream -- can I mark the stream

21 as well?

22 MR. CANADAY: Would you please mark that stream?

23 DR. STINE: The stream itself had several tributaries,

24 which I will make a solid red line. There are several

25 different tributaries. Again, all of them ephemeral with

1846

01 the exception of one perennial stream site up there that

02 gets drunken by the sediments by pretty readily.

03 These three ephemeral tributaries then join into one

04 ephemeral stream that came up onto the Conway Ranch here and

05 withered. It was the classic withering stream. So the

06 stream would come out here over the very coarse alluvium

07 that composed Conway Ranch right here, being as it is right

08 at the foothills of the Bodie Hills. That alluvium would

09 just drink up the stream.

10 In wet years, the photographs from 1930, show in wet

11 years water could make its way all the way down to somewhere

12 in through here. I have debates with myself as to whether

13 or not this Wilson Creek ever made it to Mono Lake. I don't

14 think it did make it to Mono Lake under natural conditions.

15 It was just drunk up along the way by the sediments there.

16 MR. CANADAY: Now, could you show where Wilson Creek,

17 the modern addition to Wilson Creek, occurs, or what is

18 called Wilson Creek?

19 DR. STINE: Yes. Here at the Lundy Powerhouse --

20 MR. JOHNS: Do that in blue.

21 DR. STINE: I didn't understand that.

22 CHAIRMAN CAFFREY: I think it is going to happen to all

23 of us when you are trying to mark a surface straight up like

24 that.

25 Go ahead.

1847

01 DR STINE: Here is the Lundy Powerhouse, right here.

02 Water from the Mill Creek system is brought to the Lundy

03 Powerhouse by way of a penstock, at least when the

04 powerhouse is working, which is most of the time. And then

05 there are two egresses from the Lundy Powerhouse here. One

06 of them goes north, and I'll mark that as a dashed line,

07 sort of dashed coming out of the powerhouse. That is one

08 route.

09 MR. BIRMINGHAM: May the record reflect that the Dr.

10 Stine is marking that in blue.

11 DR. STINE: Sort of lazuli, as matter of fact.

12 CHAIRMAN CAFFREY: I might always add that, just as a

13 practical matter, that if we are not efficient in our

14 answers, and our questions as well, but especially in our

15 answers, we are going to have to take a break to come back

16 for about what I suspect will be only ten or fifteen minutes

17 because the parking lot is going to close.

18 DR. STINE: I will be lickety- split here, I promise.

19 Some of the water can come out on the south side of the

20 powerhouse and be put into the Mattly Ditch system and into

21 the Conway Ditch system. Much of that water is then

22 returned to what is now called Wilson Creek, which is, under

23 natural conditions, nonexistent. That water then flows, can

24 flow, down toward Mono Lake and has essentially two pathways

25 that it can take to reach Mono Lake. The split of those two

1848

01 being here at the County Road. In other words, it can

02 either go to Mono Lake by north of Black Point or it can go

03 to Mono Lake west of Black Point. It is a stream that is

04 many, many, many hundreds of times its natural size today as

05 a result of that diversion.

06 MR. CANADAY: Thank you.

07 One last question, Dr. Stine. You are advocating in

08 your proposal for rewatering Mill Creek, totally dewatering

09 of Wilson Creek, are you?

10 DR. STINE: No. In fact, it would be very difficult to

11 totally rewater Wilson Creek as long as Virginia Creek water

12 continues to be put onto the Conway lands, which I assume

13 will be the case. Because there is an awful lot of water

14 that is picked up off of the Virginia Creek diversion that

15 adds flow to Wilson Creek. So, whether or not you are even

16 putting a drop of Mill Creek water back into Wilson Creek,

17 there is going to be some gain. Is it a lot? No, it is not

18 a lot. It is not a lot. But there will be water in there.

19 And do I advocate dewatering it? I am against dewatering

20 Wilson Creek up through the Conway property there. I think

21 we can maintain the values with a small amount of water.

22 MR. CANADAY: Thank you. That is all I have.

23 CHAIRMAN CAFFREY: Thank you, Mr. Canaday.

24 Let's see, there was no redirect, Dr. Dodge; is that

25 right?

1849

01 MR. DODGE: You know, I think that be one of the great

02 tactical errors of our time, to start redirect.

03 MS. SCOONOVER: We agree.

04 CHAIRMAN CAFFREY: I concur in your observation.

05 Unless I am hallucinating -- wait a minute.

06 Let me ask: Do you have any exhibits per se for your

07 rebuttal that you wish to offer into evidence?

