No. 137, Original · · · ·· IN THE SUPREME COURT OF THweb.stanford.edu/dept/law/mvn/pdf/1-Volume_24.pdf · 23 · · resume the stand. ·· There is a very simple answer to 24

· · · · · · · · · ·· No. 137, Original·· · · ·· IN THE SUPREME COURT OF THE UNITED STATES·· · · · · · · · · VOLUME 24 OF 25 VOLUMES·· · · · · · · TRANSCRIPT OF TRIAL PROCEEDINGS··_______________________________________________________·· · · · · · · · · · · STATE OF MONTANA· · · · · · · · · · · · · · · · · · · · · Plaintiff,· · · · · · · · · · · · · ·· v.·· · · · · · · · · · · STATE OF WYOMING·· · · · · · · · · · · · · · and·· · · · · · · · ·· STATE OF NORTH DAKOTA· · · · · · · · · · · · · · · · · · · · · Defendants.·_______________________________________________________···· · · · BEFORE THE HONORABLE BARTON H. THOMPSON, JR.· · · · · · · · · · ·· Special Master· · · · · · · · · · Stanford, California···· · · · · James F. Battin United States Courthouse· · · · · · · · ·· 2601 2nd Avenue North· · · · · · · · · Billings, Montana 59101· · · · · · · 8:37, Tuesday, December 3, 2013····· · · · · · · · · Vonni R. Bray, RPR, CRR· · · · · · · · · · · · P.O. Box 125· · · · · · · · · · · Laurel, MT 59044· · · · · · · · · · (406) 670-9533 Cell· · · · · · · · · ·· (888) 277-9372 Fax· · · · · · · · · · [email protected]··· · · ·· Proceedings recorded by machine shorthand·· Transcript produced by computer-assisted transcription·

Page 5606

· · · · · · · · · · · · APPEARANCES·1··· ··FOR PLAINTIFF STATE OF MONTANA:·2··· ·· · · · · · Mr. John B. Draper, Special Assistant AG·3·· · · · · · Montgomery & Andrews· ·· · · · · · 325 Paseo de Peralta, 87501·4·· · · · · · P.O. Box 2307· ·· · · · · · Santa Fe, NM 87504-2307·5·· · · · · · Telephone: (505) 986-2525 Fax: (505) 982-4289· ·· · · · · · E-mail: [email protected]·6··· ·· · · · · · Mr. Jeffrey J. Wechsler, Special Assistant AG·7·· · · · · · Montgomery & Andrews· ·· · · · · · 325 Paseo de Peralta, 87501·8·· · · · · · P.O. Box 2307· ·· · · · · · Santa Fe, NM 87504-2307·9·· · · · · · Telephone: (505) 986-2637 Fax: (505) 982-4289· ·· · · · · · E-mail: [email protected]··· ·· · · · · · Mr. Cory Swanson11·· · · · · · Deputy Attorney General· ·· · · · · · 602 Sanders12·· · · · · · P.O. Box 201401· ·· · · · · · Helena, MT 5962413·· · · · · · Telephone: (406) 444-4774 Fax: (406) 444-3549· ·· · · · · · E-mail: [email protected]··· ·· · · · · · Ms. Anne Winfield Yates15·· · · · · · DNRC Chief Legal Counsel· ·· · · · · · 1625 Eleventh Avenue16·· · · · · · P.O. Box 201601· ·· · · · · · Helena, MT 59620-160117·· · · · · · Telephone: (406) 444-0503 Fax: (406) 444-2684· ·· · · · · · E-mail: [email protected]··· ·· · · · · · Mr. Kevin R. Peterson19·· · · · · · DNRC Legal Counsel· ·· · · · · · 1625 Eleventh Avenue20·· · · · · · P.O. Box 201601· ·· · · · · · Helena MT 59620-160121·· · · · · · Telephone: (406) 444-5785 Fax: (406) 444-2684· ·· · · · · · E-mail: [email protected]··· ··23··· ··24··· ··25·

Bray Reporting - (406) 670-9533

Page 5607

· · · · · · · · ·· APPEARANCES CONTINUED·1··· ··FOR DEFENDANT STATE OF WYOMING:·2··· ·· · · · · · Mr. James C. Kaste·3·· · · · · · Water & Natural Resources Division· ·· · · · · · Sr. Assistant Attorney General·4·· · · · · · 123 Capitol Building· ·· · · · · · Cheyenne, WY 82002·5·· · · · · · Telephone: (307) 777-3535 Fax: (307) 777-3542· ·· · · · · · E-mail: [email protected]·6··· ·· · · · · · Mr. Chris Brown·7·· · · · · · Water & Natural Resources Division· ·· · · · · · Sr. Assistant Attorney General·8·· · · · · · 123 Capitol Building· ·· · · · · · Cheyenne, WY 82002·9·· · · · · · Telephone: (307) 777-3406 Fax: (307) 777-3542· ·· · · · · · E-mail: [email protected]··· ·· · · · · · Mr. Andrew J. Kuhlmann11·· · · · · · Water & Natural Resources Division· ·· · · · · · Assistant Attorney General12·· · · · · · 123 Capitol Building· ·· · · · · · Cheyenne, WY 8200213·· · · · · · Telephone: (307) 777-3537 Fax: (307) 777-3542· ·· · · · · · E-mail: [email protected]··· ·· · · · · · Mr. Peter J. Michael15·· · · · · · WY Attorney General· ·· · · · · · State Capitol Building16·· · · · · · Cheyenne, WY 82001· ·· · · · · · Telephone: (307) 777-7841 Fax: (307) 777-354217··· ··18··· ··FOR DEFENDANT STATE OF NORTH DAKOTA:19··· ·· · · · · · Ms. Jennifer L. Verleger20·· · · · · · Assistant Attorney General· ·· · · · · · 500 North 9th Street21·· · · · · · Bismarck, ND 58501-4509· ·· · · · · · Telephone: (701) 328-3640 Fax: (701) 328-430022·· · · · · · E-mail: [email protected]· ··23··· ··24··· ··25·


Page 5608

· · · · · · · · · · · · ·· INDEX·1··· ·· · · · · · · · · · · · · · · · · · · · · VOLUME· ··PAGE·2··· ··Proceedings ...............................24· · ·5609·3··Certificate of the Court Reporter .........24· · ·5837· ···4··· ···5··· ···6··· ·· · · · · · · · · ·· INDEX TO WITNESSES·7··· ··FOR THE DEFENDANT:· · · · · · · · · · ··VOLUME· ··PAGE·8··· ··BERN HINCKLEY·9··· ··Direct Examination by Mr. Kaste ...........24· · ·561210··Cross-Examination by Mr. Draper ...........24· · ·5748· ··Examination by the Special Master .........24· · ·583511··· ··12··· ··13··· ··14··· ·· · · · · · · · · ·· INDEX TO EXHIBITS15··· ··EXHIBIT· · · · · · · · · · · · · · · · ·VOLUME· ··PAGE16··· ··· W003· ·Expert Report by Bern Hinckley ....24· · ·565617·· · · · · (Depo Ex. 273)· ··18··· ··19··· ··20··· ··21··· ··22··· ··23··· ··24··· ··25·


