BEFORE THE

FEDERAL ENERGY REGULATORY COMMISSION

In the matter of: )

) Project No.

WEST VALLEY A & B HYDRO PROJECT ) P‑12053‑001

)

___________________________________)

Tribal Consultation Meeting

June 16, 2005

BLM Office

Alturas, California

The above entitled matter came on for hearing, pursuant to

notice, at 10:00 a.m.

REPORTED BY: DANIEL A. HUMPHREY, CSR 5480

BEFORE: SUSAN O'BRIEN

Fisheries Biologist/Project Coordinator

Office of Energy Projects

Federal Energy Regulatory Commission

888 First Street, NE

Washington, DC 20426

APPEARANCES (CONTINUED):

Frank Winchell, FERC‑Indian Tribe Liaison

Alan Mitchnick, Senior Technical Expert, FERC

Alex Miller, Biologist, FERC

Phil Rhinehart, BLM

Cheryl Foster, archeologist for BLM

Jayne Biggerstaff, U.S. Forest Service, Modoc

National Forest

Edie Azrow, District Ranger, Warner Mountains

Dan Meza, Tribal Relations Program Manager for

the Modoc National Forest

Nicholas Josten, applicant

Representatives from the Native American

community and members of the public

June 16, 2005, Alturas, California

MR. WINCHELL: We are really pleased to be out

here. My name is Frank Winchell. I work with the Federal

Energy Resources Commission. I do almost all the cultural

resource analysis for the hydroelectric project for the

United States. We are up here this week for scoping

meetings along with ‑‑ for tribal consultation meetings

involving the proposed West Valley Hydroelectric Project

that the applicant has sent us an application on exemption

to create a hydroelectric project along the South Fork of

the Pit River.

And today we are here to talk with the tribes to get an

understanding as well as any feelings, opinions, issues,

that they may have involving this proposed hydroelectric

project.

Before when get into all this, we will just kind of

start out with some ground rules. We have got a

stenographer here. We use a stenographer when we have a

proceeding before a Commission. This is considered a

proceeding before the Commission. It's almost like a court

case in the Commission's way of doing business. So of

course we have to have a transcript of this particular

meeting since we noticed it to the public as well as the

tribes and to the other folks that are involved.

Having said that, this is a meeting only between the

FERC staff along with the staff from the Forest Service and

the BLM who are cooperating with us to produce ultimately a

National Environmental Policy Act document. We call it NEPA

document. In this case it will probably be an Environmental

Assessment. So they will also be able to participate in

these discussions that we are going to have with the tribe.

The other folks who are attending this meeting are only

here as observers and will not have an opportunity to talk

because we heard all of their issues and concerns yesterday.

And then the only thing I'd like to add to that is that

when we do speak, let's try to keep it not too long. I

don't think ‑‑ we are here for the whole day, so we

certainly can hear everybody's concerns and issues, but we

should be always cognizant of our good man here who is doing

the note taking and not go too fast and not have two

conversations going at the same time.

I'm going to start off with some introductions. My

name is a Frank Winchell. I'm the cultural resource person

who will be involved in the analysis for the proposed

project. With me is the project coordinator, which is Susan

O'Brien, and she's basically going to be rounding all of us

up and coordinating this NEPA document. And along with

Susan I have Alan Mitchnick who is a senior, senior analyst

with FERC. He's a terrestrial biologist by training. I'm

going to stop talking and let them talk about themselves.

Essentially just say who you are, where you're from,

what your position is. I'll start with Susan.

MS. O'BRIEN: I'm Susan O'Brien with the Federal

Energy Regulatory Commission, FERC. And as Frank said, I'm

the project coordinator. I'm also a fisheries biologist.

MR. MITCHNICK: I'm Al Mitchnick. I'll be working

on the terrestrial issues associated with the project.

MR. ALEX MILLER: Alex Miller. I'm a summer

intern and have background in fishery science, Environmental

Policy and Planning. I'll be helping with the NEPA

document.

MR. WINCHELL: Others also state their names.

MR. WEISER: Dag Weiser, property owner on the

South Fork of the Pit River. Our property is on the

dewatered section and opposed project. We are opposed to

it.

MS. MURRAY: Leslie Murray. I'm Dag's wife, also

opposed to the project.

MR. BAKER: My name is Don Baker. I'm a property

owner on the Pit River just down river from the proposed

project. I am opposed to the project.

MR. JOSTEN: I'm Nick Josten. I'm the applicant

in this case. And I'm here on behalf of me and my wife and

my three boys.

MR. RHINEHART: Philip Rhinehart. I'm with the

Bureau of Land Management here in this office in Alturas.

I'm a realty specialist, and I will be working on the

project with the NEPA analysis and helping with the NEPA

documents.

MR. BROWN: My name is Irvin Brown. I'm the

Kosealekte counsel alternative person and cultural resource

person. Our band borders the Hammawi band.

MS. BIGGERSTAFF: Jayne Biggerstaff. I work with

the Modoc National Forest coordinating for the Forest with

FERC and with BLM on this particular project.

MR. MEZA: I'm Dan Meza. I'm the Tribal Relations

Program Manager for the Modoc National Forest. Currently in

a temporary assignment for the Forest Public Affairs Office

as well.

And I'd like to request that at some point in the

meeting before we get too started and to explain to folks

the roles of the different types of decisions that each

agency would make.

MS. O'BRIEN: Okay.

MS. BAKER: Della Baker. I'm alternate counsel

and also the rep.

MS. BARNES: Anna Barnes, Tribal Counsel for Dixie

Valley area.

MS. FOSTER: Cheryl Foster, archeologist for BLM.

MS. MONTGOMERY: Sheila Montgomery. I work with

the Atsugewi band.

MS. AZROW: Edie Azrow, the District Ranger,

Warner Mountain.

MS. GRIFFITH: Gail Griffith, property owner on

the river.

MS. JASSO: Mary Jasso, property owner on the

river. I am opposed to the project, and I'm in support of

the tribal counsel.

MR. YOUNG: Randy Young, and I live on the Pit

River during the three miles, and I'm opposed to the power

plant.

MS. BRUZZONE: Linda Bruzzone. I'm a property

owner on the river. I own 40 acres on the river which we

want to preserve in perpetuity for generations to come.

Forty acres on the other side of the river, and we are

opposed.

MR. TIFFEE: Bill Tiffee, property owner on the

Pit River. And I'm opposed to it.

MR. GONZALES: Chaz Gonzales, Hammawi band Land

Representative for the Pit River tribe.

MS. SHARON ELMORE: Sharon Elmore, Ajumawi counsel

alternate.

MR. JAMES: Before we get started. The reason

there's a stenographer here is this is called a consultation

meeting. One of many, right?

MR. WINCHELL: Yes.

MR. JAMES: Where's our liaison for the tribe?

The guy that we hired, the white roots. Because the first

protocol for this to be a legal consultation is we have one

of them guys that in place for our tribe. I know they

should be here.

MR. WINCHELL: All right, we have got time. Let's

go ahead and make sure we have got everybody here on the

record.

This is Frank Winchell speaking. If we may ‑‑ it's up

to the tribal counsel members if we may. We might like to

have them come up to the table. You don't have to if you

don't want to. That's quite all right. It's just a

suggestion. Nobody wants to, that's fine. We are good. I

think we can all communicate in this kind of a round table

around the room configuration.

MR. JAMES: Paul James.

MR. WINCHELL: And you're with whom?

MR. JAMES: Nobody.

MR. WINCHELL: Are you a tribal member?

MR. JAMES: No.

MS. BAKER: Dixie Baker, property owner downstream

of the proposed project. I'm opposed to the project.

MS. ALVAREZ: Susan Alvarez, culture

representative for the Hammawi band for this project.

MS. SHARON ELMORE: Sharon Elmore, the Ajumawi

counsel alternate and Cultural Information Officer for the

Pit River tribe.

MS. GEORGE: Betty George, secretary.

MR. WINCHELL: We are going to convene the

meeting. Folks need to be in, those who need to be out need

to stay out. We are almost there.

MS. O'BRIEN: Along with the Pit River secretary's

sign‑in sheet, FERC has a sign‑in sheet as well. If there

is not enough room on the FERC sign‑in sheet, put it on the

back.

MR. WINCHELL: Susan O'Brien, project coordinator

for FERC, is going to go through the roles of the agencies

as per the request from Dan.

MS. O'BRIEN: Okay, the role of the FERC is that

we are charged with the ‑‑ application for an exemption was

filed with us. We are the ones that will grant or deny the

exemption for the hydropower project. And we need to

conduct NEPA analysis before we make a final decision.

