Water Archives · Dan Dooley interview

Title

eng Dan Dooley interview

Description

eng Attorney representing several east-side irrigation districts during the negotiations over the San Joaquin River Settlement and the Central Valley Project Improvement Act.

Creator

eng Dooley, Dan

eng Holyoke, Thomas

Relation

eng Water Archive Oral Histories

Coverage

eng California State University, Fresno

Date

eng 9/13/2010

Format

eng Microsoft Word 2003 document, 16 pages

Identifier

eng SCMS_waoh_00018

extracted text

>> Tom Holyoke: The interview today is with Mr. Dan Dooley, currently at the
University of California. Let's just start with a little bit of personal
history. Sort of where are you from, some of your early involvement in farming.
How you sort of ended up working, I guess, for your first big job, Deputy
Secretary of Agriculture, sort of up to that point.
>> Dan Dooley: Sure. Well, I'm born and raised in Tulare County, just down the
road from the campus here, from a farming family. I'm 5th generation and we have
a cousin who's managing the operation now who's 6th generation. So we've been in
the business in farming in Tulare County for a long time. I went to Hanford High
School. Was very active in Future Farmers and held state and national offices.
And Fresno State offered me a lot of scholarships to come to school here and
study agriculture which I did right out of high school. At the end of my
sophomore year, however, I was selected to the National FFA office and so I took
the year off and traveled around the country on behalf of the Future Farmers and
was a great experience. When I completed that year I was sort of determining
what I was gonna do with the rest of my life and so I decided to transfer to UC
Davis and -- where I studied Agricultural Economics, very quantitative program.
And I went to law school after that at the University of the Pacific McGeorge
School of Law in Sacramento. My wife at that time who's also a Hanford High
School graduate, Fresno State grad was working for Governor Jerry Brown in his
legislative office. And as a result of her involvement there I met one of the
agency secretaries who offered me a job right out of law school as a special
assistant to her and a few months later the governor appointed me to be the
Deputy Secretary of Agriculture. I often joked because I was one of the two
farmers he knew. The other one was Rich Rominger who he appointed as the
Secretary of Agriculture. And so I spent 5 years in that role helping around the
Department of Food and Agriculture for the state. It was great, great
experience. I was way too young and way too inexperienced to actually hold the
position but I learned an awful lot in the process and I met a lot of people and
so it was a wonderful experience.
>> Tom Holyoke: Had you studied water law or law regarding agriculture when
you're at law school?
>> Dan Dooley: Well, there weren't any real agricultural law courses. There was
a water law course but I didn't take it. At the time, I haven't--you know, I
never even thought about working in the water area as a lawyer. After I left the
Department of Food and Agriculture which was a couple of years before the
governor's second term expired, I was working on a farming operation and the
governor asked me if I'd be willing to take a position on this California Water
Commission which I did and in that role then ultimately became the Chair of the
Commission and people started asking me if I was a water lawyer and I said of
course. And you know I started taking on special projects and you know it's like
anything else, if you have a good result early on in your career then all of a
sudden you're an expert. And one thing led to another and by the late '80s I
found I had a very large clientele in the water business.
>> Tom Holyoke: Could you talk a little bit about the California Water
Commission? Sort of historically, what it was? Who created it? What it's
supposed to do? What it actually did?
>> Dan Dooley: Yeah. Well, the Water Commission originally, goes back to the
late '40s, was intended to be a high level policy advisory commission to the
director of the Department of Water Resources. And I think particularly it came
to high level prominence during the Pat Brown years. And actually, a fellow down
the road, Jack Chrisman who was the mayor of Visalia became the chairman of the