Page 5609

· · · · · · TUESDAY, DECEMBER 3, 2013, 8:37 A.M.·1·

· · · · · · SPECIAL MASTER:··Okay.··Everyone can be·2·

·seated.··So good morning, Mr. Kaste.·3·

· · · · · · MR. KASTE:··Good morning.·4·

· · · · · · SPECIAL MASTER:··We're down to Wyoming's last·5·

·witness; right?·6·

· · · · · · MR. KASTE:··Yes.··But before we put on·7·

·Mr. Hinckley, Mr. Draper has some information to·8·

·impart.·9·

· · · · · · SPECIAL MASTER:··Okay.··Excellent.10·

· · · · · · MR. DRAPER:··Your Honor, good morning.11·

· · · · · · SPECIAL MASTER:··Good morning.12·

· · · · · · MR. DRAPER:··During the testimony of13·

·Mr. Aycock, you asked him to determine where he had14·

·gotten some evaporation data that he used in his15·

·analysis where he had gone back to the predevelopment16·

·to analyze the distribution of storage in Wyoming.··And17·

·you asked him at that time where he got his evaporation18·

·data.19·

· · · · · · SPECIAL MASTER:··That's correct.20·

· · · · · · MR. DRAPER:··I've discussed this with21·

·Mr. Kaste.··Mr. Aycock is here, and we could ask him to22·

·resume the stand.··There is a very simple answer to23·

·that as a particular table in Mr. Book's report.··And I24·

·can cite -- I suggest that I cite that to you, and I25·


Page 5610

·think that's a complete answer.··But we do have the·1·

·ability to put Mr. Aycock back to the stand, if you·2·

·desire.·3·

· · · · · · SPECIAL MASTER:··So...·4·

· · · · · · MR. KASTE:··I'll just let you know, in the·5·

·interest of time, I'm happy to take it in this fashion.·6·

·I understand that it came from this table as well.·7·

·It's not really controversial.·8·

· · · · · · SPECIAL MASTER:··That's perfect.··If we could·9·

·basically have a stipulation that, in fact, that's10·

·where the data came from, we wouldn't have to put11·

·Mr. Aycock back on the stand or have a formal12·

·affidavit.13·

· · · · · · And do you want to just provide me with the14·

·reference for the record purpose?15·

· · · · · · MR. DRAPER:··Yes, Your Honor.··I can do that16·

·at this time.··His source of that evaporation data was17·

·Appendix E3 in Mr. Book's January 4th, 2013, report,18·

·which I believe is Exhibit M5.19·

· · · · · · SPECIAL MASTER:··Okay.··So, again, this is20·

·Appendix E3.··So it's the average monthly class amount21·

·of pan and lake evaporation table, which appears to be22·

·at page 270.23·

· · · · · · MR. DRAPER:··That's correct.24·

· · · · · · SPECIAL MASTER:··Okay.··Excellent.··Thank25·


Page 5611

·you.··And thank you for tracking down the answer to·1·

·that particular question.·2·

· · · · · · MR. DRAPER:··My pleasure.·3·

· · · · · · SPECIAL MASTER:··Okay.··Then, Mr. Kaste, you·4·

·want to call Mr. Hinckley?·5·

· · · · · · MR. KASTE:··I do.··The State of Wyoming would·6·

·call Bern Hinckley.·7·

· · · · · · SPECIAL MASTER:··Okay.··Mr. Hinckley, you can·8·

·actually come up here and take the stand.·9·

· · · · · · (Bern Hinckley sworn.)10·

· · · · · · THE CLERK:··Have a seat, please.··State your11·

·name and spell it for the record.12·

· · · · · · THE WITNESS:··Okay.··How's that for distance.13·

·My name is Bern Hinckley.··B, like in boy, -e-r-n,14·

·H-i-n-c-k-l-e-y.15·

· · · · · · SPECIAL MASTER:··So, good morning,16·

·Mr. Hinckley.··It's actually nice to hear from you17·

·rather than see you.18·

· · · · · · THE WITNESS:··Instead of waving from the19·

·gallery.20·

· · · · · · SPECIAL MASTER:··Okay.··Mr. Kaste.21·

·22·

·23·

·24·

·25·


BERN HINCKLEY - December 3, 2013Direct Examination by Mr. Kaste

Page 5612

· · · · · · · · · · ·· BERN HINCKLEY,·1·

·having been first duly sworn, testified as follows:·2·

· · · · · · · · · ·· DIRECT EXAMINATION·3·

·BY MR. KASTE:·4·

· · ·· Q.· ·Good morning, Mr. Hinckley.··As you saw·5·

·yesterday with Mr. Fritz, we typically start this by·6·

·talking about who you are and why anybody should care·7·

·what you have to say.··So we're going to do that.·8·

· · · · · · Can you tell us where you're from originally?·9·

· · ·· A.· ·I grew up in Powell, Wyoming.··It's a little10·

·farming community just over the Wyoming border11·

·southwest of here in Billings.··And went through high12·

·school there before I went off into the world.13·

· · ·· Q.· ·And your experience there in Powell, do you14·

·have any experience with irrigation yourself?15·

· · ·· A.· ·Oh, yeah.··Of course, growing up in an ag16·

·community, one is exposed to that all the time.17·

· · · · · · As I was contemplating that for the18·

·testimony, I'm remembering when these ditch riders19·

·would drag me before my father and be admonished for20·

·fooling around with headgates.··In those days it was21·

·acceptable parenting to turn your kids lose in the22·

·summer, and much of curious eight years old are.23·

· · · · · · Then I started getting jobs in the fields.24·

·Was a standard high school, junior high job, weeding,25·



Page 5613

·thinning sugar beets.··The family operation is probably·1·

·my hands-on experience with irrigation.·2·

· · · · · · The division headquarters of Board of Control·3·

·was in the town of Cowley in the north end of the Big·4·

·Horn Basin, just down the road from Powell.··One of my·5·

·uncles was the division superintendent, so near the·6·

·town where I grew up.··And my uncle was the Division·7·

·III superintendent in those days, the position now·8·

·occupied by Mr. Smith.··So I also had some exposure to·9·

·water rights goings-on in the Big Horn Basin growing10·

·up.11·

· · · · · · Another uncle has an irrigated farm over on12·

·Shell Creek that we heard from earlier testimony about.13·

· · · · · · The family homestead is down in Cowley.··I14·

·owned that for a very brief period of time.··DEA fishes15·

·under the Sidon Canal.··That was built by the pioneers16·

·before the Bureau of Reclamation came in and built the17·

·big irrigation systems in the Big Horn Basin.18·

· · · · · · One of my sisters lived on Big Goose Creek19·

·for about 20 years.··Another sister just sold 10 acres20·

·of irrigated land on Prairie Dog Creek.21·

· · · · · · So my hands-on experience gave me the shovel22·

·and dirt side of what then subsequently was developed23·

·more academically in coursework and career, of course.24·

· · ·· Q.· ·Well --25·



Page 5614

· · · · · · SPECIAL MASTER:··Before you go on, I just·1·

·have to ask, where I come from, one of the ways in·2·

·which kids get in trouble during the summer is finding·3·

·ways of opening fire hydrants.··Is playing around with·4·

·headgates basically the same?·5·

· · · · · · THE WITNESS:··Same idea.··How could you·6·

·resist?··You turn it and the water squirts out.··Wow.·7·

· · · · · · SPECIAL MASTER:··The first trial I ever had·8·

·was one that involved four kids who opened fire·9·

·hydrants throughout the City of Santa Monica.··And,10·

·unfortunately, when the fire department closed them,11·

·they caused a water hammer effect that ended up12·

·bursting a variety of water mains and caused several13·

·million dollars' worth of damage.14·

· · · · · · My guess is you probably can't do that in15·

·playing around with the headgates.16·

· · · · · · THE WITNESS:··Well, there was never any jail17·

·time involved, but there was some fierce discussions.18·

· · · · · · SPECIAL MASTER:··Glad to hear that.19·

· · · · · · Okay.··Mr. Kaste.20·

·BY MR. KASTE:21·

· · ·· Q.· ·Well, let's talk, then, about the academic22·

·sides of things.··And can you give us a summary of your23·

·academic credentials, your undergraduate and then your24·

·graduate degree.25·



Page 5615

· · ·· A.· ·Sure.··I left Powell High School in 1971 and·1·

·attended Princeton University.··Took a degree in·2·

·geological and geophysical sciences in the standard·3·

·four years.··Took a couple years off to work.··And then·4·

·came back to Stanford University where I got a master's·5·

·degree through the School of Applied Earth Sciences,·6·

·and that was completed in 1980.·7·

· · · · · · SPECIAL MASTER:··I actually had thought at·8·

·one point in time that the State of Wyoming might have·9·

·actually plotted this, that you had both Arizona State10·

·yesterday and Stanford today.··So both sides of the Pac11·

·12 championship.12·

· · · · · · MR. KASTE:··Well, we only try to hire people13·

·with outstanding academic credentials.··Therefore, we14·

·have a Stanford representative.15·

·BY MR. KASTE:16·

· · ·· Q.· ·Your undergraduate degree, I think you said,17·

·was in geology and geophysics; is that right?18·

· · ·· A.· ·Yeah.··Formally it was called geological and19·

·geophysical sciences.20·

· · ·· Q.· ·Keep the speed down a little bit.21·

· · ·· A.· ·Yes.22·

· · ·· Q.· ·We've heard from a number of geologists in23·

·this case.··And I think it would be good for you to24·

·tell us what the relationship is between the study of25·



Page 5616

·geology and hydrology.·1·

· · ·· A.· ·Sure.··And I think this case shows you sort·2·

·of the convergence on hydrology.··Many of the folks we·3·

·heard from come out of a geology background, where we·4·

·see hydrology is something as a subset of geology.··How·5·

·the water moves around on the earth's surface and·6·

·beneath the earth's surface is obviously part of the·7·

·geologic story.·8·

· · · · · · The other way people kind of do hydrology is·9·

·to have a civil engineering degree, typically from a10·

·more hydraulics point of view.··How big a pipe do you11·

·need to carry so much water?··What's the roughness of a12·

·ditch?13·

· · · · · · So you'll see in academic curricula hydrology14·

·very commonly is the process of the civil engineering15·

·department and geology department.··So coming from a16·

·geological background, I see hydrology as a subset of17·

·geology.··Some of my civil engineering colleagues would18·

·probably parse that out differently.··But the19·

·principles are the same, and we use them for the same20·

·purposes.21·

· · · · · · The primary hydrologic agency on earth is22·

·probably the Wyoming Geological Survey, so put in a23·

·plug for geologists by that route.24·

· · ·· Q.· ·And in the study of geology as it relates to25·



Page 5617

·hydrology, do you work with surface water and·1·

·groundwater?·2·

· · ·· A.· ·Certainly.·3·

· · ·· Q.· ·Now, you've got a master's degree from·4·

·Stanford in applied earth science, and I have yet to·5·

·figure out what that means.·6·

· · · · · · So can you tell us what an applied earth·7·

·sciences degree is and what the fields of study are?·8·

· · ·· A.· ·Sure.··In fact, the Special Master may know·9·

·that Stanford has the College of Earth Sciences within10·

·which are the Departments of Geology, Applied Earth11·

·Science, and Petroleum Engineering.··So within that12·

·larger umbrella of applied earth sciences, I took the13·

·applied earth sciences program.14·

· · · · · · And as the name implied, it explores the15·

·interface between the earth sciences, geology,16·

·meteorology, hydrology, climatology.··And the17·

·engineering side of applied science is often used as a18·

·substitute for engineering.19·

· · · · · · My particular program and my interests were20·

·broad and well-suited, I think, to an applied earth21·

·sciences program.··So my curriculum was geomorphology,22·

·geochemistry, geostatistics or general statistics,23·

·environmental statistics.··There's kind of a capstone24·

·program that they just called applied earth sciences.25·



Page 5618

·That's land-use planning particularly with respect to·1·

·geologic hazards: hydrology, floods.·2·

· · · · · · We, for example, did a program with the Army·3·

·Corps of Engineers.··They got this -- at that time a·4·

·monstrous hydrologic physical model up in Sausalito of·5·

·the entire San Francisco Bay area where they put all·6·

·that in a room about ten times the size of this and you·7·

·can put the water in one of the forks of the Tuolumne·8·

·River.··T-o-l-o-m-e [sic].·9·

· · · · · · SPECIAL MASTER:··There's an N in there too.10·

·Anyway, we can spell it.11·

· · · · · · THE WITNESS:··Anyway, that's not significant.12·

· · · · · · The point is that, yes, that degree program13·

·covered the whole gamut of surface water and14·

·groundwater, although much more surface water geology,15·

·sort of land-use applications.16·

· · · · · · My thesis work was done in rainfall runoff17·

·relationships and sediment transport, for example.18·

·BY MR. KASTE:19·

· · ·· Q.· ·And --20·

· · · · · · SPECIAL MASTER:··So I have to keep making21·

·observations today.··The School of Earth Sciences at22·

·Stanford continues to come up with departmental and23·

·degree names that no one other than earth scientists24·

·understand.··A lot of what you're now talking about is25·



Page 5619

·actually an environmental and earth systems sciences.·1·

· · · · · · THE WITNESS:··Yeah.··Geology departments·2·

·around the country are renaming themselves.·3·


· · ·· Q.· ·Sounds like a sanitation engineer to me.·5·

· · ·· A.· ·Right.·6·

· · ·· Q.· ·Do you have any postgraduate studies?··Have·7·

·you engaged in any of that?·8·

· · ·· A.· ·Yeah.··Working in Laramie has given me·9·

·opportunity to have access to the University of10·

·Wyoming.··So I've taken full-term courses there,11·

·including the water law course offered through the12·

·University of Wyoming Law School.··Some advanced13·

·groundwater modeling courses offered through the14·

·geology department.··Geophysics interpretation course15·

·offered at the civil engineering department.··And a few16·

·others of general interest.17·

· · · · · · In addition to those, university-based18·

·courses, professional short courses, the week to19·

·ten-day kinds of things.··And I've undergone that20·

·coursework in modeling, environmental statistics.··Oh,21·

·it seems like a few others, but those are the main22·

·ones.23·

· · · · · · And then, of course, the continuing education24·

·pieces that typically accompany professional25·



Page 5620

·conferences just by way of continuing education.··So an·1·

·assortment of those looking at matters like hydrologic,·2·

·geologic, statistical.·3·

· · ·· Q.· ·So are you licensed by the state?·4·

· · ·· A.· ·Yes.··The registration for geologists is·5·

·parallel with what one sees for professional engineers.·6·

·So I am licensed in the states of Wyoming, Nebraska,·7·

·and Idaho.··Formerly in California when I was working·8·

·for a California firm.··And I've let that lapse.··So·9·

·currently those three states.10·

· · ·· Q.· ·All right.··Now, can you give us an idea of11·

·your employment history beginning with your first job12·

·in the field of geology and geophysics and all these13·

·other fancy names for looking at dirt and water?14·

· · ·· A.· ·Hey, dirt and water is great stuff.15·

· · · · · · My first formal job as a newly minted16·

·geologist was in Alaska working for a consulting firm17·

·out of Fairbanks.··Kind of at the fringes of hydrology,18·

·we were looking at Iceland's formation and permafrost,19·

·preconstruction surveys for the -- what became the20·

·Trans-Alaska Pipeline.21·

· · · · · · So we spent the winter in the Brooks Range22·

·doing core studies, looking at ice and what the effect23·

·of ice is once it melts.24·

· · · · · · This is in that two-year period between my25·



Page 5621

·undergraduate and graduate work.··I had taken all the·1·

·tests to go to graduate school as soon as I graduated·2·

·before I -- I intended to go to grad school, but·3·

·figuring a couple of years of work experience would be·4·

·useful for the graduate work.·5·

· · · · · · The second main job in that period was·6·

·working for the Wyoming Geological Survey out of the·7·

·Laramie for the division -- Environmental Geology·8·

·Division which, again, covered a variety of topics.·9·

· · · · · · Helped the state develop comments on the EIS10·

·for a dam that was being built for a power plant,11·

·coal-fired power plant, called Grayrocks Dam.··My main12·

·assignment was to develop an inventory of the thermal13·

·springs of Wyoming, which was a plumb assignment.··Just14·

·drive around the state looking for warm springs and15·

·sampling the flora and the fauna and work out the16·

·associated geology.17·

· · · · · · And that work was published in a small18·

·bulletin geological survey in 1978 or so.··Then I went19·

·on to graduate school.20·

· · ·· Q.· ·And after graduate school, what did you do?21·

· · ·· A.· ·I should say, during undergrad and graduate22·

·school, I had employment.··And then during the summers,23·

·remembering one summer I was hired to assist with the24·

·geological field course taught out of Red Lodge,25·



Page 5622

·Montana, for the National Science Foundation.·1·

· · · · · · And then there were a number of -- there was·2·

·TAs, of course, associated with the graduate school·3·

·work.··So had an oar in the teaching.··Sorted out·4·

·fossils as a work study job at Princeton.·5·

· · · · · · So now to get back to your question,·6·

·immediately after leaving Stanford, I taught a field·7·

·course that summer.··It was organized out of the·8·

·college of Powell, where I grew up.··And then did a·9·

·stint with the Geological Survey in Eureka, California,10·

·as a field hydrologist, I think was the title, looking11·

·at the hydrology associated with landslides, which12·

·there are no lack in California.13·

· · · · · · From that job, went to work as a research14·

·associate for the University of Wyoming doing15·

·geothermal research and, through that work, became16·

·associated with a groundwater firm in Boise, Idaho,17·

·called Anderson & Kelly.··And then subsequently went to18·

·work for them as a hydrogeologist and working my way up19·

·into what they call a supervisory hydrogeologist20·

·position.21·

· · ·· Q.· ·What years did you work for Anderson & Kelly?22·

· · ·· A.· ·That started in about '82, '83, give or take.23·

· · · · · · SPECIAL MASTER:··'81, according to your24·

·testimony.25·



Page 5623

· · · · · · THE WITNESS:··Well, and if I'm a little vague·1·

·on that, there was some overlap.··They worked for us as·2·

·a subcontractor.··And then I worked for them.··And then·3·

·there were some part-time jobs.··So my path from high·4·

·school to my current position is not entirely linear.·5·

·So the years are slippery a bit.·6·


· · ·· Q.· ·What kind of work did you do for Anderson &·8·

·Kelly?·9·

· · ·· A.· ·That was mostly groundwater exploration and10·

·development work.··They were the first specialized firm11·

·in groundwater consulting in the Rocky Mountains.··A12·

·guy named Keith Anderson formed the firm.··He's written13·

·some of the handbooks on groundwater that have become14·

·pretty popular.15·

· · · · · · Anyway, we were working on water supplies,16·

·industrial, municipal.··Mostly water supplies with the17·

·groundwater component.··In fact, that's the first place18·

·I had contact with Mr. Larson.··He was a subconsultant19·

·to our firm on an agricultural drainage project in20·

·South Dakota in about 1984.21·

· · · · · · Anderson & Kelly was subsequently purchased22·

·by a large international firm out of Pasadena.··They23·

·were called James M. Montgomery Consulting Engineers in24·

·those days.··Currently doing business as Montgomery,25·



Page 5624

·Watson and Harza.··So that was the next segue in terms·1·

·of employment.·2·

· · ·· Q.· ·So when Anderson & Kelly was purchased, you·3·

·continued to work for Montgomery, Watson and Harza?·4·

· · ·· A.· ·Right.·5·

· · ·· Q.· ·Still in Boise?·6·

· · ·· A.· ·They were headquartered out of Pasadena.··I·7·

·was working in the Wyoming office in Laramie.·8·

· · ·· Q.· ·And what kind of work did you do for·9·

·Montgomery, Watson and Harza?10·

· · ·· A.· ·Started out with that same focus on11·

·groundwater exploration development management of12·

·oilfields.··Because Montgomery was a much larger firm13·

·it gave us a much larger pool to play in.14·

· · · · · · And I grew, I guess would be the right word,15·

·into a larger role, project management of some of the16·

·more regional projects through that firm.··We got into17·

·hazardous waste work chasing around spills at18·

·industrial sites.··Not my favorite part of geology by a19·

·long shot.20·

· · · · · · And then they do water resources, from soup21·

·to nuts, from running the water treatment plant for the22·

·City of L.A. to working on water supplies from some of23·

·the rivers in Alaska, to well water treatment plants,24·

·surface hydrology, groundwater hydrology, the25·



Page 5625

·connections between the two.·1·

· · · · · · So I began to be involved in bits and pieces·2·

·of the much larger portfolio work that Montgomery was·3·

·engaged in.·4·

· · · · · · And it was as a result of that, when the·5·

·Nebraska-Wyoming lawsuit was filed and the Wyoming·6·

·State Attorney General's Office went out for proposals·7·

·on just across-the-board water resources consulting·8·

·services in sort of that lawsuit, I helped do a·9·

·proposal with Montgomery.10·

· · · · · · And we were ultimately successful in securing11·

·that contract.··And I was in a kind of project12·

·management role.··I was in a project management role at13·

·that point.14·

· · ·· Q.· ·We can continue talking about your employment15·

·history and how that relates to your involvement in the16·

·Nebraska versus Wyoming litigation because I think it's17·

·sort of integral.18·

· · · · · · So if you could outline for us first what19·

·your role was in that litigation and how it then20·

·followed you to your next employment opportunity after21·

·Montgomery, Watson and Harza.22·

· · ·· A.· ·So we're looking at the Nebraska-Wyoming23·

·lawsuit?24·

· · ·· Q.· ·Yeah, what was your role in that case?25·



Page 5626

·Understanding, initially, it was with Montgomery,·1·

·Watson, and Harza and that followed you.·2·

· · ·· A.· ·Correct.··And that suit was filed in 1987.·3·

·Settled in 2000, 2000 -- I think they agreed to settle·4·

·in 2001.··The formal settlement is dated 2000 -- formal·5·

·settlement documents are dated 2001.··And then the·6·

·settlement implementation has continued ever since.··So·7·

·basically I've been closely associated with that·8·

·project since 1987 when we were first hired.·9·

· · · · · · As far as the Montgomery piece, as that10·

·lawsuit bloomed, as it grew from the initial filings,11·

·there were many amended pleadings and the issues just12·

·got bigger and bigger.13·

· · · · · · At its peak, we probably -- the State of14·

·Wyoming employed -- I'll bet there were 15 different15·

·technical consultants.··And I had grown into a16·

·coordinating role for that army of consultants, if you17·

·will, helping the state to identify consultants and18·

·scope out their services and integrate their services19·

·with the larger project.20·

· · · · · · At the same time, Montgomery itself had21·

·considerable work, and I was coordinating two -- three22·

·of Montgomery's offices.··Denver; Sacramento; and23·

·Irvine, California, were involved.··And then had a crew24·

·of up to five or six in our Wyoming office.25·



Page 5627

· · · · · · Now, that's just the personnel.··But we were·1·

·actually doing -- let's start with what we were --·2·

·directly under my supervision, we're looking at·3·

·irrigation systems in the North Platte River.·4·

·Everything from aerial photograph to identify irrigated·5·

·acreage, detailed analyses of the diversion records,·6·

·the efficiency of crops, crop yields associated with·7·

·those irrigation districts, and a whole series of·8·

·reports that I listed that were relevant to that work.·9·

· · · · · · Became involved with -- or more involved, I10·

·guess -- we did some work on irrigation ET back in11·

·Stanford.··But that came back in in terms of applying12·

·those ETS techniques to water that was distributed for13·

·irrigation from the North Platte system to -- oh,14·

·there's probably 350,000 acres irrigated in eastern15·

·Wyoming/western Nebraska through the North Platte16·

·project.17·

· · · · · · And began looking at, in relation to this18·

·case, some of the satellite imagery that was being used19·

·both to identify irrigated acreage and a program called20·

·SEBAL that was the predecessor of METRIC.··So that's21·

·when I first came into the acquaintance of Mr. Allen,22·

·who we heard from earlier.23·

· · · · · · We did studies of canal seepage losses where24·

·we went out and measured the conveyance losses from25·



Page 5628

·canals.··Of course, that's an important part of trying·1·

·to tie the diversions from the river to the actual crop·2·

·needs for these districts to look at their efficiencies·3·

·and their management.··Looked at how the Bureau and the·4·

·districts accommodated shortages, allocations of the·5·

·limited water supplies from the federal reservoirs.·6·

· · · · · · As we've heard over the course of this trial,·7·

·the North Platte is a laboratory of complex reservoirs,·8·

·reservoir management, operational rules, reservoir·9·

·accounting, storage, ownerships, evaporation,10·

·conveyance, losses of storage, and natural flow, how to11·

·sort all that out.··So I became increasingly involved12·

·with that over the years with Montgomery on the North13·

·Platte.14·

· · · · · · We developed a detailed daily irrigation15·

·scheduling model.··The main theoretical horsepower on16·

·that came from two of the big names in ET: Marvin17·

·Jensen out of Colorado State and Bob Burman from the18·

·University of Wyoming.··You might have seen them go by19·

·as coauthors with Rick Allen of the ASCE Manual 70,20·

·which was the bible of agricultural ET for 15, 2021·

·years.22·

· · · · · · My role in that was mostly running the field23·

·end of it, picking the individual fields, setting up24·

·the meteorological instrumentation.25·



Page 5629

· · · · · · I had the math department of Torrington High·1·

·School employed one summer to go out and do the·2·

·sampling of the neutron tubes to measure the soil·3·

·moisture increments under each of these fields.··And we·4·

·were doing that to be able to compare the theoretical·5·

·crop needs on a daily basis with the diversion patterns·6·

·to assess gross irrigation efficiency directly and on a·7·

·day-to-day basis.·8·

· · · · · · So, yeah, I can go on more considerably, but·9·

·that probably hits the high points.10·

· · ·· Q.· ·And did that work that you just described11·

·follow you after you left Montgomery, Watson and Harza?12·

· · ·· A.· ·Yes.··Eventually Montgomery felt that the13·

·Wyoming operation was not sufficiently profitable and14·

·closed that office.··I was offered an opportunity to15·

·transfer to the Denver or Sacramento offices, and I16·

·felt like I wanted to stay home in Wyoming.··So then I17·

·just basically kept doing the same thing as Hinckley18·

·Consulting.19·

· · ·· Q.· ·So Hinckley Consulting has been in existence20·

·since...21·

· · ·· A.· ·'93.22·

· · · · · · THE WITNESS:··Is that consistent with what --23·

· · · · · · SPECIAL MASTER:··Yes, it is.··It's what your24·

·report says.25·



Page 5630

· · · · · · THE WITNESS:··Okay.··That's the year my son·1·

·was born.··I have kind of a benchmark to pin that to.·2·


· · ·· Q.· ·So the North Platte work continues from 1993,·4·

·I assume to the present, for you?·5·

· · ·· A.· ·Yes.··Yes.··The lawsuit settled.··We went·6·

·immediately into what we call settlement·7·

·implementation.·8·

· · · · · · So over the succeeding years, the idea has·9·

·been to transition as much as possible from the10·

·consultant support into staff.··And one of the first11·

·things we did, the consultants assisting the state, was12·

·to set up a program of additional hires in the13·

·respective offices to set up accounting procedures for14·

·them to meet their newly minted compliance and15·

·monitoring requirements under the modified North Platte16·

·decree.17·

· · · · · · I wrote the -- for example, the appendix to18·

·the settlement agreement outlining how Wyoming was19·

·going to monitor and report its consumptive-use20·

·irrigation water to stay within caps that were set by21·

·the modified decree.22·

· · · · · · So over the years since the settlement, it's23·

·gone from hands-on, actually doing the reporting for24·

·the state, setting up the procedures for the state to25·



Page 5631

·follow, state personnel then taking that on.·1·

· · · · · · Early on we were reviewing the annual·2·

·operating plans that the Bureau puts out where they·3·

·give you a month-by-month forecast of all the flows,·4·

·the outflows, how the ownerships work.··I was employed·5·

·in a review capacity for those in those early years,·6·

·say, 2001 to 2005, '6.··That's pretty well petered out.·7·

· · · · · · Currently, oh, we have the North Platte·8·

·policy group that meets monthly to every other month·9·

·with state engineer's -- the state engineer, the head10·

·of the water development commission, folks from the11·

·interstate streams section to see how it's going on the12·

·North Platte, to deal with the North Platte decree13·

·commission on any new issues that have come up, any14·

·aberrations on the reporting procedures.··So that's a15·

·continuing thread.16·

· · · · · · And then that lawsuit dovetails with what17·

·you've also heard talked about of the Endangered18·

·Species Act-driven Platte River Recovery Implementation19·

·Program.··PRIIP is how we normally refer to it.··Huge20·

·overlap with the Nebraska v. Wyoming lawsuit.··So21·

·there's been a lot of work supporting the state with22·

·that program as well.23·

· · ·· Q.· ·I want to ask you about what other kinds of24·

·things Hinckley Consulting does.··But I want to jump25·



Page 5632

·off for one second on a topic you brought up in the·1·

·course of that answer, which was a reference to annual·2·

·operating plans promulgated, I think it was from the·3·

·Bureau of Reclamation --·4·

· · ·· A.· ·Yes, that's correct.·5·

· · ·· Q.· ·-- in the context of the North Platte.·6·

· · · · · · And I want to make sure that we understand,·7·

·when you talk about those annual operating plans, were·8·

·there -- they are the same as the annual operating·9·

·plans for the Tongue River Reservoir that we've seen.10·

· · · · · · We use the same term, but are they the same11·

·or different?12·

· · ·· A.· ·Similar in concept but a universe apart in13·

·implementation.··The Tongue River operating plan,14·

·that's updated certainly not annually and not even15·

·monthly, even though they talk about having an annual16·

·operating plan in that larger operating manual.··I've17·

·never seen a sign of anything that looks like this is18·

·what we're going to do this year.19·

· · · · · · Now, in fairness, it's a small reservoir20·

·that's run by the State of Wyoming and irrigators as21·

·opposed to the main stem of the North Platte.22·

· · ·· Q.· ·State of Montana.23·

· · ·· A.· ·State -- what did I say?24·

· · ·· Q.· ·Wyoming.25·



Page 5633

· · ·· A.· ·Wyoming.··They would be run better if they·1·

·were run by the State of Wyoming.··State of Montana.·2·

· · · · · · The Bureau of Reclamation, of course, has a·3·

·hundred-year history on the North Platte and some of·4·

·the first reclamation projects ever built.··So·5·

·understandably, they have a much more well-developed·6·

·program, although that was modified as a result of the·7·

·decree.·8·

· · · · · · And that was -- some of the work I did was to·9·

·do a detailed and critical review of some of the Bureau10·

·of Reclamation historical procedures on the North11·

·Platte, and some modifications were made at Wyoming's12·

·request as a result of that.13·

· · · · · · So getting back to your question, the14·

·full-scale annual operating plans that the Bureau puts15·

·out start with forecasting, detailed and formal16·

·forecasting procedures looking at snowpack, historical17·

·hydrology, the statistics of inflows and outflow of the18·

·reservoir demands.19·

· · · · · · And each of the seven, I think there are,20·

·sequential reservoirs on the North Platte is tracked in21·

·terms of expected monthly inflows, outflows,22·

·evaporation, both the physical reservoir as well as23·

·what they call ownerships.24·

· · · · · · So some of those reservoirs will have as many25·



Page 5634

·as a dozen ownerships in them: a power pool, individual·1·

·irrigation accounts, all governed by the particulars of·2·

·that contract.·3·

· · · · · · There's an explicit flood pool in Glendo·4·

·Reservoir that's operated by the Corps of Engineers·5·

·rather than the Bureau.··And then just so everyone is·6·

·on the same page and can decide accordingly, they put·7·

·those out every month looking forward a year.·8·

· · · · · · And then they're updated as new forecasts·9·

·come in as demands change.10·

· · ·· Q.· ·And I got lost for a second.··You talked11·

·about both the physical and the ownership, maybe12·

·accounting is the right word.13·

· · · · · · Can you explain that distinction?14·

· · ·· A.· ·The ownership -- I think we heard it referred15·

·to earlier in the testimony as a paper fill.··So16·

·Pathfinder Reservoir is a little over a million17·

·acre-feet, and it has a 1904 priority to give it one18·

·fill on that million-plus.··So that's the ownership.19·

· · · · · · Now, that water is often physically resident20·

·in the next upstream reservoir, Seminoe, 'cause there's21·

·an operational priority to store water at the first22·

·opportunity 'cause you can always store it later.··So I23·

·think we called it highority earlier.··And that's24·

·simply practiced at the North Platte where you have25·



Page 5635

·these sequential reservoirs.·1·

· · · · · · So that Pathfinder Reservoir ownership can be·2·

·physically resident upstream in Seminoe Reservoir, or·3·

·there's a downstream reservoir, Glendo, that's almost·4·

·that same capacity in which there's a reregulation·5·

·account.·6·

· · · · · · So the Pathfinder, in order to allow it to·7·

·make power releases through the winter while·8·

·maintaining its hands on the water with respect to·9·

·providing it to the irrigators of Nebraska in the10·

·summer, can move water down from Pathfinder Reservoir11·

·to Glendo and hold it there in the reregulation12·

·account.13·

· · · · · · So there's -- another example of the physical14·

·molecules in any one of these reservoirs are going to15·

·look -- are going to be one thing.··That's the16·

·hydrology, the physical ownership.··And then the -- or,17·

·I'm sorry, the physical contents.18·

· · · · · · The accounted ownerships can be a much more19·

·complicated arrangement of the chess pieces.··And those20·

·are each tracked separately as they need to be 'cause21·

·the ownership and the storage priorities and the22·

·contract commitments of each of those ownerships is23·

·unique.24·

· · ·· Q.· ·Is it typical, in your experience, to keep25·



Page 5636

·track both of the physical location of water and the·1·

·paper accounting both at the same time?·2·

· · ·· A.· ·Well, you simply would have to if you have a·3·

·situation where it's other than just a single·4·

·reservoir, a single user where the ownership and the·5·

·physical contents are necessarily identical.··So as·6·

·soon as you've got multiple pools, then you have to·7·

·somehow find a way to track the paper rights.·8·

· · · · · · And it's not uncommon at all for reservoirs·9·

·to have multiple pools sometimes with very different10·

·purposes, different priorities.11·

· · ·· Q.· ·Now, I want to go back after that detour into12·

·annual operating plans and ask you what other kinds of13·

·work Hinckley Consulting does.··'Cause I assume you14·

·don't just work on the North Platte.15·

· · ·· A.· ·No.16·

· · ·· A.· ·As I was thinking about how to answer that,17·

·because it varies from year to year and my interests18·

·cover some territory, I guess the first thing to say is19·

·I've chosen to keep Hinckley Consulting quite small.20·

·So almost all of my work is done either taking on subs21·

·to help, if I need the horsepower, as a sub to someone22·

·else or in an advisory capacity.23·

· · · · · · So many of these things, I don't mean to24·

·suggest that I have done those alone.··So my work is25·



Page 5637

·interleaved with a host of consultants with whom I work·1·

·and state agencies.·2·

· · · · · · But to answer your question, let's take -- my·3·

·currently active projects might be as good a sample as·4·

·any.··So if I sweep across the state of Wyoming from·5·

·west to east, we're just in the finishing stages of --·6·

·a science panel was convened by the National Park·7·

·Services to assist them in management of the geothermal·8·

·resource of Yellowstone, Old Faithful specifically.·9·

· · · · · · That harks back to that work I did many years10·

·ago as a research associate with the University of11·

·Wyoming and have kept an oar in that water.··It's a12·

·group of ex-scientists and myself, the national park13·

·geologist.··That will come out as a USGS open file14·

·report probably this spring.15·

· · · · · · I've got a project going in Jackson Hole.16·

·I've kept some interest in groundwater development.··I17·

·like the -- getting my hands dirty, and that little boy18·

·wants to dig a hole in the ground and see what's down19·

·there.··So I've kept that thread going throughout my20·

·career.21·

· · · · · · We're currently working on a water supply for22·

·a standard Jackson Hole situation.··A gentleman from23·

·Beverly Hills is trying to tack a mansion on the side24·

·of the hill and find water where there isn't a whole25·



Page 5638

·lot of water to be found.··In fact, the pump test on·1·

·that well should kick off in about a half hour.··I've·2·

·been kind of monitoring that one from my work here in·3·

·Billings.·4·

· · · · · · Green River Basin, I'm currently involved in·5·

·a project with the state engineer's office, Steve Wolff·6·

·who works for Sue Lowry, where the -- two pieces to·7·

·that:··One is applying METRIC to the estimation of·8·

·agricultural evapotranspiration; and the second one,·9·

·help them develop the RFP and help the consultant and10·

·monitor the work with the consultant in a contract that11·

·started a couple months ago to develop what they call a12·

·state CU model for the Green River Basin.13·

· · · · · · The Colorado consultants would be familiar14·

·with that.··It's a program that was developed there.15·

· · · · · · And we're looking at diversions, ditch16·

·capacities, ditch efficiencies, trying to bring the17·

·agricultural consumptive use into a rigorous priority18·

·structure.··That can be kind of a trick.19·

· · · · · · Both of those projects aimed at the20·

·expectation of a curtailment call under the Colorado21·

·River Compact at some point.··So Wyoming is trying to22·

·preemptively develop the tools to respond to such a23·

·curtailment call, and I'm assisting with that by24·

·working with Dr. Allen on an application of METRIC on25·



Page 5639

·the first of those two.·1·

· · · · · · This project, of course, has occupied an·2·

·awful lot of this year.··We're doing a master's -- I'm·3·

·a sub to an engineering firm, working on a master --·4·

·water supply master plan for the City of Lusk, which·5·

·sits on the -- in Wyoming -- on the Wyoming/South·6·

·Dakota border.·7·

· · · · · · Then I'm working with a Colorado firm whose·8·

·got a contract with the state engineer's office to·9·

·develop a groundwater model water management tool for10·

·Laramie County, Wyoming.··That's the southeast most11·

·county in Wyoming.12·

· · · · · · My role on it is not the groundwater -- they13·

·are doing that -- but is to help them populate that14·

·model and to look specifically at the past, present,15·

·and projected future agricultural water demands.··So16·

·we're running ET efficiency calculations for them.17·

· · · · · · And then the other piece of that for which I18·

·was employed was to ensure that it's consistent with19·

·Wyoming water rights and the water management goals of20·

·the state engineer's office and the Water Development21·

·Commission.22·

· · · · · · And that's -- we're hoping to get the first23·

·runs done in the next two or three weeks to help State24·

·Engineer Tyrrell review a temporary order that he's had25·



Page 5640

·out restraining water development in that basin.·1·

· · · · · · So that's probably as good a sample of what·2·

·Hinckley Consulting has been doing for 20 years as any.·3·

· · ·· Q.· ·And also doing some work in the Snake River·4·

·aquifer?·5·

· · ·· A.· ·In the which?·6·

· · ·· Q.· ·Snake River aquifer.·7·

· · ·· A.· ·Oh, yeah.··Not currently -- well, there was a·8·

·large lawsuit on a curtailment call related to the·9·

·Eastern Snake Plain aquifer.··I think my work on that10·

·is done.··It's still in front of the state engineer of11·

·Idaho for a decision, so there might be something else12·

·coming up from that.··That was all done -- earlier this13·

·year was the hearing, and the expert reports associated14·

·with that case.15·

· · · · · · My role in that was to look very carefully at16·

·a particular surface-water facility that was going to17·

·be subject to curtailment -- no, wrong side.18·

· · · · · · They were demanding curtailment of19·

·groundwater irrigators across the Snake River Plain20·

·aquifer.··I was on the opposite side from Dr. Schreüder21·

·on that case.··And I was looking in detail how that22·

·groundwater model predicted the impact of curtailing23·

·agricultural use on the -- across the Eastern Snake24·