And if I misspeak for the BLM and Forest Service let me

know. There is Forest Service and BLM lands involved in the

project, and the Forest Service needs to issue a special use

permit for the project and the BLM has to issue a right of

way for the project. Both of those also require NEPA

analysis.

So we got together, and we will be cooperators, and we

will do one NEPA document. We do this analysis together

rather than the other agencies having to repeat it.

And after the NEPA analysis is complete, FERC will make

the decision on whether or not to grant the exemption, and

if it is granted, then BLM and Forest Service will need to

issue their appropriate ‑‑ the special use permit and right

of way respectively.

MS. BIGGERSTAFF: To add to that, there will be

three decisions. FERC makes its decision on the exemption,

granting or denying. The Forest Service makes a decision on

the granting or denying of the special use. And BLM makes a

decision on granting or denying a right of way.

So there will be three decisions, one analysis. So

that's much more efficient, but three decisions. Right,

Phil?

MR. RHINEHART: That's correct.

MR. WINCHELL: Dan, say it again please.

MR. MEZA: I'm Dan Meza.

I'd like to clarify that from the U.S. Forest Service

perspective this does not fulfill our tribal consultation

with the tribe. We feel this is FERC's consultation on a

government‑to‑government level. The U.S. Forest Service

will be doing its own consultation with you folks as well on

the ground project effects as well for issuing the decision

on the special use permit.

A SPECTATOR: The Indians too. There's four.

MR. WINCHELL: We have got to have your name

because the stenographer.

A SPECTATOR: I'll shut up.

MR. WINCHELL: Remember, tribal members and the

BLM and FERC, Forest Service, they're the only ones who are

permitted to speak at this meeting today. That doesn't mean

just Hammawi, it means all Pit River tribal members have an

opportunity to speak today.

Frank Winchell here again. So we are starting the

meeting. So it's officially started. We are all here.

And what our goal is today, FERC's goal along with

input from the land managers that are involved, BLM, Forest

Service, is that we are here today to get information from

the tribe about their feelings about this proposed

hydropower project that we put on the South Fork of the Pit

River. So it's your opportunity today to tell us orally,

face to face anything that you think that we should be aware

of when the time comes around that we do our analysis. And

having said that, we also encourage every one of you today

who is participating to file comments with the Commission

pursuant to our scoping that we have been having for the

last two days. And the deadline is July 11th to get in

written comments on our scoping.

So please, please, please file written comments, follow

up what you're saying today with some written comments. Of

course you're going to do this through our secretary. This

is where we are going to put this on the record. It will be

part of the record for this particular proceeding involving

the decision of whether we are going to give the applicant a

license to create a hydro project or not. Okay.

And that person you're going to send comments to, her

name is Magalie R. Salas, secretary. And address is Federal

Energy Regulatory Commission, 888 1st Street, comma,

Northeast, Washington, DC, and the zip code is 20436.

Susan, she's got copies of the scoping document, and I

believe that we will go ahead and distribute those to

anybody who wants to have a copy. Now, we have a lot of

folks here today. And if someone can go ahead and get

those, we will go ahead and distribute them out. We will

start with the counsel folks and then the other tribal

members.

WOMAN: I have a question on the scoping period

vis‑a‑vis consultation that Dan suggested might be separate

since this is an analysis that's all one document. How will

our consultation fit with this July 11th date?

MR. MEZA: I think ‑‑

MR. WILSON: I'm a Hammawi person. To me I don't

see no agenda saying that this is a consultation meeting,

and I asked you for agenda last night, and you didn't give

me one. We are starting off on the wrong page, you know.

And I'd like to see the agenda, which agenda it is, with the

consultation written on it. Because I don't believe this is

like a consultation meeting because what is consultation to

you government to government?

MR. WINCHELL: I'm going to respond to that.

Frank Winchell from FERC.

It is our practice and other projects of this sort, we

don't come in with an agenda. And the whole point we don't

come in with an agenda is because we want to hear from the

tribe their concerns about a particular hydropower project

that we are in the process of approving or getting a new

license to or whatever. This is our practice.

We have done this many, many times, and this is indeed

consultation pursuant to the Commission's tribal policy ‑‑

MR. WILSON: No, not our policy.

MR. WINCHELL: ‑‑ as of 2002. So we are carrying

out the Commission's tribal policy. And that's all I can

say about that.

MR. WILSON: I hate to disappoint you, but I

believe as the representative from the Hammawis this ain't

at a consultation meeting because a consultation meeting is

that you got to have an agenda. On the agenda, it says

consultation. And we can't accept this as a consultation

meeting because it ain't formatted out right. And you need

to research your government‑to‑government consultation a

little more than you have, I think, you know.

MR. WINCHELL: Okay. Fair enough.

MS. ALVAREZ: Susan Alvarez. I'd just like to

refer to the Commission's policy statement on consultation

with Indian tribes and the Commission's proceedings.

The policy: The FERC acknowledges the government's

trust responsibility and its obligation to adhere to

fiduciary standards in its dealing with Indian tribes. Also

the tribe's demands are consistent with these requirements

‑‑ and which are the band is opposing this project ‑‑ and

that the Commission therefore needs to adopt the tribe's

position because of these requirements.

FERC must in order to comply with their trust and

fiduciary obligations adopt the tribe's position that the

project would interfere with our practices, our cultural and

our traditional practices, and damage the locations.

Ethnographic studies specifically detailing the tribe's

current religious and cultural practice will need to be

done. So consultation policy requires the Commission to

work with tribes on a government‑to‑government basis and to

assure that tribal concerns and interests are considered

whenever the Commission's actions or decisions have the

potential to adversely affect Indian tribes or Indian trust

resources.

MR. WINCHELL: Okay. And I hear you, and we

definitely adhere to that statement.

MS. SHARON ELMORE: Sharon Elmore. I just wanted

to say what I said back then when Nicholas Josten brought

this to Modoc County at the time and we started going

through the scoping. I'm going to tell you again just the

way that the tribe feels about this. They do not approve of

this project.

The times that we went out there to look at all the

significant archeological sites, there's two sacred sites

out there in that area. And that's the reason why the tribe

opposes this project. Everywhere you step out there's

nothing but archeological artifacts everywhere. Not to

mention the sacred sites out there. There's two of them.

So in my mind desecrating those areas is going to be a

significant loss to the tribe. And I know that the tribe

still feels the same way that they did then when they had

the public hearings, that they did not agree with this

project at all.

MR. WINCHELL: Okay.

MR. WILSON: I'm Ivan Wilson again. The

presentation went through last night is that I was kind of

disappointed because I heard that the canal busted and

flooded out a residence or whatever. The Hammawi was never

notified to come and see where this was, and see if it was

at a site or anything like that. And nobody contacted us.

And we should have been contacted. That's all I have to

say.

MR. WINCHELL: Dan.

MR. MEZA: Dan Meza, U.S. Forest Service.

I would like to clarify, Ivan, that when there was the

breach in the canal, we did contact some of the Hammawis

about the breach. The U.S. Forest Service was responsible

for emergency repairs to prevent sedimentation to the

drainage. And we do have on record that we talked about it

at the quarterly meeting with the tribal counsel as well as

Hammawi contact that we had at the time.

MR. WINCHELL: Anybody else would ‑‑ again, we'd

like to hear ‑‑

MS. JIM: Yes, I'm Jessica Jim. I'm the tribal

chairperson for the Pit River tribe.

The way that I understand the process here is that we

are to go on record as to state whether we agree or disagree

with the hydro project. The Pit River tribe is organized

with the eleven autonomous bands. That is a hundred miles

square and borders four counties: Shasta, Modoc, Lassen,

and Siskiyou.

So in saying that, we have a huge responsibility to

protect our cultural resources. We depend highly upon every

band cultural person. And it's my understanding that every

step through this process the Pit River tribe has objected

to this on behalf of the Pit River Hammawi band. And the

hydro project is not something that the tribe wants to be

put into our areas.

So I'd like to make sure that it goes officially on the

record that the tribe opposes this project. And I was not

able to attend last night's meeting. However,

representatives of the tribe were there. And so as

indicated, our responsibility to cover a hundred miles

square, this is one of the things we do not like on any of

our ancestral territory. Thank you.

MR. WINCHELL: Any another tribal person wants to

make a comment? We surely would like to hear from as many

of you as possible.

MR. BROWN: Irvin Brown. I'm the cultural

representative for the Kosealekte band who borders the

Hammawi band, and our band is totally opposed to this too

because of what it will do to the ecosystem up there, and

deer herds, which our generations have hunted and fished in

this area for ‑‑ since we have been here, since before time.

