ADR Operating Principles
KLAMATH BASIN ALTERNATIVE DISPUTE RESOLUTION PROCESS
The Oregon Water Resources Department (WRD) initiated the Klamath Basin Adjudication (Adjudication) in 1975. The Klamath Adjudication is an Oregon general stream adjudication in which the final decree will be issued by the Klamath County Circuit Court. All Adjudication claims were filed with the WRD by April, 1997. The Adjudication is the first Oregon general stream adjudication in which complex federal claims have been filed.
Given the complexity of the Adjudication and other water allocation issues in the Basin, the WRD has initiated a voluntary alternative dispute resolution (ADR) process to provide a forum to address Adjudication claim issues and other matters related to water supply and demand in the Klamath Basin. The following Operating Principles have been developed to provide guidance for the ADR discussions and are not intended to create independent legal rights.
Participants in the Alternative Dispute Resolution (ADR Process) agree to the following goals and Operating Principles:
1.1 To balance water supply and demand in a practical and feasible manner to protect the economic vitality and livelihood of the community and the natural, cultural and historic resources of the Klamath Basin;
2 PARTICIPANTS IN THE ADR PROCESS
1.2 To timely and effectively reach as many agreements as possible that will facilitate the Adjudication and administration processes;
1.3 To incorporate, where appropriate, creative solutions such as water supply or water related initiatives that promote the first two goals of the ADR Process; and
1.4 To develop an information base which facilitates the ADR Process.
ADR Participants include claimants in the Adjudication, individuals with water rights in the Klamath Basin under Oregon law, those with an interest in the allocation of water in the basin but with no specific claim to water, and the WRD. It is recognized that participation in the ADR Process is voluntary.
3 ROLES AND RESPONSIBILITIES OF PARTICIPANTS
3.1 All participants are encouraged to attend Monthly Meetings of the ADR Process. Monthly Meetings will focus on the interests, needs, ideas and solutions offered by caucuses, subcommittees and negotiating groups.
4 ROLE OF OREGON WATER RESOURCES DEPARTMENT (WRD)
3.2 Participants in the ADR Process agree to fully explore issues before coming to conclusions and commit to searching for opportunities for creative solutions. The atmosphere during all ADR sessions will be one of problem solving and seeking solutions, not one of stating positions.
3.3 Participants, through caucuses if possible, will seek to clearly articulate their goals, interests and concerns regarding issues. Participants understand and agree with the concepts that the ADR Process will attempt to maximize the goals and interests of all participants.
3.4 Participants explicitly recognize the legitimacy of the goals, interests and concerns of all other participants.
3.5 Participants agree to:
3.5.1 Recognize the need to find solutions to problems whether they are one´s own problems or those of others;
3.6 Participants, including claimants and potential contestants, agree to have direct contact with each other in order to initiate and maintain negotiations on specific, creative solutions.
3.5.2 Participate in the ADR Process in good faith;
3.5.3 Search for creative opportunities;
3.5.4 Support the ADR Process and its participants with constituencies, colleagues and with the general public;
3.5.5 Attempt to reach consensus wherever possible;
3.5.6 Be an advocate for agreements to which they are a party;
3.5.7 Actively seek input and guidance from those with an interest in any pending agreement who are not directly participating in the ADR Process;
3.5.8 Refrain from sabotaging an agreement to which they are a party once that agreement has been reached; and
3.5.9 Refrain from seeking changes to relevant regulations and statutes in order to circumvent an agreement to which they are a party, or for the purpose of advancing their interests over the interests of others in the ADR Process.
3.7 Participants are free to, and encouraged to, seek advice from people who are not direct participants in the ADR Process within the confines of confidentiality or admissibility agreements.
3.8 All participants are expected to clearly identify relevant stipulations, mandates and constraints in law and regulations. Participants are also expected to clearly identify how and under what circumstances such stipulations, mandates and constraints can be altered, addressed, or waived.
3.9 Participants will seek to identify other forums where similar or like questions of law or regulations are being discussed.