·Plain on that particular output from the groundwater25·



Page 5641

·system.·1·

· · ·· Q.· ·Well, that leads me to another question.··You·2·

·served as an expert witness in that case?·3·

· · ·· A.· ·Yes.·4·

· · ·· Q.· ·Did you have an opportunity to testify in·5·

·that case?·6·

· · ·· A.· ·It went before the -- about two weeks of·7·

·hearings before the state engineer of Idaho.·8·

· · ·· Q.· ·Have you served as an expert witness in other·9·

·cases?10·

· · ·· A.· ·I have.··That case, the Nebraska/Wyoming one,11·

·and, of course, this case.··Others of smaller12·

·magnitude, including an abandonment action that the13·

·State of Wyoming brought against the largest irrigation14·

·district in Nebraska, where I was, again, looking at15·

·irrigation diversions, ET, how much water was involved.16·

·So I was one of the hydrology consultants to that case.17·

· · · · · · I've been involved in a number of hearings18·

·before the state engineer's office and Wyoming Board of19·

·Control, most of those looking at groundwater,20·

·surface-water connection issues, some abandonments.··In21·

·fact, one of those I was on the opposite side from22·

·Mr. Fritz.··So we all kind of trade places in some of23·

·these things.24·

· · · · · · In the Big Horn Basin, one over at Star25·



Page 5642

·Valley.··I was involved as a kind of an environmental·1·

·statistics in a clean air case that the Grand Canyon·2·

·Trust brought against Southern California Edison.··So·3·

·that's probably the furthest afield in completely·4·

·nonwater related.··I was an expert through deposition.·5·

·Many of these cases settled.·6·

· · · · · · The Spear-T v. Knaub case, students of·7·

·Nebraska water law would know that one.··It was quite·8·

·an interesting case.··It was a shame it didn't go clear·9·

·through to trial.··Looking at how groundwater and10·

·surface water relate to one another in the state of11·

·Nebraska where they don't have a well-developed permit12·

·system for groundwater.··That was on Pumpkin Creek, a13·

·tributary of the North Platte.··Comes into North Platte14·

·from the south side about 50 miles into Nebraska at the15·

·Wyoming border.16·

· · ·· Q.· ·Mr. Tyrrell talked about some orders that he17·

·had recently done on Horse Creek.··Did you have any18·

·involvement on that case?19·

· · ·· A.· ·Yes.··Horse Creek would provide a20·

·multi-semester course in water law.··Mr. Brown could21·

·tell you about that.22·

· · · · · · It's got decreed rights from pre-statehood.23·

·It's got a whole series of surface water and reservoir24·

·rights that span up into the '60s, at which point25·



Page 5643

·groundwater got started.··So then we have the overlay·1·

·of groundwater, surface water, and the spread of·2·

·priorities across 100 years.·3·

· · · · · · The most recent version of the dispute was·4·

·precipitated by one of the reservoirs calling for·5·

·priority regulation of the upstream juniors to fill the·6·

·reservoir.··The upstream juniors in this case are·7·

·almost all groundwater irrigators from an alluvial·8·

·aquifer.·9·

· · · · · · The state engineer's office said we don't10·

·know enough about it to issue an order to respond to11·

·your call.··We will gather up some information.··They12·

·put out an RFP to assist them and developed a model of13·

·the area.··And my firm was successful in that endeavor.14·

· · · · · · I subbed the actual construction of the15·

·groundwater model out to a firm in Denver.··Much, much16·

·larger firm.··And then I took care of populating that17·

·model and coordinating the various pieces of it,18·

·looking at the very complex interleaving of the water19·

·rights in that small system.20·

· · · · · · It's not very big.··The reservoir is about21·

·30,000 acre-feet.··But it's got everything you can22·

·think of in terms of seniors and juniors and decreed23·

·rights and the arrangement of seniors on the creeks24·

·having implications in terms of the futility of calls25·



Page 5644

·by the reservoir and just a whole -- everything you·1·

·could find.·2·

· · ·· Q.· ·Well --·3·

· · ·· A.· ·-- involved in Horse Creek.·4·

· · · · · · I provided the technical document that the·5·

·state engineer used to then issue an order allocating·6·

·water in the Horse Creek Basin.··That's what's·7·

·currently on the books.·8·

· · ·· Q.· ·You mentioned an issue of futility in that·9·

·case arising, and I just think this is interesting in10·

·light of a discussion that we had earlier in this case.11·

· · · · · · Is there an opportunity for a futile call on12·

·Horse Creek despite the fact that it's a live stream?13·

· · ·· A.· ·Yes.14·

· · ·· Q.· ·How does that work?15·

· · ·· A.· ·Well, I think it's such an interesting16·

·laboratory.··The reservoir sits in the middle of the17·

·basin.··And there are two main tributaries: Bear Creek18·

·and Horse Creek.19·

· · · · · · On Bear Creek, the senior surface right is20·

·right at the mouth of the creek.··So the creek comes21·

·down, has all kinds of rights.··Senior is at the mouth,22·

·and the next guy down is the reservoir.23·

· · · · · · So -- and the senior doesn't typically call24·

·for priority regulation of those upstream -- wisely, in25·



Page 5645

·my perception -- thinking it's good to have those·1·

·upstream diverting water charges up the banks and·2·

·ensures a late season flow for that senior.··The kind·3·

·of thing that Jack Stults was talking about.·4·

· · · · · · Now, the reservoir makes a priority call·5·

·against the upstream juniors.··And if they were to shut·6·

·those juniors off, then that water would come on down,·7·

·but that senior at the mouth would take it rather than·8·

·letting it proceed into the reservoir.·9·

· · · · · · He wouldn't have derived any benefit, then,10·

·from them diverting it out and giving him late-season11·

·return flows, so the obvious thing would be to say,12·

·well, I'll just take that water and use it myself.13·

· · · · · · So the upshot of that is that call for14·

·priority regulation from the reservoir.··In that case,15·

·it would not generate any water for the reservoir, even16·

·though that regulation would take place and even though17·

·the stream is live all the way through.18·

· · · · · · Now, on the Horse Creek side, it's just the19·

·opposite, where the seniors are arranged in seniority20·

·from the senior at the top, next senior, next senior,21·

·next senior.··And they will typically dry the creek up22·

·entirely, but they don't need to make the call.··They23·

·are the senior.··So one guy will dry the creek up.··The24·

·next senior right is down below, so he can't call him25·



Page 5646

·out.··But he'll receive the return flows.·1·

· · · · · · So there's three discrete places of senior·2·

·water right, we call it, where they will completely dry·3·

·up the creek.··The next guy gets all the water that·4·

·shows up.··It only shows up because of return flows and·5·

·bypasses from the upstream source.·6·

· · · · · · So in that case we have a situation where the·7·

·opposite of a live stream or the stream is completely·8·

·dead, and then it will come to life.··And then it will·9·

·be killed again and come to life and be killed again,10·

·just because of the geometry of the priorities.11·

· · ·· Q.· ·I need to ask, I suppose, to sort of finish12·

·out a discussion of your background and qualifications,13·

·if you're a member of any professional societies or14·

·organizations, I guess.15·

· · ·· A.· ·Yes.··I've maintained membership in a number16·

·of scientific organizations at the pay your dues, go to17·

·the conferences, read the journals level.··The ones in18·

·which I'm more actively involved include the American19·

·Water Resources Association.··It's a national group of20·

·hydrologists, mainly land-use planners, water resources21·

·engineers, water resource people of all sorts.22·

· · · · · · I was the president of the Wyoming chapter23·

·for a number of years.··And we would, in those days,24·

·put on an annual conference of water resource-related25·



Page 5647

·research that had been done at the university mostly·1·

·but provided papers from all over the region.·2·

· · · · · · And my most recent involvement of that is,·3·

·this year, served as an associate coeditor of a theme·4·

·edition of their journal on remote sensing of·5·

·evapotranspiration.··So a gentleman at the state·6·

·engineer's office and I cooperated on soliciting papers·7·

·on that subject and submitting those for peer review·8·

·and herding those into the final journal.·9·

· · · · · · Again, as you might expect, huge overlap with10·

·Dr. Allen's work in Kimberly as his METRIC program is11·

·more easily applied.··So we gathered up about 1212·

·professional papers and went through the peer-review13·

·process on those.14·

· · · · · · Another hands-on professional organization15·

·that I've been involved with is Engineer's Without16·

·Borders.··I was the technical lead on a project in17·

·Zambia looking at an agricultural water supply for an18·

·orphanage in the eastern part of that country, looking19·

·at groundwater possibilities, and doing some very20·

·rudimentary work on their -- they had the opportunity21·

·to develop a surface reservoir and whether hydrology22·

·would support that and the geometry.23·

· · · · · · That has kind of wandered off, as many24·

·international development projects do, and I'm not sure25·



Page 5648

·what its current status is.··But that was a case with·1·

·more hands-on involvement with the professional·2·

·organizations.·3·

· · ·· Q.· ·And have you been appointed by the governor·4·

·of Wyoming to any particular organizations?·5·

· · ·· A.· ·Yes.··In the '80s, I was appointed by·6·

·Governor Sullivan to serve on the Land Quality Advisory·7·

·Board.··The Wyoming Department of Environmental Quality·8·

·is divided into a land, water, and air section.··And·9·

·each of those has an advisory board attached to it to10·

·oversee the promulgation of regulations.11·

· · · · · · The only association between that and this12·

·case would be the work that we did in Powder River13·

·Basin.··Mr. Fritz referred to the hydrologic assessment14·

·associated with coal mines.··Cumulative hydrologic15·

·impact assessment was involved.··The Land Quality16·

·Division of Wyoming Department of Environmental Quality17·

·oversees those, so I had some involvement in that.··I18·

·was the chairman of that board for a number of years.19·

· · · · · · More recently, Governor Freudenthal appointed20·

·me to a newly-created state agency called the Enhanced21·

·Oil Recovery Commission.··And we were given an22·

·appropriation from the legislature of some $6 million a23·

·year to support research in -- well, enhanced oil24·

·recovery, sometimes called tertiary recovery.25·



Page 5649

· · · · · · Application of chemical means to get more oil·1·

·and gas out of the ground.··A lot of that work was in·2·

·the Powder River Basin.··And towards the end of that,·3·

·people were beginning to understand the value of carbon·4·

·dioxide injection in stimulating coal bed methane·5·

·production.··So a little bit of a CBM overlap.·6·

· · · · · · I was one of the original members, accepted·7·

·reappointment twice, and declined a third reappointment·8·

·last year.·9·

· · ·· Q.· ·All right.··Now, I notice the Special Master10·

·has kind of been looking at the clock.11·

· · · · · · SPECIAL MASTER:··I think we're good -- well,12·

·I actually should look down to the court reporter, who13·

·is the most important person in the room.··I was14·

·thinking we could go for another ten minutes before a15·

·break, but I'd be happy to take a break here if that's16·

·a more appropriate spot for you.17·

· · · · · · MR. KASTE:··Well, I think I'm done talking18·

·with Mr. Hinckley about his background and19·

·qualifications, and I'm about to move into more20·

·substantive opinions.··And so if it's convenient for21·

·everybody else, I'm happy to.··So I'm happy to go22·

·forward.23·

· · · · · · SPECIAL MASTER:··Actually, it probably does24·

·make the most sense so we don't sort of break you up25·



Page 5650

·after ten minutes of getting into the substance.··Why·1·

·don't we take our first ten-minute break right now, and·2·

·we'll come back at a quarter to the hour.·3·

· · · · · · · · · · · (Recess taken 9:34 to 9:49·4·

· · · · · · · · · · · a.m., December 3, 2013)·5·

· · · · · · SPECIAL MASTER:··Okay.··Everyone can take·6·

·their seats.·7·

· · · · · · And, Mr. Kaste, you can continue with your·8·

·direct examination.·9·

· · · · · · MR. KASTE:··Thank you.10·

·BY MR. KASTE:11·

· · ·· Q.· ·All right.··Let's just talk about your12·

·involvement in this case.··Let's start with, what were13·

·you asked to do in this case?14·

· · ·· A.· ·In this case or with this particular report?15·

· · ·· Q.· ·Well, go ahead and tell us what you were16·

·asked to do in the case and how it evolved into the17·

·report that you ultimately submitted.18·

· · ·· A.· ·Yes.··I was hired in 2007.··Must have been19·

·shortly after the case was filed.··The state was20·

·looking for -- anticipating the need for general water21·

·resources technical advice.··So Mr. Fritz and I were22·

·hired in that early stage.23·

· · · · · · Mr. Fritz had some specific assignments that24·

·he discussed with us yesterday.··Mine was a much25·



Page 5651

·broader -- wasn't even clear when I started whether I·1·

·was going to be a testifying witness as opposed to just·2·

·an expert helping to guide the case.·3·

· · · · · · So I assisted the state with responses to·4·

·interrogatories and discovery, crafting·5·

·interrogatories, doing background research on a variety·6·

·of issues that it was anticipated might come up as the·7·

·case developed.·8·

· · · · · · So for those first -- well, 2007 until·9·

·this -- early this year, in fact, my role was looking10·

·at individual cases, doing a little focused research.11·

·How much of this is going on?··What do we know about12·

·agricultural use in the counties of Montana, crop13·

·yields?··And just generated a lot of dialogue with the14·

·Attorney General's Office over those years, identifying15·

·experts that might be needed.16·

· · · · · · As it became clear that the groundwater was17·

·going to continue to be an issue, I was asked to18·

·identify possible groundwater experts that we might19·

·want to look at.··And that's what then led to the20·

·hiring of Dr. Schreüder.21·

· · · · · · And that was the kind of assignment I had up22·

·until the reports -- the expert reports were filed in23·

·January.··At that point, then, we got together and24·

·said, Okay.··Who is going to address which pieces in25·



Page 5652

·this, of the three of the hired experts?··And I guess I·1·

·drew the short straw and ended up assigned to analyze·2·

·the Montana piece of the Montana expert disclosure.··So·3·

·a broad range of things then focused down once we had·4·

·some clear definition.··That's what I've been doing·5·

·this last year.·6·

· · ·· Q.· ·All right.··With regard to the opinions that·7·

·are ultimately expressed in your report, can you just·8·

·give us a sense of the process that you undertook in·9·

·order to form them?··What did do you?10·

· · ·· A.· ·Well, I brought to the initial assignment the11·

·background that I had had with other projects in, say,12·

·CBM and water resources and the Powder River Basin,13·

·from decades and then the work that I had done in14·

·assisting with this case over the previous, whatever it15·

·was, four years at that point.16·

· · · · · · So then once we got something specific in our17·

·hands, it was a matter of combing through that previous18·

·research, bringing it a focus, reading the depositions,19·

·doing additional research on the individual issues that20·

·those reports had brought forward.21·

· · · · · · So diving in as a research project, gathering22·

·what information we could find from whatever sources.23·

·Fortunately, a certain amount of that had been compiled24·

·sort of in anticipation of those kinds of issues25·



Page 5653

·previously.·1·

· · ·· Q.· ·What kinds of things did you review in order·2·

·to form your opinions?·3·

· · ·· A.· ·Well, any hydrologic study probably starts·4·

·with the USGS gauge records.··It's all publicly·5·

·available on the Internet.·6·

· · · · · · So just to get a feel for where things are·7·

·and where the water flows, one looks at the gauge·8·

·records.··And they're never as plentiful as space or·9·

·time as one would hope.··But Tongue River provides us10·

·enough to give us a pretty good founding.··Adding then11·

·records from the Tongue River Reservoir.··Mr. Book's12·

·report itself is an encyclopedia of data that I found13·

·useful.··I certainly give him credit for that.14·

· · · · · · Then water rights, of course, was a big piece15·

·of that.··So we spent a fair amount of time researching16·

·what we could with respect to the water rights on the17·

·Tongue River.··Montana was a piece I looked more so,18·

·with Mr. Fritz looking in Wyoming.··The resource there19·

·is the water rights information database maintained by20·

·the State of Montana.21·

· · · · · · And I had attended the depositions previous22·

·to that point and subsequent to that January filing.23·

·So I certainly learned a fair amount from those24·

·depositions.25·



Page 5654

· · · · · · There are a number contacts and references·1·

·that are listed in the report.··Talked to the Wyoming·2·

·DEQ people in various offices, Cheyenne and Sheridan,·3·

·in relation to the coal bed methane water disposal·4·

·techniques.·5·

· · · · · · So it's not every one, but in general,·6·

·gathered up what information we could that we thought·7·

·bore on the subjects we were trying to analyze and·8·

·trying to pull it together in a coherent way for the·9·

·Court.10·

· · ·· Q.· ·I'm getting the impression that the reference11·

·in the section of your report might not be a complete12·

·list of everything you reviewed.13·

· · ·· A.· ·The goal that I set for myself, which I think14·

·is standard in scientific practice, is one should list15·

·as references those things that one would have to look16·

·at in order to recreate the analysis.··So I think I17·

·called it not just references cited but references18·

·section of the report.··And then -- and that's the kind19·

·of -- you got to have those or you couldn't get to the20·

·report.21·

· · · · · · Behind that, as I remember, I listed other22·

·contacts made and kind of ancillary sources of23·

·information.··So there's a broad context of research24·

·and professional background that then comes to the25·



Page 5655

·report, with specific items listed, from which a·1·

·specific number was drawn or a specific conclusion, is·2·

·just how I tried organize my reference section.·3·

· · ·· Q.· ·Well, for example, one of the things I don't·4·

·see in your references section is the environmental·5·

·impact statement, the final environmental impact·6·

·statement associated with the enlargement of Tongue·7·

·River Reservoir.·8·

· · · · · · Is that something that you reviewed but·9·

·didn't list in your reference section?10·

· · ·· A.· ·Yes.··That, and probably half a dozen other11·

·models that were done of Tongue River Reservoir from,12·

·gosh, '60s, '70s, '80s, and '90s.··There was no13·

·specific item from those that I brought forward into14·

·the report, but certainly those are useful background15·

·documents to understand the context of the Tongue River16·

·Reservoir.17·

· · ·· Q.· ·I think this is hilarious, so I'm going to18·

·ask.19·

· · · · · · Is there anything in the final environmental20·

·impact statement about sediment recovery being one of21·

·the purposes for the enlargement?22·

· · ·· A.· ·No.23·

· · ·· Q.· ·Okay.··I think that's funny.··Probably just24·

·me.25·



Page 5656

· · · · · · Now, I'm going to hand you what's been marked·1·

·as Exhibit W3.·2·

· · ·· A.· ·Right.·3·

· · ·· Q.· ·And ask you to look through that briefly, and·4·

·then tell me what that document is and if it's·5·

·complete.·6·

· · ·· A.· ·It is a copy of the expert report that I·7·

·submitted April 2, 2013.··And without going page by·8·

·page, it certainly appears to be complete.·9·

· · ·· Q.· ·Was that report prepared by you?10·

· · ·· A.· ·Yes, it was.11·

· · · · · · MR. KASTE:··I'd move for the admission of12·

·Exhibit W3.13·

· · · · · · MR. DRAPER:··No objection, Your Honor.14·

· · · · · · SPECIAL MASTER:··Okay.··Thank you,15·

·Mr. Draper.16·

· · · · · · Exhibit W3 is admitted.17·

· · · · · · · · · · · (Exhibit W003 admitted.)18·

·BY MR. KASTE:19·

· · ·· Q.· ·All right.··Now, we have to fix some things20·

·in your report, do we not?21·

· · ·· A.· ·That would be good.22·

· · ·· Q.· ·Okay.··We have to make a couple small23·

·corrections, and the first one relates to the reported24·

·physical capacity of the reservoir.25·



Page 5657

· · · · · · Can you explain the correction that's·1·

·necessary there?·2·

· · ·· A.· ·Yes.··The number you'll see listed in this·3·

·report for the current capacity of the Tongue River·4·

·Reservoir is 79,782 acre-feet.··That number is·5·

·referenced to Mr. Smith's report, and I find that I·6·

·fell prey to the confusion that Mr. Aycock pointed out·7·

·to us between active capacity and total capacity.·8·

· · · · · · Mr. Smith, I think inadvertently, had listed·9·

·the active capacity as 79,071 and then the dead pool as10·

·711.··I added those together to get the total capacity11·

·of 79,782.12·

· · · · · · That was incorrect.··What he meant to say and13·

·what I should have understood him to say was that the14·

·total capacity was 79,071 acre-feet, 711 acre-feet of15·

·which consists of -- constitutes dead pool.16·

· · ·· Q.· ·So everywhere that we see a reference in your17·

·report to 79,000 --18·

· · ·· A.· ·782.19·

· · ·· Q.· ·-- 782, that should be changed to reflect the20·

·actual capacity of 79,071?21·

· · ·· A.· ·That's correct.22·

· · ·· Q.· ·And that shows up multiple times in the23·

·report?24·

· · ·· A.· ·Yeah, various places.··And it's also used as25·



Page 5658

·a reference line on some of the figures.··So,·1·

·fortunately, the 711 dead pool is small so that a·2·

·difference is not large and doesn't affect -- the·3·

·graphics, to be correct, all of those numbers should be·4·

·changed to the slightly smaller value.·5·

· · ·· Q.· ·Now, the second correction, I think, relates·6·

·to Tables 1, 3, and 4 in your report.·7·

· · ·· A.· ·That's correct.·8·

· · ·· Q.· ·Can you explain what correction is necessary·9·

·and why the correction is necessary?10·

· · ·· A.· ·Let's start with Table 3, which is a verbatim11·

·rendition of a table that appears in Mr. Book's report,12·

·Appendix E10, I think.··And that was my source, as I13·

·acknowledged in the report.14·

· · · · · · Now, subsequent to the dissection of those15·

·data that I adopted from Mr. Book's report, I realized16·

·that there were some missing values.··In fairness to17·

·Mr. Book, he was using the data more to give him the18·

·general shape of the distribution of diversions over19·

·the course of the season.20·

· · · · · · I then took those data and dissected them one21·

·by one and subsequently learned that the daily data22·

·behind what I had done and what Mr. Book had done was23·

·incomplete.24·

· · · · · · I came across that simply by looking at the25·



Page 5659

·numbers and asking myself why is that number so small·1·

·in a particular month and were they diverting less·2·

·because their canal was broken or because it rained?·3·

·And in the process of that probing, discovered that the·4·

·numbers that showed up as monthly totals were only·5·

·partial months so that, by way of background, we can·6·

·correct those.·7·

· · · · · · And I think the appropriate thing would be·8·

·simply to delete those months for which we don't have·9·

·complete data.··They are basically the same status as10·

·years prior to and after this table.··So I can suggest11·

·where to just get rid of certain numbers.12·

· · ·· Q.· ·Please do.13·

· · ·· A.· ·All right.··The three culprits -- I'm looking14·

·at Table 3 of my report -- are August of 1999, so I15·

·would delete that number 8313, and July and August of16·

·2003.··So the numbers 4099 for July of 2003 and 799717·

·for August of 2003 should be deleted.18·

· · · · · · Then, unfortunately, these things rattle19·

·around.··So to be just right, we should change the20·

·averages at the bottom of those July and August columns21·

·in Table 3 to say the 8831 in my report for the July22·

·average should be 9422.··The August average in my23·

·report, 8598, should be revised to 8724.24·

· · · · · · And, lastly, on that table, that change is25·



Page 5660

·going to carry across to the right, and that number·1·

·should be 38756.·2·

· · · · · · SPECIAL MASTER:··I'm sorry.··Which number is·3·

·it?··The total average?·4·

· · · · · · THE WITNESS:··The total, if we revised the·5·

·total to exclude the partial values.·6·

· · · · · · SPECIAL MASTER:··So why is it that if the·7·

·averages for July and August go up, that the total·8·

·average goes down?·9·

·BY MR. KASTE:10·

· · ·· Q.· ·You've eliminated three months?11·

· · ·· A.· ·Well, no -- yeah, that's a good question.12·

· · · · · · SPECIAL MASTER:··But if it's an average and13·

·you've eliminated those for the purposes of calculating14·

·your average, so...15·

· · · · · · THE WITNESS:··Seems like it has to go up,16·

·doesn't it?··And whether it's the average of the column17·

·or the sum of the row, I can't explain that.18·

· · · · · · SPECIAL MASTER:··Unless what you did was in19·

·your totals on the right, you did eliminate those20·

·numbers.··So you got lower numbers in the total column.21·

·And if you average those, you might end up with a lower22·

·one.23·

· · · · · · THE WITNESS:··Yeah, I thought I'd gone24·

·through this three or four times, but it's a good25·



Page 5661

·point.··Can we --·1·

· · · · · · SPECIAL MASTER:··Maybe during the break.·2·

· · · · · · THE WITNESS:··Let's just defer that one.·3·

· · · · · · SPECIAL MASTER:··Or even over lunch, if at·4·

·some point you could figure out what that last number·5·

·should be.·6·

· · · · · · And sorry to interrupt your examination,·7·

·Mr. Kaste.·8·

· · · · · · But I'm also curious.··In coming up with·9·

·deciding some of these numbers were incomplete, what10·

·was it that you referenced?11·

· · · · · · THE WITNESS:··Oh, the -- when I started the12·

·report, the only data we had on this data set for T & Y13·

·Canal was from Mr. Book's report.··Over the course of14·

·the months, the daily data were discovered.··I think15·

·they came into Wyoming's possession through one of the16·

·depositions.17·

· · · · · · So once we had the daily data in hand from18·

·which the monthly data were compiled, we could sweep19·

·through that and see if any dates were missing.··That's20·

·where the mistake came from.21·

· · · · · · SPECIAL MASTER:··Okay.··Thank you.22·

· · · · · · THE WITNESS:··And thank you for looking at23·

·that, but that's a good call.24·

· · · · · · Now, that -- the next place that that shows25·



Page 5662

·up is Table 1, which is really the same thing as Table·1·

·3 except converted to average CFS.·2·

· · · · · · So we have an acre-feet for the month, and if·3·

·it truly is the whole month, we can just divide by the·4·

·number of days and the CFS to acre-feet conversion.··So·5·

·in Table 1, I would also delete those three months,·6·

·August of '99, July and August of 2003.·7·

· · · · · · Then if I did my math correctly the second·8·

·time, the averages at the bottom of Table 1 should all·9·

·be updated -- or should be updated for those two10·

·months.··And, as expected, they go up slightly.··So the11·

·144 listed as the average for July should be 153.··The12·

·140 average listed for August should be 142.13·

· · · · · · And, lastly, I made a lot of use of these14·

·data.··Table 4, same thing here.··We need to eliminate15·

·the values for August of 1999 and for July and August16·

·of 2003 and revise the averages accordingly, which all17·

·go up.18·

· · · · · · And there are two lines of averages.··One for19·

·the entire table and then one for the nondry years, the20·

·years in which Tongue River Reservoir filled.21·

· · · · · · So let's start with the average line, the22·

·July value of 77 should be revised to 82.··The August23·

·value of 75 should be revised to 76.··In the '97 to24·

·2000, '03, and '05 average line, the 83 percent for25·



Page 5663

·July should be revised to 92 percent and the 87 percent·1·

·for August should be revised to 96 percent.·2·

· · · · · · SPECIAL MASTER:··Is that all of them?·3·

· · · · · · THE WITNESS:··Okay.··So that's how we should·4·

·be looking at that data set from T & Y.·5·

· · · · · · Then there's a couple of places in the text·6·

·that, if we're going to be complete, should be revised·7·

·to reflect that.··Would you like me to walk you through·8·

·those as well?·9·

·BY MR. KASTE:10·

· · ·· Q.· ·Probably a good idea while we're on it.11·

· · ·· A.· ·Okay.··On page 16, the third line of text12·

·starts out 39,206, should be revised to 38,756.··But13·

·now that's the same thing we were talking about a14·

·minute ago.··So let me make that a provisional15·

·correction, and I'll sort that out for us.16·

· · · · · · The 76 percent further in the line should be17·

·changed to 75 percent.··And in the last line of that18·

·paragraph, the 43,591 should be changed to 44,996.19·

· · · · · · SPECIAL MASTER:··And if I could just ask at20·

·the same time that you check on the 38,756, I think21·

·that also then changes your model demand.··Because,22·

·again, by taking out the low-volume months, you've23·

·ended up actually decreasing the percentage of the24·

·model demand which, again, doesn't seem right.25·



Page 5664

· · · · · · THE WITNESS:··Okay.··Okay.··So then let's·1·

·look at page 15, where there's a discussion starting in·2·

·the middle of that second paragraph, refers back to·3·

·Table 1.··And then we've now deprived it of its·4·

·antecedent.·5·

· · · · · · So let's change the 2003 where it says "of·6·

·2003," to 2005.··Change the 67 to 147, which we should·7·

·see in the table, and we do.··State line flow averaged·8·

·384 in that month.··And Tongue River flows below the·9·

·T & Y Canal averaged 410 CFS.10·

·BY MR. KASTE:11·

· · ·· Q.· ·Now, you've changed, in this sentence -- to12·

·be fair, you're giving an example utilizing the year13·

·2003, and you're changing the example now to 2005.14·

· · · · · · Why are you doing that?15·

· · ·· A.· ·Well, because, as I say, the antecedent for16·

·the 2003 example disappeared from the table.··So we17·

·need a different example.··The point still works.··I'm18·

·just referring us now to a piece of data that has19·

·survived the purge.20·

· · ·· Q.· ·Well, that leads to the question, do any of21·

·the changes that you just described related to these22·

·tables make any difference with regard to the23·

·conclusions that you reach and discuss in this section24·

·of your report?25·



Page 5665

· · ·· A.· ·No, they do not.·1·

· · ·· Q.· ·And we'll get to those in due course.··So·2·

·have we completed the necessary corrections?·3·

· · ·· A.· ·I certainly hope so.·4·

· · ·· Q.· ·I understand math is mystifying and·5·

·difficult.·6·

· · ·· A.· ·You've got a better excuse than I do.·7·

· · ·· Q.· ·Yeah, I'm not supposed to know.·8·

· · · · · · Now, your report is generally organized into·9·

·four fairly discrete subject areas; is that correct?10·

· · ·· A.· ·Yes.11·

· · ·· Q.· ·All right.··So there's Tongue River12·

·Reservoir; there's the direct flow model created by13·

·Mr. Book; CBM discussion; and impacts of post-'50 use14·

·in Wyoming upon Montana; is that right?15·


· · ·· Q.· ·All right.··I'm going to take them a little17·

·bit out of order 'cause I think it probably is easier18·

·to get sort of the least important stuff out of the way19·

·first and work our way into the more important stuff.20·

·So, as you can imagine, I want to talk about CBM first.21·

· · · · · · So let's talk about your opinions related to22·

·the CBM issues in this case.··And, as I understand,23·

·your discussion is, again, broken down into four24·

·discrete points; is that right?25·



Page 5666

· · ·· A.· ·Yes.·1·

· · ·· Q.· ·Can you tell us just generally what those·2·

·four issues that you discuss are?·3·

· · ·· A.· ·Yeah.··I started out just compiling the·4·

·documented history of CBM-related groundwater·5·

·production in the Tongue River Basin.··There's a figure·6·

·that applies to that.·7·

· · · · · · Then I looked at the issue of direct·8·

·discharges from CBM to receiving streams, so the·9·

·nongroundwater model part of the CBM picture.10·

· · · · · · Then I looked, with some care, at this11·

·important fraction of the water that's discharged that12·

·returns to the aquifer, what we've called the recharge13·

·fraction.··And then finally offered a small compilation14·

·of CBM wells in Montana that had fallen outside of the15·

·2002 BLM model boundary.16·

· · ·· Q.· ·All right.··Well, let's talk about -- what I17·

·see in your report first is that first individualized18·

·discussion.··And that talks about your review of the19·

·historic patterns of CBM production in Wyoming.··And I20·

·think it would be helpful to look at Figure 10 from21·

·that report.22·

· · ·· A.· ·Sure.··I'm looking at Figure 10.23·

· · ·· Q.· ·Mr. Kuhlmann was asleep, I think.··So we're24·

·waiting for him to catch up.··Oh, all right.··There you25·



Page 5667

·go.··Now, everybody is on the same page.·1·

· · · · · · Just in general, there's a portion of your·2·

·report that talks about the historical pattern of CBM·3·

·production in Wyoming.·4·

· · · · · · Could you tell us what that pattern is and·5·

·why you thought it was important to discuss it?·6·

· · ·· A.· ·Sure.··And this is not anything that's in·7·

·conflict with what Mr. Larson put together.··It's·8·

·simply a different display of the same data.·9·

· · · · · · The one thing I did do was to normalize the10·

·production of the Tongue River Basin with all of the11·

·other basins so we could get a more apples-to-apples12·

·comparison.··So by "normalizing," I mean a hundred13·

·percent is the peak and everything else derives from14·

·that.15·

· · · · · · The two things I thought were of interest in16·

·it, one is how the Tongue River Basin, the blue line on17·

·my diagram -- can you pick that out?··Do we have a18·

·color issue here?··Okay -- that it was the last of the19·

·four basins listed to see coal bed methane development20·

·and, significantly, virtually all of that development21·

·is after the development of the 2002 BLM model.··So it22·

·makes the point to us that the model, as it was23·

·developed, was entirely prospective with respect to24·

·what would happen in the Tongue River Basin.25·



Page 5668

· · · · · · At the other end, I thought it was noteworthy·1·

·that each of these basins seems to be following a very·2·

·similar decline in trajectory.··And it tells us that if·3·

·the past is any key to the future, that CBM production·4·

·in the Tongue River Basin will continue to decline.·5·

· · · · · · And the fact that these rates are all about·6·

·the same gives us some confidence that by 2015, 2016 we·7·

·should not see any significant coal bed methane-related·8·

·groundwater extractions from the Tongue River Basin.·9·

· · ·· Q.· ·So whatever impacts CBM had, it's got a short10·

·duration in terms of pulling the water out of the11·

·ground?12·

· · ·· A.· ·Certainly in terms pulling water out of the13·

·ground.··As the modeling we've seen over the course of14·

·this case tells us, there will be this tiny effect that15·

·will persist for a long time beyond the actual16·

·production.··But it seems perfectly clear that the17·

·peak, such as it was and to whatever extent it impacted18·

·the flows of the Tongue River, has passed.19·

·Substantially passed.20·

· · ·· Q.· ·Is there any significance to the fact that21·

·the BLM model created before most of these peaks is22·

·sort of prospective in its outlook?23·

· · ·· A.· ·Yes.··Now, the actual production, both24·

·Mr. Larson and Dr. Schreüder updated the model for what25·



Page 5669

·actually happened in terms of production.··The·1·

·relevance to my work is that the model was developed·2·

·with a -- several alternatives for water disposal.··And·3·

·that was entirely speculative at that time.··And that's·4·

·the piece that has not been well updated since then.·5·

· · · · · · So Mr. Larson was left with trying to make·6·

·some projections of his own, starting with some of the·7·

·speculation that BLM offered in one of their four·8·

·development alternatives.··My opinion is that those·9·

·adjustments were not correct.··That isn't what10·

·happened.··And we know from both the modeling presented11·

·by Dr. Schreüder and Mr. Larson that it was an12·

·important variable.13·

· · ·· Q.· ·Why do you say that?··What makes the disposal14·

·mechanism an important variable?15·

· · ·· A.· ·Well, it goes back to the mass balance that16·

·all of these -- the models are constrained by, that the17·

·nature is constrained by.··That's a real piece of18·

·physics.··And the more of the water that comes out of19·

·the ground that goes back into the ground, the less is20·

·missing and the less the impact on streams is going to21·

·be.22·

· · · · · · So it -- at that level it's as simple as23·

·balancing your bank book.··A hundred dollars out looks24·

·a lot different than a hundred dollars out and 50 back25·



Page 5670

·in.·1·

· · · · · · So that is a critical parameter.··And I think·2·

·the modeling we've been exposed to demonstrates that's·3·

·important to this issue of depletions or augmentations·4·

·of the Tongue River specifically.·5·

· · ·· Q.· ·Is the model sensitive to changes in that·6·

·particular allocation?·7·

· · ·· A.· ·Well, it's sensitive with respect to that·8·

·output.··And I certainly agree with what we've heard so·9·

·far, that a model should be evaluated on how well it10·

·performs the task to which it is assigned.11·

· · · · · · So this model was never intended to predict12·

·small changes in augmentations and depletions to the13·

·Tongue River.··When we turn this tool to that purpose,14·

·yes, that answer is sensitive to this recharge15·

·fraction.16·

· · · · · · Something like impact on groundwater levels17·

·in a particular coal seam somewhere out in the middle18·

·of Tongue River Basin, it might not be so sensitive.19·

·So that's why I'm qualifying my answer to your20·

·question.··In our case, yes, that's an important21·

·parameter.22·

· · ·· Q.· ·What does it mean that the model is sensitive23·

·to changes in that parameter?24·

· · ·· A.· ·The answer to which we're applying -- the25·



Page 5671

·issue -- the question to which we're applying the·1·

·model, that question being augmentation or depletion of·2·

·the Tongue River, is sensitive to that number.··And·3·

·particularly and interestingly, the sign of the answer·4·

·is sensitive to that parameter, as we saw in·5·

·Dr. Schreüder's sensitivity analysis.·6·

· · · · · · It makes a difference of whether it is a·7·

·depletion or an augmentation.··So the results from that·8·

·model are dancing right around zero, and whether it's·9·

·below zero or above zero is dependent on that, among10·

·other things.··But it's dependent on that recharge11·

·fraction.12·

· · ·· Q.· ·So changes in the recharge fraction make a13·

·significant difference in whether or not you have an14·

·augmentation or depletion?15·

· · ·· A.· ·Yes.··Significant effect on the 1 CFS number,16·

·but a significant effect within that envelope.17·

· · ·· Q.· ·All right.··One of the things that you talk18·

·about in your report is, with regard to the BLM, sort19·

·of not knowing what the disposing mechanisms were going20·

·to be.··In fact, there were certain direct discharges21·

·to the Tongue River; is that right?22·

· · ·· A.· ·They anticipated far more than eventually23·

·occurred.··But, yes, that was an important component.24·

·Some 35 percent, I think in the scenario Mr. Larson25·



Page 5672

·used of the water, was anticipated to simply go into·1·

·the stream.·2·

· · ·· Q.· ·Let's look at Figure 11 of your report.·3·

· · · · · · And can you just explain to us why you looked·4·

·at direct discharges and what impact it has on, say,·5·

·the opinions rendered by Mr. Larson?·6·

· · ·· A.· ·Mr. Larson directed his attention and his·7·

·output only to the groundwater interface between the·8·

·Tongue River and its tributaries and the model.··So he·9·

·simply ignored this component of water coming out of10·

·the ground, running down the stream, and into Montana.11·

· · · · · · SPECIAL MASTER:··Okay.··I should just say, I12·

·don't want to deter you from using your hands because I13·

·know sometimes it helps in explaining something or14·

·talking.··But when you do, just for the sake of the15·

·court reporter's ears, try to avoid the microphone.16·

·Thanks.17·

· · · · · · THE WITNESS:··Okay.18·

·BY MR. KASTE:19·

· · ·· Q.· ·Good luck with that.20·

· · ·· A.· ·I'll treat it like it was a little bee.21·

· · ·· Q.· ·If you haven't noticed, Mr. Hinckley is22·

·animated, and you're not going to change that today.23·