And this is really going to, you know, with all the

dams that are going in now all over, you've seen what has

been happened to the fisheries and everything. Our band is

totally against it. We support what the Hammawis do.

A SPECTATOR: Don't forget about your grasshoppers

and clams.

MS. ALVAREZ: I'd like to make another statement.

Susan Alvarez.

And another matter. We have asserted that the tribe's

diet has been directly, as Irvin refers to, and adversely

impacted by the construction of the hydro project. If you

think this is possible in this instance ‑‑ erase that

statement that I just made if possible. It would affect the

fish that are in the area. I believe that last night that

some of the people that opposed the project also that live

along the river had stated the different species that would

be affected by the project and had made statements along

those lines which would also affect the tribe.

And continuing health surveys reveal that this decline

is a major contributor to the risk of contracting diabetes.

Like the deer, the different roots in the area, the fish in

the area, without those being in abundance as they are now,

it would greatly affect the diets of the people, and because

of those situations many members of the tribe have

contracted diabetes because of the available foods to the

tribal members.

And I'd like to elaborate a little bit more on the

executive order 12898. Each federal agency must to the

greatest extent practicable and permitted by law make

achieving environmental justice part of its mission by

identifying and addressing as appropriate disproportionately

high and adverse human health and environmental effects of

its programs, policies, and activities on minority

populations and low‑income populations. Hydroelectric

licensing activities are not exempt from this requirement.

Moreover, the executive order provides that each

federal agency, which would mean separately FERC, PG&E, and

BLM should conduct its programs, policies, and activities

that substantially affect human health or the environment in

a manner that ensures such programs, policies, and

activities do not have the effect of excluding persons from

participation in, denying persons the benefit of, or

subjecting persons to discrimination under such programs,

policies and activities because of their race, color, or

natural origin.

Because the tribe's culture, religion, and subsistence

is inextricably linked with the river systems that surround

it, it is essential that environmental justice requirements

stated in the executive order be recognized in these

proceedings.

MR. WINCHELL: I'd like to make a comment. Frank

Winchell from FERC.

Yes, we are aware of the Environmental Justice issues

and its most recent policy as of several months ago. Since

we know that this is becoming a bigger issue with hydropower

relicensing, yes, we will consider that in our NEPA

document.

MS. ALVAREZ: Susan Alvarez.

In order to be consistent with the executive order the

applicant must collect, maintain, and analyze information

assessing and comparing environmental and human health risk

from the project borne by populations identified by race,

national origin, or income. This requirement includes

Native American tribes.

This information should be used to determine whether

the relicensing will have a disproportionately high or

adverse human health or environmental effect on minority and

low‑income populations.

Collect and maintain ‑‑ excuse me. And in order to

identify the need for this, ensuring protection of

populations of differential patterns of subsistence,

consumption of fish and wildlife, the applicant must collect

and analyze information on the consumption patterns of the

population, including Native American tribes who

particularly rely on fish and/or wildlife for subsistence.

The tribe's position that consultation is an on‑going

process. That it's the tribe's position that the Commission

must provide the tribe an opportunity to provide continuing

input in this process on a regular basis, and the Commission

must respond in a meaningful way to the tribe's position as

the case develops.

Ending that whole statement, I think last night when we

were talking about the different timeframes that we are

going to happen when we are going to have different

information available to us, and I think one of those

timeframes was going to conflict with another agency. And

as Dan stated earlier, in the full timeframe, if we have a

separate consultation with the Forest Service, that will

conflict with the timeframes that you outlined to us last

night, as well as the tribes have a second consultation with

BLM in a separate meeting than this meeting together.

Because I believe that you stated earlier that you were

going to try to do the project and have all of the agencies

together and work together instead of them being separate.

And they all have the same trust and fiduciary

responsibility, the tribe, as the government.

So as a Hammawi cultural representative, I recommend

that we have separate consultations with the BLM and the

Forest Service as well, and any other federal agency that's

involved in this process.

MR. WINCHELL: To clarify that ‑‑ Frank Winchell

again. First off, may we have a copy of this? Or what is

this that you've been reading from?

MS. ALVAREZ: It's a document that was developed

for me.

MR. WINCHELL: Could we have a copy of this

because it's hard for us to say ‑‑ I mean, it's good, and

it's very interesting, but it would be good for us to know

what that is and probably have that put on the record ‑‑

since it's already on the record, filed with the Commission.

MS. ALVAREZ: Okay. First of all, this is the

tribe's position. And I'd have to consult with the tribal

counsel before I release this document.

MR. WINCHELL: That's fine.

MS. ALVAREZ: They're just comments that have been

developed on behalf of the Hammawi band of the Pit River

tribe. And on behalf of the tribe I have been in

consultation with different folks to try to draft something

that will be explicitly to and the best interests of the

tribe. And I do have a copy also of your consultation, the

Commission's policy statement ‑‑

MR. WINCHELL: Yes.

MS. ALVAREZ: ‑‑ on consultation with Indian

tribes and Commission's proceedings.

And I don't believe that I've ever seen this document.

And I don't know if this document was made available to the

tribe.

MR. WINCHELL: It should have been. This is the

Commission's Tribal Policy Statement. We would be more than

happy to provide additional copies of that to anybody who

would request it. Again, it's an official policy document

that has been issued from the Commission.

I want to add something that I feel it's important to

understand is that the Commission ‑‑ we are still going to

go through our licensing process. I think Susan at this

point can tell everyone what our process is, because we must

continue with our own licensing process. And it's up to the

individual federal agencies along with the involved tribes

to have their own individual consultation proceedings if

they want to go that way, but nonetheless the Commission is

still going to along with the licensing process. Having

said this, I think it's important for Susan to go ahead and

say what that process is for this particular proceeding.

MS. ALVAREZ: Can I comment one more time?

To again to reaffirm what I had stated earlier, the

Commission's policy statement on consultation with Indian

tribes is in the Commission's proceedings. FERC

acknowledges the government's trust responsibility and its

obligation to adhere to fiduciary standards in its dealing

with the Indian tribes. And in that, the tribe's demands

are consistent with these requirements, and the Commission

therefore needs to adopt the tribe's position because of

these requirements.

So that's the statement that comes from the Hammawi

band as part of the Pit River tribe.

MR. WINCHELL: Okay. We hear.

MS. O'BRIEN: Okay. So I'm Susan O'Brien. I'm

the project coordinator, so I'm the one in charge of all the

processing of the exemption application and keeping it on

track as well as taking the lead on Environmental Assessment

schedule and document.

If you go to Page 14 of the scoping document that we

have handed out, it's listed there. So we issued our

scoping document in May. And we had our site visit Tuesday,

scoping meetings yesterday. Scoping comments are due July

11th. We suspect that we were going to need additional

information from the applicant.

So once we get all the scoping comments in, we will

review all the information we have from the applicant, his

application, as well as the additional information he has

filed since then, and all the comments, and we have received

all the additional information, historic information like we

received yesterday. Look at all the information we have.

And see what more that we need.

So then we will ask the applicant to get some of this

information under additional information request. We

anticipate that would be issued in August.

It's estimated that he would have to respond by

November, giving him 90 days, which for an estimate, it's

typical for FERC to give an applicant 90 days. So that's

where that comes from.

Then when we receive his response, we again look over

everything we have. And if we feel we have enough

information to move forward and write our Environmental

Assessment document, we will issue a notice saying that the

applicant is ready for environmental analysis. And right

now we estimate that would be in November of this year.

That notice also kicks off another comment period and

recommendation period. So comments and recommendations from

any interested party are welcome, and they have 60 days.

Fish and Wildlife agencies, meanings U.S. Fish and

Wildlife Service as well as California Department of Fish

and Game for the protection of fish and wildlife have

mandatory conditioning authority for exemptions, so they

would have to file their mandatory conditions at that time

as well.

Then there is ‑‑ so there's a 60‑day window to receive

the comments and recommendations.

And following that is another 45 days for any reply

comments that any interested parties, including the

applicant, can file. That would bring us to March of next

year.

And we should be able to issue our Environmental

Assessment before the end of April of next year. Assuming

this all stays on schedule.

There would then be a comment period after the

Environmental Assessment document. Usually 60 days. And

then we would be ready for the Commission to issue its

decision on the project.

Now, this schedule, and then Commission's decision

meaning whether or not this exemption is granted from FERC

and what the conditions of the exemption would be.

If this schedule changes at all, we would issue a

letter saying so, and everyone on the mailing list would get

that ‑‑ would get that information.

MS. SHARON ELMORE: Sharon Elmore again.

One of the things that I was ‑‑ at the time we went out

to the ‑‑ to look at this whole project, how many kilowatts

was this going to generate, and where was the power going to

be sold to, and what were the reasons for this energy? It's

almost the same questions.