08 MR. DODGE: I would offer amended State Lands

09 Commission Exhibit 424 with the color lines on it.

10 CHAIRMAN CAFFREY: That makes sense. I was going to

11 ask Mr. Frink if that is still the same piece of evidence.

12 MR. FRINK: I think we were considering it to be part

13 of the record with the lines.

14 Thank you.

15 CHAIRMAN CAFFREY: The record does --

16 MR. FRINK: Mr. Johns says he will designate the one

17 with the lines on it as State Lands Commission Exhibit

18 424A.

19 CHAIRMAN CAFFREY: 424A. All right, thank you.

20 I believe we are just about completed here except for,

21 if I am not mistaken, some discussion on deadline for

22 submission of legal briefs and written closing statement.

23 Mr. Frink, you want to give us anything on that?

24 MR. FRINK: You may want to hear from some of the --

25 We have inquiries from some of the parties about it.

1850

01 There would be an opportunity for submission of legal

02 briefs. I said ordinarily it is discussed at the end. At

03 the request of the parties, the Board often establishes a

04 schedule.

05 CHAIRMAN CAFFREY: I believe Ms. Bellomo rose first.

06 Mr. Del Piero, I am sorry.

07 MEMBER DEL PIERO: I don't know how you are going to

08 rule. I thought about it, and just if you want my five

09 cents worth before everybody else starts.

10 CHAIRMAN CAFFREY: Please.

11 MEMBER DEL PIERO: It is my personal opinion, legal

12 briefs and closing arguments ought to be authorized.

13 Closing argument, obviously, legal briefs should be

14 authorized to be submitted.

15 CHAIRMAN CAFFREY: I absolutely agree. Actually,

16 unless somebody has a problem with that, I would just more

17 or less open up to discussion from when we want to set a

18 reasonable deadline.

19 Ms. Bellomo, you rose first. What was your comment?

20 MS. BELLOMO: I hesitate to even say anything. I tried

21 your patience more than I deserve to.

22 CHAIRMAN CAFFREY: That is all right.

23 MS. BELLOMO: It was brought to my attention that I

24 didn't -- one of my answers contained a serious omission to

25 a question of Mr. Del Piero, which is -- and if I could just

1851

01 tell you what it is. A piece of physical evidence that I

02 did not inform the Board of. I am not trying to augment the

03 record in any way, but it may be important, based on what

04 Mr. Birmingham was trying to discover. I am not trying to

05 augment the record, but I would like to make it available.

06 CHAIRMAN CAFFREY: Mr. Birmingham.

07 MR. BIRMINGHAM: I have no objection if Ms. Bellomo

08 would like to clarify an answer that she made.

09 CHAIRMAN CAFFREY: We will treat as you go, as

10 clarifying. Please go ahead, Ms. Bellomo.

11 MS. BELLOMO: I just wanted to bring it to the Board's

12 attention and to Mr. Birmingham's attention that in response

13 to the question of --

14 CHAIRMAN CAFFREY: I'm having a little difficulty

15 hearing you, Ms. Bellomo. If you wouldn't mind coming up to

16 the mike.

17 Thank you.

18 MS. BELLOMO: There were questions about whether our

19 group had ever asked to participate in the settlement

20 negotiations, and members of the group reminded me that

21 there is a videotape of a public meeting where our group did

22 make that request to Martha Davis. I am not making any

23 representation about what happened there or anything. It

24 does exist. If this becomes necessary for anyone, we are

25 not planning to challenge the Board's decision based on --

1852

01 this was news to me that there was a legal issue about that.

02 But it exists, and I felt that incumbent upon me to bring

03 that to the Board's attention.

04 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo.

05 Mr. Birmingham.

06 MR. BIRMINGHAM: May I just inquire?

07 MEMBER DEL PIERO: I would find out, Mr. Chairman, that

08 Ms. Bellomo was completely responsive to my question,

09 because I asked whether or not she had any writing. I

10 didn't know about a videotaping.

11 CHAIRMAN CAFFREY: He was asking about in writing, yes.

12 Mr. Birmingham, you rise.

13 MR. BIRMINGHAM: May I inquire as to the date of the

14 that meeting?

15 MS. BELLOMO: I would be happy to provide that to you.

16 I believe that it was the same date that Dr. Stine made the

17 statement that we transcribed, a portion of that is in the

18 record. I believe that was on the same videotape.

19 MR. BIRMINGHAM: I believe that was December 9th, 1996.

20 MS. BELLOMO: I don't recall. If it is important, I

21 will provide that to you after I am in Mono County. I don't

22 recall. We have two or three videotapes of public

23 meetings.