· · · · · · So you were explaining that Mr. Larson, it24·

·sounds like, didn't look really at the direct25·



Page 5673

·discharges for purposes of his analysis; is that fair?·1·

· · ·· A.· ·Yeah.··I think he had some early contacts·2·

·with DEQ that suggested to him that these were much,·3·

·much less than he anticipated in the 2002 modeling, and·4·

·that's correct.·5·

· · · · · · But, again, in the context of these parts of·6·

·a CFS that this issue has come down to, the number is·7·

·not zero.··And I think it's important in that it's·8·

·actually a measured number.··These are values that are·9·

·reported under the parameters and requirements of the10·

·individual discharge permits that have to be obtained11·

·through the Wyoming Department of Environmental12·

·Quality.13·

· · · · · · So unlike the rest of the model, it, I think14·

·we can correctly characterize, is poorly constrained.15·

·These are real numbers.··This really is happening.··And16·

·we know it happened, and these are the values.··So --17·

· · ·· Q.· ·What is --18·

· · ·· A.· ·That's the point at which I think we should19·

·include them.20·

· · ·· Q.· ·What is Figure 11 showing us?21·

· · ·· A.· ·Figure 11 was compiled from the records we22·

·obtained from the Wyoming Department of Environmental23·

·Quality when we asked them to give us all of the24·

·surface outfalls in the Tongue River Basin and the data25·



Page 5674

·pertinent thereto.·1·

· · · · · · So what I've shown here are the -- I was·2·

·thinking there were four -- three, anyway, points at·3·

·which there are permits on the books for CBM water to·4·

·be discharged into the surface stream system.··And then·5·

·the small matrix in the upper right corner of the·6·

·figure gives us the monthly data that was reported·7·

·under each of those impacts.·8·

· · ·· Q.· ·That's an actual value reported in the upper·9·

·right-hand corner, a measured value as opposed to just10·

·a value that might be permitted?11·

· · ·· A.· ·Right.··Or a modeled value or something that12·

·was estimated.··That's what that operator reported13·

·happened that month.14·

· · ·· Q.· ·And these discharges aren't large, but do15·

·they make a difference in terms of either the accretion16·

·or depletion to the Tongue River by virtue of CBM17·

·production?18·

· · ·· A.· ·Well, they do.··Because for this discussion,19·

·I guess large is 1 and a half CFS, 2 CFS.··Those are20·

·the kinds of numbers that are coming to us from the21·

·groundwater models.··So certainly, in that context, a22·

·.4 is large.··A 1.03, as I scan the table, is large.23·

· · · · · · So, yes, I think these are significant in24·

·that context.25·



Page 5675

· · ·· Q.· ·So having obtained these values -- and for·1·

·our purposes, I think the values related to 2004 are·2·

·probably the only applicable ones 'cause there are no·3·

·values for 2006; right?·4·


· · ·· Q.· ·What effect does it have on the calculation·6·

·of accretions or depletions if you -- I assume you add·7·

·these numbers into the mix?·8·

· · ·· A.· ·Yes.··So these serve as offsets, one for one,·9·

·against any depletion that is predicted from the10·

·groundwater model.··Or not offsets, but augmentation of11·

·any number that came through the groundwater model as12·

·an accretion.13·

· · · · · · Now, maybe this is jumping ahead a little14·

·bit, but how I used these was, when I looked at the15·

·analysis that Dr. Schreüder had done and its16·

·sensitivity to the discharge fraction and so forth, I17·

·concurred with his conclusion that the groundwater base18·

·flow impacts were indistinguishable from zero, was the19·

·term he used, which I thought was apt.20·

· · · · · · So when I did my master compilation, I21·

·adopted zero as the groundwater number with respect to22·

·augmentation, depletions of the flows in the Tongue23·

·River but then added these numbers in because I do know24·

·these numbers.25·



Page 5676

· · ·· Q.· ·So I think what you're saying is you know for·1·

·a fact this water went into the Tongue River.··It's·2·

·much harder to know what water came out of the Tongue·3·

·River as a result of production?·4·

· · ·· A.· ·Right.··The in/out through the groundwater is·5·

·a zero plus or minus number.··These are real.·6·

· · · · · · And I'd also point out that the one that was·7·

·in play in 2004 is labeled pod B1 at the north end of·8·

·the diagram, which is a direct flow into Prairie Dog·9·

·Creek, which is a perennial stream.··And we're actually10·

·down towards the mouth of the stream.11·

· · · · · · So that is a number that I think we can be12·

·reasonably confident did not subsequently soak in or13·

·evaporate but actually made its way on down Prairie Dog14·

·Creek, unlike, say, something up on the Adams Ranch 215·

·on Wildcat Creek.16·

· · ·· Q.· ·All right.··Now, in addition to your17·

·discussion about direct discharges, I think there's a18·

·discussion in your report about the proportion of19·

·groundwater disposal alternatives, is how I have it20·

·written down.··But I think it's fairly characterized as21·

·a discussion about the nature of the CBM impoundments22·

·that you found in the Tongue River Basin and what their23·

·nature means in terms of their applicable recharge24·

·rate.25·



Page 5677

· · · · · · Did I say most of that correctly?·1·

· · ·· A.· ·Yes.·2·

· · ·· Q.· ·All right.··Can you explain what you found·3·

·and how you found these things about the nature of the·4·

·groundwater disposal?·5·

· · ·· A.· ·Sure.··Let's start, as I did, with·6·

·Mr. Larson's efforts to bring a reality to the 2002·7·

·model.··And he started with one of the four discharge·8·

·scenarios that BLM was projecting, understanding that·9·

·when they did the EIS they didn't know what was going10·

·to happen, so they looked at various development11·

·alternatives.12·

· · · · · · The one he keyed on, I think it's Table 4-313·

·of that 2002 BLM report, projected 45 percent discharge14·

·to infiltration impoundments, 35 percent to containment15·

·impoundments they called it, 10 percent surface16·

·discharge, and 10 percent injection.··We'd have to look17·

·at the table to get the pieces correctly.··But what we18·

·know is that the surface discharge piece didn't happen19·

·remotely like they anticipated.··The subsurface20·

·injection piece probably didn't happen quite like they21·

·anticipated.22·

· · · · · · Now, they used the terms "infiltration23·

·impoundment" and "containment impoundment" in that BLM24·

·document.··And if one reads it carefully, one sees that25·



Page 5678

·they observed infiltration impoundments.··So they would·1·

·say this is how CBM water is being disposed of because·2·

·they could see that when they, again, came to the·3·

·containment impoundments, that was speculative and they·4·

·said this is a scenario in which they may be disposed·5·

·of or will be disposed of.··So they weren't seeing that·6·

·ratio at the time.··They were speculating.·7·

· · · · · · Now, as I argued in the report and tried to·8·

·understand that, talked to the folks at DEQ, it became·9·

·clear to me that Mr. Larson was led astray by the10·

·terminology that Wyoming Department of Environmental11·

·Quality uses in that they do permit what they call a12·

·full containment impoundment.··He assumed that that13·

·meant the same as what the BLM contractors meant when14·

·they wrote the 2002 model, and that simply is not the15·

·case.16·

· · · · · · Wyoming Department of Environmental Quality17·

·requires a pond to be full containment, meaning that it18·

·can contain the surface discharge from the CBM activity19·

·and the 50-year 24-hour flood.20·

· · · · · · So their notion of containment is entirely a21·

·surface water-based criteria, and it means that nothing22·

·runs over the top of the embankment for the23·

·impoundment.··It doesn't say anything at all about what24·

·goes into the ground.25·



Page 5679

· · · · · · So when one proceeds with the assumption that·1·

·those are the same, the 25 percent that Mr. Larson·2·

·suggested becomes a random number.··It could be right·3·

·in some cases, probably wrong -- most certainly wrong·4·

·in others.··So it just doesn't have any meaning at all.·5·

· · · · · · That left me saying, well, what do you think·6·

·the right number is?··And it is not very well·7·

·constrained.·8·

· · · · · · So I approached that two ways.··One was to·9·

·look at the BLM Table 4.3 projection and simply10·

·reapportion what they thought was going to go to the11·

·surface, knowing the variable if that had happened and12·

·just plugging it back into the other disposal options13·

·proportionately.··And that gets one to a 43 percent14·

·infiltration impoundment.15·

· · · · · · Now, I also talked, then, to several folks in16·

·a position to know what -- know their subject in DEQ to17·

·try to understand if they had a better number.··The18·

·answer is they do not quantitively.··But as I quote in19·

·the report, all of the DEQ people I talked to were20·

·quite clear that infiltration impoundments were very21·

·common, and they confirmed the simple logic of one22·

·wants those to infiltrate as much as they possibly can.23·

· · · · · · The whole paint of that from the CBM24·

·operators' perspective is to get rid of that water.··If25·



Page 5680

·the thing leaks like a sieve, that's a far preferable·1·

·impoundment to one that's sealed up tight.·2·

· · ·· Q.· ·Flocculated?·3·

· · ·· A.· ·They love flocculation and hate dispersion.·4·

·So not quantitively but qualitatively, the testimony I·5·

·got from DEQ, who are in the business of impacting·6·

·these things, one, total containment has nothing to do·7·

·with infiltration; two, the operators like·8·

·infiltration.··And the sense of it I got from talking·9·

·to the various DEQ folks was anywhere from 50 percent10·

·to 90 percent of the water infiltrates.11·

· · · · · · The other line of evidence that I pursued12·

·was --13·

· · · · · · MR. DRAPER:··Your Honor, I'd like to14·

·interpose an objection to the direction that the15·

·testimony has taken here.16·

· · · · · · The witness is now purporting to give expert17·

·opinions of the degree of infiltration to the18·

·groundwater system by people who were not present here19·

·in court, who have not appeared as experts.··And this20·

·is obviously a subject of expert opinion, and it's21·

·improper for him to be quoting, for the truth of the22·

·matter asserted, such statements.23·

· · · · · · MR. KASTE:··First of all, that number,24·

·90 percent, is in his report already and already in25·



Page 5681

·evidence.·1·

· · · · · · Second of all, I can ask him whether this·2·

·kind of investigation with DEQ folks are the kind of·3·

·information a person in your field would typically rely·4·

·on in gathering information about the appropriate·5·

·recharge rate.·6·

· · · · · · SPECIAL MASTER:··Let me do three things.··The·7·

·first thing I'll do is turn on the mic.·8·

· · · · · · The second thing is that, in both Mr. Fritz's·9·

·and Mr. Hinckley's expert report, there is obviously a10·

·variety of statements upon which they are relying where11·

·somebody is not here to testify.··So as with all other12·

·data, other materials upon which somebody is relying,13·

·they are coming in as the basis for the expert report14·

·of the person testifying.15·

· · · · · · And so if you could ask that question of16·

·Mr. Hinckley, then I'll permit you to continue to ask17·

·questions about this, recognizing, again, that we don't18·

·have the people here in the courtroom.19·

· · · · · · And certainly one of the things I'm going to20·

·ask, if you don't ask it, Mr. Draper, is more21·

·information about who these people actually are upon22·

·which he's relying.23·

·BY MR. KASTE:24·

· · ·· Q.· ·All right.··Then two questions:··Is that the25·



Page 5682

·kind of information that you obtained from the·1·

·Department of Environmental Quality, a government·2·

·agency, the kind of thing that you would typically rely·3·

·on in gathering information as you try to determine the·4·

·appropriate recharge rate in a given system?·5·

· · ·· A.· ·Oh, absolutely.··We'd like to see hard data·6·

·measured in controlled experiments.··Lacking that, we·7·

·have to fall back to what other evidence we can find.·8·

·So I think, in any assignment of this nature, one tries·9·

·to gather up all the relevant information,10·

·understanding that it comes in varying degrees of11·

·quantification and varying degrees of reliability.12·

· · · · · · So I don't know what else one would do to try13·

·to probe this particular question than talk to those14·

·associated with the permitting agency and those who15·

·have hands-on experience looking at these things.16·

·Again, I don't know what else one would do.··And it17·

·would be, in my opinion, irresponsible not to try to18·

·verify one's assumptions and speculations with some --19·

·whatever data you could find, anecdotal or numerical.20·

· · ·· Q.· ·Second question:··Who did you talk to at DEQ,21·

·and why did you pick them?22·

· · ·· A.· ·There are three people I reference23·

·specifically in the report.··One of them is the woman24·

·who maintains the database under which these are25·



Page 5683

·permitted.··That was Ms. Shreve.··Don Fischer is the·1·

·other one I referred to, who is a hydrogeologist -- I·2·

·believe he's a hydrogeologist working in the Sheridan·3·

·office who has direct experience with these permits and·4·

·how they are monitored and the reporting under those·5·

·permits.·6·

· · · · · · And Mr. Frances I think was the third name.·7·

·I'm not actually finding it.··He was identified, if I·8·

·remember correctly, by the folks in BLM as the·9·

·gentleman with the most hands-on experience in actually10·

·looking at these impoundments.··And of the three, he11·

·was the most categorical of, no, these are not lined.12·

·No, we do not regulate them for their infiltration13·

·capacities.14·

· · · · · · I think it was Mr. Fischer who opined15·

·90 percent.··I didn't feel like he was in a position to16·

·know that number, so I simply throw this in as one more17·

·piece of evidence that, to me, triangulates us to the18·

·appropriate conclusion that infiltration impoundments19·

·are vastly more common than anything lined, anything20·

·deliberately constructed to restrain infiltration.21·

· · ·· Q.· ·So you talked to somebody -- two people at22·

·DEQ and one at the Bureau of Land Management?23·

· · ·· A.· ·No, one at the state engineer's office.··That24·

·would be David Schroeder, who we heard from earlier,25·



Page 5684

·who would be the guy I think has actually eyeballed as·1·

·many of these as perhaps anyone alive.·2·

· · ·· Q.· ·All right.··So what did you take away from·3·

·these discussions?·4·

· · · · · · I got the impression from your last answer·5·

·that it was related to the proportion of infiltration·6·

·impoundments versus lined impoundments.·7·

· · ·· A.· ·Well, I think the fundamental conclusion from·8·

·the DEQ conversations is this terminological confusion·9·

·to adopt their database of so-called full containment10·

·impoundments and treat those as zero infiltration is11·

·just wrong.··So that's the main thing we get from DEQ.12·

· · · · · · Qualitatively we get their observations13·

·that -- their expectations that a great deal of water14·

·infiltrates.··And what that number is, as I spoke to15·

·you a moment ago about, I came up with 43 percent as an16·

·estimate based on the crude apportioning of the BLM17·

·model.18·

· · · · · · There also have been specific studies done of19·

·the infiltration rates of these ponds, several of which20·

·I reference in my report, that produce numbers higher21·

·than 43, 50, 60, 70 percent.22·

· · · · · · The BLM modeling itself, the 2002 BLM23·

·modeling was subjected to a complete basinwide revision24·

·and update in 2009.··You'll see that work referred to25·



Page 5685

·by the contractor AECOM.··Just the capital letters·1·

·A-E-C-O-M.··They were also a BLM contractor.·2·

· · · · · · They didn't use those terms "infiltration·3·

·impoundment" and "containment impoundment" as the·4·

·previous contractors had, perhaps because they did not·5·

·want to fall prey to that ambiguity.··And they opined·6·

·that 60 percent was probably the best number for their·7·

·development of a groundwater model, for their revision·8·

·of the 2002 groundwater model.·9·

· · · · · · That's the other specific number that I quote10·

·in my opinion, somewhere between 43 and 60.··An11·

·argument could be made for that number being somewhat12·

·higher than that, but that's what I felt was the range13·

·of numerical values that was coming back to me through14·

·my various lines of research.15·

· · ·· Q.· ·So did you look around and try to find all16·

·the available evidence by the various agencies and17·

·individuals that indicate what they thought the18·

·appropriate recharge rate was?19·

· · ·· A.· ·I did.20·

· · ·· Q.· ·And you came -- you accumulated that21·

·information, compiled it, and came to what conclusion?22·

· · ·· A.· ·Came to the conclusion that a number in the23·

·43 to 60 range was the appropriate number to use, fully24·

·admitting that is not a very well-constrained number25·



Page 5686

·because people have not been concerned about that·1·

·number from a regulatory point of view.·2·

· · · · · · Ideally, one would go out when one found a·3·

·parameter in a model to which the answer that was·4·

·sensitive and try to nail it down.··That was not done·5·

·in this case.··So we're left with this·6·

·not-very-well-bounded value for the recharge fraction,·7·

·but it's not 25.·8·

· · ·· Q.· ·Why isn't it 25?·9·

· · ·· A.· ·Well, first of all, the 25 -- the actual10·

·derivation of the 25 percent number is clearly based on11·

·a faulty assumption.··So there's no reason to think the12·

·25 is anything other than just a number at this stage.13·

·It came from a numerical analysis that was14·

·fundamentally flawed.··So the 25 really is -- in my15·

·opinion, isn't a contender because it has no basis.16·

· · · · · · So the contenders, to use that terminology,17·

·would be the 33 percent that the BLM model projected18·

·would happen -- and I think we are pretty clear it did19·

·not happen -- and then the numbers that we get from the20·

·detailed studies specifically of the infiltration rates21·

·from impoundments and the opinions of the authors of22·

·those studies, which get us up into the 40, 50, 6023·

·range.24·

· · ·· Q.· ·Well, what difference does it make in terms25·



Page 5687

·of accretions of depletions to the Tongue River if the·1·

·recharge rate isn't 25 but it's somewhere between 43·2·

·and 60?·3·

· · ·· A.· ·I think we have information on that question·4·

·both from Mr. Larson and Dr. Schreüder.·5·

· · · · · · In the case of Mr. Larson, he ran his·6·

·adaptation of the 2002 model for 0 percent and·7·

·25 percent and presented those in his report.··I·8·

·believe Your Honor asked him about that, that seeming·9·

·sensitivity that 25 -- increasing from 0 to 25 percent10·

·in the recharge rate cut his projected depletions in11·

·half.12·

· · · · · · He also -- he, Larson, also ran a 60 percent13·

·model, although he didn't bring it forward in his14·

·report, that showed augmentations in the years of15·

·interest, 2004 and 2006.··I think everyone agreed there16·

·was in impact in '1 and '2.17·

· · · · · · Dr. Schreüder did much the same --18·

· · · · · · MR. DRAPER:··Your Honor, the witness has just19·

·started to summarize previous expert testimony in this20·

·report where people have analyzed the effects of this21·

·assumption.··It's not something he did.··He's simply22·

·trying to overlay an opinion on the work of Mr. Larson23·

·and Dr. Schreüder.24·

· · · · · · And it's not appropriate for him to sit here25·



Page 5688

·and take our time to repeat the selected testimony that·1·

·he prefers.··That's in the record.··It's not something·2·

·he did in terms of the effects, and I think we should·3·

·move on to a different subject.·4·

· · · · · · MR. KASTE:··I think that's exactly what he·5·

·did when you look at his report.··He reviewed the·6·

·report of Mr. Larson and work of Dr. Schreüder,·7·

·incorporated them both in reaching his own opinions.·8·

· · · · · · SPECIAL MASTER:··So I agree entirely that in·9·

·actually ultimately making a recommendation to the10·

·Court with respect to what Dr. Schreüder's testimony11·

·shows, that the best evidence of that is going to be12·

·Dr. Schreüder's testimony.13·

· · · · · · In the case of Mr. Hinckley's testimony, I've14·

·been quite willing to have him testify about what15·

·Dr. Schreüder says generally and why what he's saying16·

·is relevant to Dr. Schreüder's testimony for purposes17·

·providing a context and for purposes of explaining how18·

·this ultimately ends up in his bottom lines.19·

· · · · · · At the same time, though, I also agree with20·

·Mr. Draper that I do remember what Dr. Schreüder21·

·testified, and so we shouldn't go into too much depth22·

·or detail on that.··It's really the context that, for23·

·me, is the most important.24·

· · · · · · MR. DRAPER:··Thank you, Your Honor.25·



Page 5689

· · · · · · SPECIAL MASTER:··You're welcome.·1·


· · ·· Q.· ·I have no idea where you left off, but you·3·

·should continue.·4·

· · ·· A.· ·If I'm allowed to speak, I was simply trying·5·

·to say why this is important, why I thought it was·6·

·important.··Why I addressed it in my report is the·7·

·rubric under which this discussion is taking place in·8·

·my mind.·9·

· · ·· Q.· ·And I think the question that you were in the10·

·process of answering was what effect does it have if11·

·the recharge rate is not 25, as Mr. Larson identified,12·

·but rather somewhere in the range of between 43 and 60,13·

·as you indicated seemed to be the more appropriate14·

·values?15·

· · · · · · MR. DRAPER:··Your Honor, he wanted to know16·

·where the witness had left off.··He's not, I think,17·

·responding to your ruling in any way.··He's asked what18·

·effect it had on Dr. Schreüder's analysis.··He's simply19·

·asking for repetition.··He's adding nothing to this,20·

·and they shouldn't be able to pile on expert opinions21·

·where the current witness has done none of his own22·

·analysis.23·

· · · · · · MR. KASTE:··I'm pretty sure the question I24·

·asked was what difference would it make if you changed25·



Page 5690

·the recharge rate, Mr. Hinckley.·1·

· · · · · · SPECIAL MASTER:··So let me just ask because,·2·

·again, I think this is all in the record, but really·3·

·quickly, so what Dr. Schreüder's testimony showed was,·4·

·in part, that if you change what the recharge rate is·5·

·that has an impact on the bottom line -- and, in fact,·6·

·on some models it actually reversed the sign.··That was·7·

·something you mentioned earlier.··So is that the·8·

·relevance of these numbers here?·9·

· · · · · · THE WITNESS:··Yes.10·

· · · · · · SPECIAL MASTER:··Okay.11·

·BY MR. KASTE:12·

· · ·· Q.· ·And I'm asking for bottom line, if you used13·

·the appropriate recharge rate, what difference does it14·

·make '01, '02, '04, and '06?15·

· · ·· A.· ·I'm not understanding the question.16·

· · ·· Q.· ·If you change the recharge rate as calculated17·

·by Mr. Larson and run the same analysis, does it change18·

·the depletions that you found, in some way?19·

· · ·· A.· ·Yes, it does.20·

· · ·· Q.· ·How?21·

· · ·· A.· ·If the recharge rate is larger, the22·

·depletions are smaller or the augmentations are larger.23·

·So it is a direct correlation, as represented by the24·

·modeling presented by those two gentlemen on which I'm25·



Page 5691

·offering no opinion.·1·

· · ·· Q.· ·And do you have in your report, when we get·2·

·to the end, what those values are using an appropriate·3·

·recharge rate?·4·

· · ·· A.· ·My conclusion, as represented in that last·5·

·table of my report, was that the recharge rate is not·6·

·sufficiently constrained to allow us to confidently·7·

·predict a difference from zero.··Therefore, I used zero·8·

·as the number I moved forward with from that piece of·9·

·the study.10·

· · ·· Q.· ·All right.··There's another portion of your11·

·report that deals with DNRC that talks about some CBM12·

·wells outside of the model domain; is that right?13·


· · ·· Q.· ·All right.··And from what I understand, that15·

·doesn't make a significant impact on any of the16·

·numbers, does it?17·

· · ·· A.· ·That's, I think, a fair characterization.18·

· · ·· Q.· ·All right.··In the interest of time, let's19·

·move on.20·

· · ·· A.· ·Okay.21·

· · ·· Q.· ·If it doesn't make a change to the bottom22·

·line, let's breeze past it.23·

· · · · · · The next subject I want to talk about are24·

·your opinions with regard to the direct flow demand25·



Page 5692

·model created by Mr. Book.··Okay?·1·

· · ·· A.· ·Okay.·2·

· · ·· Q.· ·And you reviewed Mr. Book's model?·3·

· · ·· A.· ·I did.·4·

· · ·· Q.· ·Can you tell us what you understood Mr. Book·5·

·was trying to do with that model?··What was your·6·

·understanding of the purpose?·7·

· · ·· A.· ·It's a harder question than it might seem in·8·

·that Mr. Book's work is somewhere between a strictly·9·

·water rights demand model and an attempt to figure out10·

·how much water would be needed to meet demands of11·

·Montana pre-'50, as it existed in 1948, and the demands12·

·of the pre-'50 acreage as it exists today.13·

· · · · · · And then out of that came a series of five14·

·numbers that averaged the demand for the period of15·

·study back to a state line flow.16·

· · · · · · So perhaps I didn't read it with sufficient17·

·care but, to me, it wasn't clear exactly where it was18·

·going.··In order to analyze it, I exposed it to what I19·

·understood to be the issues of the case, which would be20·

·what happened in 2001, 2002, 2004, 2006, for one.21·

· · · · · · And, secondly, as we were to move forward,22·

·can we use a model of that sort as a priority23·

·regulation tool?··Can we use that kind of thing as a24·

·surrogate, if you will, for conventional priority25·



Page 5693

·regulation?·1·

· · · · · · So, in a sense, I assigned it a purpose and·2·

·then evaluated it with regard to that purpose.·3·

· · ·· Q.· ·Well, what did you think?··What did you·4·

·conclude with regard to whether or not that particular·5·

·model serves as an appropriate surrogate to priority·6·

·regulation in the conventional sense?·7·

· · ·· A.· ·I conclude that it did not adequately serve·8·

·that purpose.·9·

· · ·· Q.· ·Why?10·

· · · · · · SPECIAL MASTER:··Can I actually -- before you11·

·go into this, only because I have a feeling it's going12·

·to be probably more than like five minutes --13·

· · · · · · MR. KASTE:··Probably.14·

· · · · · · SPECIAL MASTER:··Yeah.··So maybe this would15·

·be a good time for the break.··I probably should have16·

·caught you right before then.··But you got sort of your17·

·punch line in, and now you can explain that in a little18·

·bit more detail as you go along.19·

· · · · · · So why don't we take a break right now, and20·

·then we'll come back at five after the hour.21·

· · · · · · · · · · · (Recess taken 10:54 to 11:0722·

· · · · · · · · · · · a.m., December 3, 2013)23·

· · · · · · SPECIAL MASTER:··Mr. Kaste.24·

·25·



Page 5694


· · ·· Q.· ·The pending question was -- I suppose after·2·

·the break, I ought to set that back up again.·3·

· · · · · · I think you had just told us that -- let me·4·

·see if I can get it right -- the model created by·5·

·Mr. Book wouldn't do a very good job of replacing·6·

·priority regulation, and I asked you why that's the·7·

·case.·8·

· · ·· A.· ·Fundamentally, I think it's a matter of it·9·

·being an average number for that month for all years.10·

·So quite apart from any of the individual components of11·

·it and how we might want to quibble about those, the12·

·notion that there is a number at all, I think, is13·

·incorrect.··The fact that it's an average tells us that14·

·half the time it's too high, half the time it's too15·

·low.16·

· · · · · · So in the case of the priority regulation,17·

·you're going to be -- if we use that number and it were18·

·absolutely correct in all of its components, you would19·

·be regulating too soon half the time, depriving20·

·upstream juniors of the benefit of their water right,21·

·and you'd be triggering regulation too late half the22·

·time, depriving downstream juniors of their lawful due.23·

·So there's that fundamental issue with it being an24·

·average.25·



Page 5695

· · · · · · Now, I also think that it's flawed in that·1·

·it's way too high a number.··And my report goes through·2·

·a number of pieces of why I think it's too big beyond·3·

·just it being an average.·4·

· · · · · · The second thing we talked about was the·5·

·suitability of the direct-flow demand model to·6·

·identifying the timing and magnitude of direct-flow·7·

·deficits in any specific year.·8·

· · · · · · Same answer there.··The fact it uses average·9·

·values across 20 years I think pretty well tells us10·

·that it's not right for any one year.··And then behind11·

·that, I also concluded in my dissection of the model12·

·that the numbers were too high as well.13·

· · ·· Q.· ·Well, let's talk about why you think the14·

·numbers identified by Mr. Book are too high.··What15·

·makes them, in your opinion, too high?16·

· · ·· A.· ·Sure.··By "too high," I'm meaning in the17·

·context of priority regulation, which would occur when18·

·a downstream senior said, "I want the water.··Please go19·

·find upstream juniors, and shut them off."20·

· · · · · · In my mind that's a realtime -- real21·

·phenomenon in the sense of an amount of water, an22·

·acreage, an irrigation practice, a cropping pattern,23·

·rather than it being some theoretical "This guy isn't24·

·getting 180.5 CFS today.··Therefore, something has to25·



Page 5696

·happen."·1·

· · · · · · The existence of the right is not what I·2·

·think the doctrine of appropriation keys on.··It's what·3·

·actually is happening under that condition.··So it's·4·

·exposed to that notion that I say these are all too·5·

·high.··I don't quibble with them being a fair·6·

·representation of the water rights on paper.·7·

· · ·· Q.· ·Well, I think you say in your report that·8·

·Mr. Book's numbers overestimate diversion rates and·9·

·continuity of irrigation in Montana.10·

· · · · · · What do you mean by that?11·

· · ·· A.· ·The Book demand model keys off a water right,12·

·187.5 CFS at the headgate of the T & Y Canal.··He has13·

·also assigned a CFS to all of the headgates between14·

·Tongue River Reservoir and T & Y.··He's used a generic15·

·1 per 40.16·

· · · · · · But, in any case, the notion is that the17·

·demand model is asking for water to fully satisfy those18·

·flow rates 100 percent of the time in July, 100 percent19·

·of the time in August, 90 percent and 30 percent in the20·

·shoulder months.21·

· · · · · · That simply can't happen.··I'd offer the22·

·analogy of the speed limit.··Yes, it's legal for one to23·

·drive 75 miles an hour, but the chances of being able24·

·to cover 750 miles in ten hours is just nil.··There's25·



Page 5697

·always something that's going to happen that's going to·1·

·move you off that theoretical maximum.·2·

· · · · · · In the case of irrigation, any one of the·3·

·participants in that portfolio of water rights,·4·

·stopping to go hay, say, a week, ten days, two weeks to·5·

·hay, is going to bring you off that maximum.··If for·6·

·any other reason an operator would have to divert at·7·

·the full legal right, algebraically it has to bring·8·

·that total down.··So to model a demand based on·9·

·everybody maxing out every day for July and August is10·

·just simply -- it can't happen.11·

· · · · · · And we've heard a number of reasons, and I12·

·document them in the report here, of why the guy13·

·wouldn't drive 75, if you will, the reason an operator14·

·wouldn't take the entire legally available flow.··For15·

·example, haying, I just mentioned.16·

· · · · · · In the report I quote Mr. Muggli and Mr.17·

·Hayes as being adverse to the dirty water that didn't18·

·meet certain water-quality criteria.··So that's not a19·

·function of water not being there to divert.··They20·

·chose not to divert water certain times of the year21·

·because they were unhappy with its salinity.··There may22·

·not be enough water in the river to adequately push23·

·water into the headgates.··It might not be deep enough24·

·to accommodate a pump.25·



Page 5698

· · · · · · There's a lot of reasons why one would not·1·

·divert at the full legal right all the time.·2·

·Therefore, I say the model, based on that, is perhaps a·3·

·useful expression of something theoretical, like what·4·

·if everybody did.··But I think we know everybody didn't·5·

·and won't.·6·

· · ·· Q.· ·Is that amount of water that Mr. Book·7·

·describes in his numbers, is that -- if you look at·8·

·that sort of full blast for everybody all the time, is·9·

·that consistent with the crop demands in the basin?10·

· · ·· A.· ·No.··And as I think Mr. Muggli testified at11·

·his deposition, he modulates the canal diversions in12·

·response to the crop needs.13·

· · · · · · Mr. Book has done a review of the consumptive14·

·irrigation requirements of the crops.··Those are15·

·provided in his appendices wherein one sees substantial16·

·variations between months in different years, between17·

·the months of a year.··So if one accepts the notion18·

·that one is going to divert in response to what the19·

·crop needs, which seems reasonable, particularly in20·

·this situation where people are paying incrementally to21·

·pump water, we would expect those diversions to22·

·modulate themselves in response to the crop needs.23·

· · · · · · Looking at Mr. Book's calculated consumptive24·

·variation requirements, one sees a variation of at25·



Page 5699

·least 50 percent around the middle point before those·1·

·crop needs are realized in individual years because of·2·

·climatic conditions, rainfall and so forth.·3·

· · ·· Q.· ·Does the model, with its fixed numbers,·4·

·address the variability in crop requirements that·5·

·Mr. Book identified?·6·

· · ·· A.· ·It doesn't identify them at the point of·7·

·diversion because the diversions are run against the·8·

·water rights.··So in a month where it rained like crazy·9·

·and there was no crop demand, the Book model will still10·

·go ahead and divert at 100 percent of legal water11·

·right.12·

· · · · · · Now, this is where the return flows come in,13·

·because then the model will give back the water it14·

·didn't use as a return flow.··So there's a bit of a15·

·compensation mechanism built into the model in that16·

·regard.··That only applies, of course, to the17·

·diversions above the T & Y Canal where one can realize18·

·the benefit of those return flows.19·

· · · · · · So to say the model diverts all the water all20·

·day every day, the consumptive piece of the model does21·

·vary depending on the actual climatic conditions of22·

·that particular movement.23·

· · · · · · So we end up with a bit of each.··I think the24·

·diversions, as I say, they're just incorrect and25·



Page 5700

·they're too high.··Some of that is kind of given back·1·

·to the system through return flows, but then the lag·2·

·factors become important.·3·

· · ·· Q.· ·Well, let's talk about return flows.··That's·4·

·a criticism that you had of Mr. Book's model; is that·5·

·fair?·6·


· · ·· Q.· ·Well, explain what your criticism is.·8·

· · ·· A.· ·All right.··Following that thread, if I've·9·

·got this block of water that I -- well, let me step10·

·back one.11·

· · · · · · The return flows back to mass balance are the12·

·water that's diverted that's in excess of what the crop13·

·actually needed.··We refer to a system as being highly14·

·efficient if it can bring those two closer together.15·

· · · · · · If one looks at Mr. Book's model in terms of16·

·what it diverts and what it actually uses at the crop,17·

·it's running at an irrigation efficiency of about18·

·30 percent.··Not unexpected because I think the19·

·diversions are too high.··So there's that block of20·

·water that then has to come back into the system.21·

· · · · · · In the Book model, it all comes in through22·

·the groundwater.··And he's used a straightforward and23·

·standard simple groundwater model to suggest how that24·

·makes its way back into the river.··I think those25·



Page 5701

·numbers -- the lag numbers reported are much too small.·1·

· · · · · · But the effect of that is that it takes that·2·

·extra water and pushes about 50 percent, 55 percent, I·3·

·think, into the nonirrigation season when it is not·4·

·available for downstream irrigators to take advantage·5·

·of.··So, in that sense, that excessive diversion is·6·

·gone and doesn't come back.··So the irrigators between·7·

·T & Y and the Tongue River Reservoir are like the T & Y·8·

·in that they divert at the maximum and it's gone.·9·

· · · · · · In fact, if they diverted that much, a vast10·

·majority -- not vast majority -- yeah, would come back11·

·into the river, and I think much more quickly, and then12·

·be available for downstream irrigators offsetting their13·

·demand calculated back up to above the Tongue River14·

·Reservoir.15·

· · ·· Q.· ·Why do you think that return flows would16·

·happen more quickly than articulated by Mr. Book?17·

· · ·· A.· ·Setting aside the efficiency piece and just18·

·looking at the return flows on their face, the model19·

·that Mr. Book used idealizes the stream as a straight20·

·line.··It's called the Glover method.··I think he used21·

·a version of AWAS that's implemented through the22·

·Colorado Decision Support System.··Same math, same23·

·answers.24·

· · · · · · So you got a completely straight stream.··And25·



Page 5702

·you've got a field that's idealized as an injection·1·

·well at the center of the field.··And then knowing only·2·

·the distance between the two and the transmissivity of·3·

·the aquifer, it produces a response function.·4·

· · · · · · When you look at the Tongue River, you see·5·

·the great majority of the fields in Montana are in·6·

·oxbows, and the river basically is wrapped all the way·7·

·around them.··So just the geometry tells you that the·8·

·straight line solution is going to give you a much·9·

·slower response than actually happens.10·

· · · · · · Secondly, the transmissivity that he chose11·

·was, I think, lower than one would expect in those12·

·kinds of sediments, although, there again, it's not a13·

·very well-constrained number.··I think Mr. Book had to14·

·struggle to find some numbers.··So for those reasons, I15·

·think the thing is too high.16·

· · · · · · It can also be compared to return flow17·

·fractions that are used elsewhere in the studies we18·

·have of the Tongue River Basin.··And in Mr. Book's own19·

·work wherein, in Wyoming, he uses a factor, I think it20·

·was 34 percent of that water, that excess water, comes21·

·back in the month in which it was diverted.22·

· · · · · · In the case of the Tongue River below the23·

·dam, he's using 4 percent.··The HKM study that we heard24·

·reference to in Wyoming used 34, 40 percent.··And that25·



Page 5703

·would be more reasonable number in this case.·1·

· · · · · · So I think it's internally inconsistent and·2·

·basically conspicuously low.·3·

· · ·· Q.· ·I think you reference a GeoResearch study·4·

·for -- in your report related to recharge rate.·5·

· · · · · · Did you find a different recharge rate than·6·

·Mr. Book used in that GeoResearch study?·7·

· · ·· A.· ·Yes.··That was a study that was used to do --·8·

·to model the effect of a large Tongue River Reservoir.·9·

·So they were interested in exactly the same questions10·

·of how much utility will be derived from a certain11·

·amount of water available in the system by virtue of12·

·the dam enlargement.··And they used a number -- I13·

·believe it was in that 34 to 40, 45 range for the first14·

·month of return flows.15·

· · ·· Q.· ·What effect does it have on -- in this case,16·

·Mr. Book's model talks about a state line flow.··So17·

·what effect does it have on the state line flow if the18·

·return flow rate in the first month is not 4 percent19·

·but more like 40 percent?20·

· · ·· A.· ·Well, then more of the water that's diverted21·

·by the upstream irrigator is available to meet the22·

·needs of the downstream irrigator.··So all of that goes23·

·to reducing the demands that you would calculate for24·

·any point upstream.··So in terms of the Book model,25·



Page 5704

·those state line flows would come down as his recharge·1·

·fraction went up.·2·

· · ·· Q.· ·So you need less at the state line if there's·3·

·more in the stream below the state line at any given·4·

·time?·5·

· · ·· A.· ·Yeah.··You're squeezing more utility out of·6·

·the same water if it can go round and round and round.·7·

· · ·· Q.· ·All right.··I think another point that you·8·

·identify in your report is that Mr. Book's model·9·

·assumes a constant annual diversion pattern.10·

· · · · · · Can you explain what that means?11·

· · ·· A.· ·Yeah.··That's a variation on the concern with12·

·it running at maximum rates.··The Book model -- and13·