MS. O'BRIEN: I believe the project as proposed is

to generate 2.4 megawatts. And the power will just be sold

to the grid, meaning it will go into the electrical grid.

MS. SHARON ELMORE: How much money is going to be

generated from this energy being sold?

MS. O'BRIEN: You can estimate that by the market

value of the energy multiplied by the 2.4 megawatts.

MS. SHARON ELMORE: Another thing that could

impact down river is the chemicals that you guys might use

in the process of keeping the hydros clean. We know this is

a fact down in Hat Creek. They use chemicals to try and

kill the weeds. And we see this in the newspaper like

quarterly where they are going to release some kind of

chemicals into the water to kill the aquatic plants so that

they won't grow into the hydro machinery or the grates and

things like that.

MS. O'BRIEN: I am familiar with that.

MS. SHARON ELMORE: And it's causing ‑‑ and then

last year, I know that everybody probably remembers, it

killed a lot of fish at the time, and it made big news in

our town. It was a catastrophe.

So in my mind I'm thinking that since this river goes

down, it goes into ‑‑ it's part of the Pit River, it goes

all the way down to Burney, down to McCloud, and then down

to Shasta dam. We are talking a lot of impact.

MS. O'BRIEN: I am familiar with that being an

issue at other hydropower projects. I think it would be

wise if we asked the applicant if he plans on doing any sort

of ‑‑

MS. SHARON ELMORE: Application with any kind of

chemicals?

MS. O'BRIEN: Could you answer that for us?

MR. JOSTEN: The problem ‑‑ my name is Nick

Josten. I'm the applicant.

The only potential place that there would be a problem

with this project is in the canal. If weed growth in the

canal got to a point where it impeded the flow, it would

have to be culled back. And the way we could do that is

what amounts to a mower. They do sometimes use chemicals to

eliminate the weeds, but they only can do that in the cases

where the water is not released to any kind of a fishery,

and that's not the case here. So it would have to be

manually removed by a mowing process ‑‑ if it became a

problem.

There's a likelihood in many years the canal would be

dried for periods of time, and that would probably in most

cases be enough to control the growth. But it's a good

point.

If the weed growth in the canal gets to be too

extensive, something has got to be done, but it can be done

without chemicals.

MS. O'BRIEN: I would like to clarify that the

applicant has said he will not be using chemicals in the

canal and for maintenance of this project. And we will also

‑‑ referring back to the scoping document, starting on Page

10, we list out the issues, and it really starts at the

bottom of Page 11. But the heading starts on Page 10 with

the cumulative effects analysis first. And when we can go

ahead and add to that the water quality and quantity

section, starting on the bottom of Page 11, that that is an

issue we need to look at and the effects of weed growth and

control of the weed growth in the canal and project

facilities.

MS. SHARON ELMORE: My other question would be who

on your staff, or Nicholas himself, is going to hire someone

to do water samples? Who is going to do the monitoring of

this whole ‑‑

MS. O'BRIEN: If the project went in?

MS. SHARON ELMORE: Yeah.

MS. O'BRIEN: Who would do water quality? That is

something that would possibly be required in the exemption

post‑licensing, and very likely because it's a new project,

that we would ‑‑ require, I can't say what the final

Commission decisions would be, but if this proposed project

went through ‑‑ it's highly likely we are going to require

water quality monitoring. So if we require it, the

applicant would then go out and hire somebody to do it.

Then we will look at the results and approve the study ‑‑ we

have to first approve the study that's done, and FERC will

also receive the results and analyze the results.

MS. SHARON ELMORE: My last comment is the way I

felt about this, this is just another moneymaker for

someone's pocket at the tribe's expense. So it would hurt

the land up there more than anything. It's just I think

that the way that this is going, even when the tribe opposed

it at the very first beginning of this proposed project,

that I feel even at the time that we did submit a letter

that said that we imposed and at the public hearing, we felt

that that was it. But it's still going. And in my mind I

think that Nicholas is here just to make a dollar regardless

of how the tribe feels or the people out here in the public.

MR. WINCHELL: Jessica, did you ‑‑

MS. JIM: Yes, I did.

Actually there was a question she, being Susan,

indicated that if the water sample or water quality was to

be tested, then it would be up to the applicant. And that

kind of raised a concern in my opinion because if we leave

it up to the applicant, then where is the compliance issue

for the regulatory body of the Section 106? We need to

concentrate on the Section 106, but in all fairness to the

tribe on behalf of the Hammawi band, we believe that by

testing that water, there has to be some kind of data

research that's going to be conducted by whom? It needs to

be up front and on the table.

I also believe that once that information is produced,

it should be part of the record. And again, during the

consultation process when we are looking back on all of the

issues here and the process by which the scoping is

occurring, I believe that what we need to do is to go on the

record saying that everything that is federally mandated

must be met. And the tribe continually opposes this

project, then I think that consideration needs to be done

with air quality, everything, the environmental issues,

everything that we identified in our Pit River Constitution

as being the overseers to the air, to the water, to natural

environment, to the resources of our land. And we cannot

allow these types of activities to go on to our tribal land

without having consultations first and continuously.

And I believe that the only time that when you're

talking about allowing the applicant to go forward with

doing water quality issues or issues like that, that needs

to be consulted with this tribe.

MS. O'BRIEN: I'd like to respond to that. And

I'm sorry I didn't clarify that.

Yes, the applicant conducts the monitoring. When FERC

requires monitoring after a project, in this case, gets an

exemption, it's always in consultation with the agencies.

And I'm sorry I didn't qualify that.

So the way it would work is that he'd have to make up

the water quality plan and conduct the monitoring in

consultation. And we can make sure we include consultation

with the Pit River tribes as well as Forest Service, BLM,

U.S. Fish and Wildlife Service, Department of Fish and Game,

and the Water Quality Control Board. All those folks would

have an opportunity to be involved in that water quality,

and that would be required in the license that he would have

to contact and consult with them.

MS. JIM: So the issue remains that you indicated

that he would have that choice to make that decision as to

who would do the water quality. And that's the issue I want

to focus on because it seems to me that if we allowed the

applicant to move forward with people of his choice, how do

we know that it's in our best interests?

MS. O'BRIEN: So that can be rectified very easily

by making sure ‑‑ and this is on the record so we won't

forget about it ‑‑ that such a study is done not only in

consultation but its agreement of who is going to conduct

the study. And that could be very easily done.

And then also there's an added issue that FERC has to

approve all the plans before the study goes forward. So

it's another layer of assurance there. It's in the record.

I'll write it down, and we will make note that that is a

high concern that you want to be involved in the decision of

who is actually going to be conducting the studies in

addition to just developing and being involved. That's

certainly possible.

MS. JIM: Thank you.

MR. WINCHELL: Are you a tribal member? Only

tribal folks ‑‑

MS. BERDITSCHERSKY: I'm an Environmental

Coordinator.

MR. WINCHELL: Did the tribe acknowledge her?

MR. WILSON: Yes, I acknowledge her.

MS. BERDITSCHERSKY: Michelle Berditschersky,

Environmental Coordinator for the Pit River tribe.

I just have some procedural questions. Perhaps you

already explained this, but what does the exemption actually

exempt?

MR. WINCHELL: That's a very good question. I'm

going to refer that to Susan.

MS. O'BRIEN: Alan, if you want to add anything

after I'm done.

The exemption from a licensing ‑‑ let me backtrack. A

license with the FERC is needed for a hydropower project.

In this case because it's on federal lands, and a license

would be for a term of anywhere from 30 to 50 years, and

then at the end of that term, they can reapply for a new

license.

With an exemption there are certain requirements that

are listed in the regulations that allow an applicant to

pursue an exemption, rather than ‑‑ it's an exemption from

licensing. If it meets these criteria, and it includes

using project structures that are already in place, such as

the South Fork Irrigation District's existing canal and dam

structures.

So FERC has ‑‑ when the application was originally

filed in July 2003, we did assess it and make sure that it

fit the qualifications listed in the regulations for an

exemption. So it qualifies as an exemption.

MS. BERDITSCHERSKY: What is the code? What

federal regulation are you referring to that grants the

exemption?

MS. O'BRIEN: 18.

MR. WINCHELL: 18 CFR.

MR. MITCHNICK: 18, Section 4.107.

MS. O'BRIEN: 106, Section 4.106.

MS. BERDITSCHERSKY: That governs the exemption?

MS. O'BRIEN: Yes. And so when an exemption is

granted for any project, they do not have to come back in

the door for a license again. They have their exemption

granted, and that's it.