Water Commission during Pat Brown's years. And it was one of the central players
in helping the governor move forward the California Water Project that was
authorized in the early 1960s. And so it had a great deal of responsibility in
those days for oversight of the development of the California Water Project. All
land acquisitions for the project had to be approved by the commission and so
forth and then in the mid '70s after the water project was completed, then the
commission sort of became a clearinghouse for the state's position on federal
appropriations for flood control projects funded by the Corps of Engineers and
for other federal actions related to California water issues. And it played a
very significant role I think through the early 1990s in that capacity. In the
late '90s, Governor Davis in particular was trying to cut down on the number of
advisory boards and commissions and at one point there were no members of the
California Water Commission. And so it obviously had lost some of its panache,
and it's not very active today at all. I'm not even certain if they have members
of the commission today.
>> Tom Holyoke: When you were working on the commission, what sort of duties did
you have? What sort of problems or issues were you dealing with?
>> Dan Dooley: Well we--early on, we were very involved in the original
peripheral canal initiative. We held hearings around the state talking about
what the provisions of the initiative were and why it was important, that sort
of thing. There was a second Proposition 13 in the mid '80s which was a water
conservation initiative. And again the commission held hearings seeking input
from various constituencies around the state. We actually were very actively
engaged in identifying which proposed Corps of Engineers flood control projects
were the highest priority for the state. So we would hold hearings and take
input on the various proposals and make recommendations to congress on which
ones we thought were the highest priority for the state. So it was a place to be
involved in a lot of cutting edge issues that were in the policy arena.
Particularly, in Washington in the later years I was on the commission and in
the early years it was--a lot of it was related to the delta issues which are
still first and foremost today.
>> Tom Holyoke: Just slightly in the side note here, you mentioned that you
worked on the original peripheral canal issue. The time that was being worked
on, any sense that it was going to be voted down in 1982 that come as a surprise
or?
>> Dan Dooley: I'm not sure it came as a surprise that it was voted down. I
think the unlikely bedfellows in the opposition to it were surprising, and so
you had folks like the Environmental Defense Fund and Natural Resources Defense
Council who were on the same side of the issue and coordinating the anti
campaign with J.G. Boswell Company and the Salyer Land Company in those days.
And you know those groups typically were about as far apart as you could
possibly get. So that was a bit surprising. I think most people, even those that
were actively in opposition in those days recognize now that it was probably the
biggest mistake they ever made, that many of the issues we're trying to resolve
today would have been much more easily dealt with if we had moved forward with
the peripheral canal in the early '80s.
>> Tom Holyoke: When did you leave commission?
>> Dan Dooley: Gee. You didn't tell me you're gonna ask that question. I think
it must have been--it must have been maybe January of 1987, I'm not 100 percent
sure.

>> Tom Holyoke: Okay.
>> Dan Dooley: I served four or five years on the commission.
>> Tom Holyoke: And did you go from that time then into private practice?
>> Dan Dooley: Well, I started private practice before I left the Commission,
probably in 1985 or so. And I was working on special projects, flood plain
designation project on the Kaweah River System for example where some interests
hired me to represent them in that process. And a few, the Porterville
Irrigation District retained me as general counsel somewhere in '86 or '7,
somewhere in there. And that actually was my first representation of an interest
in the Friant Division of the federal project and then things sort of spun off
from all of that.
>> Tom Holyoke: From what I understand about your career you've been involved in
aspects of many of the big, I guess, flash points in California water politics.
One you'd mentioned in our discussion beforehand was I guess some of the
settlements related to Kesterson Reservoir. Could you talk about that a little
bit?
>> Dan Dooley: Yeah. Well the Kesterson dispute obviously related. So there was
a project to create a master drain that ultimately was to take drainage water
from the west side of the San Joaquin Valley to the bay and out into the ocean.
The first part of the drain was completed and its terminus was Kesterson
Reservoir.
>> Tom Holyoke: Well, I'd to just interrupt for a second. That was important
because we needed to get drainage water out because of?
>> Dan Dooley: Of salt accumulation. Basically, you're--particularly when you're
exporting water from the delta, it has a fairly high concentration of salt.
>> Dan Dooley: And most of the exported delta water for agriculture used on the
west side of the valley.
>> Dan Dooley: And so there--it was always contemplated that there would be a
corollary drainage project that would take salt water, accumulated salt water,
from the valley back to the bay and out into the ocean. The first part of it got
completed and the terminus was Kesterson Reservoir. Somebody had the bright idea
that Kesterson Reservoir could be managed for conjunctive uses so it could also
become a wild life preserve. The rest of the drain was never completed. And so
what happened was you have these ever increasing concentrations of salts and so
forth in Kesterson Reservoir including selenium. And selenium began
bioaccumulating in the aquatic plant life in Kesterson Reservoir. And coots, mud
hens as what I grew up calling them, particularly fed on some of this. And it
started having--there is no question it had adverse impacts on embryos from the
mature coots that were feeding upon this forage that had accumulated the
selenium. And that resulted obviously in a huge project to clean up Kesterson
Reservoir to treat--actually they stopped delivering drainage water there. And
ultimately, it has been reclaimed and is now being managed almost exclusively as
a wildlife refuge. At a similar period of time, there were accumulations of salt
in some of the farmlands south of the federal project, the Tulare Lake basin and
some parts of Western Kern County. And those operators, farmers, instead of
having a centralized disposal system developed on farm drainage evaporation
basins. And they would put their drain water into these basins and then it would
evaporate. And it was remarkably effective. The Fish and Wildlife Service,