·it's a general statement of what the demands would be,14·

·if fully exercised, has a constant rate in May, a15·

·constant rate in June, a constant rate in July, and so16·

·forth.17·

· · · · · · Again, we know, I think from common sense as18·

·well as the data that are available to us, that that19·

·isn't how irrigation takes place.··It's more responsive20·

·to the contemporaneous conditions of the crop, the need21·

·for water, whether it just rained, whether you need to22·

·shut off for haying.··So it's inappropriate to suggest23·

·that the May diversions in one year are going to be the24·

·same as the May diversions in the next year, for25·



Page 5705

·example.·1·

· · ·· Q.· ·All right.··What about Mr. Book's estimates·2·

·of irrigated acreage in Montana?··That's another·3·

·criticism you have of his analysis.··Can you explain·4·

·that?·5·

· · ·· A.· ·Sure.··We have a spectrum of acreages to work·6·

·from.··The largest would be the -- all the acreage it·7·

·has at pre-'50 water right.··And that's going to be the·8·

·maximum number.··We know some subset of that is going·9·

·to be actually irrigated.10·

· · · · · · The subset that Mr. Book chose was a survey11·

·that was done by the State of Montana in 1948 where12·

·they identified irrigated and irrigable acreage.··I13·

·think that's also too high to represent what actually14·

·happens and is higher than Mr. Boyd observed to be15·

·irrigated in more recent years.16·

· · · · · · I think under questioning from Your Honor, he17·

·responded that he wanted to use those old acreages18·

·because he was trying to say what would the demand19·

·today be to supply acreage that existed in 1948.··So20·

·kind of a sense of an allocation was created by those21·

·acres back in '48 and that carries forward rather than22·

·it being something that moves with the acres23·

·themselves.24·

· · · · · · So I think we know, and the data we have from25·



Page 5706

·that study, as well as Mr. Book's work, is that the·1·

·acreage that's actually irrigated in any one year, past·2·

·or future, is going to be less, and perhaps·3·

·substantially less, than those maximal acreages that·4·

·were surveyed in 1948 or the full water right numbers.·5·

· · ·· Q.· ·Are the amount of irrigated acres going to·6·

·change every year?·7·

· · ·· A.· ·I would expect them to change every year for·8·

·a host of reasons.·9·

· · ·· Q.· ·Another criticism I see in your report that I10·

·don't fairly understand is Mr. Book's model uses11·

·idealized consumptive-use rates, is what I wrote down.12·

· · · · · · So would you explain that one?13·

· · ·· A.· ·Sure.··I think it is reasonable and standard14·

·procedure, if you're trying to model maximal demands,15·

·to use the theoretical irrigation requirements that one16·

·gets from the scientific literature.··And the methods17·

·that Mr. Book used and the numbers that he adopted,18·

·that's where they come from.19·

· · · · · · Again, exposing the theoretical values to20·

·what actually happens, inevitably what actually happens21·

·is something less than ideal for a whole variety of22·

·reasons, which I list in my report.23·

· · · · · · And I quote Dr. Allen as also chronicling the24·

·fact that crops in the field are not grown like crops25·



Page 5707

·in lysimeters.··There's weather issues that happen,·1·

·early frosts, late frosts, or it freezes, insect·2·

·damage, wind damage, weather damage, high spots in·3·

·fields that don't get as much water as the low spots.·4·

·So inevitably, a crop is going to use less water than·5·

·it theoretically could.·6·

· · · · · · The numbers with the technique Mr. Book used·7·

·come from the notion of a uniform, fully watered,·8·

·basically ideal crop, and those ideal crops rarely·9·

·occur.10·

· · ·· Q.· ·I don't understand this, but I'm going to try11·

·to ask.12·

· · · · · · How did your discussion about the use of13·

·idealized crop rate relate to, I think, Mr. Book's14·

·analysis identifying essentially one cutting of alfalfa15·

·over the course of the season and not multiple?16·

· · · · · · Do I have that sort of right?17·

· · ·· A.· ·Yeah.··Picturing the crop actually, all those18·

·leaves that are using up the water, and if I cut them19·

·all off to harvest them, then they obviously aren't20·

·doing much in the way of generating ET 'cause they are21·

·dead.··There's also the effect that they are laying out22·

·on the field in windrows waiting to dry out for them to23·

·be gathered up and baled and removed from the field.24·

· · · · · · So there's inevitably, in the period of time25·



Page 5708

·of harvesting, forming crop when you have mechanically·1·

·suppressed the ET.··And that shows up in a crop curve·2·

·as the ET is running along smoothly and then takes a·3·

·big dip and then comes back up and runs along smoothly.·4·

·I think there may be some examples of that in some of·5·

·Dr. Allen's material.··But that's just an example of·6·

·the nonideality of the crop as it's in the field.·7·

· · ·· Q.· ·So more cuttings equals more deviation from·8·

·the idealized crop consumption?·9·

· · ·· A.· ·That's correct.··And we looked at the stress10·

·factors.··One of the examples I did provide in the11·

·report was the way we handled that on the North12·

·Platte -- and that was a piece that I was the major13·

·author of -- where we tried to calculate the actual14·

·consumptive use that occurred rather than the15·

·theoretical consumptive use.16·

· · · · · · And we did it by looking at yield values and17·

·knowing that the ideal crop is going to produce, say,18·

·3 tons of hay per ache and realizing the actual crop19·

·only produced 2 tons per acre as monitored by -- in the20·

·case of North Platte, we used the distributing21·

·statistics service and then we discounted the actual22·

·water use based on the relationship of the realized23·

·yield to the theoretical yield.24·

· · · · · · So there's one way that one can try to bring25·



Page 5709

·some of the real world in as a discount factor for·1·

·these theoretical maximums.·2·

· · ·· Q.· ·Now, each of these things that we've·3·

·discussed, if I understand right, ultimately lead to·4·

·the conclusion in each case that the model created by·5·

·Mr. Book overestimates the actual demand; is that fair?·6·

· · ·· A.· ·I think that's correct.·7·

· · ·· Q.· ·None of them indicate that it underestimates·8·

·actual demand; right?·9·

· · ·· A.· ·I think that's correct.10·

· · ·· Q.· ·All right.··A couple -- you have a couple11·

·other criticisms of the model in terms of its ability12·

·to reflect actual demand, and one of them is identified13·

·as it's contrary to the history of regulation in14·

·Montana.15·

· · · · · · Can you tell us what you mean by that?16·

· · ·· A.· ·Yeah.··That's certainly a more qualitative17·

·line of inquiry than quantitative.18·

· · · · · · But if one looks at Mr. Book's bottom line --19·

·I believe it was his Table 5 in the January report --20·

·it suggests that we have chronic and severe21·

·deficiencies of direct flow in that part of Montana.··I22·

·found that to be not particularly congruent with what23·

·we learned about the history of priority regulation.24·

· · · · · · For example, the first time that the users of25·



Page 5710

·the Tongue River moved out of the "talk to your·1·

·neighbor across the fence" mode into a commissioner who·2·

·was running down the river making sure everybody got·3·

·just what they wanted was in 2001.·4·

· · · · · · The commissioners don't regulate any of the·5·

·tributaries for post-'50 use.··To use '50 is our·6·

·dividing line, they don't regulate anything but·7·

·irrigation use.··Under ideal circumstances if the·8·

·commissioners in Montana were doing their job·9·

·perfectly, and I'm not suggesting they aren't, they are10·

·still not pursuing every drop of direct flow with the11·

·vigor that one might expect given these deficits.12·

· · · · · · So that's the substance of my comparison13·

·which is predicted by Book's model by what we think we14·

·know has actually happened on the Tongue River.15·

· · ·· Q.· ·Similarly, you have a portion of your report16·

·that says Mr. Book's model and the values that he has17·

·promulgated there are contrary to the historic uses of18·

·stored water.··And I think it would be helpful to look19·

·at Figure 9 of your report and ask you to explain that20·

·opinion and, in doing so, if Figure 9 helps you do21·

·that, refer to it.22·

· · ·· A.· ·Sure.··The basic question there is the same23·

·one of does the observable behavior on the river24·

·conform with the theoretical calculations of the25·



Page 5711

·deficits.·1·

· · · · · · Now, I'm not suggesting that Montana is under·2·

·any obligation to use storage to make up for direct·3·

·flow efficiencies or due to activity in Wyoming.··But·4·

·the whole point of having storage is to backfill·5·

·direct-flow deficits, so one would expect to see some·6·

·correspondence between the two in terms of my direct·7·

·flow model says I need this much; how much storage did·8·

·I bring into the system to make up the difference.·9·

· · · · · · So what Figure 9 is is just a head-to-head10·

·comparison of the direct-flow demand deficits as11·

·extracted from Mr. Book's table.··That's -- the Book12·

·deficit column is simply saying if his state line flow13·

·was 100 and -- or state line flow target was 100 and14·

·the actual flow is 50, then I've got 50 CFS shortage15·

·for that month.16·

· · · · · · So I just calculate that difference, turned17·

·it into acre-feet for the season, and then compared it18·

·to the documented release of storage for that season,19·

·and that's what produced the graph here.20·

· · · · · · Obviously, no correlation at all.··I opined21·

·in the report that a big part of that absence of any22·

·correlation is the use of averages, bearing in mind23·

·that his deficits are measured against an average24·

·target value, if you will.··So they are inevitably high25·



Page 5712

·and low.··So just from that reason alone, you couldn't·1·

·expect them to correlate very well with storage·2·

·releases.·3·

· · · · · · The other fact is the more general one of I·4·

·don't think the demands are that large.··And the fact·5·

·that storage releases have not fully backfilled those·6·

·deficits suggests to me the deficits are not that·7·

·severe.·8·

· · ·· Q.· ·Okay.··All right.··Recognizing that I skipped·9·

·over a couple of those smaller particulars with regard10·

·to your criticisms of the flow model, what -- you know,11·

·ultimately, what does all of this mean in terms of the12·

·reliability of Mr. Book's model, if we assume that it's13·

·supposed to tell us when there is a direct-flow deficit14·

·in Montana?15·

· · ·· A.· ·I don't think it does tell you with any16·

·particularity when there is a direct-flow deficit in17·

·Montana.··It adequately documents the notion that18·

·direct-flow deficits in August are common, but it isn't19·

·going to be able to tell you how much or when in any20·

·particular situation.21·

· · ·· Q.· ·All right.··Let's talk, then, about Tongue22·

·River Reservoir.23·

· · ·· A.· ·Okay.24·

· · ·· Q.· ·First, I want to ask you generally, is it25·



Page 5713

·typically difficult in the regular year to fill Tongue·1·

·River Reservoir?·2·

· · ·· A.· ·No.··No, not by a long shot.·3·

· · ·· Q.· ·And why not?·4·

· · ·· A.· ·Well, the annual flow of the Tongue River is·5·

·something in excess of 300,000 acre-feet.··The capacity·6·

·of the Tongue River Reservoir is 80,000 acre-feet.·7·

·There are many -- I would say most years in which one·8·

·can fill Tongue River Reservoir from scratch in a·9·

·single month.··May and June come on strong enough to10·

·fill that reservoir easily.11·

· · ·· Q.· ·Of course, that would probably be12·

·irresponsible to do.··I'm pretty sure the reservoir13·

·operators don't like to bring it from zero to full in14·

·one month.··I understand that that causes some15·

·problems.16·

· · · · · · And I want to make it clear at the outset,17·

·are you here today to offer any opinions about how18·

·Tongue River Reservoir ought to be operated?19·

· · ·· A.· ·No.··No, I -- I've heard considerable20·

·indignation at my failure to account for all manner of21·

·legitimate operational criteria, but that was not an22·

·oversight.··I was deliberately trying to focus on one23·

·specific issue, and that is priority regulation under24·

·the doctrine of appropriation with specific reference25·



Page 5714

·to upstream juniors.·1·

· · · · · · All I was trying do with the Tongue River·2·

·Reservoir was to address the question of to what extent·3·

·does it represent a legitimate call for regulation of·4·

·upstream juniors under what I understand to be the·5·

·doctrine of appropriation.·6·

· · ·· Q.· ·Now, is it fair to characterize what you did·7·

·as accounting and not operational criticism?·8·

· · ·· A.· ·Yeah.··I was illustrating the accounting that·9·

·would derive from a different operational guideline.10·

· · ·· Q.· ·All right.··Let me ask this question and see11·

·if I can get it right.12·

· · · · · · If I understand Mr. Book's report, and it's13·

·probable that I do not, he used a physical fill for the14·

·reservoir's current capacity as the measure of whether15·

·Montana's rights in the Tongue River Reservoir were16·

·satisfied; isn't that right?17·

· · ·· A.· ·Yeah.··I'm just trying to remember what exact18·

·words he used.··But certainly the sense of it was that19·

·Montana's pre-'50 water right was injured by activity20·

·in Wyoming if the Tongue River Reservoir failed to fill21·

·to its current physical capacity.22·

· · ·· Q.· ·What's wrong with using that as the measure23·

·of whether Montana's injured or not?24·

· · ·· A.· ·Well, I spent some time trying to pin down25·



Page 5715

·exactly what that right is.··As I said a moment ago, I·1·

·was trying to address this from a water rights·2·

·perspective.··So had there been a clear statement in·3·

·the record that Montana's pre-'50 1937 storage right·4·

·was to fill to level X, then one could have evaluated·5·

·its historical operation and effects of alternate·6·

·operations against that number.·7·

· · · · · · I was unable to find anything that was that·8·

·clear in terms of what exactly the right is and hence·9·

·the point beyond which the right might suffer some10·

·injury by activity in Wyoming.··And I think I offer a11·

·variety of alternatives for that without trying to come12·

·to a legal conclusion.··My goal was to provide13·

·information that would be useful for that discussion.14·

· · ·· Q.· ·All right.··Well, I think I know what the15·

·legal right is, so let's talk about that.16·

· · · · · · In 2001, 2002, 2004, and 2006, in those four17·

·years, was the actual reservoir storage -- so not18·

·taking into account any fancy accounting -- is the19·

·amount of water in the reservoir sufficient to satisfy20·

·a contract volume of 32,000 acre-feet?21·

· · ·· A.· ·The reservoir could have sustained a release22·

·of 32,000 acre-feet in any of those years, yes.23·

· · ·· Q.· ·All right.··And you, I think, say in your24·

·report on page 4, "Reservoir storage was volumetrically25·



Page 5716

·sufficient to satisfy the contract volume set in 1950·1·

·in each of the years between 2001 and 2006 and to have·2·

·provided a minimum carryover of 10,719 acre-feet"; is·3·

·that correct?·4·

· · ·· A.· ·That's correct.··That's just an observation·5·

·based on the clear record of storage.·6·

· · ·· Q.· ·Okay.··And that amount of water exists in --·7·

·or existed in reality, without having any discussion·8·

·about whether or not bypasses on paper should be·9·

·limited to some certain amount or whether or not a10·

·maximum winter carryover capacity should or should not11·

·be applied; isn't that true?12·

· · ·· A.· ·That's correct.··And I might add one13·

·additional qualification to that, is all of these14·

·analyses are based on end-of-month contents.··And in a15·

·year in which the reservoir fails to fill, the maximum16·

·content is almost certainly somewhat more than that17·

·because we only catch it at the end of the month.18·

· · · · · · So in those few years where we have a19·

·dissection of the filling month where it didn't20·

·completely fill, it's gone up sometimes and then come21·

·down to that end-of-month number.··So in that sense,22·

·the numbers I'm using here are less than actually23·

·occurred.24·

· · ·· Q.· ·All right.··So unless it peaked on the very25·



Page 5717

·last day of the month, the peak could be either the·1·

·next day or 15 days later or so forth, and it could be·2·

·a foot of water or 10 feet of water?·3·

· · ·· A.· ·Yes.·4·

· · ·· Q.· ·All right.··And is it fair to say -- in the·5·

·course of your work with regard to Tongue River·6·

·Reservoir or your opinions about Tongue River·7·

·Reservoir, in this case, did you try and do an·8·

·investigation into the history and operation of the·9·

·reservoir?10·

· · ·· A.· ·Nothing beyond observing the historical11·

·contents data.··There was some memos we looked at that12·

·discussed the bypass -- with respect to the bypass13·

·requirement, yes, I did investigate that as best I14·

·could through historical documents.15·

· · ·· Q.· ·All right.··And you said that you also looked16·

·at the capacity or the end-of-month contents or17·

·something historically?18·

· · ·· A.· ·Yes.19·

· · ·· Q.· ·We looked at a document created by20·

·Mr. Sullivan in 1957 saying the reservoir hadn't been21·

·operated to capacity but rather to about 45,00022·

·acre-feet.23·

· · · · · · Is that consistent with what you saw when you24·

·reviewed this historic record?25·



Page 5718

· · ·· A.· ·Yes.··Yes.··In fact, it was Mr. Sullivan I·1·

·was thinking of.··He pointed out some years in which·2·

·end-of-month contents don't indicate a fill when there·3·

·actually was a fill.··So, yes, you're representing that·4·

·correctly.·5·

· · ·· Q.· ·Well, the other side of that coin is, I think·6·

·what we learned from the 1948 sedimentation study, that·7·

·the top 7 feet of the reservoir back in the day was·8·

·maintained for flood control space.·9·

· · · · · · Is that also consistent with your review of10·

·the historic record?11·

· · ·· A.· ·Yeah.··I don't know that you could coax the12·

·7 feet out.··But certainly, as Mr. Sullivan pointed13·

·out, through that period of time, '40s, '50s, and '60s,14·

·the reservoir was rarely filled to its capacity.··And15·

·that was before they had the issues with the spillway.16·

·So just the -- it looks like it was irrigated with some17·

·accommodation of a flood control pool that they18·

·declined to fill the thing to capacity.19·

· · · · · · We know from hydrology they could have filled20·

·it basically any of those years.··The operators21·

·declined to do that, in fact, filled it to that 40-,22·

·45,000 acre-feet arc that Mr. Sullivan identified.23·

· · ·· Q.· ·Is it typical, in your experience, for a24·

·reservoir owner to call for fill of flood control25·



Page 5719

·space?·1·

· · ·· A.· ·No.··No.··Quite the opposite.··They would·2·

·much appreciate upstream users taking additional water.·3·

· · ·· Q.· ·I'd like to ask you a question -- well, let·4·

·me just ask, does a failure to fill the reservoir --·5·

·and here I'm talking about to its present physical·6·

·capacity -- does that, in and of itself, tell us·7·

·whether there's a water shortage in the state of·8·

·Montana?·9·

· · ·· A.· ·No.··It just says you didn't fill that10·

·bucket.11·

· · ·· Q.· ·Well, why doesn't it tell us that there's a12·

·water shortage, that there's a problem?13·

· · ·· A.· ·Well, I guess we'd have to define what "a14·

·problem" is, then.15·

· · · · · · As I indicated in the report, if the goal of16·

·the reservoir is to be able to provide sufficient water17·

·to meet 32,000 acre-feet of storage delivery contracts18·

·and anything in excess of that doesn't merit the term19·

·problem, then there's no problem.··So, again, I guess20·

·I'd have to have in definition of what you call "a21·

·problem" to answer that more precisely.22·

· · ·· Q.· ·All right.··So we need to know what the23·

·pre-1950 capacity or the pre-1950 right of the24·

·reservoir is to know whether or not we have a problem.25·



Page 5720

·I think that's kind of what Mr. Tyrrell was·1·

·articulating the other day.··Tell me what the number·2·

·is, and then I can tell you whether I can meet it?·3·

· · ·· A.· ·Yeah.··And then whether it's a number or a·4·

·delivery requirement or however one wants to·5·

·characterize the right that one is trying to honor as·6·

·senior in a junior/senior regulation question, then·7·

·you've got something to work with.·8·

· · ·· Q.· ·Let me talk with you about the various·9·

·individual, I think, criticisms of Mr. Book's10·

·conclusions with regard to Tongue River Reservoir.11·

·Maybe that is not a fair way to describe it, but I12·

·can't think of another one right at the moment.13·

· · · · · · One of those criticisms in your report was14·

·that Mr. Book's concept of injury incorrectly assumed15·

·that additional inflows would be stored.16·

· · · · · · Can you explain what you mean by that?17·

· · ·· A.· ·Yeah.··The variation of what we were talking18·

·about heretofore of if injury means any time the19·

·reservoir is less than spilling and I reduce the amount20·

·of inflow of the reservoir, if you call it injury,21·

·which is what Mr. Book did, then it's injury.22·

· · · · · · When we look at the actual historical23·

·operation of the reservoir, however, we see that the24·

·operators have not chosen to fill the reservoir all the25·



Page 5721

·time.·1·

· · · · · · So if they are, say, spilling water for flood·2·

·control or operating the reservoir to a maximum winter·3·

·storage target of 45,000 and one provided additional·4·

·flow to the reservoir by virtue of regulating upstream·5·

·juniors, that flow would contribute nothing to the·6·

·success of the operation, to the success of the·7·

·reservoir and, therefore, would be wasted, I think is·8·

·the word I used with respect to that goal certainly.·9·

· · ·· Q.· ·All right.··In your answer you talked about10·

·the 45,000 acre-feet maximum winter carrying capacity,11·

·and we heard a number of witnesses talk about that.12·

· · · · · · In your review of the operations of the13·

·Tongue River Reservoir, is that a hard-and-fast number?14·

· · ·· A.· ·No.··With that number, as the other things15·

·and with the T & Y diversion we were looking at16·

·earlier, I try to expose, as best we can, any17·

·theoretical construct to what actually happened, a18·

·reality check, if you will.··And when one looks at the19·

·nominal constraint of a 45,000 acre-foot winter storage20·

·cap, it has been routinely exceeded since the21·

·enlargement was created.22·

· · · · · · So, no, basically one sees no sign of such a23·

·cap in the actual operations of that reservoir.24·

· · ·· Q.· ·I'm going to hand you what's been marked25·



Page 5722

·Exhibit W7.·1·

· · ·· A.· ·Okay.·2·

· · ·· Q.· ·If I understand correctly, Mr. Book gave us·3·

·an expansive table of the end-of-month values -- or·4·

·end-of-month contents for Tongue River Reservoir; true?·5·

· · ·· A.· ·Yes.·6·

· · ·· Q.· ·However, the end-of-month content table ended·7·

·in about 2008; correct?·8·

· · ·· A.· ·He may have included a couple of months of·9·

·2009, but in there.10·

· · ·· Q.· ·Nevertheless, it's well past 2008.··And the11·

·Montana Department of Natural Resources and12·

·Conservation continuously reports end-of-month contents13·

·for Tongue River Reservoir?14·

· · ·· A.· ·And I responded, yes, it does.15·

· · ·· Q.· ·So out in the world, there's data up to the16·

·present; correct?17·

· · ·· A.· ·There are.··You can find out what's going on18·

·today if you wanted to.19·

· · ·· Q.· ·Now, did you try to make current Mr. Book's20·

·table with regard to end-of-month contents?21·

· · ·· A.· ·I did.22·

· · ·· Q.· ·And how did you do that?23·

· · ·· A.· ·By going to the DNRC website on which the24·

·contents of Tongue River Reservoir are posted daily.25·



Page 5723

· · ·· Q.· ·And did you -- what did you do with that·1·

·information?·2·

· · ·· A.· ·Then Exhibit W7, I guess it is, we simply·3·

·populated the additional months and years on that·4·

·table.··So the data on this table from early 2009 to --·5·

·our last entry was August of 2013, are new since·6·

·Mr. Book compiled the table.·7·

· · ·· Q.· ·Where did you get that information?·8·

· · ·· A.· ·This information came from DNRC.·9·

· · ·· Q.· ·Did you prepare that spreadsheet table?10·

· · ·· A.· ·Yes.11·

· · · · · · MR. KASTE:··Move for the admission of Exhibit12·

·W7.13·

· · · · · · MR. DRAPER:··Your Honor, we object to this14·

·new evaluation by an expert after his expert report was15·

·submitted, after his deposition was taken.··We've had16·

·no chance to investigate this by asking the witness17·

·about it.··And it's an improper effort to supplement at18·

·too late a date the expert opinions of the witness.19·

· · · · · · SPECIAL MASTER:··Can I ask why it is that20·

·Exhibit W7 is not part of Exhibit W3?21·

· · · · · · MR. KASTE:··Oh, we created it after he22·

·prepared his report.··I don't deny that.··We, in the23·

·course of preparing for the trial, asked Mr. Hinckley24·

·to go on the website, populate this thing with DNRC25·



Page 5724

·data, which apparently nobody thinks is wrong.··It's a·1·

·publicly available database that we put together for·2·

·your information to supplement up to the present.··It·3·

·was created after the expert report but placed on our·4·

·exhibit list well in advance of these proceedings.·5·

· · · · · · And, frankly, I just don't think the data is·6·

·that controversial since it's Montana's data.·7·

·Mr. Smith has already testified that they haven't been·8·

·holding themselves to that maximum winter carryover·9·

·capacity since 2006.··This just puts a specific number,10·

·created by Montana, to that testimony.11·

· · · · · · MR. DRAPER:··Your Honor, if I might --12·

· · · · · · SPECIAL MASTER:··Mr. Draper.13·

· · · · · · MR. DRAPER:··-- respond?14·

· · · · · · He's just admitted that this was created15·

·after the fact.··It's responding to testimony here.16·

·It's the same kind of thing that they were trying to17·

·get into with Mr. Fritz yesterday.18·

· · · · · · It's not been something that we've been able19·

·to verify.··As we've seen, there are problems with how20·

·figures have been handled by this witness, figures that21·

·came from, supposedly, sources in Montana.··And I think22·

·it's -- for the reasons I stated earlier, this is an23·

·improper attempt to, at the eleventh hour, supplement24·

·an expert report without proper notice.25·



Page 5725

· · · · · · SPECIAL MASTER:··So, as you know, I've·1·

·generally been pretty liberal in letting things in.·2·

·But the one area where I feel I need to be fairly·3·

·strict is in the area of expert testimony since there·4·

·was more specific dates set out for the actual·5·

·submittal of the expert reports, depositions following·6·

·that.··So at this point, I'm not going to admit W7.·7·

· · · · · · MR. KASTE:··Okay.·8·

· · · · · · MR. DRAPER:··Thank you.·9·

·BY MR. KASTE:10·

· · ·· Q.· ·Turn that over so you don't look at it.11·

· · · · · · And tell me whether or not, since 2006, the12·

·Tongue River Reservoir has consistently operated above13·

·45,000 acre-feet.14·

· · ·· A.· ·It has.15·

· · ·· Q.· ·Like I said, I don't think it's terribly16·

·controversial, so we can move on.17·

· · · · · · You also say in your report that Mr. Book's18·

·"concept of injury fails to account for foregone19·

·storage opportunities."··Please explain that opinion.20·

· · ·· A.· ·This gets back to the water rights21·

·perspective that I proposed to have brought to this22·

·report.··And in a water rights doctrine of23·

·appropriation situation, a 1937 right would yield to24·

·pre-1937 rights and have a calling right against25·



Page 5726

·post-1937 rights, 1937 being the nominal priority of·1·

·the Tongue River Reservoir.·2·

· · · · · · So I asked myself, what have we got that's·3·

·going to trump the reservoir's 1937 in terms of·4·

·downstream rights that it has to pass water for,·5·

·understanding that anything beyond that it would be in·6·

·priority to store.·7·

· · · · · · So I compiled the main stem of the Tongue·8·

·River water rights below Tongue River Reservoir --·9·

·obviously, a tributary right wouldn't have a call10·

·against the reservoir -- and compiled those in the11·

·report.12·

· · · · · · The only rights of any significance operative13·

·during the winter are a series of stock rights.··So14·

·then the question becomes what is there -- what do15·

·these prior stock rights have by way of command of16·

·water to come on down and not be stored?17·

· · · · · · Those rights -- there are -- I don't know; I18·

·put the number in there -- say, 70 or 80 of them.19·

·Under the abstract associated rights, as I tried to20·

·understand what Montana's view of those rights were, it21·

·includes not only the quantity comparable to what you'd22·

·divert for your corn plant, which is 30 gallons per day23·

·per animal unit.24·

· · · · · · That's not a great deal of water.··But those25·



Page 5727

·water right abstracts, as they are being proposed for·1·

·the eventual adjudication of the Tongue River, carry a·2·

·provision and flow that is minimum flow necessary to·3·

·sustain that right language to that effect.·4·

· · · · · · So then the question would be, well, what's·5·

·that?··It's not quantified in the actual rights.··So I·6·

·tried to find what I could by way of research on how·7·

·much water is necessary.··This would be water that is·8·

·not itself beneficially used but is carrier water, if·9·

·you will, for these legitimate pre-1937 rights.10·

· · · · · · And the only information I could find that11·

·addressed that specifically was an analysis that the12·

·Department of Water Resources itself had created in13·

·1982.··Recall that '82 was the point at which Montana14·

·water users were coming forward with all of their15·

·claims to try to bring them into the current modern era16·

·of water rights regulation in Montana.17·

· · · · · · That was done by the head of their Water18·

·Resources Division, it was called at the time.19·

·Mr. Roberts McBeath, he opined from his studies that 5020·

·CFS was the necessary flow in the Tongue River to21·

·sustain these stock rights.··So that's the source of22·

·the 50 CFS that I used in my accounting analysis of how23·

·much water would they have stored had they only passed24·

·water to downstream seniors.25·



Page 5728

· · ·· Q.· ·In your investigations, have you come across·1·

·any other quantification of the water rights associated·2·

·with these -- or the stock water rights that you're·3·

·describing other than the McBeath memo?·4·

· · ·· A.· ·That's the only place I've seen it laid out·5·

·in terms of the number of rights and how much the cows·6·

·drink and all of that.··The only other place I've even·7·

·seen the 50 CFS were in minutes of one of the·8·

·Yellowstone River Compact Commission meetings quoting·9·

·Mr. Smith.10·

· · ·· Q.· ·Does it matter, for purposes of quantifying11·

·the stock rights, that 50 CFS, if there are a lot of12·

·cows or not too many cows downstream of the Tongue13·

·River Reservoir?14·

· · ·· A.· ·Well, it really makes no difference at all15·

·because of the algebra.··The consumptive piece of the16·

·50 CFS, if I'm remembering the McBeath memo, was .0317·

·CFS.··So it's -- I think an analogy would be if I18·

·conclude it takes 100 CFS to get my boat over the19·

·rocks, it doesn't take 200 CFS to get my boat and your20·

·boat over the rocks.··The same 100 CFS will float a21·

·thousand boats over the rocks.··So it really doesn't22·

·make any difference how many of these stock rights23·

·there are; 50 CFS is still the number.24·

· · ·· Q.· ·So if I understand right, you looked to see25·



Page 5729

·what are the rights that can conceivably call on Tongue·1·

·River Reservoir during the winter; is that fair?·2·

· · ·· A.· ·Correct.·3·

· · ·· Q.· ·Found these stock water rights and one·4·

·quantification in the record of 50 CFS; is that·5·

·correct?·6·


· · ·· Q.· ·And what effect does it have on Tongue River·8·

·Reservoir if its bypasses are limited -- and not in the·9·

·physical sense 'cause they can do whatever they want10·

·with their water, from an accounting sense -- on Tongue11·

·River Reservoir, if the bypasses are accounted for in12·

·only that amount necessary to satisfy downstream senior13·

·rights?14·

· · ·· A.· ·Well, harking back to your earlier question15·

·about what does it take to fill a reservoir, and the16·

·answer is not much, even under historical operations.17·

·So, not surprisingly, if you limited the bypasses to 5018·

·CFS, the reservoir, it just fills right up to the top19·

·basically every year.20·

· · ·· Q.· ·Can we look at Figure 5a?··Now, isn't that21·

·opinion we were discussing represented in a graphic22·

·form here on Figure 5a?23·

· · ·· A.· ·Yes, it is.24·

· · ·· Q.· ·Tell us what Figure 5a shows us about the25·



Page 5730

·effect of accounting bypasses in this manner.·1·

· · ·· A.· ·Sure.··Let me walk you through the diagram·2·

·for starters.·3·

· · · · · · The green line is historic contents as·4·

·extracted from -- either directly from DNRC or through·5·

·Mr. Book.··I don't have any quarrel with his·6·

·compilations there.··Then the black line is·7·

·hypothetical.·8·

· · · · · · If instead of what they historically did they·9·

·had bypassed only 50 CFS to the extent it was10·

·available, understanding if there was only 40 CFS of11·

·natural flow they would only do the 40, almost always12·

·there, but had they bypassed either the natural flow13·

·coming into the reservoir or 50 CFS, whichever is14·

·smaller, then the black line describes what the15·

·contents of the reservoir would have looked like over16·

·this modeled period.17·

· · ·· Q.· ·And so you see two reference lines along the18·

·top, one at 69,400 acre-feet and one at what is19·

·corrected to be 79,071 acre-feet.20·

· · · · · · Why did you choose to put those two reference21·

·lines in there?22·

· · ·· A.· ·The 79,071 is simply the physical capacity of23·

·the reservoir.··So that gives us one benchmark in that24·

·anything more than that we know just goes over the25·



Page 5731

·spillway and down river 'cause it has no physical·1·

·alternative.·2·

· · · · · · Now, coming down from that, I put in the·3·

·69,400 acre-feet as a reference line to capture the·4·

·1950 capacity of the reservoir, as documented in many,·5·

·many DNRC water right abstracts and documents of·6·

·various sorts.··So that number is found quite widely in·7·

·the background materials.·8·

· · ·· Q.· ·Also, down at the bottom you have four little·9·

·bars.··What do those represent?10·

· · ·· A.· ·Those represent the acre-feet of alleged11·

·Wyoming depletion in those four years drawn from -- as12·

·indicated there, from Mr. Book's Table 12 of his13·

·January report.··So those were simply added for14·

·perspective.15·

· · ·· Q.· ·And would we get a sense of that perspective16·

·by looking at the difference between green line and the17·

·black line to put in perspective the size of the18·

·alleged depletions by Wyoming in comparison to the19·

·effects of bypasses in excess of 50 CFS?20·

· · ·· A.· ·One could do that.21·

· · ·· Q.· ·So if you just pick a point on the green line22·

·and go straight up, you see what the effects of those23·

·bypasses in excess of 50 are for that particular point24·

·in time?25·



Page 5732

· · ·· A.· ·The difference between the green line and the·1·

·black line is the difference between historical·2·

·operations and a 50 CFS bypass.·3·

· · ·· Q.· ·Now, using Figure 5a if necessary, was there·4·

·enough water available in Montana -- utilizing this 50·5·

·CFS bypass as the limit for accounting purposes, was·6·

·there enough water available in Montana, in each of the·7·

·four years discussed by Mr. Book, to store 32,000·8·

·acre-feet of water?·9·

· · ·· A.· ·Yes.10·

· · ·· Q.· ·What about 45,000 acre-feet?11·

· · ·· A.· ·Yes.12·

· · ·· Q.· ·What about 60,000 acre-feet of water, which13·

·we heard is the current limit of beneficial use under14·

·the water right?15·

· · ·· A.· ·Yes.16·

· · ·· Q.· ·What about 69,400?17·

· · ·· A.· ·Yes.18·

· · ·· Q.· ·What about 79,071?19·

· · ·· A.· ·Yes, for every year, save 2002.20·

· · · · · · Now, the figure -- black line of the21·

·figure 2004 doesn't quite kiss the line.··But if you22·

·note that in the text, I said I would release as much23·

·water as actually was released in 2004.··You can see24·

·when you look at the green line and the black line --25·



Page 5733

·can I draw on this?·1·

· · ·· Q.· ·Yeah.·2·

· · ·· A.· ·Right here, that I overreleased.··So had I·3·

·actually done what I intended to do and only released·4·

·the storage that actually was released, then that piece·5·

·would end up right here and it would fill in 2004 as·6·

·well.··So with that small modification of the model,·7·

·the answer is that it would have filled to its current·8·

·capacity in all years except 2002.·9·

· · ·· Q.· ·All right.··Let me ask you about how -- and10·

·maybe it's proper to ask you about how this figure and11·

·Mr. Book treated evaporation from the reservoir.12·

· · · · · · Who -- in those analyses, who is paying for13·

·the evaporation?14·

· · ·· A.· ·Because this analysis is based on a physical15·

·filling of the reservoir, one has to ring the bell, is16·

·the term people use to say you're full.··So if you're17·

·pouring water into the bucket and it's filling up and18·

·it's evaporating, then you just have to keep pouring19·

·water in until it hits the rim.··So in that sense, the20·

·other draws on the bucket, the evaporation, is taken up21·

·by the inflow, so one has to make those up with22·

·inflows.23·

· · ·· Q.· ·Some of that water -- or that water is coming24·

·from Wyoming in order to reach these values on your25·



Page 5734

·figure?·1·

· · ·· A.· ·Yes.··In that scenario, the obligation to·2·

·replace that evaporation would fall on the upstream·3·

·juniors.·4·

· · ·· Q.· ·Okay.··Do you have an opinion about whether·5·

·regulation in Wyoming in the years in question for the·6·

·benefit of Tongue River Reservoir would actually simply·7·

·result in waste?·8·

· · ·· A.· ·Based on the accounting of Figure 5a, any·9·

·additional water provided in any year except 2002 would10·

·have simply gone over the spillway, so would not have11·

·provided any benefit to this facility.12·

· · ·· Q.· ·And what about if water had been provided at13·

·times where Montana was holding the reservoir to a14·

·45,000 acre-feet maximum winter carryover capacity?15·

· · ·· A.· ·Similarly, if that water would not have been16·

·stored by the -- at the discretion of the operator,17·

·then it could hardly be said to be injurious to have it18·

·absent.19·

· · ·· Q.· ·What about times where Montana is passing20·

·more than 50 CFS of water out the bottom of their dam?21·

·Would more water from Wyoming make any difference to22·

·Montana?23·

· · ·· A.· ·Well, it would make a difference in that they24·

·could store a little bit and still pass whatever it is25·



Page 5735

·they were passing.··So physically there's room to store·1·

·it, but it would not make any difference with respect·2·

·to the water rights to which they're obligated to pass·3·

·water.·4·

· · · · · · MR. KASTE:··All right.··This might be a good·5·

·time for lunch because we're about to move to that·6·

·portion of your report that talks about the impact of·7·

·post-1950 diversions in Wyoming on Montana.·8·

· · · · · · SPECIAL MASTER:··Okay.··Why don't we take our·9·

·lunch break, then.··We'll come back at about ten after10·

·1:00.11·

· · · · · · And I'm planning on staying here for a moment12·

·and pulling together various reports.··So people are13·

·free just to head off.··Thank you.14·

· · · · · · · · · · · (Recess taken 12:10 to 1:1715·

· · · · · · · · · · · p.m., December 3, 2013)16·

· · · · · · SPECIAL MASTER:··Everyone can be seated.17·

·BY MR. KASTE:18·

· · ·· Q.· ·All right.··Let's go back and explain how you19·

·can take out values and get a higher average or20·

·something.21·

· · ·· A.· ·Very tricky.22·

· · ·· Q.· ·In fact, you've had a moment to sit not under23·

·the pressure that comes with being on the stand and24·

·figure out why you reported that value in Table -- was25·



Page 5736

·it 4?·1·

· · · · · · SPECIAL MASTER:··Remind me what page.·2·

· · · · · · MR. KASTE:··Oh, it's actually Table 3 on page·3·

·16.·4·


· · ·· Q.· ·And I think you had indicated that the·6·

·value -- the corrected value is 38,756.··Is that right?·7·


· · ·· Q.· ·Okay.·9·

· · ·· A.· ·And it is correct.10·

· · ·· Q.· ·It is correct.··But how did you get there?11·

· · ·· A.· ·Okay.··Thank you.12·

· · · · · · The issue was one that we didn't run to13·

·ground, but my initial reaction was the right one.14·

·It's an aberration in the sense of if you add across15·

·the row labeled "Average" on Table 3, you get a16·

·different answer than if you averaged down the column17·

·labeled "Total."18·