One of the main features that an exemption has that a

licensing process doesn't is the fish and wildlife agencies,

in this case U.S. Fish and Wildlife Service and Department

of Fish and Game, have the right to file mandatory

conditions, for the protection of fish and wildlife. And

for a license they wouldn't have that mandatory right. They

would just be filing recommendations. They're mandatory.

And those recommendations ‑‑ those mandatory

conditions would be filed in response to our Notice of Ready

for Environmental Analysis, which we propose will happen

later this fall. That's in the schedule of the scoping

document that I talked about earlier.

And we talked about this a little bit at the

scoping meeting. And anyone interested in the project is

assured that they can still, even though this is a one‑time

exemption, if conditions change or an issue arises, we can

still reopen if there's information that some effect is

happening or a condition has changed, you can still reopen.

And FERC can assess and consider it and modify the exemption

if that became a question.

MS. BERDITSCHERSKY: You would modify it or

possibly even ‑‑ is an initial license needed or just no

renewal needed?

MS. O'BRIEN: This would be an exemption, so it's

exemption from licensing. So I don't believe we have any

exemptions that had to be reopened and then we told them to

become a license. I believe what would happen, if we had to

reopen it for some adverse affect that was going on or some

other condition, we would just change the terms of the

exemption, or the terms of the exemption would be modified.

MS. BERDITSCHERSKY: Was the tribe notified that

an exemption was granted?

MS. O'BRIEN: An exemption has not been granted

yet. We are in the process of seeing whether or not the

exemption will be granted.

The application was filed in July of 2003. The

applicant has filed additional information that we will

require. Then we became cooperators with BLM and Forest

Service because they also have to grant ‑‑ FERC will be

granting the exemption; Forest Service has to grant a

special use permit because some of it is on the Forest

Service property; and BLM has to grant a right of way

because it sits on BLM property. And they have to make

those separate decisions. If the Commission's decision is

to grant this project an exemption, then they would also

have to grant or deny. They have to decide on their

permits.

So we became cooperators to combine the environmental

analysis under the National Environmental Policy Act

MR. MITCHNICK: Just to follow up a little bit on

the difference between an exemption and a license. They're

really very similar. And the name isn't a very good name.

I mean it is because we do issue a document, we do issue

permission to build a project, but the Commission retains

authority through the life of the project, which means they

will inspect the project periodically, they will ensure

compliance with the terms of the exemption through the life

of the exemption.

So it's very similar to a license in that respect that

the Commission does have continuing responsibilities through

the life of the project.

But a license is 30 or 50 years, and an exemption is

issued in perpetuity.

MR. WINCHELL: I do have two other questions.

MS. BERDITSCHERSKY: Jessica mentioned that's the

Section 106 National Historic Act process. What kind of

process do you envision holding? I don't know, are

archeological surveys up to date? Or ethnological surveys?

MR. WINCHELL: Frank Winchell here again.

Of course that's part of my little area of the woods is

the Section 106 process. And of course we will ensure the

Section 106 process is fully carried out. And at this point

we were getting the applicant to come up with the requisite

studies that we have requested and basically is a full

archeological inventory, cultural resource inventory of the

project area, as well as we want to know anything about

traditional cultural properties that might exist in that

area as well.

In addition to whether we have got historic project

structures, which we do, the canal was built in 1930's ‑‑ it

was built in the 30's, so that's probably eligible. But

these are the things we want to see in this inventory report

that he is in the process of finishing up based upon our

request. So we are expecting to see all this stuff in this

report.

And again we want him to go ahead and consult with the

land managers along with members of the Indian tribe, you

here today so we make sure we get as full of a robust report

as possible.

In addition to that if we do find that, one, we have

got eligible properties, archeological sites, or anything

else that's considered eligible through the National

Historic Places, then they also need to assess the potential

adverse effects that the project could have on those

particular sites. So we have to have that stuff in the

report as well.

Then the final thing would be how are those adverse

effects going to be resolved. And that will have to be in

the report. This will all get tied in to what we call a

Historic Properties Management Plan. If, one, we identify

historic properties, then, two, if there are adverse effects

going to be caused to those historic properties vis a vis

construction, maintenance of the project, and that would be

all rolled up in what we call the Historic Properties

Management Plan.

Yes, the FERC will be expecting to receive those

documents from the applicant. Of course based upon our

review of these documents, then we may say, hey, well, you

have provided this information but you didn't provide us

with this other information. Therefore we may have to ask

for some additional information.

If that's the case, we will go back and say please file

this additional information. So that is the other thing

that FERC staff will be carefully looking at along with the

information that the applicant provides.

MS. BERDITSCHERSKY: So you said that the

applicant would be the one ferreting out the information,

because normally we have been involved in several other FERC

processes and because the information is very sensitive and

the tribe does ‑‑ there's confidentiality issues with

cultural sites and cultural information. Because the

information is very sensitive on cultural issues, it's

something that usually a professional, like an ethnographer,

would gather that information and that ethnographer would

have certain codes about confidentiality.

And so Jessica mentioned that the tribe wants to be

involved in who the consultants are.

MR. WINCHELL: Absolutely.

MS. BERDITSCHERSKY: It would be a concern.

MR. WINCHELL: Of course. And I'd like to ‑‑

because that gives me an opportunity to clarify this, as

well as the applicant, is that he's hired a professional who

is aware of the consequences of disclosing confidential

information. His contractor probably would lose his job.

And then maybe if it's on federal land, he would probably

get in some kind of criminal difficulty.

FERC is also required by law to keep all this

information confidential. And we have a way that that

information is filed with the Commission in what we call a

non‑public file. And basically it comes to the person like

me, the cultural resource person directly, and then we note

on the Commission's record that that information has been

filed with X persons. Along with that will be ‑‑ that

document will also be filed in the record, but in the

non‑public file. And there's a series of passwords and

codes that persons from the Commission only can have access

to that file.

Nonetheless, the bottom line is everything that is

considered confidential gets marked "confidential" "not for

public disclosure." It has been distributed through the

applicant or else we are not going to get that information.

So the applicant is going to have to have access to it, but

he will do that through his professional. Of course with

the tribes we expect that stuff will be reviewed by the

professionals. That's not to be disseminated to the public.

MS. BERDITSCHERSKY: Has that professional already

been hired? Because I heard Jessica say that the tribe

wants to have an agreement on who does the studies.

MR. WINCHELL: It's my understanding that, yes,

applicant has already hired his professional. He has a

right to do that. Now, we will recommend that the applicant

tries to make sure that the contractor is someone who is

amenable to other folks, such as the Forest Service, as well

as the tribe.

Now, in this particular case, again I think probably

the best thing to do is just talk with the applicant's

professional contractor directly and give him that kind of

information. I think that would be most direct and most

efficient.

MS. BERDITSCHERSKY: Sir, could I interrupt you

for a second. This is Nicholas Josten, the applicant?

MR. JOSTEN: Yes.

MR. WINCHELL: That's a really good point. By all

means speak to Nick and speak to his professional

contractor.

MS. BERDITSCHERSKY: I know with the PG&E

relicensing which we have been involved in for several

years, a number of the ethnographers were presented to the

tribe. And the tribe was able to say we worked with this

person before. And it didn't seem like that was totally

PG&E's discretion. Seemed like FERC helped with that.

MR. WINCHELL: By law FERC cannot demand that a

applicant use a particular contractor. In our capacity we

say it's to your advantage to use a contractor that is going

to be amenable to other folks. The Commission cannot tell

an applicant to use this contractor. We just cannot do

that.

But what I'm saying today is that you should probably

talk with Nick and his professional contractor and disclose

any information that you feel is relevant to this

proceeding, and this goes with everybody.

MS. JIM: I believe two things are happening.

A SPECTATOR: You guys are shooting questions back

and forth ‑‑

MR. WINCHELL: Sir, stop.

(Whereupon, Mr. Winchell indicated to the reporter to

go off the record because of multiple speakers.)

MR. JAMES: My name is Andy James.

I thought at the beginning of this meeting that the

tribe opposed this meeting. We should have got up and left

then. Now we sit there having your own consultation, you're

involving the tribe, you're involving EPA. We said no, we

are on record as that.

The people to talk to at that table is those people

right there, the Hammawis. They're the one when it comes to

cultural resources or laws, when you get around to looking

for that, not the EPA. These people here, you talk to them.

But these things should be ended in our best interest. You

need to conclude this conversation with everybody in this

room, or it will be considered a consultation even though we

oppose it. If we oppose it, what are we doing asking

questions?

MR. WILSON: As a Hammawi, we oppose it. Like I

said, this ain't a consultation meeting because we don't got

an agenda here, like I told you before. And we oppose

everything. And I have a hard time giving the Forest

Service my cultural resources, BLM. I ain't going to give

it to him or you or anybody else.