however, based on their experience at Kesterson began raising significant
concerns that the same thing would happen there. There were some notable
distinctions. One, the concentrations were not nearly as high of selenium.
Secondly, the operators were fairly shrewd and they didn't let forage grow. They
kept these as fairly sterile environments. So they did not really attract a lot
of waterfowl but they did attract shorebirds, avocets and egrets and snowy
plovers and things of that nature, all of avian species that I learned a lot
about because of this project. And so they did then begin discovering some
deformities in embryos from some of these species as well. And so the Fish and
Wildlife Service then originally said you have to shut these basins down and
then they said no. If you develop some alternative habitat that, you know, that
is more attractive to these birds that's in reasonable proximity then we think
we can manage it. But they wanted three or four times as many acres of
alternative habitat as the drainage basins. So my involvement was representing
some of the more progressive with those operators. And they retained at my
recommendation their own biologist and began doing their own experiments, you
know, with alternative habitats. The end result was that Fish and Wildlife
Service adopted protocols that we developed for how much mitigation habitat was
necessary for these various basins. And it was far less than was originally
thought to be necessary to avoid impacts. And in my principal clients,
particular case Westlake Farms which is the western side of the Tulare Lake
Basin. It worked out that they needed about a tenth of an acre, per acre of
evaporation basins to avoid any impacts at all. So it's a very satisfying
project to work on because we were not only resolving a legal dispute, we were
really driving the biology as well largely because I had a client who was
willing to be progressive and invest the money to see what we could do.
>> Tom Holyoke: As I understand it, this larger issue of drainage remains
unresolved. Any particular sense as to what the problem's been. It's a
recognized problem and yet it's remained unsolved for decades.
>> Dan Dooley: Well, I mean the big problem is the imported water from the delta
in particular is pretty high in salt. And you know, I mean throughout, you know,
millions of years there, you know, wherever you're doing irrigation of any kind
you end up with increasing salt concentrations. And so that's happening
particularly on the eastern side of the San--or the western side of the San
Joaquin Valley. Now, ironically, the Sierra snowmelt water is very, very low in
salt and so you know those lands on the eastern side of the valley that are fed
largely by Sierra snowpack runoff are not experiencing any significant salt
accumulations but the west side is. And so it's being managed presently in a
variety of different ways. Some of these drainage evaporation basins are still
operating and will continue to operate, I think, and may provide some means.
There's been a lot of research on salt tolerant plants too. And as genetics, the
knowledge of genetics improves I think there is some great hope in the future
that we'll increasingly be able to use more brackish water for irrigation
purposes because the genetics of the plants will tolerate the salt. But
ultimately, we're gonna have to have some disposal mechanism. And that's
obviously very controversial and is fraught with potential environmental issues
that have to be addressed in the process. But if the San Joaquin Valley is gonna
remain a highly productive agricultural region over decades; this is an issue
that will have to be addressed in some form or fashion in the future.
>> Tom Holyoke: In fact, just connecting some issues wasn't part of the purpose
for having a peripheral canal to address this problem? To bring in fresh--more
freshwater from the Sacramento River?

>> Dan Dooley: Well, yeah. It's for a variety of things. Certainly, the
discussion today is to get higher quality water to the pumping plants for export
south. It's also to help manage the delta ecosystem because one of the biggest
problems we have is in the southeast delta. There's not enough freshwater coming
in and so you have a real water quality problem in the southern and eastern side
of the delta and that when you turn on the pumps, it tends to draw that water to
the pumps, and it has adverse effects for the quality of the water that are
pumped. But it also has very adverse effects for the health of the ecosystem and
the delta as well. So there are a variety of reasons related to salt in large
part to try to find some better conveyance system for moving water around the
delta.
>> Tom Holyoke: Okay then, moving on into talking a little bit more about the
delta is another--something else you were involved in with some legal work or
some settlements related to the Central Valley Project Improvement Act of 1992.
A piece of legislation that I guess I understand applied some of the
environmental laws to the Central Valley Project. And as I understood it
dedicated about 800,000 acre feet of water for fish recovery?
>> Dan Dooley: All right, that's right. Right off the top the Central Valley
Project, the CVPIA as we water buffalos referred to it is dedicated 800,000 acre
feet of the project supply to the environmental purposes identified in the
Central Valley Project Improvement Act. And those were a variety of things. They
were flow requirements in the delta. They were fishery flows, you know, at
certain times of the year to manage temperature for, particularly for anadromous
fisheries, a whole host of refuge water supplies and so forth that were all
identified as environmental purposes of CVPIA. And so the issue though was, in
that litigation, was to define how you account for the 800,000 acre feet. And
some particularly in the conservation community argued that if the water was
subsequently pumped even though it was released for an environmental purpose
under CVPIA. If it was picked up and pumped and ultimately delivered to a water
contractor then it didn't count towards the 800,000 acre feet. The water users
obviously disputed that and what was in play was if you didn't account for it,
it meant about 350,000 acre feet of additional water that would be lost to the
contractors by the definition that the--someone in the conservation community
wanted to apply. So we were a part of a fairly large coalition of water users
that were arguing for a more literal interpretation. There's nothing in CVPIA
that says you can't use water for multiple purposes. And just because it's
released for environmental purposes and picked up for water use purposes
shouldn't mean that it doesn't count towards the 800,000 acre-foot requirement
of CVPIA. And we prevailed in that litigation.
>> Tom Holyoke: I guess now to come into sort of the main issue with--really
want to kind of talk to you about and that is the settlement over the
restoration of the San Joaquin River. Could you just provide a little bit of
history as to what led up to the litigation over the San Joaquin River?
>> Dan Dooley: Yeah, the litigation initially was triggered by renewal of the
Friant long term water service contracts with the Bureau of Reclamation. And the
first of those contracts to come up for renewal was the Orange Cove Irrigation
District in Eastern Fresno County. And it was the first Friant district to
actually receive water from the Friant project in 1948. And so the original
contracts were 40-year contracts and so theirs was the first to come up. But all
of the subsequent Friant contracts were coming up within about a 5-year period.
So they were all, you know, there were 28 contracts that were gonna come up for
renewal in a very short period of time. So we had began a process with the
Bureau of Reclamation to negotiate a sort of form Friant contract that would