24 CHAIRMAN CAFFREY: Anything else?

25 Let's have some -- gentlemen, Mr. Dodge, and then Mr.

1853

01 Birmingham.

02 MR. DODGE: I would suggest that we have, as we did

03 before, simultaneous opening briefs and closing briefs.

04 That seemed to work well before, and I would suggest for the

05 opening briefs that they be due three weeks after the

06 transcript is received, and that we have approximately the

07 same amount of time to write the closing briefs.

08 CHAIRMAN CAFFREY: Any objection anywhere to that? The

09 Board, the staff, or any of the parties?

10 Ms. Scoonover.

11 MS. SCOONOVER: If we could ask the Court Reporter for

12 some estimate of when those transcripts would be ready

13 because we can then check with calendars.

14 MR. JOHNS: I talked to the Court Reporter earlier in

15 the day, and she indicated that probably a three-week time

16 period would be appropriate.

17 MS. SCOONOVER: Three weeks from today then the

18 transcript would be --

19 MR. JOHNS: They should be. We are not giving any

20 guarantees here, but that looks like reasonable time frame.

21 MS. CAHILL: So, in no event would they likely to be

22 due in less than four weeks from today; is that right?

23 MEMBER DEL PIERO: Transcript available three weeks

24 from today and if we were to follow Mr. Dodge's

25 recommendation, Mr. Chairman, the opening would be due six

1854

01 weeks from today.

02 MR. JOHNS: They might be done earlier than three

03 weeks.

04 (Discussion held off the record.)

05 CHAIRMAN CAFFREY: I just want to get this thing nailed

06 down.

07 Mr. Roos-Collins.

08 MR. ROOS-COLLINS: Mr. Chairman, may counsel confer for

09 just a moment?

10 CHAIRMAN CAFFREY: Sure.

11 (Discussion held off the record.)

12 MR. FRINK: Mr. Chairman, proceeding under the

13 assumption that the transcript will be completed in three

14 weeks, the parties I spoke to, I think it included counsel

15 for all of them who are here, agreed that June 16 would be

16 an acceptable date for submission of their closing briefs,

17 and July 8th would be an acceptable date for submission of

18 their reply briefs. If for any reason that transcript

19 preparation was delayed substantially beyond that, we could

20 adjust.

21 CHAIRMAN CAFFREY: We will just make an adjustment by

22 the like amount of days. Is that agreeable? We can notify

23 or whatever. Does that work for everybody? Is there any

24 objection to that by any of the parties?

25 Ms. Bellomo.

1855

01 MS. BELLOMO: I have no objection. I would want to

02 make sure before we ended today, because I have never filed

03 a brief here, if there are any page limitations or

04 requirements of any sort?

05 CHAIRMAN CAFFREY: Mr. Frink, do I answer that now, or

06 do you want to provide her with a set of our regulations,

07 wherever else that is covered or may be covered, if it is

08 covered at all? Maybe you can answer it quickly now.

09 MR. FRINK: Our regulations do not include a page

10 limitation. Obviously, we prefer that it not be overly

11 long. As far as other processes, serve a copy on the Board

12 and the other parties.

13 MS. BELLOMO: Thank you.

14 CHAIRMAN CAFFREY: Mr. Birmingham.

15 MR. BIRMINGHAM: I would just like to make a few

16 closing remarks, if I may.

17 MR. DODGE: Before we have closing remarks, could I

18 address the one substantive issue?

19 CHAIRMAN CAFFREY: If we are going to have closing

20 remarks, we are probably going to have to take a break

21 because everybody else might want to make closing remarks.

22 We've got cars to move.

23 MR. DODGE: I want to state my understanding, Mr.

24 Chairman, of the issues.

25 CHAIRMAN CAFFREY: Do you yield, Mr. Birmingham?

1856

01 Go ahead, Mr. Dodge.

02 MR. DODGE: I want to address the Board with my

03 understanding of what is going to be briefed; that is, we

04 are going to brief the question of whether or not the

05 settlement negotiated should or should not be accepted by

06 the Board. And if that is not correct, then I would like to

07 be told that.

08 CHAIRMAN CAFFREY: Could you ask that again? I am not

09 sure I understood it, or maybe heard it all.

10 MR. DODGE: My understanding of what is being briefed,

11 and I want to be told if I am wrong, is whether this Water

12 Board should or should not accept the proffered settlement.

13 If you want a broader scope of issues briefed, than I would

14 like to be told that now.

15 CHAIRMAN CAFFREY: That is an excellent question. I

16 hadn't thought of it. Mr. Frink, do you have any --

17 MR. FRINK: I don't. Maybe the Board is interested in

18 briefing on particular issues. But we ordinarily don't

19 restrict the scope of the briefs beyond the scope of the

20 issues listed in the hearing notice.