So you know, you guys might as well save your money

from here on out. Because, you know, the land is cultural

resource to me. And to me is that, hey, the races here

besides us Indians are destroying most of it, what we live

on. And we are here to preserve it as caretakers. Right

now, any hydro, any kind of doings that's going to dig up

Mother Earth, we are opposed to, and we don't want it.

Like he said, we are doing consultation here, and put

it on the record as Hammawi band leader that to me it ain't

consultation. Because, you know, we shouldn't have all

these other people, Forest Service, whatever, you know,

sitting here. It should be us and FERC because that's a

consultation. Just like the Forest Service said a while

ago, it's going to be the tribe and the Forest Service

consultation, BLM and Forest Service.

So this to me is like a public meeting like you guys

had yesterday. To put on record this ain't consultation.

So, you know, when it comes out that, you know, it ain't

consultation to me. Because we could sit here and talk all

day and you guys say it's consultation, you take it back to

whoever you ‑‑ your head people, whatever, and it's

classified consultation. And we met with them in

consultation so we can go ahead with the project. You know,

I seen it done. It's been happening to all Indian tribes

all over northern California.

And, you know, consultation is not, you know, it's a

heavy word that ‑‑ I don't know if you guys really know what

it means or not. But to me it means that we already met

with this tribe and consultation, so we can go ahead with

the project because we have already contacted them by

consultation.

So to me on record with whoever this guy is over here

doing the record over here, this ain't a consultation

meeting. You know, as the Hammawi band leader, I state

that.

MR. WINCHELL: Yes.

MS. JIM: Two things.

I think Ivan kind of summed it up. However, the tribal

history has repeatedly been damaged by people that have been

hired to go and do the studies, the cultural studies, and

you indicated the applicant would be responsible. We should

consult with the applicant. And then that's our concern.

There are, and in our opinion, and we have information that

certain people, although they are licensed and certified as

project archeologists, for that reason they are not in the

best interests of our tribe. We have names that we do not

accept in our tribe as for that purpose.

And so the discretion of the applicant to hire whomever

he feels comfortable with may or may not be in our best

interests. So when we are talking about ‑‑ that would be

like me coming along saying, hey, I believe that you're

qualified and have a license. I want you to do this. That

concerns me. Because the knowledge of the land, the

knowledge of the history, and what's in it and what is not,

and the types and purposes and uses of those traditional

properties can only be done with the tribe.

And in saying that the other issue that I want to bring

up is that in our traditional practices the way the Pit

River tribe handles it with all bands is that we have input

into those types of things, not as requested by FERC, but

they also, the applicant also has ‑‑ should make a

good‑faith effort in meeting with this tribe. It's not just

us having to meet with them; it's a two‑way street. You

talk about proper consultation, then you talk about coming

to a medium. And I need you to say that.

And the second thing I'm going to say is that while

this is sensitive information, confidential information, as

a FERC employee, yes, we know what your right is, what your

agency documents as confidential. But the responsibilities

and damage to this tribe of those applicants and their

information confidentiality, they're like any other citizens

of the United States. They're not held to the confidential

level that you are held to or the contractors are held to.

So we also have had extreme information being released by

those people that aren't held to that level.

I wanted to make it real clear that when the tribe, we

talked about ethnography, we talked about meeting with the

band, proper band representative, we were talking about

people that know the history of this land. We also want the

applicant held responsible for protecting our cultural

sensitivity.

Again the tribe does not want this to proceed, but yet

here we sit when we provide information as to why we do not.

It's pretty clear what our position is, and it's real clear

now that the applicant, even though he's part responsible to

provide and comply, it's the issue here is that maybe the

applicant needs to start working with the Pit River tribe,

not just only FERC. And that's a good faith effort.

MR. WINCHELL: I certainly concur with that. This

is Frank Winchell again.

I cannot say it any more emphatically. Of course, the

applicant needs to work with the tribe. This is an

important part of the consultation process that is really in

his purview to do. On top of that, is that the Commission

also has a responsibility to make sure that the information

that is given from the applicant to us, is full. We have

the option to say, well you gave us some stuff, but we need

some additional things.

Having said this, it's in the best interest to the

applicant to consult as much as he or she can with the

tribe. Because the tribe truly is the keeper of that kind

of information. It's also the tribe's prerogative to say we

don't want to disclose this information at all. And that is

certainly within the right of the tribe. But of course,

from an analyst's perspective, and I'm talking about myself

as an analyst for cultural resource sites, I would like to

know as much as possible about what is there so that I can

make a reasoned decision about that aspect of the analysis

that's going to go into our Environmental Assessment. So

the more information we get, the better.

Now, the tribe always has the option of sending the

FERC stuff. But if they do that, we can't use it unless we

share it with the applicant, and that goes back to this

fairness issue. If we are going to make a decision on

something, then we have to disclose that to the applicant

because it's not fair to him to make a decision that he

doesn't have an opportunity to respond to or to make some

adjustments to that project.

MS. JIM: Is there not information already on

record by BLM and Forest Service as to what is there and

what is not there?

MR. WINCHELL: Yes, we do have some, but we don't

have all of it. And that's what we have requested the

applicant to go back in the field and make a more

comprehensive survey so that we have more of that

information.

MR. WILSON: Ivan Wilson, band leader for

Hammawis.

Did the Forest Service and BLM give you any kind of

documents saying that there is any cultural resources places

out there? Because they didn't consult with me before they

gave that to you. Right there is confidentiality that they

are giving up they should not give up. To me, I don't care

for the consequences when they that. It's only a $10,000

fine, whatever. I ain't going to give my cultural resource

up for $10,000. I ain't going to give up my territory for a

hydro or anything for any amount of money either. You know,

we will never probably reach agreement on our natural

sources, our cultural, because we cannot give that up

anymore.

And I know that in good faith to whatever, that's the

only reason why we are meeting here with you guys here

today. Because it's good faith, you know, on our behalf and

you guy's behalf. I figured that, you know, we should at

least meet with you guys and hear you out or whatever in a

good‑faith manner.

MS. SHARON ELMORE: Can I say some things? Daniel

Cardenas (phonetic) ‑‑ Sharon Elmore ‑‑ Daniel Cardenas did

meet with (unintelligible) and that was for the history.

The other one is this: I'm surprised that they already

‑‑ seemed to me that FERC is kind of leaning towards

Nicholas Josten here today.

MR. WINCHELL: No, we are not. You got to

remember at this point we have not made a decision yet, we

are not in any way part of any one position.

MS. SHARON ELMORE: Well, I just wanted to state

that because I've heard how he's going to be able to pick

and choose who his ethnographer is going to be.

One thing that kind of makes me uncomfortable with all

these kinds of projects is that if you don't give them what

they want, it doesn't go in your favor. And just like with

the Pit River relicensing that we are going through right

now, they're are going to bypass the tribe just because they

would not give any ethnographic information or any kind ‑‑

any more information about the sacred sites in some of these

places or the villages. That's what we had to do and

negotiate with them to do.

And so what they did is that made us go out and redo a

study of archeological and ethnographic information. That

was the only thing that got our foot into the door to stop

them from railroading that relicensing through.

MR. WINCHELL: I have to say again we are ‑‑ I

have got just one point.

We cannot talk about other tribes that are before the

Commission because they are contested proceedings.

MS. SHARON ELMORE: I'm talking about our own

tribe.

MS. JIM: I need to speak up. We need attorneys

present here for the tribe to do a consultation as far as

I'm concerned. That's my point of view. That's probably

the best point of view which I could give.

MR. WILSON: Like I said, from Hammawi band, this

ain't a consultation.

MS. JIM: On behalf of the tribe we need to state

our names and we need to provide the comments so we can put

it in writing. Please refrain from speaking out of turn.

State your name and then state your comments. We also have

a procedure internally that when you raise the hand, then

the person is acknowledged to speak. And during that time

to raise the arm they are given that respect and let them

finish speaking.

MS. SHARON ELMORE: I just wanted to finish. In

having to go through this year to year with maybe fifty

projects that we handle at the EPA, one thing that I do see

is that what Jessica was saying about the confidentiality,

that information going to you guys or to him, that's kind of

disturbing because in a way a lot of the bands feel like

they don't want to give that information up. I know for ‑‑

Wally Preston who is over there would back me up when I say

this ‑‑ is that they don't like to release information of

the archeological sites and sacred sites up in that area and

most of time they refuse to give that information. But the

thing is that usually works against us in some ways with

FERC, PG&E and Forest Service, BLM, because then they will

take that and they will run with that and say they don't

want to consult with us. And let's write them off and let's

go with the exemption. That's what usually happened. Then

we lose at the table because of that.