address the Friant, the division wide terms and conditions and then there would
be a specific district negotiation on any peculiar issues.
>> Tom Holyoke: Actually, if I could just interrupt for a second, just thinking
of some things that viewers might want to know about. When you talk about
contracts with water users between the Bureau of Reclamation for CVP water these
are contracts between the Bureau of Reclamation and water districts or farmers
within one irrigation district?
>> Dan Dooley: No, no, no. They're all--all of the contractors are public
irrigation or water districts. So they're like the Orange Cove Irrigation
District, the Fresno Irrigation District, Madera Irrigation District. There are
28 of these public agencies up and down the Madera and Friant current canals
that have contracts with the federal government to receive water from the Friant
project. And so they're all public agencies. There are not any contracts with
private agencies or with individuals. It's all with the public agency.
>> Tom Holyoke: Okay.
>> Dan Dooley: So what happened was a coalition of environmental and fishing
organizations initially filed a lawsuit in December of 1988 that alleged that
there was a requirement to comply with the National Environmental Policy Act, do
an environmental impact statement before these contracts could be renewed. They
also alleged some violations of reclamation law which were sort of incidental
and then subsequently and more importantly they amended their complaint to add a
provision that said that the bureau as the operator of a dam was required to
comply with the provision of the California Fish and Game Code. Very obscure
provision called 5937. Etched in my memory for life and it's very simple. It
says the operator of a dam is obligated to release enough water over, under or
through the dam to maintain a fishery below the dam in good condition. That's
almost verbatim what the statute says. It had never been litigated. And so there
was no traditional interpretation about what kind of fish, you know, how far
below the dam, whether it applied to the federal government which could have
preempted it by congressional action, a whole host of issues that arose. So
ultimately, the sort of issues related to the contract renewals became secondary
to this bigger question of, is there an obligation of the Bureau of Reclamation
to comply with the state law provision? And after many years of litigation, in
the late '90s, early 2000s, the district court determined that the statute did
apply to the federal agency. It was upheld by the Ninth Circuit Court of
Appeals. And it was sent back to the trial court, the district court in
Sacramento to determine how much water and what fish. So the importance of the
what fish question is that if it's a warm water fishery, you know, bass and
catfish and so forth, then it doesn't take nearly as much water because
temperature is not a critical issue and you don't necessarily have to keep the
river wet all the way to the delta. The court though determined that it applied
to the native fishery which was in a--you know, a salmon fishery and that means
you've got to have a live stream. You've gotta maintain temperature at a certain
level in order for the salmon to survive and it's a lot more water. And so the
stakes suddenly became much higher and so that was, those were the issues we
were trying to resolve in the settlement process.
>> Tom Holyoke: Who had broughten in the original litigation?
>> Dan Dooley: Well, the lead plaintiff was a Natural Resources Defense Counsel
supported by the Bay Institute which is a very, very engaged conservation
organization in San Francisco. And then there were, in the coalition were a