4.1 The State of Oregon supports the effort to settle Adjudication claims and to resolve water allocation and related issues in the Klamath Basin through negotiated agreements.
4.2 The Director of the WRD will act in the ADR Process as representative of the State´s interests in the waters of the State, except with respect to matters related to claims or contests filed by state agencies in the Adjudication.
4.3 WRD will provide technical and logistical support to the ADR Process, subject to staffing and budget limitations.
4.4 The Director of the WRD shall act as the ADR leader and shall be responsible for the overall administration of the ADR Process, including notices of meetings and other activities, management of meetings, preparation of meeting summaries and dissemination of pertinent information and data.
4.5 WRD participation in the ADR Process does not affect any of its other duties or responsibilities under state law.
5.1 Each participant is encouraged to identify and join a caucus of other participants with similar interests to work on issues affecting that entire caucus. Each caucus is expected to work independently to clarify and articulate interests, needs, problems, and opportunities associated with issues that affect the entire caucus.
6 ROLE OF MEDIATOR
5.2 In order to facilitate, to the maximum extent possible, discussion among similarly situated people, participation in a caucus shall be limited to those with similar interests.
5.3 Each caucus is expected to take responsibility for keeping its caucus participants informed of the ADR Process. Each caucus is also expected to generate creative ideas, to help participants keep an open mind, and to work with participants to help move agreements forward with other caucuses.
5.4 There is no limit on the number of people in a caucus. Caucuses are encouraged to designate spokespersons to the extent practicable, and as dictated by the nature of the particular issue being discussed. The objective is to foster efficiency during the ADR proceedings, not to discourage participation.
5.5 Any participant functioning as spokesperson for a caucus is required to represent the concerns and interests of all others in that caucus to the best of their ability. Caucus spokespersons should disclose any business or professional conflict or personal bias to the other caucus members.
5.6 Not all issues related to water allocation in the Klamath Basin will be pertinent to all members of a caucus group. In these instances, individual participants, or smaller groups from within a caucus, are invited to work together outside of the full caucus group.
5.7 Caucuses identified so far for this negotiation include the Klamath Tribes and Allottees, project water users, non-project water users, environmental organizations, the greater Klamath Basin community, federal agencies, and state agencies. Other caucuses may form as appropriate.
6.1 The mediator is a neutral, third party who assists and facilitates two or more participants in reaching a mutually acceptable resolution in the ADR Process.
7 RELATIONSHIP OF THE ADR PROCESS TO ADJUDICATION
6.2 The role of the mediator is to assist with establishment of agendas for Monthly Meetings in consultation with the ADR leader and the participants, to keep the discussion moving and focused on the agreed upon task, to probe for and challenge the group toward consensus, and to facilitate meetings within the spirit of the ADR Operating Principles.
6.3 The mediator will comply with the confidentiality and admissibility standards imposed under state or federal law and regulations, including this ADR Process. In addition, the mediator will keep a communication confidential when requested to do so by the party making the communication.
6.4 If negotiating groups, caucuses or subcommittees request mediation assistance to help reach an agreement or accomplish a task, mediation service can be provided by the ADR mediator if available or by an outside mediator/facilitator arranged for by the negotiating parties.
8 CONDUCT OF THE ADR PROCESS
7.1.1 All ADR participants concur with the desirability of settling Adjudication claims; however, participation in the ADR Process does not require that any individual claimant or contestant agree to reach a settlement of their claim or contest.
7.2 Confidentiality and Admissibility
7.1.2 Participants concur with the desirability of settling individual Adjudication claims, or issues necessary to resolve individual
claims where full settlement of an individual claim is not possible.
7.1.3 To the extent the ADR Process does not resolve any particular issue, all rights, remedies, options and positions are
reserved and remain available to all participants.