· · · · · · It's a function of when we throw 1999 out19·

·completely, then we lose a year whose previous total20·

·was 48.··That way, when we average the column, we come21·

·up with a smaller number because we've lost a whole22·

·year's worth by throwing out the year that goes with23·

·that August.24·

· · · · · · And when we go to individual columns, it's25·



Page 5737

·because we then keep that -- say that July '99 is kind·1·

·of the culprit, if there is one in here.··It survives·2·

·the column addition, but it is lost in the row·3·

·averaging.·4·

· · ·· Q.· ·So let me see if I can articulate this a·5·

·little differently.·6·

· · · · · · Since you dropped a value for a particular·7·

·month in a particular year, it's no longer fair or·8·

·appropriate to then create an annual total in the far·9·

·right-hand column 'cause you don't have the full annual10·

·total; right?11·

· · ·· A.· ·Right.12·

· · ·· Q.· ·So when you eliminated these months, you13·

·dropped off the years 2003 and 1999 and then ended in14·

·an average of the years that remain for which you had15·

·full values?16·


· · · · · · SPECIAL MASTER:··So you --18·

· · · · · · THE WITNESS:··You could go crossways or19·

·sideways and get to the same place.20·

· · · · · · SPECIAL MASTER:··So you basically have now21·

·eliminated some other numbers from the table which you22·

·hadn't mentioned earlier.··So you're eliminating the23·

·total numbers also from 1999, and you're also24·

·eliminating the total numbers for 2003?25·



Page 5738

· · · · · · THE WITNESS:··Yes.··That's what I forgot to·1·

·say.··I'm sorry.·2·

· · · · · · In the page I'm looking, it just shows those·3·

·as blanks.··That's exactly right.··Delete -- let's do·4·

·that carefully.··On 1999, Table 3, delete the 48,433 in·5·

·the far right column and delete the 33,129 in the far·6·

·right column for 2003.··So there we've identified the·7·

·issue.·8·

· · · · · · SPECIAL MASTER:··And the reason why now the·9·

·average total no longer works for both columns is that,10·

·for purposes of thinking about the total vertically,11·

·you've eliminated two years, whereas for purposes of12·

·doing it horizontally, you have basically eliminated13·

·particular months, recalculated averages.14·

· · · · · · THE WITNESS:··Yes.15·

· · · · · · SPECIAL MASTER:··So in many ways, the total16·

·number down in the bottom right-hand corner doesn't17·

·have -- it has a specific meaning, but its meaning now18·

·is it's the average for the years for which you have19·

·every month.20·

· · · · · · THE WITNESS:··Yeah.··You just choose to read21·

·the row column out for the -- the column title for the22·

·row title, then you get to slightly different places.23·

· · · · · · SPECIAL MASTER:··But, again, I don't think we24·

·have to hammer this to death.··But basically that total25·



Page 5739

·average over on the right bottom side is now the·1·

·average for the years -- average total for the years·2·

·'97, '98, 2000, 2001, 2002, 2004, and 2005?·3·

· · · · · · THE WITNESS:··That's correct.·4·

· · · · · · SPECIAL MASTER:··Okay.·5·

· · · · · · MR. DRAPER:··And what is that number?·6·

· · · · · · SPECIAL MASTER:··I'm sorry.··It was 38,756·7·

·when I wrote it in earlier.··Is that still correct?·8·

· · · · · · THE WITNESS:··That's correct.··And then that·9·

·flows on the other pages, as I indicated in the percent10·

·and everything else.··So there's no mistake.··What11·

·there is is some ambiguity.··And the other number is12·

·close enough to that that it doesn't affect the13·

·conclusions.14·

·BY MR. KASTE:15·

· · ·· Q.· ·And this portion of the report is part of16·

·your report talking about the direct-flow demand model17·

·created by Mr. Book.··And I forgot to ask something I18·

·think is relatively important about that portion of19·

·your analysis, and so I'm go to do that now before we20·

·move on to post-'50 uses.21·

· · · · · · You've indicated, I think for a number of22·

·reasons, Mr. Book's model doesn't go a very good job of23·

·predicting an actual direct-flow deficit at particular24·

·times, and I'm wondering if there is a good or a better25·



Page 5740

·way to predict an actual direct-flow deficit.·1·

· · ·· A.· ·Well, the prospective of water rights and the·2·

·doctrine of appropriation again offers us a method to·3·

·do just that.··That has been well articulated and·4·

·implemented for a hundred years, and that is·5·

·contemporaneous prior appropriation.··If you want to·6·

·know what somebody wants, ask them.·7·

· · ·· Q.· ·Does the contemporaneous portion of that kind·8·

·of activity take into account all the variables you·9·

·described in your criticisms of Mr. Book's model?10·

· · ·· A.· ·It does.··It integrates whatever is going11·

·through an appropriator's mind in terms of economics,12·

·operations, financial status, whatever it is.··And we13·

·don't need to know those things.··It is all integrated14·

·into a contemporaneous expressed desire to have a right15·

·satisfied.16·

· · ·· Q.· ·Does it take into account things like water17·

·availability and weather and crop demands and all that?18·

· · ·· A.· ·Yes.19·

· · ·· Q.· ·And might be the easiest way to go too, huh?20·

·Is it terribly difficult?··We don't have to do any hard21·

·math, do we?22·

· · ·· A.· ·No.··No one has to have the monitoring23·

·available to do that.··And some level of regulatory24·

·structure, kind of a home for that is communications.25·



Page 5741

·But, no, it's certainly routinely done all over the·1·

·place.·2·

· · ·· Q.· ·All right.··Let's turn, then, to the portion·3·

·of your analysis that talks about the impact of·4·

·post-1950 diversions in Wyoming on the state of·5·

·Montana.··And I'd like to use Table 6 on page 33 of·6·

·your report as sort of the backdrop for this·7·

·discussion.·8·

· · · · · · And I think it makes sense for you to just·9·

·tell us what you're trying do here in Table 6.··What10·

·are you trying to convey?11·

· · ·· A.· ·Table 6 was my attempt to bring the work of12·

·Mr. Fritz and Dr. Schreüder, integrate that -- they13·

·were on the demand side or the supply side.··I was14·

·basically working on the demand side in Montana to15·

·bring those into conjunction, is what I was doing here.16·

· · · · · · And I can just walk down the table.··Starting17·

·with the Book Table 12 from the January report, the18·

·average of those numbers totals about 2800.··His more19·

·recent report reduces that to about 2000.··So not20·

·hugely different.21·

· · · · · · Then I move on in my matrix B to the numbers22·

·that Mr. Fritz developed, and those two gentlemen have23·

·a few differences remaining.··The Fritz average, I24·

·think, is 1400.··So now the question is whatever number25·



Page 5742

·represents the depletion exercise of post-'50 water·1·

·rights in Wyoming, what is the impact of that on water·2·

·rights in Montana?··Which is what I say comes back over·3·

·into my court.·4·

· · · · · · Matrix C I think we can just dispense with.·5·

·As I understand it, those two gentlemen have come to·6·

·some concurrence on the use of the Kearney Lake return·7·

·flows, and that's all the matrix C was about.·8·

· · · · · · And then in matrix D is where I then go·9·

·through and say, okay, take the line that's labeled10·

·"Post-'50 storage," for example.··Was that injurious to11·

·Montana water rights?12·

· · · · · · As we went through, my conclusion was if13·

·Tongue River Reservoir had been operated to maximize14·

·storage consistent with downstream senior rights, it15·

·would have failed.··Therefore, there would have been no16·

·injury.··And it's the basis of that that I have zeroed17·

·those post-'50 storage quantities.18·

· · · · · · Same with the Wagner-Fivemile line of the --19·

·any one of the four matrices.··I'm looking at the20·

·bottom one on page 33 now.··So I'm basically saying21·

·that, yes, those may have happened, but they happened22·

·at a time and under a reservoir operational condition23·

·in which there was no injury done to the Montana water24·

·right.25·



Page 5743

· · · · · · The "import returns," I've just accepted·1·

·those from Mr. Fritz's work.·2·

· · · · · · The "evaporation" I have discounted slightly·3·

·for the same reason.··That impacts to -- nominal·4·

·impacts to Tongue River Reservoir storage I am·5·

·discounting on the basis of the foregone diversions.·6·

· · · · · · "Post-'50 acreage," those I've simply brought·7·

·forward from Mr. Fritz's work and adjusted.·8·

· · · · · · And then "CBM effects," as we discussed·9·

·earlier, I have adopted zero as the groundwater base10·

·flow impact on the Tongue River but have brought11·

·forward the augmentation that we can document occurred12·

·in 2004.··That's the negative 30.13·

· · ·· Q.· ·So the negative 30 comes from the direct flow14·

·discharge information you talked about?15·


· · ·· Q.· ·Okay.17·

· · ·· A.· ·There were some of those in the bottom line,18·

·and the conclusion is that the effects of exercise of19·

·post-'50 water rights, and perhaps I should say20·

·post-'50 activities to include the Kearney Lake return21·

·flows, are small augmentations of the Tongue River in22·

·each of those four years.23·

· · ·· Q.· ·So Montana owes me water?24·

· · ·· A.· ·Yeah, not much.25·



Page 5744

· · ·· Q.· ·All right.··So maybe this is clear to·1·

·everybody and not -- and I might be the only one.··But·2·

·my understanding of Mr. Book's assessment of injury·3·

·related primarily to the Tongue River Reservoir.··And·4·

·so why is it you would zero out the effects of·5·

·post-1950 storage in Wyoming and yet not zero out·6·

·things like evaporation and the post-1950 irrigated·7·

·acres?·8·

· · ·· A.· ·If I understood the work of Mr. Book and·9·

·Mr. Fritz correctly, those are post-'50 -- depletion10·

·due to post-'50 activity in Wyoming that occurred11·

·during the irrigation season.··So as I remarked in the12·

·report and we heard from the other authors, nobody has13·

·gotten inside the irrigation season in terms of what14·

·happened before the call dates of '4 and '6, for15·

·example.16·

· · · · · · So in that sense, the table is somewhat17·

·generous to the Montana position in that it accounts18·

·everything that happened within the irrigation season19·

·as relevant to post-'50 -- or pre-'50 rights, direct20·

·flow diversion rights in Montana.21·

· · ·· Q.· ·So the storage component that you're zeroing22·

·out is something occurring outside of the irrigation23·

·season?24·

· · ·· A.· ·Correct.25·



Page 5745

· · ·· Q.· ·I see.··Okay.··So in the end, did the·1·

·post-1950 uses in Wyoming identified by Mr. Book make·2·

·any difference to the State of Montana in these four·3·

·years?·4·

· · ·· A.· ·A slight augmentation is my conclusion.·5·

· · ·· Q.· ·Well, what did make a difference?·6·

· · ·· A.· ·Well, the most remarkable thing about 2001,·7·

·'2, '4, and '6, of course, was the drought.··And·8·

·much -- most, virtually, all of the evidence that we·9·

·have for injury to agricultural operations is a10·

·function of it just plain being dry, selling cattle11·

·herds, and stream flows declining.··It was -- those12·

·were perilously dry years in both states.13·

· · · · · · Now, that aside, the difference from, say,14·

·pre-2000 to post-2000 was the management of Tongue15·

·River Reservoir.16·

· · ·· Q.· ·If it had been managed differently in a way17·

·that maximized storage opportunities, was -- well, one,18·

·could it have done that?19·

· · ·· A.· ·Yes.20·

· · ·· Q.· ·And there was water available to do that?21·

· · ·· A.· ·And there was water available to do that.22·

· · ·· Q.· ·And would it have made a big difference to23·

·the irrigators downstream late in the season?24·

· · ·· A.· ·It would have made water available to them,25·



Page 5746

·yes.·1·

· · ·· Q.· ·And I think one additional change that's·2·

·occurred in this 2000 period, in addition to a·3·

·drought -- which, from the way I understand it, was·4·

·more prolonged than perhaps previous droughts; is that·5·

·fair?·6·

· · ·· A.· ·Yeah, depending on your measure.··By some·7·

·measures, 2002 was the driest year since anybody has·8·

·been keeping track.·9·

· · ·· Q.· ·The other difference that I see is the10·

·addition of the tribal water right inside Tongue River11·

·Reservoir.12·

· · · · · · Did that make a difference?13·

· · ·· A.· ·That made a difference.14·

· · ·· Q.· ·How so?15·

· · ·· A.· ·Part of it is the way that the reservoir16·

·operators have chosen to manage that right.··For17·

·example, they pay shares on the Tongue River Water18·

·Users' Association based on the percent of full for the19·

·whole reservoir.20·

· · · · · · Now that the whole reservoir is a little21·

·bigger, it's slightly harder to fill, which makes it22·

·slightly more likely to do partial shares rather than23·

·full shares.··I'm not sure that's a consequence that24·

·was entirely intended, but there's an accounting issue25·



Page 5747

·that the position was eroded by just the accounting·1·

·that the larger reservoir creates.··And to isolate·2·

·20,000 acre-feet of the reservoir as inviolate reduces·3·

·the available storage to meet contract obligations.·4·

·They increased the reservoir by 10 and took 20 of it·5·

·and set it aside, so it's a net loss of 10,000·6·

·acre-feet of available storage.·7·

· · ·· Q.· ·So in some sense, were the irrigators in the·8·

·Tongue River Water Users' Association better off with a·9·

·smaller reservoir?10·

· · · · · · MR. DRAPER:··This is a leading question, Your11·

·Honor, and I object to it.12·

· · · · · · SPECIAL MASTER:··I think you can rephrase the13·

·question.14·

·BY MR. KASTE:15·

· · ·· Q.· ·I don't know what's leading about it.··Was it16·

·better for them with a smaller reservoir or not?17·

· · ·· A.· ·I think they were more able -- better able to18·

·meet their contract delivery requirements to the Tongue19·

·River Water Users' Association with the smaller20·

·reservoir, yes.21·

· · · · · · MR. KASTE:··Thank you.··I have no further22·

·questions.23·

· · · · · · SPECIAL MASTER:··Okay.··Thank you, Mr. Kaste.24·

· · · · · · Mr. Draper, when you're ready.25·


BERN HINCKLEY - December 3, 2013Cross-Examination by Mr. Draper

Page 5748

· · · · · · MR. DRAPER:··Okay.··If I can take a minute to·1·

·get organized here, Your Honor.·2·

· · · · · · SPECIAL MASTER:··That would be fine.··In·3·

·fact, why don't we just go off the record for two or·4·

·three minutes so other people can talk if they want to·5·

·during this period.··Then just let us know when you're·6·

·ready.·7·

· · · · · · · · · · · (Discussion held off the·8·

· · · · · · · · · · · record.)·9·

· · · · · · MR. DRAPER:··All right.··Your Honor, I'm set.10·

· · · · · · SPECIAL MASTER:··Okay.··Why don't we go back11·

·on the record.12·

· · · · · · So, Mr. Draper, you can begin the13·

·cross-examination.14·

· · · · · · MR. DRAPER:··Thank you very much.15·

· · · · · · SPECIAL MASTER:··You're welcome.16·

· · · · · · · · · ·· CROSS-EXAMINATION17·

·BY MR. DRAPER:18·

· · ·· Q.· ·Good afternoon, Mr. Hinckley.19·

· · ·· A.· ·Good afternoon.20·

· · ·· Q.· ·I'd like to look first at your21·

·qualifications, which are on page 38 of your report.22·

· · ·· A.· ·Okay.23·

· · ·· Q.· ·Now, this page describes your education and24·

·professional background.··It indicates that you are --25·



Page 5749

·you're not an engineer; isn't that right?·1·

· · ·· A.· ·I am not registered as a professional·2·

·engineer, that's correct.·3·

· · ·· Q.· ·And you have no degree in engineering?·4·

· · ·· A.· ·I have no degree in engineering.·5·

· · ·· Q.· ·And you have no formal training in·6·

·engineering; isn't that right?·7·

· · ·· A.· ·No.·8·

· · ·· Q.· ·You have engineering degrees or programs?·9·

· · ·· A.· ·No.··You asked if I have a degree in10·

·engineering.··I do not.··My degrees are in geophysical11·

·and geological sciences and applied earth sciences.12·

·But along the way, there's a great deal of what would13·

·count as, small e, engineering associated with those14·

·degrees.15·

· · ·· Q.· ·So your undergraduate was in geology and16·

·geophysics; right?17·


· · ·· Q.· ·And you did your senior thesis on the19·

·evolution of a volcano?20·

· · ·· A.· ·I did.21·

· · ·· Q.· ·And your education followed up with a22·

·master's in applied earth sciences; correct?23·


· · ·· Q.· ·And there you did your master's thesis on the25·



Page 5750

·effect of off-road vehicle traffic on the Mojave·1·

·Desert; right?·2·

· · ·· A.· ·Yes.·3·

· · ·· Q.· ·And you're a geologist; correct?·4·

· · ·· A.· ·My degrees are in geology.··I'm registered as·5·

·a professional geologist.·6·

· · · · · · Let me correct that.··My degrees are in·7·

·geology and applied earth sciences.··Thank you.·8·

· · ·· Q.· ·Thank you.··And you indicate that you have·9·

·specialized expertise in groundwater resource10·

·evaluation and management; isn't that right?11·

· · ·· A.· ·I believe I have considerable expertise in12·

·that field, yes.13·

· · ·· Q.· ·In fact, you've described it as your core14·

·expertise; isn't that right, is groundwater resources?15·

· · ·· A.· ·Did I use the word "core"?··I don't recall.16·

· · ·· Q.· ·I'm thinking of other times that you've17·

·stated your qualifications.··And you often say that18·

·your core expertise is groundwater resources; is that19·

·right?20·

· · ·· A.· ·I don't recall whether I used the word "core"21·

·or not.··I maintain an active interest and have a lot22·

·of experience with groundwater exploration and23·

·development.24·

· · ·· Q.· ·You've focused largely on groundwater issues25·



Page 5751

·in your professional career since your education; isn't·1·

·that right?·2·

· · ·· A.· ·No, that's not correct.·3·

· · ·· Q.· ·Well, your employment that you cite on page·4·

·38 at the bottom, for instance?·5·

· · ·· A.· ·Uh-huh.·6·

· · ·· Q.· ·Refers to James M. Montgomery, Consulting·7·

·Engineers, currently Montgomery/Watson-Harza?·8·

· · ·· A.· ·Yes.·9·

· · ·· Q.· ·That was one of the places that you worked10·

·after receiving your degrees; correct?11·

· · ·· A.· ·Yes.12·

· · ·· Q.· ·And there, as you state at the top of page13·

·39, you were a supervising hydrogeologist; isn't that14·

·right?15·


· · ·· Q.· ·And isn't hydrogeology focused primarily on17·

·groundwater issues?18·

· · ·· A.· ·Yes.··I think if you were to say what does a19·

·hydrogeologist do, it would mostly look at groundwater.20·

·So my title there was supervising hydrogeologist.21·

· · · · · · If you want to note the etymology of the22·

·titles, an engineering firm often -- the word23·

·engineering in a title is reserved for those who are24·

·registered or registerable as professional engineers.25·



Page 5752

·So I wouldn't make too much of the job classification·1·

·in that regard.·2·

· · ·· Q.· ·And you also indicate at the same point that·3·

·you worked for a groundwater resources firm based in·4·

·Idaho; correct?·5·


· · ·· Q.· ·And a significant part of your work tends to·7·

·continue to be with regard to groundwater; isn't that·8·

·right?·9·

· · ·· A.· ·I think significant would be appropriate.10·

· · ·· Q.· ·That includes the representation or work that11·

·you mentioned on your direct testimony for the Idaho12·

·Groundwater Association?13·

· · ·· A.· ·That was strongly focused on hydrogeology,14·

·yes.15·

· · ·· Q.· ·And that was this year that you did the16·

·testimony in that case?17·


· · ·· Q.· ·Now, it's true, isn't it, that you've never19·

·operated a dam?20·

· · ·· A.· ·Oh, I've operated canvas dams with a shovel.21·

·But, no, I've never operated a large dam like we're22·

·talking about here.23·

· · ·· Q.· ·Okay.··And it's also true that you've never24·

·been responsible for the operation of a dam; isn't that25·



Page 5753

·right?·1·

· · ·· A.· ·That's absolutely true.·2·

· · ·· Q.· ·Now, the experience that you have that·3·

·relates to dams is in terms of reviewing reservoir·4·

·accounting by the Bureau of Reclamation in the North·5·

·Platte system; isn't that right?·6·

· · ·· A.· ·Yeah.··I think it's more than just the Bureau·7·

·of Reclamation reservoirs in the North Platte.··But it·8·

·is definitely the accounting, the water rights attached·9·

·to reservoirs, rather than the nuts and bolts, valves,10·

·hydraulics, sorts of things, that's correct.11·

· · ·· Q.· ·So your experience is in terms of12·

·after-the-fact reviewing accounting as to what happened13·

·during previous reservoirs operations; is that right?14·

· · ·· A.· ·No.··Some of the things we discussed in the15·

·North Platte reservoirs, those are done on a daily16·

·basis.··And there are complex daily accounting17·

·procedures to look at reservoir physical capacity,18·

·reservoir ownerships, storage, and natural flow,19·

·segregation in the releases from those reservoirs.20·

·Those are done on a realtime day-to-day basis.21·

· · ·· Q.· ·And you're not involved in those realtime22·

·day-to-day activities, are you?23·

· · ·· A.· ·I'm not presently involved in those24·

·activities, no.··But my experience includes opportunity25·



Page 5754

·to critically review the way those are accounting and·1·

·have input into how those accounting systems are set·2·

·up, computerized, and how they presently move forward.·3·

·But, no, I don't have any day-to-day responsibilities·4·

·in those kinds of operations.·5·

· · ·· Q.· ·And as you stated in your deposition, your·6·

·role is limited more to the algebra rather than the·7·

·management goals of reservoir operation; isn't that·8·

·right?·9·

· · ·· A.· ·Yeah.··I guess it depends on what one meant10·

·by the management goals.··But as -- I tried to11·

·emphasize my interest here in this report was the water12·

·rights aspects of reservoir operations and management.13·

·I'm not sure where one draws those lines exactly.14·

· · ·· Q.· ·As you stated in your deposition, you -- with15·

·respect to the North Platte operations, you were not16·

·privy to determinations regarding the how and why of17·

·operating the reservoir to balance the needs between18·

·irrigation contracts and releases for other purposes;19·

·isn't that right?20·

· · ·· A.· ·No.··I'm -- I have been exposed to all of21·

·that in the course of my involvement with those.··No22·

·one has asked me to do a professional analysis of the23·

·appropriate in-stream flow release, for example.··But24·

·those numbers certainly flow through the analyses that25·



Page 5755

·I have performed and examined.·1·

· · ·· Q.· ·So they are part of the accounting review·2·

·that you have engaged in?·3·

· · ·· A.· ·Yes.·4·

· · ·· Q.· ·You have had no experience in determining the·5·

·flow rate, for instance, for flushing flows?·6·

· · ·· A.· ·I have not.··I've been exposed to those, but·7·

·I have not been part of the determination of what the·8·

·appropriate flows are.·9·

· · ·· Q.· ·And isn't it fair to say that you've had10·

·little experience in determining how, why, and when11·

·various types of nonirrigation releases need to be12·

·made?13·

· · ·· A.· ·I'm sorry.··Give me the first part of your14·

·question again.15·

· · ·· Q.· ·Isn't it fair to say that you have very16·

·little experience in determining how, why, and when17·

·various types of nonirrigation releases need to be18·

·made?19·

· · ·· A.· ·Well, I think it would be fair to say I20·

·haven't been in a position of making those21·

·determinations, but I have certainly had opportunity to22·

·review those kinds of determinations and compile the23·

·results of those and assess the water flow hydrologic24·

·impacts of those kinds of nonirrigation flows,25·



Page 5756

·diversions, releases.·1·

· · ·· Q.· ·Now, there are many competing considerations·2·

·that need to be taken into account in making reservoir·3·

·operation decisions; isn't that right?·4·

· · ·· A.· ·I expect that's right.··As we established, I·5·

·haven't been involved in making all of those kinds of·6·

·decisions, so I think you could find others who would·7·

·list them out for you better than I.·8·

· · ·· Q.· ·Now, you've had some experience with respect·9·

·to analyzing water rights issues in Wyoming, haven't10·

·you?11·

· · ·· A.· ·I have.12·

· · ·· Q.· ·But you don't have any previous experience13·

·analyzing water rights outside of Wyoming, do you?14·

· · ·· A.· ·Oh, yeah, I wouldn't say that.··Water rights15·

·have been part and parcel of some of the work we've16·

·done in Nebraska and Idaho, for example.··So I'm17·

·certainly most familiar with the water rights situation18·

·in Wyoming but by no means exclusive.19·

· · ·· Q.· ·You've never done that with respect to20·

·Montana water rights before this case, have you?21·

· · ·· A.· ·No.··This is my first exposure to Montana22·

·water rights, that's correct.23·

· · ·· Q.· ·Let me ask you to turn, if you would, to page24·

·7 of your report.25·



Page 5757

· · ·· A.· ·Okay.·1·

· · ·· Q.· ·Now, you state there at the top of page 7·2·

·that "Tongue River Reservoir has not been managed to·3·

·maximize storage at all times"; isn't that right?·4·

· · ·· A.· ·That is correct.·5·

· · ·· Q.· ·You have analyzed some of the prior·6·

·operations of the Tongue River Reservoir for purposes·7·

·of this case, haven't you?·8·

· · ·· A.· ·Yeah.··I've documented the results of those·9·

·operational decisions.··I'm not quite sure what you10·

·mean by analyze them.11·

· · ·· Q.· ·Well, let's look at your Figure 2, if you12·

·please.··It's on a page that has Wyoming Bates13·

·No. 043051.14·

· · ·· A.· ·Okay.15·

· · ·· Q.· ·What's the period that you analyze in this16·

·figure?17·

· · ·· A.· ·This figure runs from 1991 to 2009.18·

· · ·· Q.· ·This period includes both periods of high19·

·water supply and low water supply; is that right?20·

· · ·· A.· ·I think that's fair.21·

· · ·· Q.· ·Do you believe that this period is fairly22·

·representative for the purposes of your analysis?23·

· · ·· A.· ·Yes.24·

· · ·· Q.· ·Now, this shows the monthly inflows and25·



Page 5758

·outflows from the Tongue River Reservoir; correct?·1·

· · ·· A.· ·It shows the monthly inflows, and then·2·

·outflows -- it does show the outflows.··I had thought·3·

·for a moment it just showed the summer bypasses, but·4·

·that's a different figure.··So, yes, I agree with your·5·

·characterization.·6·

· · ·· Q.· ·And we can see that in most years there's --·7·

·there are peak monthly flows that rise up to the higher·8·

·parts of what's graphed here; correct?·9·

· · ·· A.· ·Yes.··In fact, Figure 3 summaries that in a10·

·single year.··But Figure 2 shows the strong focus of11·

·flows in May and June.12·

· · ·· Q.· ·And those peak flows tend to be in those two13·

·months, May and June; correct?14·

· · ·· A.· ·Yes.15·

· · ·· Q.· ·We can see the highest one there going up16·

·above 3000 CFS in 1995; correct?17·

· · ·· A.· ·Correct.18·

· · ·· Q.· ·And the figure CFS, that's the average CFS19·

·for the month; correct?20·

· · ·· A.· ·Yes.··The conversion across the table is21·

·labeled in acre-feet on the left and monthly CFS on the22·

·right.··The two aren't precisely corresponding because23·

·some months have a different number of days in them24·

·than others, but with that small difference, those two25·



Page 5759

·are just a unit conversion.·1·

· · ·· Q.· ·Now, over this period, the peak inflows,·2·

·except for the extreme years like the 1995 year we·3·

·looked at and a few others, they tend to rise up to·4·

·somewhere in the maybe 1500 CFS range, more or less?·5·

· · ·· A.· ·Yeah, that looks about right.·6·

· · ·· Q.· ·But if we look at 2004, what would you say·7·

·the peak monthly inflow rates were for 2004?·8·

· · ·· A.· ·Oh, it looks like it was rare to get over·9·

·200.10·

· · · · · · Now, these numbers are tabled in one of our11·

·documents, if you wanted to look at the actual numbers.12·

·But I think from the graph we can see that 200 is13·

·somewhere in the right ballpark.14·

· · ·· Q.· ·So there was very little, if any, spring15·

·runoff that reached the reservoir in that year.··It was16·

·more or less about the same as the inflows during the17·

·winter; isn't that right?18·

· · ·· A.· ·Oh, yeah, you can see a little blip there.19·

·That's probably May and June, but it wasn't much.20·

· · ·· Q.· ·Now, the same would be true of some of the21·

·other years we've talked about that are shown here,22·

·like 2001 and 2002?23·

· · ·· A.· ·Sure.24·

· · ·· Q.· ·And 2006?25·



Page 5760

· · ·· A.· ·Yeah.··2006 less so.··There's the one month·1·

·there it's up around -- oh, it looks like 500, 555 CFS,·2·

·something like that.··And 2006 was the best of those·3·

·four, I think.·4·

· · ·· Q.· ·Uh-huh.··Are there other years in this period·5·

·that you've selected that are comparable to the 2001,·6·

·2002, '4, and '6 years we've just looked at?·7·

· · ·· A.· ·No.··And with that prompting, let me revise·8·

·my earlier answer to the period of record.·9·

· · · · · · If you go clear back into the '40s, these '1,10·

·'2, '4, '6 would still stand out.··So at that level,11·

·one could say this is not entirely characteristic of12·

·the entire flow record for the river.13·

· · ·· Q.· ·But over this 20-year period that you've14·

·selected, they are pretty unique, aren't they?15·

· · ·· A.· ·Yeah, I think they are rare.16·

· · ·· Q.· ·And it's the low-flow years that are really17·

·at issue in this case, isn't it?18·

· · ·· A.· ·That would fit my perception.19·

· · ·· Q.· ·That's when people get worried about water,20·

·when there isn't very much; right?21·

· · ·· A.· ·Right.··There's plenty for everyone, then it22·

·tends to calm all the nerves.23·

· · ·· Q.· ·Now, in the fall and early winter, there's no24·

·way to know what the coming year runoff is going to be25·



Page 5761

·like, is there?·1·

· · ·· A.· ·I don't know if I'd go with no way, but it's·2·

·more difficult to predict the further out that·3·

·prediction extends.·4·

· · ·· Q.· ·It's very uncertain, during the fall and·5·

·early winter, as to whether you're going to have a good·6·

·year or a bad year; is that right?·7·

· · ·· A.· ·It becomes less uncertain as the year·8·

·progresses.·9·

· · ·· Q.· ·So by the time you get into the early spring,10·

·you can see snowpack and other indicators of what the11·

·runoff might be, you're in a much better position,12·

·aren't you?13·

· · ·· A.· ·Certainly you're in a better position.··I14·

·might offer the example of the North Platte main stem15·

·reservoir, as we've talked about.··They begin to make16·

·year-specific predictions of inflow based on their17·

·February forecast.··Up until then, they tend to use18·

·average data.19·

· · · · · · So, yeah, depending on the situation, one20·

·becomes increasingly confident of their predictions as21·

·spring approaches.22·

· · ·· Q.· ·Wouldn't you agree with me that, in the fall23·

·and early winter, having a high degree of uncertainty24·

·about what kind of a runoff year it is going to be, to25·



Page 5762

·operate the reservoir as if it were going to be one of·1·

·these unusual, very dry years?·2·

· · ·· A.· ·I'm sorry.··What was the question?·3·

· · ·· Q.· ·Wouldn't you agree with me that it is not·4·

·reasonable to operate a reservoir -- I realize you're·5·

·not purporting to be an expert in reservoir operations·6·

·per se.·7·

· · · · · · But wouldn't you agree with me that when·8·

·there's a high degree of uncertainty in the fall and at·9·

·least the early winter as to what kind of a runoff10·

·you're going to have, whether it's going to be good or11·

·whether it's going to be bad, it wouldn't be12·

·unreasonable to say we've got to run this reservoir as13·

·if it's going to be a bad year?14·

· · ·· A.· ·I don't think I have a particular opinion on15·

·that.··If your goal was flat out, I'm going to make16·

·sure that this reservoir is as full as it possibly can17·

·be, one would take every opportunity to achieve that18·

·goal.19·

· · ·· Q.· ·And if that was your only consideration, to20·

·make it as full as quickly as it can be, it would fill21·

·in the winter, wouldn't it?22·

· · ·· A.· ·Most years it would fill certainly earlier23·

·than it has filled.··We could look at my analysis and24·

·tell you exactly.··But it would fill sooner than it has25·



Page 5763

·certainly.··Probably wouldn't fill in the winter --·1·

·well, I don't know.··Have to look at the numbers and·2·

·see.·3·

· · ·· Q.· ·So it would begin spilling even during the·4·

·winter under that kind of operation, wouldn't it?·5·

· · ·· A.· ·It could.·6·

· · ·· Q.· ·And that would not be an efficient way to run·7·

·the reservoir, would it?·8·

· · ·· A.· ·Why not?··I mean, if your goal is to maximize·9·

·the storage in the reservoir, then you'd maximize the10·

·storage in that reservoir, and the spills would spill11·

·as they happen to occur.12·

· · ·· Q.· ·You recognize that there are competing13·

·considerations, considerations that compete with the14·

·goal of maximizing storage, don't you?15·

· · ·· A.· ·I have understood that there are other16·

·operational considerations.··And the decisions of the17·

·reservoir managers certainly reflect that.18·

· · ·· Q.· ·But it's your position that, to the extent19·

·those other considerations are recognized and the20·

·reservoir doesn't fill, that the reservoir should not21·

·be protected with respect to filling in the spring?22·

· · · · · · MR. KASTE:··I think that question calls for a23·

·legal conclusion about the consequences of these24·

·particular actions.··And it's certainly outside the25·



Page 5764

·scope of Mr. Hinckley's direct examination.··I am·1·

·making that assertion certainly.··But I don't think·2·

·that's for Mr. Hinckley to address.·3·

· · · · · · SPECIAL MASTER:··Well, maybe I'm in the same·4·

·spot as actually Mr. Hinckley, but I didn't actually·5·

·fully understand the question.··So you might want to·6·

·rephrase it, and then we'll -- then Mr. Kaste can·7·

·object again if he wants to.·8·

· · · · · · MR. DRAPER:··Okay.·9·


· · ·· Q.· ·Is it your position that Wyoming should have11·

·no obligation -- and you've testified in your direct12·

·about whether water should be let down, and we put it13·

·in those forms.14·

· · · · · · Is it your position that Wyoming should not15·

·have to let water down to fill the reservoir if it has16·

·been operated in a way to recognize other17·

·considerations, such as dam safety or downstream18·

·safety, that kind of thing?19·

· · · · · · MR. KASTE:··I would renew my objection.··And,20·

·again, I think it calls for a legal conclusion,21·

·although it accurately represents my position.22·

· · · · · · SPECIAL MASTER:··Well, I guess two or three23·

·things.··First of all, I think if it were asked as an24·

·open question, then it would be asking for a legal25·



Page 5765

·conclusion.··And I'm assuming this witness is not·1·

·testifying as an attorney.·2·

· · · · · · I actually think what Mr. Draper was asking·3·

·was whether or not that's what he is trying to --·4·

·that's what he is saying in his testimony.··And I think·5·

·the witness is free to say, no, I'm actually not saying·6·

·anything about the law or how you would apply the law·7·

·or what Wyoming's rights might be in his expert·8·

·opinion.·9·

· · · · · · THE WITNESS:··What was the question?··I'm10·

·sorry.··Maybe I'll just answer the question I think you11·

·asked.12·

· · · · · · And what I've done here is to calculate the13·

·effects of operating the reservoir wherein the only14·

·water released was to meet downstream senior demands15·

·through the winter.··And then I've tabled, for our use,16·

·the results of that.17·

· · · · · · Now, how that might interleave with a legal18·

·theory on what the Tongue River water right is is19·

·another question.··And as we discussed earlier, there20·

·are various ways to look at what that water right might21·

·be.22·

· · · · · · What I am saying is that the reservoir would23·

·physically be full had bypasses been limited to those24·

·necessary to meet downstream senior rights.25·



Page 5766

·BY MR. DRAPER:·1·

· · ·· Q.· ·Let me quote from page 12 of your report,·2·

·paragraph No. 2, third sentence.·3·

· · ·· A.· ·Let me catch up with you.··I'm sorry.··12.2?·4·

· · ·· Q.· ·Paragraph No. 2.·5·

· · ·· A.· ·Okay.·6·

· · ·· Q.· ·Third sentence, it says, "Thus, it is·7·

·reasonable to require a storage right to make·8·

·reasonable efforts to store all available inflows."·9·

· · · · · · Is that your position?10·

· · ·· A.· ·Yes, in the context of water rights.11·

· · · · · · Now, there may be other reasons that are12·

·recognized by various sources for various purposes.··So13·

·as I've tried to emphasize throughout my testimony, my14·

·perspective on this was water rights and the extent to15·

·which a senior has a right to call for regulation of an16·

·upstream junior under the doctrine of appropriation.17·

·In that context, it's, I believe, reasonable to require18·

·storage right to exercise every opportunity to -- to19·

·fill itself.20·

· · ·· Q.· ·So it's not your position that the Tongue21·

·River Reservoir should be operated in an unsafe manner?22·

· · ·· A.· ·I don't have any opinion on the safety or23·

·lack of safety of the operation of the Tongue River24·

·Reservoir.25·



Page 5767

· · ·· Q.· ·Have you considered limitations on storage·1·

·related to protecting the reservoir itself?·2·

· · ·· A.· ·I have not.·3·

· · ·· Q.· ·Have you considered limitations on the·4·

·operation of the reservoir related to icing conditions·5·

·downstream of the reservoir?·6·

· · ·· A.· ·Only to the extent that those are subsumed·7·

·within Mr. McBeath's assessment of a 50 CFS requirement·8·

·to deliver water to senior stock rights downstream.·9·

·Part of that assessment, I assume, includes channel10·

·conditions and ice, although, in fairness, he didn't11·

·share those details with us, so I don't know that.12·

· · ·· Q.· ·That memo that you're referring to, that13·

·didn't make any mention of icing, did it?14·

· · ·· A.· ·No, there was no explicit mention of icing.15·

· · · · · · I believe the statement was something, all16·

·things considered, in my engineering judgment, I think17·

·50 CFS is an adequate flow, or words to that effect.18·

·We could look at them.··But there was no explicit19·

·mention of ice that I recall.20·

· · ·· Q.· ·Let's take a look at that particular21·

·document.··I believe it's Exhibit W60.··And let me see22·

·if I can provide you a copy and if we could put it up23·

·on the screen.24·

· · · · · · SPECIAL MASTER:··Let's go off the record.25·



Page 5768

· · · · · · · · · · · (Discussion held off the·1·

· · · · · · · · · · · record.)·2·

· · · · · · SPECIAL MASTER:··Let's go back on the record.·3·


· · ·· Q.· ·Do you have Exhibit W60 there, Mr. Hinckley?·5·

· · ·· A.· ·I do.·6·

· · ·· Q.· ·Is this the memorandum you were talking·7·

·about?·8·

· · ·· A.· ·Yes, it is.·9·

· · ·· Q.· ·First of all, let's look at the "Re" clause.10·

· · ·· A.· ·I'm sorry.··The what?11·

· · ·· Q.· ·I call it the "Re" clause.12·

· · ·· A.· ·I don't know that term.13·

· · ·· Q.· ·It's -- the third title going down says R-E14·

·colon.15·

· · ·· A.· ·Sure.16·

· · ·· Q.· ·Sometimes you'll see "subject."17·

· · ·· A.· ·Yeah, I'm with you.18·

· · ·· Q.· ·This shows that the subject of this19·

·memorandum is, as it states here, "Claim of existing20·

·water rights for Montana Department of Natural21·

·Resources and Conservation."··And it has some further22·

·identifying information.23·

· · · · · · Do you see that?24·

· · ·· A.· ·Yes.25·



Page 5769

· · ·· Q.· ·And if we look at the first sentence of the·1·

·document, there it says, "The purpose of this·2·

·memorandum is to document the manner in which the claim·3·

·of existing water rights for Tongue River Reservoir·4·

·project was developed."·5·

· · · · · · Do you see that?·6·

· · ·· A.· ·Yes.·7·

· · ·· Q.· ·Now, that refers only to the rights of the·8·

·Montana Department of Natural Resources and·9·

·Conservation, doesn't it?10·

· · ·· A.· ·That -- the memo was developed around, as I11·

·indicated earlier, the claim being brought forward for12·

·the Tongue River Reservoir.13·

· · ·· Q.· ·And its purpose is not to quantify stock14·

·water rights of others, for instance.15·

· · ·· A.· ·That's -- yeah, that's correct.··This was not16·

·a memo that was developed solely to quantify stock17·

·water rights.··It did that in the process of meeting18·

·its goal of informing the statement of claim for the19·

·Tongue River Reservoir.20·

· · ·· Q.· ·And this would be a claim of the reservoir21·

·for stock water, wouldn't it?22·

· · ·· A.· ·I suppose.··Again, my use of it was not a23·

·directive of that particular point.··But that's -- it24·

·was related to the right for the reservoir and how much25·



Page 5770

·water they would have to release to satisfy the need to·1·

·get water down to the stock for whatever reasons,·2·

·whether part of their right or others.·3·

· · ·· Q.· ·Well, let's look to -- I think it's the third·4·

·page where the specific discussion on the stock water·5·

·calculation is included.·6·

· · ·· A.· ·Okay.·7·

· · ·· Q.· ·And we went to this initially to see what --·8·

·whether that included icing considerations and·9·

·quantification.10·

· · · · · · Does that talk about icing?11·

· · ·· A.· ·No.··This says very close to what I believe I12·