number of groups, sport and commercial fishery organizations and there were 14
plaintiffs in all.
>> Tom Holyoke: Okay and the defendant was the US Bureau of Reclamation.
>> Dan Dooley: Well, the defendant was the US Bureau of Reclamation, the US
Department of Interior, the National Marine Fisheries Service, the Department of
Commerce, the Fish and Wildlife Service. And I think those were the federal
agencies. And then there were 22 Friant interveners that were also defendants.
And then we had 3 state agencies that joined as interested parties as well. So
it was a 3-dimensional group of plaintiffs and defendants.
>> Tom Holyoke: And the litigation was filed in 1988?
>> Dan Dooley: I think it was December of 1988. In fact I know it was December
17th of 1988.
[ Laughter ]
>> Dan Dooley: I know because it really messed up my holidays for that year
because we were preparing motions to intervene on behalf of many of the Friant
districts.
>> Tom Holyoke: So that was your role as--you're in private water law at this
time?
>> Dan Dooley: Yes, yeah, yeah.
>> Tom Holyoke: So your role was intervening in the case in behalf of a number
of these water districts.
>> Dan Dooley: Yeah, I represented I think 9 of the 22 Friant interveners and a
large, much larger portion of the water supply that was at risk. So you know,
my--and I was the general counsel to these irrigation and water districts that I
represented. So we represented them in the litigation as well.
>> Tom Holyoke: So, if the litigation comes forward in 1988 and when did you
actually--you mentioned that. You mentioned to me at one point that you would
initially try to make some kind of settlement. I assume someone in late 80s or
the early 90's that failed.
>> Dan Dooley: No, it's in the late 90s actually. So there really was not a lot
of impetus for settlement in the early years of the litigation. So at one point
the court ruled, for example, that a biological opinion had to be prepared under
the Endangered Species Act before contracts could be renewed. And so that
triggered 2 things. One it triggered a stay of the litigation while the
biological opinions were prepared. And it triggered the execution of some
interim contracts that sort of keep water supplies going while this -- these
procedural requirements were meant. Then the biological opinions were issued and
the complaint was amended and the biological opinions were challenged. And so
there were a series of decision points along the way. I think we went with-there were appeals to the Ninth Circuit at least twice, maybe 3 times during the
'90s on various decisions that were made by the district court. But the parties
in the late '90s agreed that they would try to see if there was a way to settle
the case. And as a part of that process they agreed to do some studies and they
actually purchased some water and released some flows and did some experiments
on the river to see if there was a way flows could be managed to meet multiple

objectives and so forth. And following on that we had a settlement process and
we actually--we got reasonably close. It started of as a very large group in the
settlement process and it ended up. Gary Sawyer who is a Fresno lawyer and I
were representing the Friant interests. We had David Lombardi who was the
mediator for the Ninth Circuit Court of Appeals in San Francisco was mediating,
and we had Gary Bobker from the Bay Institute, Jared Huffman from NRDC as the
representatives for the other side. And we got probably within 75,000 or 100
acre feet of reaching a deal. But it blew up at the last minute and so the stay
was lifted and we were back pursuing the litigation.
>> Tom Holyoke: What happened, why did it blow up?
>> Dan Dooley: I think a couple of reasons. One, they were--the conservation
community was pressing for a fair chunk of money to come out off the Friant
contractors and we couldn't sell that to our clients. And the incremental
difference in the water supply was viewed by some in the Friant community as
unacceptable. So the plaintiffs didn't get the money they were looking for and
it was costing our guys too much water and so we just--we couldn't get there, we
couldn't close the gap.
>> Tom Holyoke: So what then happens in the time between the first effort at
settlement and then the settlement that actually happened?
>> Dan Dooley: Well there was a Ninth Circuit ruling that affirmed some of the-Judge Carlton who was the district court judge, his determination which were
adverse to the Friant community. And a trial date was set to determine how much
water and so forth and that--I don't know of this was the judge's attempt at
humor but it was set to begin on Valentine's Day of 2006. And which I found not
humorous at all but, so in the spring of 2005, we were -- both parties who were
furiously preparing for trial and we were spending tens of thousands of dollars
on biologists, experts, and economists and you know all of the expert witnesses
and so forth exchanging reports, expert reports with one another. Fishery
biologists were key and hydrologists were key, you know. How much water do the
fish need? When do they need it and how does that match up with the flows of the
river and all that sort of thing? And so I tended to represent the more moderate
sector of the Friant community and they authorized me to sort of independently
see if there was a way we could provoke settlement discussions when the time was
right and so I was making a trip or so a month to Washington in May and June of
2005 and meeting with anybody who would listen to me and I met with Congressman
Radanovich and with Senator Feinstein in one of those trips and told them that,
you know, this was going to be a train wreck because the judge would settle and
his ruling would be a meat axe, it wouldn't be a scalpel and the consequences
could be very severe and there was no guarantee that in a judicial ruling that
the fixes to the river, the physical work. We knew he could order flows, we
didn't think he could order people to actually do physical work to make the
flows efficacious. And so in August of 2005, Senator Feinstein and Mr.
Radanovich asked me to come back and I spent three or four trips over about
three weeks working with their staffs and trying to craft some principles around
which they could ask the parties to come back to the table and that was the key
thing. I mean you know, we spend a lot of time in litigation trying to convince
the other side they're wrong instead of trying to understand what it is they
really need and in trying to see if there is a way we can marry what they need
with what we need. And so the principles for the environmental community were
flows in the river and some assurances that channel improvements would be made
that would make those flows work for fishery. What we needed was a defined -- we
needed water supply reliability, not too much. I mean we couldn't give up 50
percent of our supply and we needed financial security. We had to know that our