But I hate the way that the law works for that reason.

Because what happens to the tribe when they develop this

information of sacred sites and archeological sites, usually

it does become public information. And you know, it's just

that saying goes: Darned if you do and darned if you don't

kind of a thing.

And I'm seeing this whole project in my eyes, if it had

come this far at the table today, it's probably going to go

further, and if the tribe does not decide to put their foot

in it right now, and tell Nicholas that he needs to consult

with the tribe, he's going to go on with this hydro. And

this hydro is going to be a detriment to the archeological

sites and the two sacred sites that are up there.

MR. MATT ELMORE: Matt Elmore. Madesi counsel,

Pit River Tribe.

The problem I have with this meeting, we are saying we

are going by guy's consultation process, yet the Pit River

tribe is the same level as the federal government. The

United States Constitution reserves power for three

entities: Federal government, state government, and tribal

government. And yet we are forced to go by you, which

you're under the federal, you're not even at the same level

as us. You're an employee of the federal government. Yet

we have to go by your rulings when we are a sovereign

entity. We should be going by what our consultation

guidelines are. Consult one on one, just like we do with

the Forest Service. It shouldn't be a public meeting like

it is here today. Should be a tribal meeting with FERC,

tribal meeting with the BLM, whoever is involved in this

project.

And the way I see it going is the project is going

through, going by your guidelines, and instead of like going

by our guidelines and having an open discussion, we have to

hold back on certain things. We went through things with

other projects in my area down there at the lower end of the

Pit River. We dealt with PG&E. And how PG&E operates,

there's no accountability after they get their license.

They will bend over backwards to get their license. Say,

yes, we will do this and this and this. Yet ten, twenty

years when the license expires, did you follow through with

your obligations? No. Well, we will just issue another

license. You know? It's always that way.

We live in two different worlds. Our world, we want to

protect stuff. The other world, money talks. Money is what

they protect. That's what it is. Like we stated before,

there's not enough money for us to sell out our ancestry.

Because you know what? Money will come and go, but our

ancestry, it does not come back. One archeological sites

are destroyed, that's it.

A heard PG&E employees flat out say: Yeah, we will go

through this, but once it's gone, it's gone. Then it's not

going to be a issue anymore. We can take that site off our

protection. I've seen PG&E distribute maps with our

archeological sites on them, without a confidentiality

statement in them. Then they slap their employee's hands,

but that' it. Once it's out there, it's vulnerable, it's

destroyed, there is to need to protect it, there is need to

consult with us.

That's the way it's always been. They wipe out our

people. They have this holocaust. Wipe them out. Hey,

they are not there, we don't have to consult with them

anymore. And that's the way it has always been, and that's

the way it will continue to be until our rights are exerted.

When we exert our rights, does it mean anything? No, we

will just go on about it, give them a license anyways.

MR. WINCHELL: May I say something? Frank

Winchell again.

Again, we normally when we have consultation meetings,

we do not invite the public, but we had to because of our

regulations since we are in a contested proceeding.

Now, if you want to talk about confidential sites right

now, we can go ahead and excuse the public and just get down

to that. That's if that's what you want.

MR. WILSON: No.

MR. WINCHELL: That's fine. Let me close in

saying this. We want as much information as possible to

make ‑‑ to help us with our analysis on this proposed

project. You all, the tribe has to decide among yourselves

how much information you're willing to go ahead and

disclose. And, again, if there's any way that we can kind

of get an idea about what's there, sort of the information

that you don't want to release, then that certainly is

acceptable. But again for us, more information is better

than less information.

And at the same time we will certainly keep that in the

strictest confidence. I just have to say for myself that by

law I have to. I'm sure that Nick understands the laws too.

By law he has to keep this stuff confidential short of some

kind of litigation. Of course this goes with the BLM and

the Forest Service. Any kind of information that's

considered confidential needs to be kept confidential. And

that's all that we can do.

I want Dan to speak. I know he had his hand up.

MR. MEZA: I would just like to add, I took Alan

out of the room just a minute ago. I tried to explain to

him that there there's a lot of tribal members here are

raising their hands. They are kind of getting frustrated

and putting their hands back down. I think you need to be

able ‑‑ what I suggested to Alan was that maybe you should

stand up, Frank, so that you can see the folks that are

interested in saying something. And that way all of those

folks would be able to hear ‑‑ would be able to speak.

That's just a suggestion.

MR. WINCHELL: Okay. Let's start with people we

haven't heard before. Is there anybody in the room that we

haven't heard from that wanted to speak?

MS. ALVAREZ: You've already heard from me. I'd

like to say something again. Susan Alvarez again.

I'd like to remind FERC of their policy that they

adopted on July the 23rd, '03 consultation with Indian

tribes.

The tribe's demands are consistent with the

requirements that you have, the government's trust

responsibility and its obligation to adhere to fiduciary

standards in dealings with Indian tribes. And the

Commission therefore needs to adopt the tribe's position

because of these requirements.

And earlier when you were speaking you were talking

about how the tribe would need to consult, you know, with ‑‑

we need to start communicating with Josten and how he could

hire someone and the tribe not to have ‑‑ you know, because

it's his project that he's going to hire an ethnographic

person and archeologist. This here says that your policy

states that the tribe's position ‑‑ that the Commission

therefore needs to adopt the tribe's position because of

these requirements within your policy of the FERC policy

statement on how they do consultations with the Indian

tribes.

And furthermore one of the statements that was made

last night by Susan was the scoping comments are due on July

the 11th, and stated that the copies of the scoping meetings

will not be available prior to that deadline. I think that

that deadline needs to be extended at some point past when

we can have the comments. Because the tribe wasn't

available to hear the comments from the community, the

people that live along the river that made comments

yesterday morning at the meeting and then last evening. The

only two people that heard their comments was myself and

Ivan, the Hammawi counsel representative.

I think that some of their comments are very good and

that I think that the tribe would be able to make additional

comments in the scoping comments periods if we had access to

all of those documents. But as it is stated now that we

won't be able to have access to the comments made yesterday

in the two sessions until after the July 11th date.

So my suggestion, if this is going to be the situation,

that the tribe actually needs to have these comments before

the closing of the comment period so that we can look at

what their comments were because they're also opposing the

project, the people in the room that are not tribal people,

and they adamant oppose the project and have done a lot of

work towards opposing the project on different levels.

Maybe not on our level, but their interests are the same as

ours at this time.

I'd like to read this and I'll give you a copy of this.

MR. WINCHELL: Can she first respond please?

MS. O'BRIEN: I need to get back to my office and

ask management above me, but I will certainly do that Monday

morning. And I think a lot of folks feel that way, and the

public and the other agencies, especially the agencies that

weren't able to attend. They are also in the same

situation. So since the majority of all interested parties

want to see an extended scoping date, I need to get

approved. I can't state here right now and say yes, but I

can say it's very likely we will extend the comment period

to provide sufficient time after the transcripts make it in

the record.

MS. ALVAREZ: Okay, I'd like to read this document

and then I'll enter it. I'll give it to you.

Hammawi band's position June 15th, 2005, the West

Valley Hydroelectric Project. General statement of

opposition to the project.

The Hammawi band of the Pit River tribe strongly

opposes the West Valley Hydroelectric Project. The entire

project area lies within the Hammawi band ancestral land and

the Pit River tribe's ancestral territory as defined by the

Indian Claims Commission Docket No 347. This area is of

great significance to the Hammawi bands, containing numerous

cultural sites and natural resources, values that are of

importance to the band's traditional way of life.

Specific impacts on the Hammawi band.

Hammawi band would be extremely affected in its

traditional custom and uses of the South Fork as a

consequence of proposed project operation. The South Fork

of the Pit River is a defining feature of the bands'

ancestral territory. The entire river has been dammed again

and again for hydroelectric power, and the South Fork of the

Pit River deserves to run wild and free in this location so

close to its source. The band supports protection of the

cultural areas within this wild and natural setting,

including conservation of water, the natural vegetation and

the wildlife which exists within and around the river.

Water diversion as a result of the project will

strongly impact these ancestral lands. The Hammawi band

believes that the proposed project would produce radical

changes in the natural environment and have negative effects

that would be ongoing.

Cultural resources include water, air, land, wildlife

fish, and plants. Impacts from the project would endanger

fish habitat, be detrimental to water quality, harmful to

wildlife, alter the natural flow of the streambed, create

mosquito infestation, and generally be damaging to the

environment.