21 Certainly, the acceptability of the settlement

22 agreement is one issue you may want to address. The

23 parties would be free to address the other relevant issues.

24 MR. DODGE: The problem is this. I am going to be very

25 blunt about this. The problem is that if we go to a broader

1857

01 scope of issues, that is if I brief the question, assuming

02 the settlement is rejected, what should the Board order with

03 respect to stream and waterfowl restoration? That is

04 potentially a very complicated brief. It's going to take me

05 a lot of time and going to cost my clients a lot of money.

06 I would propose that we brief the question whether the

07 settlement should be accepted. If it is rejected, that we

08 come back and brief the other issues.

09 MR. FRINK: Mr. Chairman, could I respond to that?

10 CHAIRMAN CAFFREY: Certainly, Mr. Frink.

11 MR. FRINK: Thank you.

12 The process has drug on for a very long time. And I

13 have no idea what the Board is going to rule. But it could

14 be considerably after this initial set of briefs is due on

15 July 8th. And the idea that if the Board decides one thing,

16 you throw it open again for more briefing, takes us into the

17 possibility of briefing in the fall.

18 I believe all the parties knew at the time they

19 submitted their exhibits for the hearing what the issues

20 were, and I believe Mr. Dodge's client suggested some

21 changes in L.A.'s original proposal. I think that they can

22 brief the issues as stated in a hearing notice, to the

23 extent that they desire to.

24 MR. DODGE: As long as that is clear, that is fine.

25 CHAIRMAN CAFFREY: That is certainly was -- I think

1858

01 that is reasonable. I think that is my intent. I know it

02 is my intent.

03 Do you have any problem with that, Mr. Del Piero?

04 MEMBER DEL PIERO: I have no problems with it,

05 Mr. Chairman. I think Mr. Frink, in articulating his

06 thoughts on that argument, was indicating what that past

07 policies of the Board has been. And, frankly, as we all

08 know, no one can second guess what the Board ultimately is

09 going to do. Least of all, sometimes all the Board

10 Members.

11 So, we need to have the briefs address what was in the

12 original hearing notice, so that we can get it all in before

13 the end of the summer. We can proceed with deliberations.

14 CHAIRMAN CAFFREY: Mr. Roos-Collins, did you have a

15 question, sir?

16 MR. ROOS-COLLINS: Mr. Chairman, could I offer a brief

17 opinion regarding Mr. Frink's statement?

18 CHAIRMAN CAFFREY: I would allow very briefly.

19 MR. ROOS-COLLINS: The hearing notice, which convened

20 this hearing, asked questions, identified three key issues.

21 The issue was the same for each plan required by D-1631:

22 Does that plan comply with the requirements of D-1631?

23 My understanding is that Los Angeles has offered three

24 plans through this settlement agreement. Therefore,

25 California Trout intends to brief: Is each plan submitted

1859

01 through the settlement agreement in compliance with

02 requirements of D-1631? We do not intend to address the

03 plans as originally submitted because Los Angeles does have

04 those plans before this Board.

05 MR. FRINK: Mr. Chairman, I don't have the notice in

06 front of me, but I am virtually certain that the other major

07 issue listed in the notice is: If the plans submitted by

08 Los Angeles do not meet the requirements of Decision 1631,

09 what modifications in those plans should be made? I think

10 that the process will go on indefinitely.

11 CHAIRMAN CAFFREY: Thank you, Mr. Frink.

12 Let me just -- excuse me, Mr. Birmingham. Let me just

13 say one thing. My thought was that we were going to not

14 have closing statements because we are allowing for written

15 closing statements. However, I have no problem with

16 allowing each party to take five minutes for a closing

17 statement. If that is reasonable. I can certainly do that,

18 because I don't want to stifle any of you. But I also think

19 -- I hope that five minutes on each of your parts is

20 sufficient, if that is the desire.

21 I know that you want to make some closing remarks, Mr.

22 Birmingham. If I allow you to, in fairness, I have to allow

23 everybody else to. I just want to -- if that is where we

24 are headed. Is five minutes satisfactory for everybody?

25 MR. BIRMINGHAM: Yes.

1860

01 CHAIRMAN CAFFREY: Hearing and seeing no objection, we

02 will take the order that -- well, I was just wondering

03 about, we have to get our cars.

04 (Discussion held off the record.)

05 CHAIRMAN CAFFREY: Mr. Dodge, were you going to comment

06 on closing statements?

07 MR. DODGE: I don't see the need for closing statement.

08 My closing statement will be to thank the Board and staff

09 for their patience.