obligation financially was fixed at some level that we could live with. And so
in late September of that year, the senator and the congressman approached the
Friant community and the environmental community and said we think you should
come back to the table around these principles and we all said yes and so that
began the negotiating process.
>> Tom Holyoke: Just a couple of questions that are suggested here. Did you
approach the idea of settlement with a pretty strong belief that the
environmental community was also interested in settling and perhaps for some of
the same reasons in the sense that they were afraid of what a judge might
actually order and that it might like the nuances they would want?
>> Dan Dooley: I wasn't certain they had the upper hand in the litigation. I
wasn't certain they would necessarily come back to the table but I knew very
certainly that they had a hard time looking Senator Feinstein in the eye and
saying no. And so the key to what I was trying to do was to get somebody that
had a lot of juice politically and Senator Feinstein on these issues is
unparalleled. And she is very hard to say no to if she asks you to get involved
in something and so, I was hopeful that her engagement would be--would put
enough pressure on the plaintiffs in the case that they would have to come to
the table. And I was pretty convinced that if we got to the table and started
talking through things that we could find some accommodations and the key reason
I felt that and that I didn't feel before was their experts, who were Dr. Peter
Moyle at Davis and Dr. Gary Candoff [phonetic] at Berkeley had issued expert
reports in preparation for trial that suggested far less water was required to
restore a fishery than they had previously been advancing. And so you know I
sort of took the position, if your experts think you can restore fishery for
that amount of water, we have something to talk about provided it's fixed. And
it turns out that was a right assumption. I mean it was an iffy proposition at
the time but it worked.
>> Tom Holyoke: Why go to congress? Was there a formal role for congress or did
you simply feel that Senator Feinstein would be the best broker?
>>Dan Dooley: There was the latter. I mean I felt, first of all, it was very
important for the pressure to be bipartisan and you know Mr. Radanovich is a
personal friend of mine. We've known one another since long before he was in
congress and so and I think he saw it as an opportunity to do something very
constructive. And Senator Feinstein's caché, you know I mean she's just a very
powerful person and she really, when she gets her teeth into something she
doesn't let go off it easily and so I was hopeful that if she saw an opportunity
to be a significant broker of a major settlement here that she would take it as
a personal quest and really keep the party's feet to the fire. And she did. And
in particular she had a staff person John Watts who is now her legislative
director who he didn't spend quite as much time as I did on the case but he
lived and breathed it with us and was very, very engaged and then in fairness, I
mean, the two negotiators for the environmental side were Hal Candee of NRDC and
Philip Atkins-Pattenson who was with Sheppard Mullin is a big firm in San
Francisco and he was their lead litigation counsel. They are both brilliant guys
and they ultimately became committed to settling. And so I'm not sure Hal was
there initially but he soon got there and once you get vested in the outcome
then you're gonna do -- you're gonna work really hard to find a way to do it. So
you know things worked out. You know, it doesn't always happen that way but in
this case it did and it was the right thing to do.

>> Tom Holyoke: How contentious were settlement negotiations? I mean, these sort
of people ultimately started to kind of buy in and become invested but did it
start off rather acrimonious or?
>> Dan Dooley: Well even if they're invested in the outcome doesn't mean we were
in alignment all the time so there were very contentious moments in the process,
very contentious moments. And you know I'm not noted as being a table thumper
but, you know, there were times when I was ready to just turn and walk because I
couldn't see a pathway to get there and I felt, you know, the other side's
position was unreasonable. But you go back. You take a day off. You reflect on
it and then all of a sudden an idea pops into your head and you find a way to
work around something and so you know just to put it context. We began the
negotiations in early October of 2005. We ultimately completed the negotiations
including the language of the federal legislation on October 1st of 2007 and in
that 24-month period. I made 49 round trips to Washington and had 6300 hours in
this settlement negotiation alone. So it was, I mean you know, working time and
a half for two solid years trying to get it done and I would say 40 percent of
that was negotiating with the other side and 60 percent of it was working with
my own clients and trying to make sure everybody was on board and you know
keeping people--you know the biggest danger in a big settlement like that is you
get too far in front of your own clients and so you have to spend as much or
more time with them making sure they are comfortable with where things are
headed and if they are not then figuring out a different way to go. And I'm
pretty sure that was the same on the other side of the table. I don't->> Tom Holyoke: Coming back to the appointment in just a moment. How many
parties are really involved in the settlement? You mentioned two other
individuals. There's yourself, is it just the three of you really at the table?
>> Dan Dooley: No, Kole Upton who was the chairman of the Friant Water Users
Authority Board was the other Friant negotiator. The process was the first 90
days it was just the Friant and the environmental plaintiffs negotiating so it
was just the four of us. And in that 90 days we sort of crafted the framework of
a settlement but understand we had--I don't--so what did I say, five federal
agencies who were parties as well. So after the first 90 days when we sort of
came to terms of a framework of a settlement then we brought in the federal
parties and so then the balance of the 2 years was spent with the four of us
that initiated this process and representative for all the federal agencies and
then ultimately, a number of state agencies were at the table and so forth. So
by the end of the process we had in the final days of negotiating the language
of the implementing legislation in Senator Feinstein's conference room, we had
about 35 people around the table and it was more painful than watching paint
dry, I can assure you. Because some people wanted to be there so they could say
they were a part of a historic settlement and other people had very legitimate
issues and sometimes it was difficult to sort out who was who. But ultimately,
you know, people signed off on it and Senator Feinstein required, when she went
around the room and asked everybody if they agreed where we ended up and then
she made people sign a piece of paper saying they agreed which we
euphemistically call the blood oath. And it's been invoked a number of times
since, trust me.
[ Laughter ]
>> Tom Holyoke: You say 60 percent of your time was actually working with your
own clients, those you are representing to make sure they're on board. Was that
exceptionally difficult then?