Saving and preservation of natural qualities are

important to traditional uses. Purity and the natural quiet

of the area would be affected by the noise from the Power B

site, would echo through the canyon, imposing an annoying

nuisance is the presently peaceful character and setting of

numerous cultural sites. The project would be detrimental

to the natural scenic quality of the area. Cultural and

archeological surveys and reports are missing or inadequate.

An archeological study has not been conducted to determine

the effects on cultural sites as a result of this project.

There are numerous sites that would be affected by the

project that are vital to the ongoing cultural identity and

traditional uses of the Hammawi band of the Pit River tribe

whose ancestors once populated and resided on the lands

within the project area.

Traditional uses merit an ethnographic study and

consideration for listing on the National Register of

Historic Places. Many of the project impacts affect the

land, air, water, wildlife, plants, natural settings and

quiet atmosphere which are all components of the band's

traditional values. An ethnographic study should include

interviews with elders and traditional people.

The project is subject to the Section 106 process of

the National Historic Preservation Act. The tribe requests

a full Section 106 process under the National Historic

Preservation Act, including consultation with elders and

traditional people by a qualified ethnographer. The tribe

requests full compliance with the confidentiality of the

requirements of Section 304 of the National Historic

Preservation Act.

The band requests development of a cultural management

plan to assure preservation of the important cultural values

of the area.

Conclusion. A complete record needs to be developed to

adequately assess the effects of the project on the Hammawi

band's traditional cultural values and sites. The band has

a longstanding interest in preservation of the South Fork

and its ecosystems for present and future generations in

honor of all who ever lived here in the past.

Those are just general comments, but as we have stated

earlier, the Hammawi band is in opposition of the project

moving forward.

MR. WINCHELL: Okay. Thank you. Jessica?

MS. JIM: Actually I think that we are almost

coming to a conclusion here. But I need to say two

comments.

We were contacted by FERC, and this is to no disrespect

to anybody that's not tribal, but when FERC consulted or

contacted the Pit River tribal office, we were told that on

the first day that FERC would be meeting with the public for

comments which was held last night in Likely.

The next thing were told is that on the second day,

which is today, that FERC was only going to meet with the

Pit River tribe and only tribal people. And the only other

person that was going to be present that could go on record

was the person that had the application. So I must state

that very clearly because that again is when I walked into

the room, I was like overwhelmed because when we were

contacted, that's what we were told.

So last night no tribal counsel representatives were

present. The individual band representatives were present.

So, yes, we would like to have that extension because I want

to see what the comments are. And it appears to me that we

all have the general census that we did not support the

movement of this project going forward. Not only the tribe,

but the community at large.

And so when we are informed by agency, a federal

agency, and we are a federally recognized tribe, we are a

nation equal to that of being federally recognized.

So again when we were contacted, we were told this is

the process. That's the process I expect to be met. So I

think we are real clear on where the Hammawi band stands as

part of the Pit River tribe. We are clear on where the

tribe stands. And we will have legal clarification and

involvement because that's how we always practice. That's

what our tradition is.

In saying that, I believe that again real firmly we

oppose it. However, we know that this is a mandatory

requirement for FERC to do this consultation process; we

recognize that as tribal leaders. We know the process that

has to be heard and has to be met.

That's why we are here. In staying that, I would like

to ask any other tribal members and/or counsel

representatives if they have any final comments. At this

point does anybody have any final comments that are tribal?

MS. O'BRIEN: I have a final comment. I just

wanted to respond to you and apologize. Apparently we

weren't clear. And I know we were talking through someone

else and I did not talk directly. But at least I thought I

had made it clear, as Frank mentioned, because of our

regulations that this is already a contested proceeding that

we needed to have transcripts made.

MS. JIM: I'm aware of that.

MS. O'BRIEN: And notice of the meeting to the

public. What we did do was leave the location and the time

of the meeting out of the notice, and anyone interested in

attending had to call me directly to get that information.

And three people responded. They're homeowners along

the bypass reach section of the river. And it was brought

up at the meeting last night

MR. WILSON: I apologize because I asked them to

come if they wanted to. I forgot to tell you that. I'm

sorry.

MS. O'BRIEN: In support of the tribe.

MR. WILSON: Because I didn't believe it was going

to be a consultation meeting. Because in my general mind,

you know what I mean? Because ‑‑ Ivan Wilson.

I believe it wasn't a consultation, whatever. And my

general head, you know. Because usually when we have a

consultation meeting, usually we have an agenda that says

"consultation" on it, that way it's notified. You know what

I mean? On our behalf, you know what I mean? And I asked

them to come. Because they can't speak anyway, you know,

because these guy's rules or whatever.

And then when we was at the public meeting actually the

other night, I see a little bit of rudeness, whatever,

because the people, the homeowners, they could only speak on

the issue, whatever, and keep it to that limit. Those

rules, you know, were unqualified. You know what I mean?

Because, you know, I speak ‑‑ they are homeowners. They

should be able to speak their peace, and whatever their

opinion is, it shouldn't be questioned like it was last

night. And in my view, I got that feeling. They were only

subject to certain things they could talk about. And that

was rude on behalf of, you know, you guys. Him over there,

whoever made those rules or whatever, you know. That's all

I got state about it.

MR. GONZALES: I'd like to state ‑‑ for the record

I'm the Hammawi band Land Representative also strongly

opposed to the project. Chaz Gonzales.

MS. FOSTER: Cheryl Foster, BLM archeologist. Two

points actually.

In terms of confidentiality I know that the Forest

Service as well as the BLM requires any contractors who

consult with us on historic properties to sign a

confidentiality agreement with us. So any records that I

would turn over, they would have to find ‑‑ go on the record

on a signed piece of paper saying they will not disclose

information to anyone nor will it be made public in any

document form.

Secondly, obviously given the nature of tribal

comments, it's apparent that we need to consult with the

office of historic preservation, and that consultation

process needs to be initiated immediately in my opinion.

MR. WINCHELL: Those are very important comments.

Of course. Of course. And we have contacted the State

Historic Preservation Office, and that has also been written

in our response to the applicant that they must consult with

the State Historic Preservation Office before it gets to us.

But, yes, that is part of the consultation process, of

course. We have already given him authorization to consult

on our behalf.

But of course we are the folks that will be receiving

this information, of course.

I can't re‑emphasize this any more strongly that, yes,

the applicant needs to consult with the Indian tribe

concerned with this project.

Anybody else?

MS. BARNES: I heard on the agenda first when, you

know, this ‑‑ we just got started and, you know, whoever

called the meeting makes the agenda, I guess. In my mind

that's what would happen.

But also I'm hearing two things here. I thought we was

here to also maybe listen to what has gone on here

concerning this project that's going to come through here.

We do have ‑‑ I set here and listened to these people that

we have here that are homeowners, here close to this, the

Pit River, I guess it is. And I think they're interested

here in listening ‑‑ what is going to happen because it's

their area where they live.

And I feel like this. I also heard monitors. That

tells me two things. We are here to stop it, but yet we are

here to get paid for some monitor job or whatever. That

tells me two things. I hear it at the table. And but

anyway I don't feel too good about these people here coming

here and listening to this and thinking that it's going to

be stopped when it's not going to be stopped. You know,

they're here to listen. To support whoever it is here on

this ‑‑ the bands, three bands I guess it is.

And I also wanted to say that, you know ‑‑ I feel that

I'm going to say it. Our tribal counsel should be here on

time just like this person here mentioned a while ago. If

you're going to go in and out, stay out or either come in.

We have to try to be controlled some way. And if we He

cannot be controlled, I guess we just as well stay home or

whatever.

But counsel need to be on time. When you call a

meeting with people here at the table, or they call you, be

on time. Don't let these people come in here. We sat here

from 9:30 this morning waiting, and it don't look good for

our part.

But that's the only thing that I want to say. And I

will say I'll bring this up to our tribal counsel again.

Even if they don't like it.

MR. WINCHELL: Thank you.

MR. ELMORE: Matt Elmore, Madesi counsel, Pit

River tribe.

You know, some of us were late because Caltrans was

working on the roads today. You're always at the meeting

early, because you like getting there early. I don't know

what the reason is, but whatever.

You're making allegations that Hammawi band is just

wanting money. I didn't hear one word from Susie or Ivan or

any other Hammawi representative. All I've heard is they

want to protect the archeological sites. They want to

protect their ancestry. I heard the comment that there's

not enough money to buy ancestry.

To make allegations against your fellow tribal members

and brothers and sisters is wrong. I'm shocked and appalled

that you made those kind of comments. This is not the forum

to take out your personal grudges against the others. We

should be here today united as Pit River people, all

opposing this project, not to cause deceit and hard feelings

amongst each other. That's wrong. We have got enough

people here against us to go fighting amongst ourselves. We