Monthly ADR meetings, ADR subcommittee meetings and other publicly noticed ADR meetings are open to the public and communications at these meetings are not confidential. However, pursuant to ORS 36.220 and OAR 690-004-0020, certain mediation communications may not be disclosed or admitted into evidence in subsequent administrative, judicial or arbitration proceedings. Pursuant to OAR 690-004-0020(6), material that is otherwise subject to discovery that was not prepared specifically for use in the mediation may be disclosed and may be introduced as evidence in subsequent proceedings. In addition, pursuant to OAR 690-004-0020(2), the Director may declare that certain mediation communications are not subject to the inadmissibility or non-disclosure provisions of the rule. Any such declaration shall comply with the rule and shall apply prospectively to communications made in the mediation after the date of such declaration.
7.3 WRD ADR/Adjudication Dual-Track Procedure
7.3.1 Pursuant to the Delegation Order dated July 14, 1998, the Director has delegated all powers, duties and functions necessary to accomplish the Adjudication to the Administrator of the WRD Water Rights Division. For the purposes of these Operating Principles, the Water Rights Division Administrator shall be known as the "Adjudicator." The Director´s Delegation Order includes provisions for procedural coordination between the ADR Process and the Adjudication.
7.4 Types of Agreements
7.3.2 The Director may consult with the Adjudicator as necessary regarding procedural and administrative matters, including matters related to coordination of the ADR and Adjudication processes.
7.3.3 In an effort to ensure the integrity of the Adjudication record and to address any perception of undue influence in the Adjudication, the Director and WRD staff assisting with the ADR Process shall:
(1) Refrain from contact with the Adjudicator on substantive matters related to the ADR, settlement of claims or contests, and adjudication of individual water rights; and
7.3.4 The ADR Process will be conducted in two phases to coordinate with the Adjudication schedule. For purposes of these Operating Principles, the phases will be identified as Phase I and Phase II.
(2) Refrain from contact with the Adjudication staff on substantive matters related to the ADR, settlement of claims or contests, and adjudication of individual water rights, but may contact the Adjudication staff regarding technical information contained in the Adjudication record.
(3) With consent of the affected participants, ADR staff may provide technical information to the Adjudication staff for inclusion in the Adjudication record.
(1) Phase I of the ADR Process will be conducted before the Adjudication open inspection and the contest filing periods. During Phase I, participants will attempt to reach agreements to be incorporated into the Adjudicator´s summary of claims for the open inspection.
(2) Phase II of the ADR Process will be conducted after the contest filing period. Phase II will serve as a dispute resolution forum for settlement of contests. All claimants and contestants will be provided an opportunity to participate in the ADR Process. If such claimants and contestants choose to use the ADR Process, negotiating groups shall be formed and negotiations conducted in accordance with these Operating Principles.
7.4.1 ADR participants agree to seek agreements, including settlement of Adjudication claims, contests or issues related to the Adjudication, through the formal ADR Process; however, the participants recognize that not all agreements affecting or settling Adjudication claims or contests may be reached through the ADR Process.
7.4.2 An agreement reached through the ADR Process wherein the parties reach settlement and the Director has reviewed and concurs in the settlement shall be identified as an "ADR Agreement."
(1) ADR Agreements reached during Phase I will be incorporated into the Adjudicator´s summary of claims for the open inspection.
7.4.3 Participants agree to the following procedure for negotiation of ADR Agreements:
(2) ADR Agreements reached during Phase II will be incorporated into the Adjudicator´s findings and determination.
(1) The parties to an agreement may reach and execute a proposed ADR Agreement, with or without participation of the Director or WRD staff.
7.4.4 Participants recognize that agreements reached outside the ADR Process may be proposed to the Adjudicator for incorporation into the Adjudicator´s summary of claims for the open inspection or findings and determination.
(2) The Director shall review the proposed ADR Agreement for legal sufficiency and state policy implications, and will consider the views or opinions of interested participants who have submitted timely, written comments.
(3) Comments received by the Director will be distributed to the parties to the proposed ADR Agreement and any other participant requesting copies of comments.
(4) If the Director concurs in a proposed Phase I ADR Agreement, the negotiating parties may submit the ADR Agreement to the Adjudicator, and, pursuant to the Delegation Order, the ADR Agreement shall be incorporated into the Adjudicator´s summary of claims for the open inspection.