10 CHAIRMAN CAFFREY: If everybody is going to take less

11 than five minutes or not any time at all.

12 Mr. Birmingham.

13 MR. BIRMINGHAM: Thank you very much.

14 I know that the Board is very diligent about reading

15 the record of these proceedings. But I wish that the entire

16 Board were here this evening. Because what the Board has

17 witnessed the last few days is really remarkable. And it is

18 remarkable for the follow reasons.

19 The Department of Water and Power of the City of Los

20 Angeles has been in battle, has been involved in very

21 contentious litigation over issues involving Mono Lake since

22 1979. And when the State Water Resources Control Board

23 issued its Decision 1631 in September of 1994, it set the

24 stage for the Department of Water and Power to come together

25 with other parties that had participated in the proceedings,

1861

01 a growing number of parties. And since September of 1994,

02 the Department of Water and Power has attempted to fulfill

03 its obligations under Decision 1631 in a spirit of

04 cooperation and compromise.

05 The fact that virtually all of the parties to this

06 proceeding have spoken with the unanimous voice on the two

07 issues that have been addressed with respect to each one of

08 the plans submitted by the Department of Water and Power is

09 truly remarkable. And I would like to personally thank the

10 other parties and the counsel for those other parties for an

11 extraordinarily effort. And as has been stated earlier,

12 that was an effort that continued up until Monday of this

13 week.

14 As Mr. Roos-Collins observed and Mr. Frink observed,

15 the issues were identified by the notice of this hearing

16 was, does the Mono Basin Stream and Stream Channel

17 Restoration Plan prepared by LADWP comply with the

18 requirements of Water Decision 1631? If not, what changes

19 are needed? Those same two questions are asked with respect

20 to the Grant Lake Operations Management Plan and the

21 Waterfowl Habitat Restoration Plan.

22 There is no dispute among the parties -- let me restate

23 that.

24 There is no longer any significant dispute among the

25 parties concerning restoration of the stream and the stream

1862

01 habitat. For that reason, the Department of Water and Power

02 would like to ask the Board for authorization to initiate

03 some of the restoration measures which are identified in its

04 plan and in the settlement agreement, immediately.

05 Mr. Roos-Collins privately has addressed a very serious

06 point about deferring a decision too long and losing another

07 season. So at this point, what we would ask is that the

08 Board authorize Mr. Petit, as the Executive Director, to

09 approve projects which are consistent with the plan as

10 submitted by DWP and modified by the settlement agreement.

11 MEMBER DEL PIERO: Which streams? Rush and Lee

12 Vining?

13 MR. BIRMINGHAM: Rush, Lee Vining, Walker, and Parker.

14 We recognize that ultimately that the State Water

15 Resources Control Board must make a decision as to whether

16 or not that plan complies with D-1631, the plan as modified

17 by the settlement agreement.

18 It is our view that it does. I believe it is the view

19 of all of the other parties who have signed the settlement

20 agreement that it does.

21 I would like to turn for a moment to Waterfowl Habitat

22 Restoration Plan as modified by the settlement agreement.

23 I am truly sorry that the People from Mono Basin

24 Preservation feel that they were excluded from the process

25 that resulted in that plan. If they have been left with

1863

01 that impression, I believe they are mistaken.

02 On February 25, 1997, there was significant discussion

03 concerning what was going to be involved in further

04 discussions and who was going to participate. And as Mr.

05 Frink observed earlier, the record will speak for itself.

06 But Mr. Johns, towards the end of that hearing asked a

07 clarifying question. He asked:

08 I just want to clarify now, if the Bellomos

09 were willing to participate in the settlement

10 discussions with the parties at this point in

11 time.

12 Chairman Caffrey: They already said

13 no.

14 Ms. Bellomo: Maybe their discussions are

15 going to turn into something we would be

16 interested in. But it didn't look like, that

17 way, that is the way it is headed.

18 Mr. Johns: Are you saying that you are

19 willing to talk to them about the possibility

20 of settlement even though you think right now

21 you are not likely to settle, you are willing

22 to work with them in that process?

23 MS. BELLOMO: Sure. Because they might

24 change their proposal.

25 Mr. Johns: Right, or you might be convinced

1864

01 that their proposal is acceptable.

02 MS. BELLOMO: Right, right. (Reading.)

03 Ms. Bellomo has characterized our presentation to her

04 as a take-it-or-leave-it deal. I think that the record is

05 very clear that it was not a take-it-or-leave-it deal.

06 I will conclude in just a moment, Mr. Caffrey. If I

07 may have one more minute.