>> Dan Dooley: Well, yeah. I mean it was, in many ways, the more difficult part
of the job because of, you know, and I'm sort of now anointed as the Friant
negotiator even though I don't represent the Friant authority. So I was meeting
with boards of directors for my colleague's clients, you know, Ernest Conant
represents a number of Kern County agencies, you know Doug Jensen who was a
partner with Ken Manock represented Chowchilla and, you know, there were other
districts and so I would go with them to their board meetings and explain what
was going on to their clients as well as my own and so you know, I put a lot of
miles on not only a lot of air miles, a lot of miles on my vehicle during those
days as well because I was running around from meeting to meeting.
>> Tom Holyoke: So what's the final settlement that you were able to get?
>> Dan Dooley: Well, I think the--so it's a very complicated settlement but
there are some really notable things. First of all, the average annual water
supply that was sacrificed to support the settlement was about 14 percent of the
historic deliveries. Now put that in context with reductions in deliveries to
Westlands because of the biological opinions for winter-run salmon in the delta
and the delta smelt. You know their maximum deliveries over the last 15 years
have been about 60 percent of their historic deliveries. So there--and in many
years, they are getting 15 and 20 percent so we cut a deal that basically said
we'll commit average annual deliveries of 14 or 15 percent of our supply. So we
fixed, we got the water supply reliability that we were looking for. Admittedly,
it's giving up some water but it's not nearly as much as we expected to lose if
we'd gone to trial. We expected the--so the number works out to about 170,000
acre feet a year. We expected the court was gonna order 4 to 500,000 acre feet a
year and--if we'd gone to trial. And the court would retain jurisdiction and if
it didn't work for 1 year he could order more. And so we weren't getting any
certainty if we lost a trial. The second thing we got, which was very important
was no additional cost. So, and that was a major change in the environmental
communities position from our first settlement discussion. So we don't have to
pay more for our water. We get to pay the same price that we would have paid had
we not had the settlement so forth. That was a big selling point for our
clients. And then we got something we only thought of once we got into the end
of the process of settlement discussions which is a water supply objective. And
it's a provision that does a couple of things. One, it allows us to try to
develop mechanisms where some of the water we release for fishery we can pick up
and re-circulate back into the Friant District. Now that's a long term goal. I
mean it can't--you know, until the Delta issues are resolved we probably won't
be able to do that but long term you know, if there is a peripheral canal and we
can pick water up, put it into the canal and move it to the pumps we could
conceivably get some part of the water we give up for fishery back. And then a
final piece was something called a recovered water account and what that allows
is we keep an account of how much each district loses to the fishery flows and
then they are entitled to buy flood flow water and other surplus supplies from
the Friant District at 10 dollars an acre foot, a heavily discounted water rate.
What that allows the district to do then is they can create a ground water bank,
for example, and when there's water available they can buy it at very cheap
rates. They can bank it in the ground water and they can mitigate some of the
losses to the fishery by having these other supplies available. So those things
collectively, you know, our clients felt it was a good business decision to
settle the case and eliminate the risk of losing huge chunks of water applied
indiscriminately by an adverse judgment at trial.
>> Tom Holyoke: Why was federal legislation required?