(5) If the Director concurs in a proposed Phase II ADR Agreement, the negotiating parties may submit the ADR Agreement to the Adjudicator, and, pursuant to the Delegation Order, the ADR Agreement shall be incorporated into the Adjudicator´s findings and determination.
(6) If the Director proposes not to concur, or is of the opinion that the parties to the proposed ADR Agreement should consider the comments submitted by interested participants, the Director shall discuss the proposed ADR Agreement with the affected participants and will provide an opportunity for further discussions in an attempt to reach concurrence.
(7) A proposed ADR Agreement with which the Director does not ultimately concur shall be considered to be an agreement reached outside the ADR Process.
(8) Some ADR Agreements may need to include elements that extend beyond settlement of Adjudication claims, contests or water allocation. Where it is not possible to incorporate such elements in the Adjudication decree, the parties to the ADR Agreement must incorporate such elements in a binding agreement.
(1) For an agreement submitted to the Adjudicator which is reached outside the ADR Process during Phase I, the Adjudicator may elect to incorporate such agreement into the summary of claims for the open inspection as he deems appropriate and in accordance with applicable law.
7.4.5 The Director´s Delegation Order provides that, notwithstanding the Adjudicator´s decision concerning incorporation of an ADR Agreement or an agreement reached outside the ADR Process in the summary of claims for the open inspection or findings and determination, the Adjudication record shall include notice that such agreement was presented to the Adjudicator, a summary of the agreement and a description of the Adjudicator´s action on the agreement.
(2) For an agreement submitted to the Adjudicator which is reached outside the ADR Process during Phase II, the Adjudicator may refer such agreement to a contest hearing or he may elect to incorporate the agreement into the findings and determination as he deems appropriate and in accordance with applicable law. However, pursuant to the Delegation Order, if such agreement does not include all of the parties to the contest, the Adjudicator shall refer the contest to hearing in accordance with ORS 539.110 and OAR 690, Division 30.
7.4.6 Notwithstanding participation in the ADR Process, unless otherwise provided in an agreement, all Adjudication parties retain all rights and remedies which are available in the Adjudication, including, but not limited to, the right to contest any claims before the Adjudicator pursuant to ORS 539.100 and the right to file exceptions to the Adjudicator´s findings and determination in the Klamath County Circuit Court pursuant to ORS 539.150(1). Unless the claimant expressly agrees to a claim amendment, an ADR Agreement or an agreement reached outside the ADR Process shall not be deemed to amend a claim or affect a claimant´s ability to have its underlying claim adjudicated until final judicial disposition of the claim.
9 COMMUNICATION DURING THE PROCESS
8.1.1 The basic organizational framework for the ADR Process will consist of Monthly Meetings for all ADR participants. The participants may appoint subcommittees to develop recommendations or information for the participants regarding procedural or technical matters. An administrative subcommittee will assist in administrative and logistical matters for the Monthly Meetings. Substantive negotiations will be conducted by negotiating groups.
8.1.2 The roles, responsibilities and functions of the participants, WRD and the mediator shall be as described in paragraphs 3, 4 and 6 above.
8.2.1 Subcommittees may be formed to address or perform specific tasks, research specific topics, or generate ideas on specific issues. Subcommittees will not negotiate claims, contests or water allocation proposals.
8.3 Administrative Subcommittee
8.2.2 Subcommittees will be formed by general agreement of those attending the Monthly Meeting.
8.2.3 Composition of Subcommittees will be agreed to by general agreement of those attending the Monthly Meeting.
8.2.4 The scope of the Subcommittees´ tasks will be established at Monthly Meetings.
8.2.5 If requested, WRD will provide staffing to Subcommittees, subject to staffing and budget limitations.
8.2.6 Subcommittee members may request mediation.
8.2.7 Subcommittee meetings shall be open to all interested participants. Participation of persons who are not members of the subcommittee may be limited to the role of observer in order for the subcommittee to effectively carry out its business.