08 CHAIRMAN CAFFREY: Go ahead.

09 MR. BIRMINGHAM: Thank you.

10 The settlement proposal with respect to stream and

11 waterfowl habitat restoration creates a process. It doesn't

12 identify any specific project which will be carried

13 out. And the Bellomos and any other interested party,

14 People from Mono Basin Preservation will have every

15 opportunity to participate in that process. The CEQA/NEPA

16 process demands it.

17 In fact, it demands that the alternative that Ms.

18 Bellomo described as being in Mr. Bellomo's testimony is

19 feasible. It should be considered. But the process will

20 provide them with the opportunities, and that is what the

21 settlement agreement creates. And the settlement agreement

22 does not indicate that any parties are taking control or the

23 settlement agreement does not ask this Board abdicate its

24 responsibility in overseeing that process.

25 So, with respect to the issues, the Department of Water

1865

01 and Power of the City of Los Angeles would request that the

02 State Board approve the restoration plans as modified by the

03 settlement agreement.

04 Thank you.

05 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham. We will

06 take your request for, can you start on some of the specific

07 projects under submission. Let me see by a showing of hands

08 how many people wish to give a six-minute closing statement?

09 Mr. Roos-Collins, you wish to give a closing statement.

10 Ms. Bellomo, do you wish to give one?

11 MS. BELLOMO: Yes. Very brief, though. It won't be

12 five minutes.

13 CHAIRMAN CAFFREY: Any others?

14 There are two more. We better take a break and move

15 cars and come back. I don't think we have time to do

16 closing statements and get your car out of hock.

17 Sorry to do that, folks, but we ran out of time.

18 Let's take a break.

19 MR. ROOS-COLLINS: Mr. Caffrey, I can limit my closing

20 statement to three minutes.

21 CHAIRMAN CAFFREY: I don't think that is -- we always

22 make those promises, but I don't think it is going to work.

23 She has to walk out this door at ten to or her car is going

24 to be locked up all night.

25 Anybody else stuck in this parking lot?

1866

01 I think we better break and come back in 15 minutes to

02 take closing statements.

03 (Break taken.)

04 CHAIRMAN CAFFREY: Lets begin the conclusion.

05 Ms. Bellomo, I'll give you -- you have six minutes if

06 you wold like to make a closing statement. Of course, you

07 are entitled, of course, to a written closing statement as

08 well.

09 MS. BELLOMO: Thank you, Chairman Caffrey and Mr. Del

10 Piero, and Members of the Board who are not present who may

11 be reading.

12 We want to thank you sincerely for your patience and,

13 really extraordinary patience in this proceeding, and your

14 forbearance in our effort to put on our case here, not being

15 familiar with your rules and whatnot. We also want to thank

16 the three staff members, particularly Mr. Frink and Mr.

17 Johns, for all the assistance that they have provided us in

18 resolving procedural problems we had along the way. We

19 really appreciated that very much.

20 We want to simply make it clear that we don't in any

21 way want to be viewed as standing in the way of the adoption

22 of the portion of the settlement agreement that the parties

23 have arrived at as it relates to stream restoration at Lee

24 Vining, Rush, Parker, Walker, and, I guess, the Grant Lake

25 Management Plan. We think it is admirable that they have

1867

01 come up with something. By all reports it sounds like they

02 think that they've come up with some really good projects,

03 and we hope that that can go forward. And we don't want in

04 any way to be an obstacle in slowing that down.

05 I am not going to rehash any of our positions on the

06 waterfowl plan. I will put that in the briefs, and I think

07 you are well aware of that.

08 Closing, I would just say that I have proved to myself

09 that I knew what would happen at the beginning of this

10 proceeding, that I have proven that an attorney who

11 represents herself has a fool for a client, and I am sorry

12 that it had to happen in front of you.

13 Thank you.

14 CHAIRMAN CAFFREY: Well, I don't think you should feel

15 that way, Ms. Bellomo. I want to thank you for your very

16 gracious comments.

17 Are there any others?

18 I know that Mr. Roos-Collins wanted to make a closing

19 statement. I don't know where his car was parked. I hate

20 to have us all leave now.

21 MS. SCOONOVER: I would be glad to fill some time,

22 Chairman Caffrey. Just briefly, really.

23 CHAIRMAN CAFFREY: As long as it's song and dance.

24 MS. SCOONOVER: Thank you.

25 I would echo the others in thanking you all for your

1868

01 time and attention. I have practiced before a number of

02 bodies in my career and believe that this is one unique

03 institution in that I feel that all the material is indeed

04 read, that whatever is submitted is taken very seriously.