·remembered about the professional judgment, and the13·

·words "ice" were not included.14·

· · ·· Q.· ·All right.··So we've confirmed that?15·

· · ·· A.· ·Yes.16·

· · ·· Q.· ·But let's look back at that initial part of17·

·the memorandum.··That indicates, does it not, that this18·

·is not a memorandum seeking to quantify downstream19·

·stock water rights of others that must be observed by20·

·the project but, rather, the stock water rights of the21·

·project itself; isn't that right?22·

· · ·· A.· ·Well, again, I haven't analyzed it with that23·

·in mind.··But I think that's -- the general idea is24·

·these guys were trying to say what release do we need25·



Page 5771

·to have attached to our Tongue River Reservoir right to·1·

·meet the needs of downstream cattle.·2·

· · · · · · Now, one cow looks the same as another, as·3·

·far as I can tell, and I used it as an analysis of what·4·

·it takes to get water to cattle.··And I'm trusting·5·

·Mr. McBeath's analysis of that for whatever purpose.·6·

· · ·· Q.· ·All right.··Now, let me follow up a little·7·

·bit on the related issue of icing.·8·

· · · · · · Have you been on the Tongue River in the·9·

·winter?10·

· · ·· A.· ·I crossed it coming back and forth to these11·

·trials, but I have not stood on the ice.··And I have12·

·not seen it in the winter below the interstate bridge.13·

· · ·· Q.· ·And I'm sure you've noticed in the last week14·

·or two here in Billings that there's actually been ice15·

·floes in the Yellowstone and main stem itself flowing16·

·through town?17·

· · ·· A.· ·I have noticed that, yes.18·

· · ·· Q.· ·So we're already seeing that even in -- well,19·

·that would have been in November; correct?20·

· · ·· A.· ·Yes.21·

· · ·· Q.· ·In that regard, I'd like to direct your22·

·attention to Montana Demonstrative Exhibit 4, which I23·

·have projected on the screen.24·

· · · · · · You were here for testimony by the water25·



Page 5772

·users in Montana, weren't you?·1·

· · ·· A.· ·I was.·2·

· · ·· Q.· ·And you heard testimony with regard to the·3·

·icing problems that occur as the river flows north·4·

·towards Miles City; isn't that right?·5·

· · ·· A.· ·I have, yes.·6·

· · ·· Q.· ·And you heard Mr. Hayes' testimony with·7·

·regard to pictures that are included -- and if we could·8·

·look at the second picture and the third picture as·9·

·well -- that show actual icing conditions on the Tongue10·

·River in the winter; correct?11·

· · ·· A.· ·I don't remember which picture comes from --12·

·but, yeah, this one, that's pretty impressive.··I13·

·remember seeing that go by.··I don't remember where it14·

·was.··But, yes, I attended the testimony related to15·

·these photos.16·

· · ·· Q.· ·And you attended the testimony where it was17·

·described that some of these pieces of ice can be as18·

·big as a school bus; right?19·

· · ·· A.· ·I think someone opined to that effect, yes.20·

· · ·· Q.· ·So consideration of icing issues might not be21·

·an inappropriate consideration in operating the Tongue22·

·River Reservoir.··Would you agree?23·

· · ·· A.· ·Well, I don't know little more about it than24·

·we heard during that testimony.··I think those25·



Page 5773

·gentlemen made a compelling case that icing could be a·1·

·problem.··How that relates to the operation of Tongue·2·

·River Reservoir is a slightly different question.·3·

· · ·· Q.· ·Let me turn back to your report, if you·4·

·please.··Let's take a look at Figure 5a, if you please.·5·

· · ·· A.· ·Okay.·6·

· · ·· Q.· ·Now, on this graph, you have one number·7·

·indicated at the top, 79,782.··That's one of the·8·

·numbers you corrected earlier today?·9·


· · ·· Q.· ·Now, you also indicate there with an arrow to11·

·the right of that first number a -- is it a magenta12·

·line, depending on which copy we're looking at?13·

· · ·· A.· ·Kind of purple on mine.··But, yeah, that14·

·other line there, 69,000.15·

· · ·· Q.· ·That's indicated to be 69,400 acre-feet?16·

· · ·· A.· ·Yes, I see that line.17·

· · ·· Q.· ·Okay.··Now, you put that line on this graph,18·

·didn't you?19·

· · ·· A.· ·I did.20·

· · ·· Q.· ·Why did you put it on there?21·

· · ·· A.· ·I was looking for what I hoped would be22·

·relevant reference points against which to measure the23·

·accomplished and modeled contents of the Tongue River24·

·Reservoir.··On Figure 4 I added several other lines in25·



Page 5774

·that same spirit of here are lines which are -- may be·1·

·useful references in this discussion.·2·

· · ·· Q.· ·Are you suggesting that there are two·3·

·different priorities in Tongue River Reservoir?·4·

· · ·· A.· ·My intention was to accommodate that·5·

·interpretation.··I'm not offering that interpretation.·6·

·But that's one of -- that would be an obvious one.·7·

· · ·· Q.· ·You understand that Montana takes serious·8·

·exception to that notion, I expect?·9·

· · ·· A.· ·I have understood this to be represented as10·

·commingled.··I've also heard representations of a 70 --11·

·what, 70,250 as a possible reference point for the12·

·original capacity of the reservoir.··And I've included13·

·a reference of 65,000 as the capacity of the reservoir14·

·immediately prior to the enlargement.··So any of those15·

·could arguably be used to differentiate an old pool16·

·from a new pool, a junior from a senior.17·

· · ·· Q.· ·Or a pre-enlargement to a post-enlargement?18·

· · ·· A.· ·Yes.19·

· · ·· Q.· ·Now, you recognize the standard practice that20·

·was used by Mr. Fritz and Mr. Book when analyzing21·

·reservoir operations, that the water stored under an22·

·earlier priority -- the earliest priority is considered23·

·to be released first; is that right?24·

· · ·· A.· ·I understood that as one option for managing25·



Page 5775

·a multipool reservoir.·1·

· · ·· Q.· ·And you accept that, don't you?·2·

· · ·· A.· ·Accept it as one option to manage a multipool·3·

·reservoir, yes, it can be done that way.·4·

· · ·· Q.· ·And you don't disagree with Mr. Fritz's·5·

·analysis that did it that way on the Wyoming reservoir,·6·

·do you?·7·

· · ·· A.· ·I didn't analyze what Mr. Fritz did with·8·

·respect to that question with any care.·9·

· · ·· Q.· ·And you don't disagree with Mr. Book's10·

·analysis that also was based on that standard approach?11·

· · ·· A.· ·I did not review Mr. Book's analysis of12·

·Wyoming reservoir storage except in its bottom line, as13·

·we discussed earlier in this testimony.14·

· · ·· Q.· ·Is it your thought that it's appropriate to15·

·analyze operations of a reservoir assuming that the16·

·junior water is released first?17·

· · ·· A.· ·I think it depends.··My experience with18·

·multipool reservoirs provides examples of various ways19·

·to do that.20·

· · · · · · Let me talk about Horse Creek, for example.21·

·The Hawk Springs Reservoir we were talking about22·

·earlier, it has a conservation pool, an irrigation pool23·

·that is slightly senior to a pool that is dedicated to24·

·game and fish habitat mitigation.25·



Page 5776

· · · · · · Each of those pools evaporates, as any pool·1·

·will.··And they refill their evaporation in priority·2·

·when the spring flood comes in.··So there's just one·3·

·example of a junior pool that has its own releases and·4·

·its own accruals and a senior pool that has its own·5·

·releases and accrual.··And they think of it·6·

·geometrically.··They sit side by side rather than one·7·

·on top of the other.·8·

· · ·· Q.· ·But we're not talking about that kind of an·9·

·arrangement here.··We're talking about common ownership10·

·of an early priority and a later priority pool; isn't11·

·that right?··And the example you've just given has12·

·different users for those two different pools you just13·

·mentioned in Horse Creek.14·

· · ·· A.· ·In my example, those are two different users,15·

·that's correct.16·

· · ·· Q.· ·Okay.··Well, let's just see what the17·

·consequence of your alternative approach is briefly.18·

· · · · · · If you have an enlargement space and you19·

·consider that you're going to release from that20·

·enlargement space, assuming you start with a full21·

·reservoir, would that release your junior right first?22·

·You're going to have physical space available for23·

·storage in your reservoir, but now you're going to be24·

·at the other end of the priority line.··You won't be25·



Page 5777

·able to store until all the other intervening rights on·1·

·the river have had their call on the water; isn't that·2·

·right?·3·


· · ·· Q.· ·And that's not the normal way that these·5·

·operations are accounted for, is it?·6·

· · ·· A.· ·I, again, would look to my own experience and·7·

·suggest that it depends on the reservoir.·8·

· · · · · · Pathfinder Reservoir is another one that·9·

·we've spent a lot of time talking about.··As we know,10·

·it has an enlargement of 54,000.··It releases itself,11·

·and it fills itself in priority.··It's treated as12·

·though it were a separate reservoir.··I gave you an13·

·example from --14·

· · ·· Q.· ·Well, let's stop with that one first.··The15·

·Pathfinder space, enlargement space that you mentioned,16·

·that's for other purposes, other beneficiaries of that17·

·water, isn't it?18·

· · ·· A.· ·It is.19·

· · ·· Q.· ·Okay.··So we have -- you're taking us to20·

·where there's separate ownership.··And if there's owner21·

·A and owner B, of course they take it according to22·

·their priority.··And they can do that.23·

· · · · · · We're talking about where you have a single24·

·ownership but multiple priorities.25·



Page 5778

· · ·· A.· ·This is a hypothetical?··If we accept the·1·

·proposition that there is only one ownership in Tongue·2·

·River Reservoir?··Am I understanding your question·3·

·correctly?·4·

· · ·· Q.· ·That there's a common single ownership, yeah.·5·

· · ·· A.· ·If it was a single ownership and it had two·6·

·priorities and it were within the parameters of the·7·

·water right for the owner to choose which pool was·8·

·being used at a particular time, then obviously it·9·

·would be to that owner's advantage to safeguard their10·

·junior water and release their senior water.11·

· · · · · · So if those were the parameters of the deal,12·

·then, yes, that would be the logical decision of the13·

·operator.14·

· · ·· Q.· ·And the ownership, as you understand it, of15·

·the Tongue River Reservoir is not divided between16·

·69,400 and the rest of the reservoir, is it?17·

· · ·· A.· ·I don't know that.··I see the 20,000 that18·

·seems to be identified with the Northern Cheyenne19·

·Tribes suggests itself as a separate pool.··But I'm not20·

·offering an opinion on the correct water right21·

·differentiation within the Tongue River Reservoir.22·

· · ·· Q.· ·Now, if we go according to the way Mr. Fritz23·

·and Mr. Book have analyzed these and consider that the24·

·senior water stored under common ownership is released25·



Page 5779

·first and that that applies to the Tongue River·1·

·Reservoir --·2·

· · ·· A.· ·Okay.·3·

· · ·· Q.· ·-- then the 69,400 acre-foot line here that·4·

·you've drawn on your Figure 5a is irrelevant, isn't it?·5·

· · ·· A.· ·Yeah.··Again, if we constrain it as you have·6·

·hypothetically and we accept the fact that, for·7·

·example, evaporation doesn't occur to that junior water·8·

·either.··But, yes, I can configure a hypothetical in·9·

·which the 69,4 doesn't make any difference, like I just10·

·poured 10,000 acre-feet of concrete in the reservoir.11·

· · ·· Q.· ·And that junior water which you can think of12·

·as sitting at the bottom of the reservoir, that's13·

·water, say, for a period of shortage, isn't it?14·

· · ·· A.· ·Could be.15·

· · ·· Q.· ·You wouldn't be able to store that water16·

·under water-short conditions.··You have stored it in a17·

·good year when the reservoir fills to the full physical18·

·capacity and it sits there, doesn't it, for a time of19·

·need under dry conditions?20·

· · ·· A.· ·Well, that would be the sense of my earlier21·

·answer.··If you indeed owned the whole reservoir and22·

·the water right in your relationship with other water23·

·rights was such that you had the option of putting24·

·junior water in one place and senior water in another,25·



Page 5780

·and if there were no provisions for charging·1·

·evaporation to that junior pool, then, obviously, your·2·

·best bet would be to stash it at the bottom, as you·3·

·say, somehow isolate it, and save it for a time when·4·

·you would not otherwise have access to junior water,·5·

·that would be a sensible operation.·6·

· · ·· Q.· ·Now, you described this figure during your·7·

·direct testimony.··And can you describe what its effect·8·

·is in terms of how often the reservoir fills under your·9·

·analysis?10·

· · ·· A.· ·Well, it fills in every year, but one of the11·

·1991 to 2009 period addressed here --12·

· · ·· Q.· ·That was in 2002?13·

· · ·· A.· ·That was in 2002, correct.14·

· · · · · · -- physically fills.15·

· · ·· Q.· ·Now, I think you said that the indication in16·

·2004 that it didn't quite fill -- I believe you used17·

·the expression "didn't quite kiss the top line18·

·there" -- was due to a miscalculation on your part?19·

· · ·· A.· ·Well, miscalculation or a refinement of the20·

·model.··In the text, I said that I was honoring the21·

·historical release from the reservoir.22·

· · · · · · In this particular case, I probably realized23·

·afterwards I had not quite met that standard and I24·

·overreleased.··So whether it's a correction or just the25·



Page 5781

·next refinement of the model to more accurately reflect·1·

·the input data, my current opinion is that -- and I·2·

·think the graph bears that out in simple graphical·3·

·fashion -- that had I stopped my releases there as the·4·

·two lines are coming down in 2003, then it would indeed·5·

·have filled in 2004.·6·

· · ·· Q.· ·But in order to fill in 2004 under your·7·

·example here on this graph, this assumes that it went·8·

·up to the full nearly 80,000 acre-foot storage content·9·

·the year before; isn't that right?10·

· · ·· A.· ·Which it did.··That's important to -- this11·

·adjustment that I'm offering is that -- the only way12·

·that I can know what it really did is if model and13·

·reality started in the same place, which was the fill14·

·that occurred in 2003.15·

· · ·· Q.· ·But if you were limiting the ability of the16·

·reservoir to fill to the 69,400 in that previous year,17·

·it wouldn't have filled in 2004, would it?··It would be18·

·offset by the same amount as the difference between the19·

·69,4 and the top line?20·

· · ·· A.· ·No, I don't think that's right.··If I'm21·

·following you, the effect of your question would be to22·

·just change all the numbers on the left-hand side by23·

·10,000 so that we'll erase the 69,4 line and have24·

·what's 80,000 be full.··So maybe I'm not understanding25·



Page 5782

·your question correctly.·1·

· · · · · · But I think the relationship of the -- of·2·

·these black lines to my 79,071 would be the same·3·

·relationship to 69,4 if the reservoir capacity were·4·

·limited to 69,4.··It's going to come up that close·5·

·or -- and hit it or not precisely as is diagrammed·6·

·here.··Had I modeled this as a 69,400 acre-foot·7·

·reservoir, you just move all the lines down.·8·

· · ·· Q.· ·But your ability in 2004 to come as high as·9·

·it does is dependent on a full fill to the higher10·

·amount, isn't it?11·

· · ·· A.· ·Well, let me try to say it this way.··Let's12·

·say that it only made it to the 70,000 line in 2003.13·

·Then it would have gone correspondingly deeper as it14·

·moved into 2004 and it would have come up15·

·correspondingly less.··And that black line would have16·

·missed the 69,4 by exactly the same amount it missed17·

·the 79,782.18·

· · · · · · Now, of course, 2004 is a bad example because19·

·it actually made it to the line.··But 2002 it would20·

·have failed to meet the -- hit the 69,4 line by21·

·precisely -- more or less, the gap that it shows22·

·missing the 79,071 line.··It's just a scaling issue at23·

·that point.24·

· · · · · · You've had less to start with, but your goal25·



Page 5783

·would have been exactly less.·1·

· · ·· Q.· ·By the way, the status of the reservoir in·2·

·terms of how full it is at any given point in time,·3·

·that's information that's freely available on the web;·4·

·isn't that right?·5·

· · ·· A.· ·Yes, it is.·6·

· · ·· Q.· ·Now, in doing your analysis that's shown in·7·

·Figure 5a -- and you did a similar analyses in 5b and·8·

·c, just with a different assumption on the bypass --·9·

·that pays no attention to the 45,000 acre-foot winter10·

·maximum foot storage limit, doesn't it?11·

· · ·· A.· ·It does not.12·

· · ·· Q.· ·It can go any amount -- in your analysis, it13·

·can go any amount above the 45,000, can't it?14·

· · ·· A.· ·Yes.15·

· · ·· Q.· ·Do you know why that 45,000 acre-foot limit16·

·is there?17·

· · ·· A.· ·Right.··I know only what is written in the18·

·operations plan as attached to Mr. Smith's expert19·

·report.20·

· · ·· Q.· ·On page 5 you refer to this --21·

· · ·· A.· ·I'm sorry.··I didn't catch the page number.22·

· · ·· Q.· ·Page 5.23·

· · ·· A.· ·Okay.24·

· · ·· Q.· ·In the second full paragraph under your No. 225·



Page 5784

·there in the top half of page 5 -- just for the record,·1·

·so we're straight, this is Bates No. WY043014 -- you·2·

·state, "The O & M manual for Tongue River Reservoir·3·

·recommends a 'winter' storage maximum of 45,000·4·

·acre-feet"; correct?·5·

· · ·· A.· ·Yes.·6·

· · ·· Q.· ·And you go on to state in the next sentence,·7·

·"Thus, storage opportunities in certain months are·8·

·deliberately foregone despite reservoir storage being·9·

·well below capacity"; correct?10·

· · ·· A.· ·Correct.11·

· · ·· Q.· ·Is it the implication of that -- a fair12·

·implication of that statement that if the operators of13·

·the reservoir do not -- if they observe that 45,00014·

·acre-foot limit, that they should not enjoy the ability15·

·to fill in the spring to the full capacity of the16·

·reservoir?17·

· · · · · · MR. KASTE:··I think I might have the same18·

·exact objection to that question.··I think it calls for19·

·a legal conclusion.20·

· · · · · · SPECIAL MASTER:··Can I just ask one question21·

·here?··At the very -- let me just ask two questions at22·

·the moment.23·

· · · · · · So in your testimony, are you making or24·

·intending to make any legal conclusions?25·



Page 5785

· · · · · · THE WITNESS:··Well, I'm bringing my notions·1·

·of what the doctrine of appropriation means to my·2·

·analysis by virtue of the things I've chosen to·3·

·present.··But I certainly am not trying to offer an·4·

·opinion of what water right for the Tongue River·5·

·Reservoir is or ought to be.·6·

· · · · · · SPECIAL MASTER:··So here's one of my·7·

·problems.··I'm not sure that the witness has been·8·

·qualified to even give that opinion at the moment.··And·9·

·yet if he is giving those opinions, then I think10·

·Mr. Draper has a right to ask questions with respect to11·

·that.12·

· · · · · · MR. KASTE:··Well, I ain't afraid of the13·

·answer.··Go ahead.14·

· · · · · · SPECIAL MASTER:··I mean, I will tell you15·

·right now, you know, based on what I know, I will16·

·discount any views with respect to opinions with17·

·respect to the prior appropriation system except to the18·

·degree the witness testifies as to his own experience19·

·on something.20·

· · · · · · So -- but you're free to ask your question,21·

·Mr. Draper.··I'm just telling you right now in terms of22·

·the way in which I will treat this testimony.23·

· · · · · · MR. DRAPER:··Very good, Your Honor.··I think24·

·that's the appropriate approach.··And I'm just trying25·



Page 5786

·to make sure that we understand the implications of the·1·

·information that the witness has offered in his exhibit·2·

·here.·3·

· · · · · · SPECIAL MASTER:··Understood.··And I guess,·4·

·you know, again, in my recommendations to the Court --·5·

·and I assume the Court itself will make up its own·6·

·determination of the law, both under prior·7·

·appropriation and under the compact, and apply them·8·

·then to the facts that are before us.··And so in terms·9·

·of, you know, particular suggestions that a failure to10·

·comply with a particular standard that the reservoir is11·

·currently meeting means that, as a legal right, the12·

·reservoir is not entitled to water later in the year,13·

·that will be based on whatever the numbers show and14·

·then what the Court ultimately determines is the law in15·

·this particular case.16·

· · · · · · And so in terms of what I believe17·

·Mr. Hinckley is qualified to testify on, that is the18·

·extent, basically the accounting side, which is what19·

·Mr. Kaste originally said.··So -- but having said that,20·

·if you want to ask the questions, you're free to ask21·

·them.22·

· · · · · · I'm a little bit concerned, to the degree you23·

·ask them, that we'll get more deeply into an area which24·

·is really not law and really not facts.25·



Page 5787

· · · · · · MR. DRAPER:··I appreciate your comments, Your·1·

·Honor, and I will modify my course accordingly.·2·

· · · · · · SPECIAL MASTER:··Okay.·3·


· · ·· Q.· ·Mr. Hinckley, let's talk about your·5·

·experience with respect to the North Platte system.·6·

·You've indicated you have some background there.·7·

· · ·· A.· ·Okay.·8·

· · ·· Q.· ·And you've mentioned Pathfinder Reservoir.·9·

·That's one of the larger reservoirs in that system,10·

·isn't it?11·


· · ·· Q.· ·What's the size of that?13·

· · ·· A.· ·Million one, give or take, acreage.14·

· · ·· Q.· ·Now, in your experience, water is released15·

·from Pathfinder Reservoir during the winter, isn't it?16·

· · ·· A.· ·Yes, it is.17·

· · ·· Q.· ·And that is used for power generation;18·

·correct?19·

· · ·· A.· ·Among other things.··But, yes, it serves that20·

·purpose.21·

· · ·· Q.· ·It's also used to provide instream flows22·

·through the City of Casper?23·


· · ·· Q.· ·And then it is captured by a reservoir25·



Page 5788

·downstream called Glendo Reservoir; correct?·1·

· · ·· A.· ·Yes.·2·

· · ·· Q.· ·There's about a million acre-feet in·3·

·Pathfinder and Glendo, and the so-called power pool has·4·

·about 300,000, or something like that?·5·

· · ·· A.· ·I can't remember exactly how big the power·6·

·pool is.··There's a power pool, a conservation pool, an·7·

·evaporation pool, and a reregulation pool.··And all·8·

·those added up come to 500,000-plus.··And then there's·9·

·a flood pool on top of that.10·

· · ·· Q.· ·All right.··So that's an example, isn't it,11·

·where Pathfinder Reservoir is not managed to maximize12·

·storage in Pathfinder; isn't that right?13·

· · ·· A.· ·It is not managed to maximize storage in that14·

·vessel.··That's where the ownership accounting becomes15·

·important.··It is managed to maximize storage of water16·

·under its ownership.17·

· · ·· Q.· ·But once water is evacuated from Pathfinder18·

·Reservoir -- which is the senior right of the larger19·

·reservoir, isn't it?20·

· · ·· A.· ·Yes.21·

· · ·· Q.· ·-- and that space is evacuated, it cannot be22·

·refilled under that good priority, can it?23·

· · ·· A.· ·That ownership cannot be refilled.··Again,24·

·that physical space is a different story.25·



Page 5789

· · ·· Q.· ·And when water from Pathfinder is stored in·1·

·Glendo, that also means that other water cannot be·2·

·stored in Glendo Reservoir to that extent?·3·

· · ·· A.· ·Well, that's why it has its own pool·4·

·basically in Glendo.··So that is available only for the·5·

·storage of that Pathfinder ownership.·6·

· · ·· Q.· ·All right.··And that's been set aside -- just·7·

·in a more general sense, it's been set aside and·8·

·reserved for that use, and it can't be used for other·9·

·storage; right?10·


· · · · · · SPECIAL MASTER:··Mr. Draper, I don't know12·

·whether you're planning on continuing some questions on13·

·Pathfinder, but when you're finished with that14·

·particular line of questions, it's probably a good time15·

·to take a break.16·

· · · · · · MR. DRAPER:··I think that completes questions17·

·about Pathfinder releases during the winter.18·

· · · · · · SPECIAL MASTER:··Great.··So why don't we then19·

·take a ten-minute break right now.··We'll come back at20·

·five to the hour.··And I'm actually going to look21·

·through one or two documents during the beginning of22·

·this break.23·

· · · · · · Yes, Mr. Kaste.24·

· · · · · · MR. KASTE:··Before we go off the record it25·



Page 5790

·seems like it might be an appropriate time just to·1·

·clear up a numbering issue.··I think Mr. Draper talked·2·

·to Mr. Hinckley about Exhibit W60.·3·

· · · · · · SPECIAL MASTER:··That's correct.·4·

· · · · · · MR. KASTE:··The McBeath memo.··We've done·5·

·some checking and believe that that exhibit has been·6·

·admitted as Exhibit W11.··And perhaps we all might want·7·

·to refer to it as W11 for the remainder, with the·8·

·understanding that that's what we were talking about·9·

·during that period of time since that's the admitted10·

·exhibit.11·

· · · · · · SPECIAL MASTER:··Okay.··That's actually very12·

·helpful, Mr. Kaste.13·

· · · · · · So can we just check, is Exhibit W1114·

·admitted?15·

· · · · · · THE CLERK:··Yes, it is.16·

· · · · · · SPECIAL MASTER:··And is W60 not admitted?17·

· · · · · · THE CLERK:··No.18·

· · · · · · SPECIAL MASTER:··So why don't we check on19·

·that just to verify that.··And when we come back, we20·

·can put it on the record that -- well, in fact, why21·

·don't we just do this.··W60, which we've been referring22·

·to earlier, is the same as W11 and, therefore,23·

·references to it before should be taken as the admitted24·

·exhibit, which is W11.25·



Page 5791

· · · · · · And then if, in checking that, there's any·1·

·problem, then feel free to bring it back up.··But·2·

·otherwise, we've officially changed it on the record.·3·

· · · · · · MR. DRAPER:··Great.··Thank you, Your Honor.·4·

·That's very helpful.·5·

· · · · · · SPECIAL MASTER:··Okay.··Thanks.·6·

· · · · · · · · · · · (Recess taken 2:46 to 3:00·7·

· · · · · · · · · · · p.m., December 3, 2013)·8·


·seated.··So I assume we're fine on the numbering of the10·

·exhibit?11·

· · · · · · MR. DRAPER:··Yes, we checked it, Your Honor.12·

·It's right.13·

· · · · · · SPECIAL MASTER:··Great.14·


· · ·· Q.· ·We were talking about, Mr. Hinckley, the16·

·reservoirs in the Platte River system before the break.17·

· · · · · · As to the deliveries in that system, those18·

·are made to various diversion dams downstream of the19·

·reservoirs; isn't that right?20·

· · ·· A.· ·Yes.21·

· · ·· Q.· ·And the downstream -- most downstream22·

·diversion dam in that system is the Tri-State Diversion23·

·Dam about at the state line between Wyoming and24·

·Nebraska?25·



Page 5792

· · ·· A.· ·That's correct, just over into Nebraska from·1·

·the state line.·2·

· · ·· Q.· ·And you're familiar with the accounting·3·

·that's done in that system; correct?·4·

· · ·· A.· ·I am.··I may have forgotten a few details.·5·

·But, yeah, I spent a lot of time working on that·6·

·accounting.·7·

· · ·· Q.· ·And from that knowledge, you are aware that·8·

·there is provision made for water passing the state·9·

·line that's in excess of what was called for; isn't10·

·that right?11·

· · ·· A.· ·Yes.12·

· · ·· Q.· ·And from your knowledge of the gauges, you13·

·know that the next downstream gauge, the Mitchell gauge14·

·shows that there actually are flows passing during15·

·times of delivery; isn't that right?16·

· · ·· A.· ·There's a passing tri-state gauge that's just17·

·a very short ways below the dam.··And, yes, it does see18·

·flow once in a while.··Consistently when they are19·

·making storage releases, of course.··But there is20·

·occasionally some natural flow that is accounted21·

·through that gauge.··I assume that's what you're22·

·referring to.23·

· · ·· Q.· ·From whatever source, there is water that24·

·passes that gauge; isn't that right?25·



Page 5793

· · ·· A.· ·Yes, there is.·1·

· · ·· Q.· ·And you're aware that there's certain·2·

·reservoirs in the Tongue River Basin in Wyoming that·3·

·are managed in such a way as to allow wintertime·4·

·releases; isn't that right?·5·

· · ·· A.· ·I heard -- the testimony on Park Reservoir I·6·

·think had some of that, but I don't know more than what·7·

·I heard sitting here in the courtroom.·8·

· · ·· Q.· ·Somewhat smaller releases in the range of, if·9·

·I remember correctly, 7 CFS, something like that,10·

·during the winter from Park Reservoir?11·

· · ·· A.· ·Yeah.··I guess I would have remembered 5, but12·

·something in that single-digit CFS, yes.13·

· · ·· Q.· ·5 or 7?··Now, if we might look at the figure14·

·in Mr. Book's report, which is Exhibit M5, Figure 2,15·

·which appears on page 46.16·

· · ·· A.· ·You going to put it on the screen?17·

· · ·· Q.· ·And I'm going to put it on the screen.··And I18·

·think it's also on the board in front of you.19·

· · · · · · Do you see that?20·

· · ·· A.· ·Yes.21·

· · ·· Q.· ·Now, Figure 2 shows Park Reservoir; correct?22·

· · ·· A.· ·Yes.23·

· · ·· Q.· ·I'm going to see if I can draw a circle, more24·

·or less, where that is.··Isn't that, more or less, what25·



Page 5794

·I've indicated in the upper part of the basin which is·1·

·on the south end?·2·

· · ·· A.· ·Yes.·3·

· · ·· Q.· ·And we can also see on this figure Tongue·4·

·River Reservoir right at the top of the figure there,·5·

·and I'll circle that.·6·

· · · · · · And looking at this figure, we can compare in·7·

·a rough manner the relative drainages that feed those·8·

·two reservoirs?·9·

· · ·· A.· ·Yes.10·

· · ·· Q.· ·And what would you say the ratio in -- the11·

·rough ratio might be between the watersheds that feed12·

·each of those two reservoirs?13·

· · ·· A.· ·Oh, I can't see what -- Park Reservoir, I14·

·don't know what the details are in that area.··But -- I15·

·don't know.··What do you suppose?··50 to 1?16·

· · ·· Q.· ·And let's take 50 to 1.··If it were 50 to 1,17·

·then even though, on a reservoir like Park, say we had18·

·5, as you recall, winter discharge to that stream which19·

·is taking water from a small part of the basin, compare20·

·that to the Tongue River Reservoir, and its watershed21·

·being, let's say, in round numbers, make something like22·

·50 times as big, that might correspond to a release of23·

·50 times as much.24·

· · · · · · In comparison, that corresponding flow might25·



Page 5795

·be 250 based on the different sizes of the watersheds·1·

·above the two reservoirs; correct?·2·

· · ·· A.· ·I guess I don't understand what connection·3·

·there would be there, but as far as just math, 50 times·4·

·5 is what?··250?·5·

· · ·· Q.· ·Well, in both cases, the size of the stream·6·

·that may be related to the reasonable operation of the·7·

·respective reservoirs might be something in -- taking·8·

·something in that same ratio of the flows developed·9·

·over the watershed above.10·

· · · · · · Wouldn't you agree?11·

· · ·· A.· ·I guess I don't see any connection at all12·

·beyond just math and proportions.··Why were they13·

·releasing water from Park?··And is there some14·

·comparable reason to release water from Tongue River15·

·Reservoir?16·

· · · · · · I just don't understand your proportioning at17·

·all.··I'm sorry.18·

· · ·· Q.· ·Well, irrespective of the reason for19·

·releasing, the relationship of the amount of the20·

·releases is -- could reasonably be within the same21·

·ratio as the size of the stream that's been developed22·

·by the flows over the years from the watershed above23·

·that point?24·

· · ·· A.· ·I guess it could.··You could release whatever25·



Page 5796

·you wanted to.·1·

· · ·· Q.· ·And do you know whether reservoirs in Wyoming·2·

·in this basin are maintained at a relatively stable·3·

·level during the winter?·4·

· · ·· A.· ·I don't know that.··I've heard the same·5·

·testimony you probably have.·6·

· · ·· Q.· ·Okay.··Let's look at page 14 of your report,·7·

·please.·8·

· · ·· A.· ·Okay.·9·

· · ·· Q.· ·In the last full paragraph, four lines down,10·

·you state, "In 1997, 1998, 1999, 2000, 2003, and 2005,11·

·August daily flows at the mouth of the Tongue River,12·

·below the T & Y Canal, rarely fell below 60 CFS."13·

· · · · · · Why did you choose those particular years for14·

·that statement?15·

· · ·· A.· ·I don't know exactly without reading the16·

·whole thing.··But I guess the missing years suggest17·

·that I left out 2001, '2, '4, and '6, which are the18·

·years of interest with respect to Mr. Book's report,19·

·for example.20·

· · ·· Q.· ·Those are the crucial years for our current21·

·purposes; correct?22·

· · ·· A.· ·Those are the years for which Mr. Book --23·

·which Mr. Book suggested indicated a deficiency of24·

·natural flow to fill Tongue River Reservoir.··2004 and25·



Page 5797

·2006, of course, were the years of a written call.·1·

· · ·· Q.· ·Now, if you look at the daily flows for those·2·

·years, at the Miles City gauge, they do go below 60·3·

·CFS, don't they?·4·

· · ·· A.· ·By "those years," you mean 2001, '2, '4, '6?·5·

· · ·· Q.· ·Yes.·6·

· · ·· A.· ·Yes, they do.·7·

· · ·· Q.· ·So in the dry years, those flows at the Miles·8·

·City gauge do go well below 60 CFS; correct?·9·

· · ·· A.· ·Yes.10·

· · ·· Q.· ·I believe you testified you had experience11·

·with irrigation systems.12·

· · ·· A.· ·Some.··I think the hands-on experience I13·

·testified to was as a kid growing up.··But, yeah, I've14·

·herded some water down.15·

· · ·· Q.· ·And for large gravity irrigation systems,16·

·isn't it common to have a number of wasteways designed17·

·into that irrigation system?18·

· · ·· A.· ·Yes, it is.19·

· · ·· Q.· ·And what is the purpose of those?20·

· · ·· A.· ·The management of a canal system is easiest21·

·if it's relatively full and one isn't constantly trying22·

·to check up the canal to get water into a particular23·

·headgate, for example.··So given enough water, an24·

·operator will generally try to keep plenty of water in25·



Page 5798

·the canal.·1·

· · · · · · If, then, something happens that the·2·

·individual users turn off, say a rainstorm or something·3·

·else happens to upset the deliveries out of the canal,·4·

·you still got that water going somewhere.··So one will·5·

·put in wasteways periodically to let that water come·6·

·back into the river.·7·

· · · · · · Waste, in the sense of extra water, it tends·8·

·to be used in the pejorative sense.··But in irrigation,·9·

·it simply means extra water.10·

· · ·· Q.· ·Where the water is, as they say, wasted back11·

·to the river and that kind of thing?12·

· · ·· A.· ·Yeah.··And they say a waste ditch at the end13·

·of the field where the water is wasted back to the14·

·river is normal terminology.15·

· · ·· Q.· ·And there's often such a wasteway at the end16·

·of an irrigation canal; isn't that right?17·

· · ·· A.· ·There commonly is, yes.18·

· · ·· Q.· ·And sometimes conditions change during19·

·irrigation periods where you may end up with too much20·

·water, for instance, as you indicated, and some of that21·

·needs to be dealt with so it doesn't damage the22·

·facilities or cause other problems?23·


· · ·· Q.· ·And you're aware of what the approximate25·



Page 5799

·distance is from the Tongue River Dam to the T & Y·1·

·Canal headgate is?·2·

· · ·· A.· ·Approximately.··One sees an interesting range·3·

·of numbers for that.··100, 120, 170 in some people's·4·

·general knowledge of it.··I guess it depends on how·5·

·they take the turns.·6·

· · ·· Q.· ·Would you believe 190?·7·

· · ·· A.· ·I think that's the largest number I've heard.·8·

· · ·· Q.· ·Well, the record in this case will·9·

·demonstrate the right number, but that's my10·

·understanding.11·

· · · · · · And so travel times and changes during travel12·

·times can become a major factor in delivering water13·

·over longer distances such as we have here; isn't that14·

·right?15·

· · ·· A.· ·I think that's fair.16·

· · ·· Q.· ·Let's turn, if you would, to page 21 of your17·

·report.··This is in your section on direct-flow issues;18·

·correct?19·

· · ·· A.· ·Yes.20·

· · ·· Q.· ·And this page is among the three pages -- I21·

·guess it's the end of the section where you are22·

·discussing your analysis of return flows with respect23·

·to Mr. Book's analysis; correct?24·




Page 5800

· · ·· Q.· ·And in your analysis, you assumed that all·1·

·return flows show up in the river in the same month of·2·

·the diversion; is that right?·3·

· · ·· A.· ·To illustrate the impact of that factor, I·4·

·offered a model in which all return flows came back in·5·

·the same month.·6·

· · ·· Q.· ·So that was really meant just as an·7·

·illustration?··You don't really believe that happens;·8·

·right?·9·

· · ·· A.· ·It was offered as an illustration.10·

· · · · · · The only thing I would add to that is that,11·

·to the extent that it also captures the increased12·

·efficiency of the irrigation diversions in Montana,13·

·then it's capturing something that's quite real.14·

· · · · · · I guess let me explain that briefly, if I15·

·may.··I think Mr. Book's model is looking more at, say,16·

·the 1940s irrigation system where there was a ditch17·

·that diverted a large amount of water and it went down18·

·into irrigated field and so much was used up and there19·

·was a lot of return flows coming back in.20·

· · · · · · Over time, that has changed to where they21·

·pump diversions into sprinklers.··So in a sense, an22·

·awful lot of that water never got diverted in the first23·

·place.··Because it's more efficient to run the pump24·

·into a sprinkler.··So I save all of that return flow.25·



Page 5801

·So in that sense, the model -- a faster return flow is·1·

·the same thing as modeling a more efficient irrigation·2·

·system.·3·

· · · · · · So what I've done with my illustration of a·4·

·much quicker return flows, in essence, is also the·5·

·effect of modeling the increased efficiencies that I·6·

·think we know prevail on the Tongue River.··So a little·7·

·bit of both.·8·

· · ·· Q.· ·But there is still significant flood·9·

·irrigation, isn't that right, in Montana and the Tongue10·

·River Basin?11·

· · ·· A.· ·Yeah, I think the last numbers I saw were12·

·Mr. Book's rebuttal report where he suggested it was13·

·about 50/50 between gravity and sprinkler.14·

· · ·· Q.· ·So there's still a significant amount of15·

·gravity or flood irrigation?16·

· · ·· A.· ·Yes.··Yes.··The laser-leveled fields, border17·

·dikes appears to be the most common form of gravity18·

·irrigation.19·

· · ·· Q.· ·And even if one were to overirrigate a field20·

·and were to cause extra tailwater, there could still be21·

·some depercolation occurring that would not be coming22·

·back to the stream immediately, particularly if you're23·

·not right on the stream?24·

· · ·· A.· ·Yes.··Groundwater return flows are real and25·



Page 5802

·we would certainly expect those.··And there are going·1·

·to be more out of any kind of gravity system than out·2·

·of a sprinkler system.··Even though these gentlemen·3·

·marshal their pumping carefully because they're paying·4·

·unit prices for their pumps.·5·

· · · · · · But inevitably, more water soaks in at the·6·

·top of the field than the bottom because it has to be·7·

·soaking in all the time it takes water to run down the·8·

·field.··So there's no way to escape a certain amount of·9·

·deep percolation in a gravity irrigation system.10·

· · ·· Q.· ·And that's why your analysis might be best11·

·termed as an illustration, as you said, as opposed to12·

·something you really think happens?13·

· · ·· A.· ·I think it's unlikely that there is no lag14·

·into the second, third, and fourth month.··But between15·

·the efficiency piece and the lags quicker than16·

·Mr. Book's modeled, yes, it's an illustration.··But it17·

·probably isn't too far off the mark.18·

· · ·· Q.· ·Now, you're aware that, during the irrigation19·

·season, the Tongue River overall is a losing stream; is20·

·that right?21·

· · ·· A.· ·No.··And perhaps there's been a22·

·terminological confusion over the course of the trial23·

·over what that means.24·

· · · · · · Certainly, during the irrigation season,25·



Page 5803

·there's -- less water goes out the bottom than goes in·1·

·the top because that's what feeds all the irrigation if·2·

·there was any consumptive going on.··But from a·3·

·hydrogeologic point of view, we usually use the term·4·

·"losing and gaining" to indicate the relationship of·5·

·the stream to the bedrock channel.··And my expectation·6·

·is that the -- in that sense, the Tongue River is a·7·

·gaining stream top to bottom.·8·

· · ·· Q.· ·But there are -- in the operations of the·9·

·river, there are transit losses that are routinely10·

·assessed; isn't that right?11·

· · ·· A.· ·Well, I hesitate at the word "routinely."12·

· · · · · · The conveyance losses that have been assessed13·

·from the Montana commissioners vary from zero in the14·

·early years, 12 percent I think was applied 2003 and15·

·'4, and then they upped it to 24 percent in 2005 or '6.16·

·So sometimes conveyance losses have been assessed in17·

·the accounting of storage, is my understanding from the18·

·testimony of the Montana commissioners.19·

· · · · · · We know, in fact, there are conveyance losses20·

·of course.··Evaporation and riparian vegetation consume21·