8.2.8 Subcommittee members shall report their results to the Monthly Meeting.
8.2.9 The following Subcommittees have been formed by the participants:
(1) Settlement Concepts;
(2) Operating Principles;
(3) Confidentiality and Admissibility;
(5) Mediator; and
8.3.1 An Administrative Subcommittee shall assist with the administration and logistics of the ADR Process.
8.4 Negotiating Groups
8.3.2 Membership in the Administrative Subcommittee shall consist of one member of each caucus identified in paragraph 5.7. Representatives of additional caucuses may be members of the Administrative Subcommittee. However, participants will limit membership in the Administrative Subcommittee to a manageable number.
8.3.3 The Administrative Subcommittee will work with the mediator, ADR leader and WRD staff to make sure that draft agendas and summaries are appropriate and accurate, meetings are targeted and focused, and subcommittees and negotiating groups stay on track. The Administrative Subcommittee will also offer advice on administrative matters such as meeting locations, meeting techniques, funding for technical work, and the performance of the mediator.
8.4.1 Negotiating groups may form either at the suggestion of the Monthly Meeting participants, or by the mutual agreement of the negotiating parties.
8.4.2 The purpose of negotiating groups is to seek specific agreements on Adjudication claims, contests or water allocation issues. Negotiating groups may also seek supplemental agreements not directly related to Adjudication claims or contests, but necessary in order to reach consensus on water allocation issues.
8.4.3 Negotiating groups are encouraged to include participants representing the full range of affected interests; however, negotiating groups may or may not be open to non-negotiating participants at the discretion of the parties who originally formed the negotiating group.
8.4.4 Negotiating groups are encouraged, but not required, to report their progress at the Monthly Meeting. Negotiating groups are encouraged not to report on their deliberations prematurely.
8.4.5 Negotiating groups may request staffing from WRD, subject to staffing and budget limitations.
8.4.6 Negotiating groups may request mediation.
The ADR Process must include procedures to ensure that all claimants, potential contestants and interested parties have the opportunity to participate in the ADR Process. To accomplish this goal, the following procedure will be used to provide notice to participants:
8.5.1 WRD will mail an initial "ADR Process Notice" to all Adjudication claimants, all individuals who have notified the WRD that they may wish to file a contest in the Adjudication and all other individuals who are on record with the WRD as having expressed an interest in the ADR Process .
8.5.2 This initial ADR Process Notice shall:
(1) Describe the nature of theADR Process and the procedures for development of ADR Agreements; and
8.5.3 Individuals who respond to the initial ADR Process Notice stating that they are interested in the ADR Process and wish to receive notices of future ADR proceedings will be placed on WRD´s "ADR Master Mailing List."
(2) Provide a procedure for individuals receiving the initial ADR Process Notice to indicate that they are interested in the ADR Process and wish to receive future notices of ADR proceedings (e.g., a return card, tear-off return tab, etc.).
8.5.4 The Master Mailing List will be updated from time-to-time to ensure names and addresses of potential ADR participants and interested parties are accurate and current.
8.5.5 WRD will issue an initial press release which describes the ADR Process and the procedure interested parties may use to request to be placed on the ADR Master Mailing List to receive notice of ADR activities.
8.5.6 The Master Mailing List will be used to provide regular mail notice of ADR activities. Such regular notice will include, but will not be limited to, notice of Monthly Meetings, meeting summaries and information concerning meeting actions, and shall include notice of formation of ADR Process negotiating groups, including a description of the geographic area or potential subjects/issues that are likely within the scope of such negotiating groups.
8.5.7 If a negotiating group intends to provide an oral or written progress report, notice of the upcoming report will be included in the WRD´s regular notice to individuals on the ADR Master Mailing List.
8.5.8 WRD will mail notice to all individuals on the ADR Master Mailing List of any proposed agreement(s) developed by a negotiating group which is scheduled to be presented to a particular Monthly ADR Meeting.