05 And I know it is a great deal of information and it takes a

06 great deal of time. I appreciate the staff and the Water

07 Board's time and attention given to it.

08 Finally, at the risk of repeating myself, I guess I

09 would like to quote an appellate court in saying, and with

10 feelings this time, all things must end even in the field of

11 water law.

12 Thank you.

13 CHAIRMAN CAFFREY: Thank you very much, Ms. Scoonover.

14 CHAIRMAN CAFFREY: Mr. Roos-Collins, do you need time

15 to catch your breath? Or were you parked on the other side

16 of the Capitol, per chance?

17 MR. ROOS-COLLINS: No. I was parked a good walk from

18 here.

19 CHAIRMAN CAFFREY: We weren't going to leave without

20 you.

21 MR. BIRMINGHAM: Although Mr. Dodge suggested it.

22 MR. DODGE: At least some of us weren't going to leave

23 without you.

24 CHAIRMAN CAFFREY: You have six minutes, Mr.

25 Roos-Collins.

1869

01 MR. ROOS-COLLINS: Mr. Chairman, Mr. Del Piero,

02 California Trout respectfully asks that you accept the

03 restoration plans submitted by the Department of Water and

04 Power as fulfilling the requirements of Decision 1631.

05 In your hearing notice you asked the parties to address

06 two key issues: Does a restoration plan comply with

07 requirements of D-1631 and, if not, how should it be

08 changed? In the course of the many months of this hearing,

09 including the procedural complexities, politics, all the

10 evidence, I fear that we parties have lost track of those

11 key issues. In my closing argument I ask you to focus on

12 them as you make your decision.

13 Cal Trout's answer to that question, to those questions

14 as they pertain to the stream plan was, no, at the outset of

15 the hearing. Our answer today is, enthusiastically, yes.

16 The record contains substantial evidence that the

17 stream plan complies with all of the requirements set forth

18 in Paragraph 8 of Decision 1631. I will be so bold as to

19 say that I am aware of no evidence in the record that

20 demonstrates the plan, now submitted by DWP, is inadequate

21 in any respect to achieve the purpose of restoring the

22 fisheries and the creeks subject to DWP's control.

23 Now, there were disputed issues of law, as well, as we

24 entered this hearing. I comment tonight only that for the

25 first time in these cases the environmental groups, the

1870

01 resource agencies, and DWP are in agreement that the stream

02 plan it has put before you complies with its duties under

03 the law. To my knowledge, we have never had such an

04 agreement, and you have it tonight.

05 Now, as may have been apparent to you from the emphasis

06 in our written testimony, Cal Trout had one priority in this

07 hearing for amendment of the stream plan as submitted

08 February 1996. That was to assure the monitoring program

09 will inform the Board and the interested parties the status

10 of these streams and the progress towards restoration. I

11 say, unequivocally, tonight that the monitoring program

12 contained in the stream restoration plan now before you is

13 the best such plan California Trout has ever seen any water

14 right licensee adopt for this purpose. We believe it is

15 extraordinary in the quality of the scientific knowledge it

16 introduced and we are, therefore, satisfied that we will

17 know, as time goes by, whether this stream restoration plan

18 is having its intended effect.

19 There have been many charges in the course of this

20 hearing about secret or unfair negotiations between the

21 parties who have signed the agreement before you. I say

22 tonight only this: Cal Trout is sensitive to a fault to

23 exclusive negotiations which concern allocation of public

24 resources. And I believe that negotiations we undertook

25 were fair. But more importantly, you weren't involved in

1871

01 them and the procedures we used should not control your

02 decision.

03 Your decision, as stated in your hearing notice,

04 concerns the key issues: Does each plan comply with

05 requirements of Decision 1631? And if not, how should it

06 been amended?

07 On behalf of the Board of Directors of California Trout

08 and its Executive Director, Jim Edmondson, who was here with

09 us yesterday, I thank the Board Members and Board staff for

10 the patience that you have shown as we struggled towards a

11 settlement agreement, and I thank you as well for the

12 guidance that you have given us in Decision 1631 and also in

13 the rulings you have made in the course of this hearing, all

14 of which contributed directly to our success in reaching

15 this settlement agreement.

16 In my closing argument in the 1993 and 1994 hearing, I

17 expressed hope that the decision this Board adopted would be

18 so fair and so well-founded in the record and so consistent

19 with the law that it would not be appealed and, if appealed,

20 would be upheld. Several attorneys on my side of the V said

21 that I was naive and I described a miracle. You did it. I

22 have that same hope tonight.