·water throughout that reach.··There's no way around22·

·that.23·

· · ·· Q.· ·And as an operational matter, when contract24·

·water is delivered from Tongue River Reservoir, the25·



Page 5804

·contract water user is not -- as the system has been·1·

·operated at least in recent years, is not allowed to·2·

·take 100 percent of what was released from the dam;·3·

·isn't that right?·4·

· · ·· A.· ·My perception is we've seen a maturation of·5·

·the management of water on the Tongue over these ten·6·

·years that they've had commissioners.··The last thing·7·

·I'm aware of were the rules -- I think they were put·8·

·out under 2005 or '6 letterhead -- that had the·9·

·24 percent loss.··And we can actually see the10·

·20 percent loss assessed in some of the commissioner's11·

·notes.··So now systematic, how thorough that is, I12·

·couldn't say.13·

· · ·· Q.· ·And that system is applied by reaches going14·

·downriver from the dam, isn't it?15·

· · ·· A.· ·That's the way it's described in the memo I'm16·

·looking at.··I'd have to say I didn't see that17·

·reflected well in the commissioner's notes, but as you18·

·know, those were partial records.19·

· · ·· Q.· ·So whatever the return flows from diversions20·

·are, they are less than what's necessary to make up the21·

·losses as you go down the stream; isn't that right?22·

· · ·· A.· ·Well, I don't know where you would come with23·

·that conclusion.24·

· · ·· Q.· ·Well, no matter how far you go down, even to25·



Page 5805

·the T & Y, you are assessing transit losses against·1·

·those deliveries, aren't you?·2·

· · ·· A.· ·My understanding is that the commissioners·3·

·assume if, say, 100 acre-feet were released for T & Y,·4·

·that something less than that 80 acre-feet would·5·

·arrive.·6·

· · · · · · Now, that's one small piece of the overall·7·

·picture of natural flow storage segregation and·8·

·conveyance losses.··So I'm aware that they do some·9·

·accounting of conveyance loss to storage, or at least10·

·have in more recent years.··I've seen no sign of a11·

·conveyance loss assessment or analysis with respect to12·

·natural flow or of return flows from natural flow.13·

· · ·· Q.· ·Now, you're aware that Mr. Book made the14·

·conservative assumption that it was a gaining stream15·

·through that reach for purposes of his direct-flow16·

·analysis?17·

· · ·· A.· ·I don't think that was a conservative18·

·assumption.··I think that was an appropriate19·

·assumption, and it is correct.20·

· · ·· Q.· ·During your direct testimony on the21·

·direct-flow analysis by Mr. Book, you criticized it for22·

·relying on constant values; right?23·

· · ·· A.· ·Yes.24·

· · ·· Q.· ·But isn't that what's done in Wyoming with25·



Page 5806

·key flow rates to indicate when water is needed in·1·

·certain reaches of the stream system?·2·

· · ·· A.· ·I've made no study of key flow rates in·3·

·Wyoming.··The testimony I've heard would not conform·4·

·with what -- how you represented it.·5·

· · ·· Q.· ·Let's turn, for the moment, to your CBM·6·

·analysis.·7·

· · ·· A.· ·Is there a page number you'd like me to look·8·

·at?·9·

· · ·· Q.· ·Well, I think the section of your report10·

·begins on page 27.··And on that page, in the bottom11·

·paragraph, you refer to Figure 11.12·

· · ·· A.· ·Okay.13·

· · ·· Q.· ·And Figure 11 is further back in your report14·

·on a page that has a Bates No. WY043062.15·

· · ·· A.· ·I see it.16·

· · ·· Q.· ·Now, this figure is relied upon by you to17·

·support your assertion that there are immediate18·

·augmentation to streamflow by virtue of surface19·

·discharges of CBM co-produced water; is that right?20·

· · ·· A.· ·Yes.21·

· · ·· Q.· ·Now, you include some specific figures in the22·

·upper right of your figure.··Those are mostly for years23·

·other than the four years that we're specifically24·

·focusing on here; isn't that right?25·



Page 5807


· · ·· Q.· ·Now, as far as discharge points that you show·2·

·to live streams here, you show two, if I read this·3·

·right; correct?·4·

· · ·· A.· ·Yeah.··That Adams Ranch 2 discharge is·5·

·sometimes to a live stream.··It depends on what is·6·

·going on with the irrigation.··But I'm told that that·7·

·stream is intermittent.·8·

· · · · · · My own observations were of it at a time when·9·

·it was not flowing.··But, as I say, I understand there10·

·are times when it does flow.11·

· · ·· Q.· ·You've indicated it here as an intermittent12·

·stream, haven't you?13·

· · ·· A.· ·Yes.14·

· · ·· Q.· ·Now, these points of discharge that you've15·

·plotted here are, in some cases at least, quite a16·

·distance from the state line; isn't that right?17·

· · ·· A.· ·I don't remember exactly where the state line18·

·is.··But it's got to be very close to the north end of19·

·this figure.··Like I suspect that's -- that section20·

·line is the state line based on the relationship we see21·

·there at the mouth of Prairie Dog Creek.··So the22·

·northernmost of my outfalls is not very far from the23·

·state line.··The other two are somewhat more distant.24·

· · ·· Q.· ·Each of these large squares is a township;25·



Page 5808

·right?·1·


· · ·· Q.· ·Those are typically 6 miles on a side; right?·3·

· · ·· A.· ·They are.·4·

· · ·· Q.· ·Did you do any investigation to determine·5·

·whether discharges from these points reaches the Tongue·6·

·River?·7·

· · ·· A.· ·The simple fact that Prairie Dog Creek is a·8·

·perennial stream tells us that some portion of those·9·

·are going to make it to the Tongue River.10·

· · · · · · Now, I did assess the reported discharges at11·

·10 percent conveyance loss consistent with what12·

·Mr. Book did, or what I thought Mr. Book did.13·

· · · · · · Actually, it was a mistake.··He concluded14·

·that the augmentations and predictions predicted by15·

·Mr. Larson were close enough to the state line that16·

·they did not merit any deduction for conveyance losses.17·

·So, in that sense, I was conservative relative to18·

·Mr. Book in assessing that 10 percent conveyance loss.19·

· · · · · · But that's the only accommodation I made of20·

·what might happen to that water as it made its way down21·

·Prairie Dog Creek into the Tongue.22·

· · ·· Q.· ·And to the extent that those discharges did23·

·occur, that water could be diverted by numerous water24·

·users below the discharge point; isn't that right?25·



Page 5809

· · ·· A.· ·Yes.··It could to the extent there are·1·

·diversions below that point, which I did not explore.·2·

· · ·· Q.· ·So you didn't determine whether or to what·3·

·extent these discharges might reach the Tongue River?·4·

· · ·· A.· ·Again, no more than following Mr. Book's·5·

·lead, and even that not quite, in assuming that there·6·

·was a 10 percent generic conveyance loss.·7·

· · ·· Q.· ·I'd like to hand you what we've marked as·8·

·Exhibit M563.·9·

· · · · · · Mr. Hinckley, do you recognize this as a type10·

·of document that is found on the Wyoming Department of11·

·Environmental Quality website and is, as it's stated at12·

·the top, "Updated permitting options for coal bed13·

·methane permit applications, revised December 10,14·

·2001"?15·

· · ·· A.· ·I see those words on this page.16·

· · ·· Q.· ·And turning to the back page, do you see17·

·references to one or more of the people you contacted18·

·with respect to your work on this case?19·

· · ·· A.· ·Yes, I do.20·

· · ·· Q.· ·And do you see the heading above the contacts21·

·paragraph entitled "Discharges to Tongue River"?22·

· · ·· A.· ·Yes.23·

· · ·· Q.· ·Are these the type of memoranda that are24·

·typically issued by the Wyoming Department of25·



Page 5810

·Environmental Quality, to your knowledge?·1·

· · · · · · MR. KASTE:··I have a foundational objection·2·

·that Mr. Hinckley does not and has never worked for the·3·

·Department of Environmental Quality and probably isn't·4·

·competent to answer what they do.·5·

· · · · · · SPECIAL MASTER:··So maybe you should lay the·6·

·foundation first.·7·


· · ·· Q.· ·Mr. Hinckley, you've interacted with the·9·

·Department of Environmental Quality as part of your10·

·professional work, including your work on this case;11·

·right?12·

· · ·· A.· ·I have.13·

· · ·· Q.· ·And are you familiar with their practice of14·

·issuing memoranda such as this one regarding coal bed15·

·methane permit applications?16·

· · ·· A.· ·No.17·

· · ·· Q.· ·This didn't come up in your discussions with18·

·Kathy Shreve, for instance?19·

· · ·· A.· ·This memo?··It did not.20·

· · ·· Q.· ·Do you know whether this document is of the21·

·type that is typically made available to the public by22·

·the department and maintained on its website?23·

· · ·· A.· ·I have no knowledge of that.24·

· · · · · · MR. DRAPER:··Well, Your Honor, if he has no25·



Page 5811

·knowledge to support it, I won't move for its admission·1·

·at this point.··But I will ask him some general·2·

·questions about this subject area.·3·

· · · · · · SPECIAL MASTER:··I think that would be fine.·4·

·I think you can certainly ask questions for impeachment·5·

·purposes.·6·

· · · · · · MR. KASTE:··Well, that may be true.·7·

·Nevertheless, in the absence of some additional·8·

·evidence, he can't prove up the impeachment, so it·9·

·seems like a waste of our time.··Proving up the10·

·impeachment is sort of important.11·

· · · · · · MR. DRAPER:··Your Honor, I think I'm entitled12·

·to ask the witness what he knows about the subject area13·

·on which he's filed a report here.14·

· · · · · · SPECIAL MASTER:··I think that's fine.15·

· · · · · · MR. DRAPER:··Thank you.16·


· · ·· Q.· ·Now, Mr. Hinckley, to your knowledge, isn't18·

·it true that the Wyoming Department of Environmental19·

·Quality has pursued a policy of containment -- you20·

·mentioned in your report and discussed in your direct21·

·testimony containment of CBM co-produced water with22·

·respect to any discharges to surface waters?23·

· · ·· A.· ·Wyoming Department of Environmental Quality24·

·is concerned about discharge to surface waters from CBM25·



Page 5812

·production, yes.·1·

· · ·· Q.· ·And, in fact, they place permit conditions on·2·

·operators to prevent discharges to surface water, don't·3·

·they?·4·

· · ·· A.· ·It depends.··The surface water discharges·5·

·that we saw reported, for example, are done in complete·6·

·compliance with the Wyoming Department of Environmental·7·

·Quality regulations.··So it depends on the·8·

·circumstance.·9·

· · ·· Q.· ·So if there's a policy to eliminate surface10·

·discharges, those that you've shown here on your11·

·Figure 11 would be exceptions to that policy, wouldn't12·

·they?13·

· · ·· A.· ·If there were such a policy, those would be14·

·exceptions to that policy.··I think that logically15·

·follows.16·

· · ·· Q.· ·Okay.17·

· · · · · · MR. DRAPER:··And if I may have just a moment,18·

·Your Honor?19·

· · · · · · SPECIAL MASTER:··Yes.20·

· · · · · · MR. DRAPER:··Thank you.21·


· · ·· Q.· ·Mr. Hinckley, I would ask that you take a23·

·look at what we've identified as Exhibit M564, please.24·

· · ·· A.· ·Okay.25·



Page 5813

· · ·· Q.· ·If you've had a chance to look at that, this·1·

·is a document entitled "Handbook on Coal Bed Methane·2·

·Produced Water:··Management and Beneficial Use·3·

·Alternatives," dated July 2003.··Indicates that it's·4·

·prepared by ALL Consulting of Tulsa, Oklahoma, and that·5·

·it was prepared for Groundwater Protection Research·6·

·Foundation, U.S. Department of Energy, the National·7·

·Petroleum Technology Office of the Bureau of Land·8·

·Management.·9·

· · · · · · This is actually an excerpt of what I handed10·

·you.··I have the full report here if we need to look at11·

·it.··What I've done here is to simply take the initial12·

·pages that show the table of contents for the full13·

·report and have appended to that a section of the14·

·report entitled "J.M. Huber Corporation, CBM Produced15·

·Water Management Case Study, Prairie Dog Creek Field,16·

·Sheridan County, Wyoming."17·

· · · · · · Now, if you've had a chance to look at this,18·

·is this a document that you've seen before?19·

· · ·· A.· ·I have not.20·

· · ·· Q.· ·You have not been aware of this study that's21·

·contained in the document of the Prairie Dog Creek CBM22·

·field?23·

· · ·· A.· ·I am not aware of this study.24·

· · ·· Q.· ·Okay.··And you didn't locate this in your25·



Page 5814

·literature research that preceded the preparation of·1·

·your expert report?·2·

· · ·· A.· ·I did not.··The date 2003 suggests that it·3·

·predates most of the material I was looking at.·4·

· · ·· Q.· ·But 2003 is during the period that we're·5·

·looking at in this case; correct?·6·

· · ·· A.· ·Yes, I believe that's fair.·7·

· · ·· Q.· ·And are you familiar with this firm that was·8·

·hired by the U.S. government to prepare this handbook?·9·

· · ·· A.· ·I am not.10·

· · ·· Q.· ·All right.··Let me ask you generally, are you11·

·aware of studies such as this that indicate an12·

·infiltration to the groundwater at a rate equal to or13·

·less than what was assumed by Mr. Larson in this case?14·

· · ·· A.· ·No.··I believe I've presented the studies15·

·from which I derived my conclusions, and they don't16·

·include this one.··And had I seen a study that had an17·

·alternative number in it, I would have been happy to18·

·include that in my analysis.19·

· · · · · · MR. DRAPER:··Your Honor, this might be a good20·

·point to take a break.21·

· · · · · · SPECIAL MASTER:··That would be fine.··Why22·

·don't we take a ten-minute break.··We'll come back at23·

·five minutes to 4:00.24·

· · · · · · · · · · · (Recess taken 3:44 to 3:5725·



Page 5815

· · · · · · · · · · · p.m., December 3, 2013)·1·


·seated.·3·

· · · · · · Mr. Draper.·4·

· · · · · · MR. DRAPER:··Thank you, Your Honor.·5·


· · ·· Q.· ·Mr. Hinckley?·7·

· · ·· A.· ·Yes, sir.·8·

· · ·· Q.· ·We're getting close.·9·

· · ·· A.· ·Okay.··Look at the clock there.··We got about10·

·an hour.11·

· · ·· Q.· ·It will be less than that.12·

· · · · · · We were looking at the handbook on coal bed13·

·methane-produced water that you stated you had not seen14·

·before but that we could see contained a study of J.M.15·

·Huber, "Operations in Prairie Dog Creek."16·

· · · · · · Did you check with J.M. Huber or their17·

·successor owners in trying to analyze the infiltration18·

·question that you discussed in your report?19·

· · ·· A.· ·No, I did not.20·

· · ·· Q.· ·Now, you had a hand, you testified, with21·

·Wyoming in helping determine what kind of witnesses22·

·would be appropriate for this case; right?23·

· · ·· A.· ·Yes.··I participated in most of those24·

·discussions.25·



Page 5816

· · ·· Q.· ·Okay.··And the State of Wyoming has chosen to·1·

·not bring anybody from their Department of·2·

·Environmental Quality to this proceeding; isn't that·3·

·right?·4·

· · ·· A.· ·I haven't seen anybody on the witness list·5·

·from DEQ.·6·

· · ·· Q.· ·And the decision has also, obviously, been·7·

·made not to bring any CBM operator from Wyoming to·8·

·testify; isn't that right?·9·

· · ·· A.· ·Apparently.10·

· · · · · · MR. KASTE:··I don't know that we can so11·

·easily forget Mr. Steir.··I couldn't say that name when12·

·he was on the stand.13·

· · · · · · SPECIAL MASTER:··I think that's fair.14·

· · · · · · MR. DRAPER:··All right.··Thank you,15·

·Mr. Kaste.16·


· · ·· Q.· ·Let's turn in your report, if you please, to18·

·page 15.19·

· · ·· A.· ·Okay.20·

· · ·· Q.· ·This is the page that has one of the tables21·

·that you corrected; isn't that right?22·

· · ·· A.· ·Yes.23·

· · ·· Q.· ·And you requested that three values from this24·

·table be removed; is that right?25·



Page 5817


· · ·· Q.· ·And I'm referring to Table 1.··I don't think·2·

·I mentioned the number.·3·

· · · · · · You testified that values should be removed·4·

·for July and August 2003 and August 1999; is that·5·

·right?·6·

· · ·· A.· ·Yes.·7·

· · ·· Q.· ·Okay.··And you also, on direct, gave the·8·

·reasons for that that I will not go through again.·9·

· · · · · · Let me hand you what's been admitted in this10·

·case as Exhibit M377.··Have you seen this exhibit11·

·before?12·

· · ·· A.· ·I've seen this data before, yes.13·

· · ·· Q.· ·Are these daily data from the DNRC Water14·

·Management Bureau?15·

· · ·· A.· ·Yes, they are.16·

· · ·· Q.· ·And does this data compilation include the17·

·periods that -- for which you removed values in your18·

·Table 1?19·

· · ·· A.· ·Yes, it does.20·

· · ·· Q.· ·There are two values in 2003.··If we turn21·

·back in the document to July and August of 2003, this22·

·is a page which has a Bates No. MT23775.23·

· · ·· A.· ·I don't see any Bates numbers at all, but we24·

·could go with a date maybe.25·



Page 5818

· · ·· Q.· ·Maybe --·1·

· · ·· A.· ·I don't have Bates numbers on this one.·2·

· · ·· Q.· ·Can you find July of 2003 in the compilation?·3·

· · ·· A.· ·Yes.·4·

· · ·· Q.· ·And at the right, at the bottom of the page I·5·

·was referring to, there's a note over to the right·6·

·saying, "Data missing 7/8/2003 through 7/27/2003"?·7·

· · ·· A.· ·Yes, that's correct.·8·

· · ·· Q.· ·Now, the value you had in your table for July·9·

·was 67 CFS; is that right?10·

· · ·· A.· ·Let me see.··Yes, in the uncorrected table.11·

· · ·· Q.· ·Right.··And we can see the actual values that12·

·are reported in this data compilation for that month.13·

· · · · · · Are any of them that low, as low as 67 CFS?14·

· · ·· A.· ·No.··No.··The 67 was based on the division of15·

·the total acre-feet by the days.··And it turned out we16·

·didn't have the total acre-feet.··That's why it's so17·

·low.18·

· · ·· Q.· ·So the values shown here in CFS were up in19·

·the range, sometimes even exceeding the decreed right20·

·of the T & Y at 187.5; correct?21·

· · ·· A.· ·Well, let's see.··Yeah, July isn't very well22·

·populated.··We have about ten values and they are --23·

·looks like range from, what, 167 to 217, July 4th.24·

· · ·· Q.· ·So they are bouncing around that 187.5,25·



Page 5819

·sometimes above, sometimes below?·1·

· · ·· A.· ·Yeah.··Yeah.··It looks like on this -- on the·2·

·days from July for which we have some information, they·3·

·were right up there.·4·

· · ·· Q.· ·And there were actual -- there would have·5·

·been actual diversions made on the other dates in that·6·

·month?··They're just not reported here; correct?·7·

· · ·· A.· ·I have not investigated why we have the·8·

·missing data.··Seems like there was some reference to·9·

·equipment failure, but I don't have any notion of what10·

·happened between those dates.11·

· · ·· Q.· ·But the gap is between the 7th and 28th of12·

·July; correct?13·

· · ·· A.· ·Yes.14·

· · ·· Q.· ·And the values just before and just after15·

·were in that range around the value of the -- the16·

·nominal value of the T & Y right; correct?17·

· · ·· A.· ·Yes.18·

· · ·· Q.· ·So there's no reason to assume that they19·

·suddenly stopped diverting on the 8th of July 2003 and20·

·stopped diverting all the way until 28th of July;21·

·correct?22·

· · ·· A.· ·That's correct.··That's the tacit assumption23·

·of the data that was assembled by Mr. Book that I24·

·adopted, but I think we all agree that's an invalid25·



Page 5820

·assumption.··I would fully expect them to have been·1·

·doing something in the middle of July in '03.·2·

· · ·· Q.· ·And in the next month, which was another·3·

·month that you asked to have your value removed from·4·

·your table, there it looks like the data that was·5·

·missing, according to the note on the right-hand side·6·

·between -- or including August 12th through August 17th·7·

·inclusive; correct?·8·

· · ·· A.· ·Yes.·9·

· · ·· Q.· ·And the values that are shown for the CFS10·

·flows into the T & Y are, again, certainly in the early11·

·parts of August that we see, up in that same range near12·

·the nominal right of the T & Y; correct?13·

· · ·· A.· ·Well, they go as low as 144, as high as 169.14·

·So those are off of the 187.5 mark a fair amount.15·

· · ·· Q.· ·It looks like the values are decreasing as16·

·you go into the latter part of August?17·

· · ·· A.· ·Yes.··Yeah.18·

· · ·· Q.· ·And then we have the values for 1999 that19·

·caused a problem.··Those would be earlier in the same20·

·exhibit.21·

· · · · · · And do you find the page where that data is22·

·compiled?··It shows up on my Bates-stamped page in the23·

·lower right hand of the sheet as MT23762.24·

· · ·· A.· ·I don't have Bates stamps, nor have they25·



Page 5821

·given us the little note.·1·

· · · · · · But you can see, by looking at the dates·2·

·themselves, that we're missing data from August 4·3·

·through August 10 of 1999.·4·

· · ·· Q.· ·And if we look at the actual values during·5·

·that period, the ones that we do have are showing·6·

·values again that are bouncing around that 187.5·7·

·nominal value for the T & Y; correct?·8·

· · ·· A.· ·Yeah.··We can run the numbers on those, but·9·

·it looks like one -- oh, what, 177, something like10·

·that, might be average.··Not unlike what we saw in11·

·August in '88 and -- or '98 and 2000.··So, yeah,12·

·something like that.13·

· · ·· Q.· ·Now, in your original report, underneath that14·

·Table 1, you picked out July of 2003 for special15·

·comment, didn't you?16·

· · ·· A.· ·Yes.17·

· · ·· Q.· ·And you've now asked to have that changed to18·

·a comment that would refer to July of 2005; correct?19·

· · ·· A.· ·Correct.20·

· · ·· Q.· ·And you've -- asked to insert the numbers21·

·relative to 2005 in the wording that you had originally22·

·put in that paragraph?23·

· · ·· A.· ·Yes.··I thought 2005 illustrated the point I24·

·was making.25·



Page 5822

· · ·· Q.· ·Now, wasn't 2005 a very wet year?·1·

· · ·· A.· ·Wet in what sense?·2·

· · ·· Q.· ·A lot of precipitation.·3·

· · ·· A.· ·Yes, I think that's correct.·4·

· · ·· Q.· ·Okay.·5·

· · ·· A.· ·And that's why they diverted less, I assume.·6·

· · ·· Q.· ·Yeah.··And why didn't you pick 2005 initially·7·

·to use as an illustration?·8·

· · ·· A.· ·Oh, I picked the smallest value in the·9·

·column.··I thought that most illustrated the point of10·

·the years in which there were no water restrictions, so11·

·the next up on that list would be 2005.12·

· · ·· Q.· ·Now, you refer on page 3 of your report to13·

·the 32,000 acre-foot value of contract storage that14·

·initially was contracted for with the Tongue River15·

·Water Users' Association.16·

· · · · · · Do you see that?··It's paragraph B on page 3.17·

· · ·· A.· ·Yes.··It looks like it's a quotation18·

·extracted from Mr. Smith's report.19·

· · ·· Q.· ·I'd like to hand you what's been admitted as20·

·Exhibit M3.21·

· · · · · · Do you recognize this exhibit as being22·

·Mr. Smith's expert report dated January 4, 2013?23·

· · ·· A.· ·Yes.24·

· · ·· Q.· ·I'd like to turn to a couple of references to25·



Page 5823

·the 32,000 figure to bring out for the record.··If you·1·

·would look at the attachments to this expert report at·2·

·page Bates No., in the lower right-hand corner,·3·

·MT15157.·4·

· · ·· A.· ·Oh, okay.··Double-sided.··Okay.··I'm there.·5·

· · ·· Q.· ·Now, this is the, as it states at the top,·6·

·"Water Marketing Contract Between the State Water·7·

·Conservation Board of the State of Montana and the·8·

·Tongue River Water Users' Association," dated July 7,·9·

·1937; correct?10·

· · ·· A.· ·Yes.11·

· · ·· Q.· ·I'd like to direct the Court's attention to12·

·the third whereas on that first page of the document.13·

· · ·· A.· ·Okay.14·

· · ·· Q.· ·Would you read that statement for us, that15·

·third whereas?··It starts "Whereas, the project will16·

·have an estimated."17·

· · ·· A.· ·"Whereas, the project will have an estimated18·

·live capacity of at least 32,000 acre-feet of water19·

·annually, and it is agreed by the parties hereto that20·

·the total waters to which the board is entitled will be21·

·at least sufficient to permit the operation of said22·

·project at its full capacity so that 32,000 acre-feet23·

·of water can be made available annually during the24·

·irrigation season"; and proceeds to the next whereas.25·



Page 5824

· · ·· Q.· ·Thank you.··That was very thorough.·1·

· · ·· A.· ·Okay.·2·

· · ·· Q.· ·So you can see there the official reference·3·

·was to almost -- at least 32,000 acre-feet; correct?·4·

· · ·· A.· ·The first reference is "at least 32,000."·5·

·The second one is simply so that 32,000 acre-feet can·6·

·be made available.··So we have two phrases modifying·7·

·32,000.·8·

· · ·· Q.· ·And then in the third line you have another·9·

·instance of the use of the word "at least."··So "that10·

·the total waters to which the board is entitled will be11·

·at least sufficient to permit the operations of said12·

·project," et cetera; correct?13·

· · ·· A.· ·I see that, yes.14·

· · ·· Q.· ·If you'd turn a few pages farther back in the15·

·document there's a page labeled MT15167.16·

· · · · · · And have you found that page?17·

· · ·· A.· ·Yes, I have.18·

· · ·· Q.· ·This, by its title, is "Amendatory Water19·

·Marketing Contract Between the State Water Conservation20·

·Board of the State of Montana and the Tongue River21·

·Water Users' Association," dated March 15, 1938;22·

·correct?23·

· · ·· A.· ·Yes.24·

· · ·· Q.· ·And this also has a couple of whereases on25·



Page 5825

·that first page.··Would you be so kind as to read for·1·

·us the first whereas.·2·

· · ·· A.· ·Sure.··"Whereas, by contract executed as of·3·

·the 7th day of July, 1937, the board agreed to sell and·4·

·the association agreed to purchase the right to the use·5·

·of at least 32,000 acre-feet of storage water; and,"·6·

·and it continues.·7·

· · ·· Q.· ·Thank you.··So, here again, the reference is·8·

·to at least 32,000 acre-feet; correct?·9·


· · ·· Q.· ·And this is referring -- this amendment is11·

·referring to the original contract we looked at;12·

·correct?13·

· · ·· A.· ·I'm not sure.··But, yeah, I haven't studied14·

·this out.··That seems like a reasonable conclusion15·

·based on its title.16·

· · ·· Q.· ·And the whereas that you read referred to the17·

·contract dated 7th day of July, 1937.··That's the18·

·original one that we looked at; correct?19·

· · ·· A.· ·Is that right?··I didn't remember the date20·

·but take your word for it.21·

· · ·· Q.· ·Okay.··And this amendment was executed in22·

·1938; correct?23·

· · ·· A.· ·The date at the top is 15th day of March,24·

·1938.25·



Page 5826

· · ·· Q.· ·Thank you.·1·

· · · · · · Now, based on your experience in reviewing·2·

·operational records from the North Platte Basin,·3·

·wouldn't you agree with me that if the intent is to·4·

·deliver a certain amount of -- certain number of·5·

·acre-feet of water from a reservoir, that in order to·6·

·have confidence that one will be able to deliver the·7·

·committed amount, that you must store more than the·8·

·amount that you commit to deliver?·9·

· · ·· A.· ·Yes.10·

· · ·· Q.· ·And there are examples in the North Platte11·

·system that bear that out, aren't there?12·

· · ·· A.· ·Yes.13·

· · ·· Q.· ·For instance, Seminoe Reservoir, how big is14·

·that?15·

· · ·· A.· ·That's a million acre-feet.16·

· · ·· Q.· ·And the delivery committed out of Seminoe is17·

·about a hundred thousand, isn't it?18·

· · ·· A.· ·Or less.19·

· · ·· Q.· ·Earlier we were discussing stock water20·

·rights.··I think you discussed them in your direct21·

·testimony.··We've touched on that in our discussion.22·

· · · · · · You're aware, aren't you, that stock water23·

·rights are not required to be filed or registered in24·

·the state of Montana; isn't that right?25·



Page 5827

· · ·· A.· ·I learned that over the course of this·1·

·hearing.·2·

· · ·· Q.· ·So you didn't know that when you were·3·

·preparing your expert report?·4·

· · ·· A.· ·I don't think that I knew that.··But it·5·

·doesn't matter, so I may not have registered that fact.·6·

· · · · · · MR. DRAPER:··Your Honor, I'm just at the·7·

·point where I just need to check my notes briefly, and·8·

·then I think we're just about done.·9·

· · · · · · SPECIAL MASTER:··That would be fine.··Want to10·

·take a few-minute break?11·

· · · · · · MR. DRAPER:··Great.··Thank you.12·

· · · · · · SPECIAL MASTER:··We'll go off the record.13·

· · · · · · · · · · · (Discussion held off the14·

· · · · · · · · · · · record.)15·

· · · · · · SPECIAL MASTER:··Mr. Draper, back on the16·

·record.17·

· · · · · · MR. DRAPER:··Thank you, Your Honor.18·


· · ·· Q.· ·Mr. Hinckley, I'd like to turn to the final20·

·page of the text of your report.··It's page 33.··It has21·

·Table 6 on it.22·

· · ·· A.· ·Okay.23·

· · ·· Q.· ·This is where you compiled the original Book24·

·results and showed the adjustments that you felt were25·



Page 5828

·appropriate; correct?·1·

· · ·· A.· ·Yes.·2·

· · ·· Q.· ·And so the bottom-line numbers you give are·3·

·the totals in the bottom row of Table 6?·4·

· · ·· A.· ·Yes, expressed as depletions and negative·5·

·sign indicating augmentation.·6·

· · ·· Q.· ·Now, in that table, you've indicated that you·7·

·gave zero value -- zero value to the post-1950 storage·8·

·and the Wagner/Fivemile; correct?·9·

· · ·· A.· ·Yes.10·

· · ·· Q.· ·So those are both post-1950 storage issues,11·

·if you will; correct?12·

· · ·· A.· ·That was my understanding.13·

· · ·· Q.· ·And you took those out.··Now, the next line14·

·is "Import Returns."15·

· · · · · · Now, those are winter import returns, aren't16·

·they?17·

· · ·· A.· ·Well, I guess I don't know, as I sit here.··I18·

·can't tell you.19·

· · ·· Q.· ·If those are winter import returns, they20·

·would only be an offset -- they're all negative, of21·

·course.··Since they're extra returns, they would22·

·only -- it would only be proper to offset them against23·

·storage; isn't that right?24·

· · ·· A.· ·Yeah.··That would be consistent with what I25·



Page 5829

·did with these other ones.··I'd have to go back and·1·

·look at Mr. Fritz's report to see where those fell.·2·

·But I think that's correct, that if those were winter,·3·

·then I should have accounted them as impact storage·4·

·rather than direct flows.·5·

· · ·· Q.· ·And, therefore, in this table, subpart D,·6·

·those should have been zeros, all four of them; right?·7·

· · ·· A.· ·I don't know.··Like I said, I don't know·8·

·where those return flows fell.··That's an interesting·9·

·question I don't know the answer to, as I sit here10·

·today.11·

· · ·· Q.· ·You haven't investigated that?12·

· · ·· A.· ·I adopted those figures from Mr. Fritz's13·

·work.··And I would have to go back and look at that14·

·issue, and I don't recall doing that.15·

· · ·· Q.· ·And if, looking at that, it should indicate16·

·that those are winter import returns, then those should17·

·be zero in each of those four years; correct?18·

· · ·· A.· ·Yes.19·

· · ·· Q.· ·Okay.20·

· · · · · · MR. DRAPER:··No further questions at this21·

·time, Your Honor.22·

· · · · · · SPECIAL MASTER:··Okay.··Thank you,23·

·Mr. Draper.24·

· · · · · · MR. KASTE:··First of all, I'd like to say25·



Page 5830

·I'll take our water and beer.··It's 4:30.··I do not·1·

·want to shortchange your ability to talk to·2·

·Mr. Hinckley.··He's available to testify tomorrow.·3·

·We're available to listen tomorrow.··We've spent a lot·4·

·of time this afternoon.·5·

· · · · · · And one thing I don't want is for you to do·6·

·what you've had to do a couple times with Mr. Fassett·7·

·and Mr. Tyrrell in order to get them on an airplane,·8·

·which is not probably ask all the questions that you·9·

·have.10·

· · · · · · I want you to have that opportunity, and11·

·we'll be here tomorrow if you need it.12·

· · · · · · SPECIAL MASTER:··Okay.··Several things.13·

·Number one, I actually would not be able to finish14·

·right now.··And I assumed that Mr. Hinckley was likely15·

·to be here as long as anyone else was here.··So unlike16·

·with some other witnesses that I did try to accommodate17·

·by winnowing my questions to the ones that were most18·

·important, I would suggest we have Mr. Hinckley come19·

·back tomorrow.20·

· · · · · · That, though, raises the next question.21·

· · · · · · MR. DRAPER:··Your Honor, I might ask your22·

·indulgence and Mr. Hinckley's, if he could investigate23·

·the question that we were talking about at the end of24·

·his cross-examination.··It may be something he can25·



Page 5831

·determine overnight.··It's probably a pretty simple·1·

·process.·2·

· · · · · · SPECIAL MASTER:··I'll make it even simpler.·3·

·That was one of the questions I had on my list.··I'll·4·

·confess, I didn't have it on my list until after you·5·

·asked the question.·6·

· · · · · · But I have some more, so I figured he would·7·

·probably find out the answer overnight anyway.··And so·8·

·you can expect that I'll probably ask related·9·

·questions.··So this gives you an opportunity to clarify10·

·the record on that.11·

· · · · · · So we have one more day.··So let me just --12·

·at this point, Mr. Hinckley, you get to sit there for a13·

·minute or two.14·

· · · · · · Let me ask, does Montana have any expectation15·

·of calling any rebuttal witnesses?16·

· · · · · · MR. DRAPER:··Your Honor, I'd like to give it17·

·a final consideration overnight, but I would be18·

·prepared to tell you as we begin tomorrow morning.19·

· · · · · · SPECIAL MASTER:··Okay.··Well, let me ask you20·

·a different question.··To the degree you do, is it your21·

·expectation you'll be able to finish them in short22·

·order tomorrow?23·

· · · · · · MR. DRAPER:··That's my assumption.24·

· · · · · · SPECIAL MASTER:··Okay.··If you're prepared,25·



Page 5832

·then, first thing in the morning, that would be great,·1·

·because I don't expect to be that long with my·2·

·questions.·3·

· · · · · · Now, a couple of other matters.··Number one,·4·

·assuming that we have time tomorrow, and I certainly·5·

·hope we do, I'm happy to give both sides an opportunity·6·

·to make a closing argument.·7·

· · · · · · This has been a long proceeding.··I'm·8·

·obviously going to be going back at this stage and·9·

·taking a look back at the whole record.··And as we will10·

·spend some time talking about tomorrow, I will be11·

·asking for posttrial briefs from both of the two sides.12·

· · · · · · But we're here right now.··The testimony is13·

·relatively fresh in my memory, depending on exactly14·

·when the witness testified, and so this is an15·

·opportunity for you to summarize what you think are the16·

·key salient points that I should be looking at when I17·

·begin to actually dive into the record.18·

· · · · · · It may also give me an opportunity to ask you19·

·a few questions.··So there's no reason that you have to20·

·do it.··But I do want to give both sides an21·

·opportunity, assuming, again, that we have time22·

·tomorrow to do that.23·

· · · · · · So I just wanted to let you know so that if24·

·you did want to prepare at all, you could.25·



Page 5833

· · · · · · MR. KASTE:··Okay.··I'll just read my opening·1·

·statement.··I think I'm dead on with what I said there.·2·

· · · · · · SPECIAL MASTER:··I thought you'd probably·3·

·read either that or else your motion at the end of the·4·

·plaintiff's case.·5·

· · · · · · MR. KASTE:··Might.··I do think it would be·6·

·worthwhile if we have time to discuss sort of the·7·

·nature of the posttrial briefing and what you would·8·

·find helpful, what the parties might propose in that·9·

·regard and the timing of those events.··And I hope we10·

·have an excessive amount of time to do that tomorrow.11·

· · · · · · I think I'm kind of getting shortchanged not12·

·having a definitive answer with regard to the rebuttal13·

·today.··We've been asking that question for a little14·

·while now and would think I'd be entitled to an answer15·

·today.··But if we're not going to force that issue,16·

·fine.··I can do it on the fly.17·

· · · · · · SPECIAL MASTER:··Yeah.··No, I'm not at this18·

·particular point.··But, you know, I do want to say that19·

·tomorrow I will probably be even stingier than I am20·

·right now in terms of what I consider to be legitimate21·

·rebuttal testimony.··In other words, we won't have a22·

·lot of time to discuss it tomorrow, so keep that in23·

·mind.24·

· · · · · · MR. DRAPER:··Very good, Your Honor.25·



Page 5834

· · · · · · SPECIAL MASTER:··But we will -- we'll·1·

·definitely spend some time talking about where we'll be·2·

·going on the posttrial briefs and would be more than·3·

·happy to get any advice you have on, you know, what you·4·

·would think would be useful to me.··I'll tell you what·5·

·I think would be useful from my perspective from that·6·

·point.·7·

· · · · · · MR. KASTE:··I would advise you to rule from·8·

·the bench in my favor.·9·

· · · · · · SPECIAL MASTER:··I figured you would.10·

· · · · · · MR. DRAPER:··Me too, in my favor.11·

· · · · · · SPECIAL MASTER:··I'm just wondering -- let me12·

·just ask five minutes of questions right now so that13·

·tomorrow we can just deal with factual issues.··But I14·

·just want to establish one thing that became a little15·

·bit less clear this afternoon with respect to16·

·Mr. Hinckley's testimony.17·

· · · · · · And, Mr. Hinckley, you have to understand18·

·that one of the things that we have to be very careful19·

·about is what expert witnesses can testify about and20·

·what they cannot, given their particular background,21·

·can testify to.··And I just want to ask you a few22·

·questions just to, I think, reinforce what I was23·

·emphasizing this afternoon as to what I think you can24·

·legitimately testify to and what you cannot.25·


BERN HINCKLEY - December 3, 2013Examination by the Special Master

Page 5835

· · · · · · · · · · · · EXAMINATION·1·

·BY SPECIAL MASTER:·2·

· · ·· Q.· ·So you have never studied law other than, for·3·

·example, the one water law course that you say you·4·

·took?·5·


· · ·· Q.· ·Okay.··And you're not a practicing lawyer?·7·

· · ·· A.· ·I am not.·8·

· · ·· Q.· ·Nor are you licensed to practice law?·9·

· · ·· A.· ·I am not.10·

· · ·· Q.· ·In the course of preparing your report, you11·

·did not do any analysis of Montana law with respect to12·

·reservoir operations?13·

· · ·· A.· ·Well, I'm sensing the right answer is no.14·

·But, of course, I had to look at some of those issues15·

·to know what data to bring forward.16·

· · ·· Q.· ·But my question is:··Did you actually look at17·

·and analyze the law with respect to those questions?18·

· · ·· A.· ·No.19·

· · ·· Q.· ·And let me ask:··Did you do an analysis of20·

·what the law was for prior appropriation states21·

·throughout the western United States?22·

· · ·· A.· ·No.23·

· · ·· Q.· ·Okay.··Thanks.··Like I said, I just wanted to24·

·establish that, again, just to be clear.25·


BERN HINCKLEY - December 3, 2013Examination by the Special Master

Page 5836

· · · · · · SPECIAL MASTER:··Mr. Hinckley's testimony, in·1·

·my view, is correctly limited to information with·2·

·respect to the operations of the reservoir.·3·

· · · · · · Obviously, you looked at some numbers based·4·

·on assumptions as to what the law might be on·5·

·particular points and showed what your analysis would·6·

·suggest would be the implications of that.·7·

· · · · · · But the testimony does not deal with what the·8·

·actual consequences, then, are for the law.··That,·9·

·then, requires an application of the law to the data10·

·that Mr. Hinckley collected.11·

· · · · · · And I assume there is no objection on either12·

·side to that?13·

· · · · · · MR. KASTE:··Nope.14·

· · · · · · SPECIAL MASTER:··Okay.··That's what I15·

·assumed.16·

· · · · · · MR. DRAPER:··No.17·

· · · · · · SPECIAL MASTER:··Okay.··Great.··So why don't18·

·we, then, break for today.··We'll come back again at19·

·8:30 tomorrow morning and we will start then.20·

· · · · · · And, again, I'm just going to stay here and21·

·sort of clear up the bench up here.··So everybody can22·

·go about their own ways at this stage.23·

· · · · · · · · · · · (Trial Proceedings recessed at24·

· · · · · · · · · · · 4:36 p.m., December 3, 2013.)25·


Page 5837

· · · · · · · · ·· REPORTER'S CERTIFICATE·1··· ·· · · · · · I, Vonni R. Bray, a Certified Realtime·2··· ··Reporter, certify that the foregoing transcript,·3··· ··consisting of 232, is a true and correct record of the·4··· ··proceedings given at the time and place hereinbefore·5··· ··mentioned; that the proceedings were reported by me in·6··· ··machine shorthand and thereafter reduced to typewriting·7··· ··using computer-assisted transcription.·8··· ·· · · · · · I further certify that I am not attorney for,·9··· ··nor employed by, nor related to any of the parties or10··· ··attorneys to this action, nor financially interested in11··· ··this action.12··· ·· · · · · · IN WITNESS WHEREOF, I have set my hand at13··· ··Laurel, Montana, this 14th day of February, 2014.14··· ··15··· ··16··· ·· · · · · · · · · · · · ·· ______________________________17·· · · · · · · · · · · · ·· Vonni R. Bray, RPR, CRR· ·· · · · · · · · · · · · ·· P. O. Box 12518·· · · · · · · · · · · · ·· Laurel, MT 59044· ·· · · · · · · · · · · · ·· (406) 670-9533 - Cell19·· · · · · · · · · · · · ·· (888) 277-9372 - Fax· ·· · · · · · · · · · · · ·· [email protected]··· ··21··· ··22··· ··23··· ··24··· ··25·


Documents

No. 137, Original · · · ·· IN THE SUPREME COURT OF THweb.stanford.edu/dept/law/mvn/pdf/1-Volume_24.pdf · 23 · · resume the stand. ·· There is a very simple answer to 24