8.5.9 WRD will mail notice to all individuals on the ADR Master Mailing List of proposed ADR Agreements presented to the Director, and that the Director is seeking written comments pursuant to paragraph 18.104.22.168 above. Comments must be received by the Director within 45 days of the postmark date of the ADR Master Mailing List notice.
8.6.1 Participants in the ADR Process will meet on the second Tuesday of each month in Klamath Falls, Oregon, or as otherwise agreed by the participants, for a regularly scheduled meeting to be called the "Monthly Meeting."
8.6.2 Monthly Meetings will start and end on time as announced in the meeting agenda.
8.6.3 No transcript or minutes of the Monthly Meeting will be taken. However, meeting summaries will be provided for all Monthly Meetings.
8.6.4 Participants may videotape or record Monthly Meetings or subcommittee meetings for the purpose of keeping interested persons informed of the progress of the ADR Process and for use in a manner consistent with these Operating Principles. Other ADR meetings shall not be videotaped or recorded without the consent of all such meeting participants. A copy of any videotape or recording shall be provided to the WRD upon request in order to be made available to interested participants.
8.6.5 Participants shall evaluate the progress of the ADR Process semi-annually from March 1998.
8.6.6 The ADR Process may be terminated by the participants if progress is deemed to be insufficient.
8.6.7 The purpose of these Monthly Meetings will be to:
(1) Report on the progress of the subcommittees and negotiating groups;
(2) Probe for consensus on issues of interest to the participants;
(3) Learn about interests, concerns and ideas of caucus members whO may not be participating regularly in the Monthly Meetings; and
(4) Receive Adjudication progress reports.
9.1 During the ADR Process, participants will not characterize the opinions, interests, positions, motivations or values of any other participant or group in any public discussion.
10 INTERNAL DECISION MAKING
9.2 Participants will listen to each other and will keep an open mind. Participants will refrain from lengthy speeches during group meetings, and will refrain from side conversations.
9.3 Participants may call for a caucus at any time.
9.4 Participants will not personally attack or question the motivation of any other participant.
9.5 Participants accept the responsibility for keeping their associates, colleagues, clients, constituencies, boards, commissions, and councils informed of progress, to seek advice and comment from them, and to work with them to understand the perspectives of other parties to the ADR Process.
9.6 Participants agree to bring back to the ADR Process relevant advice and comment from their associates, colleagues, clients, constituents, boards, commissions, and councils.
9.7 Participants agree to work out differences through the ADR Process and not in the press.
9.8 When responding to inquiries from the press, participants are welcome to describe their own interests and concerns, and are expected to describe the ADR Process in a manner that supports the joint work of all the participants. Participants are encouraged to refer questions regarding progress of the process to the mediator or to the Director of the WRD.
9.9 Participants recognize that mediation communications made in negotiating sessions may not be admissible in any subsequent administrative or judicial proceeding and agree to abide by the confidentiality and admissibility provisions described in Section 7.2 above.
10.1 The anticipated product of the ADR Process is a series of signed, binding agreements that each signatory party can, at the maximum, support or, at the minimum, not challenge. Although consensus by all interested persons may be desirable, it may not always be necessary and thus is not a required condition for an agreement to be entered into by willing parties.
10.2 Parties may decide to reach an agreement that explicitly excludes specific items. In such instances, parties will agree to language that describes areas of disagreement and/or describes any lack of information that prevents agreement. Insofar as is possible, options for reconciling differences or obtaining the necessary information should be identified.
10.3 Participants will not agree to any provision, action or agreement for which they are unwilling to seek the concurrence of those who share their interests, and/or those they directly represent.
10.4 Participants understand that many participants do not have the authority to bind those whose interests they represent or whose interest they attempt to articulate and that agreement reached with such participants must remain tentative until concurrence of the actual party is obtained.
10.5 In order to facilitate the broadest possible consideration of options and solutions, all suggestions and offers will be regarded as tentative until full agreement is reached.
10.6 During Monthly Meetings, the mediator and ADR leader will be responsible for assessing the degree of agreement on any given issue. For group decisions related to the process, the mediator and ADR leader will assume general agreement if there is no dissent.