23 Thank you.

24 CHAIRMAN CAFFREY: Thank you very much, Mr.

25 Roos-Collins. We also have that hope.

1872

01 Are there any other closing statement from the parties?

02 I believe that the staff have --

03 Mr. Dodge.

04 MR. DODGE: I just wanted to repeat my closing

05 statement, that I, on behalf of the Mono Lake Committee and

06 the National Audubon Society, we thank the Board and thank

07 staff for your courtesy and your fair-mindedness, and we

08 trust the final order will come out in a way that is

09 consistent with the facts and the law.

10 Thank you.

11 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.

12 MR. BIRMINGHAM: The Department of Water and Power

13 would also like to thank the Board and its staff for the

14 courtesies that have both shown, both to the staff and

15 counsel during this process.

16 Thank you.

17 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.

18 MS. CAHILL: And that is certainly true as well for the

19 Department of Fish and Game. We appreciate very much the

20 attention of the Board, the Board Members personally.

21 Mr. Del Piero, it is good to have you back.

22 CHAIRMAN CAFFREY: Certainly is.

23 MS. CAHILL: We appreciate the courtesy and helpfulness

24 of the staff, and we wish you the best in reaching your

25 decision.

1873

01 CHAIRMAN CAFFREY: Thank you, as well, Ms. Cahill.

02 I believe Mr. Canaday had something that he wanted to

03 say.

04 MR. CANADAY: Thank you, Chairman Caffrey.

05 This staff would like to echo the accolades to the

06 legal counsel for all the parties and their staffs for the

07 cooperation in which they have shown us. We look forward to

08 working with you in the restoration of the Mono Basin. We,

09 again, appreciate all the parties and particularly the

10 citizens of Lee Vining. You took the time to come over

11 here. We appreciate them being here. We look forward to

12 seeing you all in the basin soon.

13 CHAIRMAN CAFFREY: Thank you, Mr. Canaday.

14 I am going to close the hearing in just the matter of a

15 very few minutes. I want to make a statement of my own, if

16 you all will indulge me and bear with me.

17 As Chair of the Water Board, I have a lot of

18 administrative duties that don't always afford me the

19 opportunity to actually be a hearing officer in the water

20 rights side as much as I would like to. I have a great

21 interest in this issue personally. I think it is a very

22 important one. And, of course, somewhat at the urging of

23 Mr. Del Piero, who said, "Try it; you will like it," I

24 decided that I would chair this very important set, if you

25 will, of this very important issue. And I have to say, that

1874

01 if enjoyable is the right term to use, I have really enjoyed

02 it. You were truly, all of you, a remarkable group of

03 dedicated people, for whatever reason brings you here to

04 this issue and to this hearing room.

05 I am very, very impressed at your professionalism, and

06 I want to just put that on the record. This has been an

07 honor and a pleasure for me, and I certainly hope that

08 somehow we will be able to take this record that we have

09 garnered with your help and be able to put something

10 together that has the acceptance that we have enjoyed with

11 D-1631. That is certainly our hope and our quest.

12 And with that, I want to say to you all, again, thank

13 you. The Board will take this matter under submission,

14 based on hearing records and the legal briefs and documents

15 that you are going to be submitting by the deadline, the

16 dates that we all agreed upon. And all of you will be

17 notified as to the next time we will be doing anything with

18 this matter.

19 Anything else, Mr. Del Piero, that you would like to

20 add?

21 MEMBER DEL PIERO: Only that the valedictorian from the

22 Marc Del Piero School of Hearing Officers has done a pretty

23 fair job. My complements, Mr. Chairman.

24 CHAIRMAN CAFFREY: Thank you very much, Mr. Del Piero.

25 Thanks again to you for all of your dedication to this issue

1875

01 throughout the months and years.

02 With that, then we wish you all God speed and farewell,

03 and you will be hearing from us.

04 Thank you all very much.

05 (Hearing concluded at 7:10 p.m.)

06 ---oOo--

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1876

01 REPORTER'S CERTIFICATE

02

03

04 STATE OF CALIFORNIA )

04 ) ss.

05 COUNTY OF SACRAMENTO )

05

06

06

07

08 I, ESTHER F. WIATRE, certify that I was the

09 official Court Reporter for the proceedings named herein,

10 and that as such reporter, I reported in verbatim shorthand

11 writing those proceedings;

12 That I thereafter caused my shorthand writing to be

13 transcribed, and the pages numbered 1565 through 1875 herein

14 constitute a complete, true and correct record of the

15 proceedings.

16

17 IN WITNESS WHEREOF, I have subscribed this certificate

18 at Sacramento, California, on this

19 27th day of May 1997.

20

21

22

23

23

24 ______________________________

24 ESTHER F. WIATRE

25 CSR NO. 1564

25

 

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