>> Dan Dooley: Well because we're obligating the federal agencies to do some
things and so the Bureau of Reclamation has an obligation to do a number of
fixes in the channel, you know, and they cost a lot of money. As, you know, the
San Joaquin River in many reaches looks like a beach. You know, it's a half a
mile wide and you know that deep and when you're trying to manage a river for
fishery purposes, you need a defined channel and it needs to be deep and narrow
so that you can maintain temperature and you can have shaded spots where the
water is cooler and the fish can stop you know as they are migrating and so
forth. There are a whole host of biological reasons for that. There are some
bypasses so you have Mendota Dam, the Mendota Pool that's a diversion structure.
You've to figure out how to get fish around it and you know there are all those
kinds of things that have to occur. There were appropriations needed to make
this work. Even though some of it is coming out of fees that the Friant
Districts are already paying, when you appropriate it for a specific purpose
like this, it requires congressional action and then there were downstream
interests that had to be protected. So water interests on the Merced River for
example. You know, they're concerned that if you restore a salmon fishery, some
you know confused salmon makes a left turn at the Merced and now all of a sudden
you've got a threatened and endangered species on the Merced that doesn't exist
there now. And they get sanctions imposed upon them to manage their water for
the salmon there and so there was a need to provide some flexibility in the
administration of the Endangered Species Act so that we could protect the
downstream interests as well. So there were a whole host of reasons why the
federal legislation was very important. It was very complicated legislation. It
was not a simple bill to put together.
>> Tom Holyoke: Now, that you've got your settlement, you have federal
legislation. How's the implementation of the settlement gone?
>> Dan Dooley: I would say so-so from what I know. There, you know there has
been a lot of related activity since. Judge Wanger has issued a couple of
critical rulings since the settlement was imposed. It had absolutely nothing to
do with the Friant division but which have heightened concerns of some of the
water interests and so there have been some sort of broad brush challenges to
anything related to environmental restoration that have, I’d say, colored the
view of the settlement somewhat. You know, we've had a year now of interim trial
flows under the settlement that have been released down the river and there are
some issues quite candidly I think are folks thought would occur. Some seepage
issues that have created high ground water tables for some adjacent land owners
in some of the downstream areas that will have to be addressed and I think we
knew they would have to be addressed.
>> Tom Holyoke: I think lawsuits have already been filed on that.
>> Dan Dooley: Yeah, and that's not surprising. I mean, you know, at any one
time there's got to be 25 or 30 major lawsuits on water in California and this
is just another one. But there are mechanisms in the settlement to address those
questions and I think ultimately they will be addressed. You know some of the
concerns that have been expressed, we told the plaintiffs would be addressed,
raised you know, and so it's not surprising to me. And in any complicated
settlement, you know you can't resolve every last issue or you'd never reach a
settlement and there are some provisions in the settlement that are
intentionally ambiguous.
>> Dan Dooley: And we knew what have to be resolved as we were implementing and
so there are some issues there that, are you know, get people's dander up a
little bit among the settling parties but at the end of the day, I think the

settlement will hold and I think the most important thing and I still--you know,
my former clients call me up and want to talk every now and then and I keep
telling them keep--remember what the principles were. You know, water supply
reliability at no additional costs, you know you got those so don't think you
want to walk away from this because the alternative is still a whole bunch more
water and potentially a lot greater costs, so.
>> Tom Holyoke: And it seems like that's important to remind people that there's
been some, I guess, some negativity on this.
>> Dan Dooley: Yeah, yeah.
>> Tom Holyoke: Congressman Radanovich has taken some criticism, some charge
that the environmentalists have reneged and seem like they want to reopen the
settlement.
>> Dan Dooley: Well that's not easy to do. And in fact, it's almost impossible
to do at this stage. So you know I think people are just gonna have to live with
it and find a way to make it work. You know, I think naively some people think
that because we got a settlement on the San Joaquin the environmental community
wasn't going to file any more lawsuits and you know that's, I mean that's really
naive in my opinion. That's their mode of operation on water issues. I don't
think it's a particularly effective mode but that's what they do, particularly
NRDC and some of their compatriots. Now there are other--you know, the Nature
Conservancy has gotten involved in the delta issues and Environmental Defense
Fund has changed their whole operating dynamic. They virtually never file
lawsuits anymore. So there are some new players that are kind of more in the
collaboration mode and looking for common ground and that's putting a lot of
pressure on some of the litigants as things move forward too. So I think over
the next 10 years you're gonna see a shift in the way some of these issues are
dealt with. Now, in fairness, people on the water user community are not bashful
about filing lawsuits either. And so, you know, we throw as much fire around as
anybody. And that's just the nature of the beast. And tensions are always
heightened when water supplies are short. So, in addition, to the pumping
limitations, I mean we had 3 years of drought and there just wasn't a lot of
water out there and you know some people want to say that's all because of the
Endangered Species Act and you know others say it's all because of hydrologic
conditions when in reality it's a combination of the two. The Friant community
nonetheless faired better than anybody else during that period of time largely
because we set up a process that limited our obligations and I don't think
anybody else has done that yet.
>> Tom Holyoke: I wonder if the notion of this being sort of--kind of a--the
settlement being a kind of a new model of adversaries working together has been
sort of taking off as I understand that this year, finally, a lot of these same
kinds of parties were able to come together at the legislature to craft and
support some pretty significant pieces of legislation dealing with California's
water problems.
>> Dan Dooley: Yeah. I mean, first of all, I think--first of all, it is critical
for people to sit down and start talking and I firmly believe. I've negotiated a
lot of things and I'm not the fire-breathing dragon that people hire when they
want to litigate to the death, you know. I'm typically the person they bring in
when they want to explore something in the middle ground that kind of resolves a
dispute without the risk of a big loss and litigation. And there's a place for
both. I'm not carving myself out as a messiah on this stuff but I do believe we
spend way too much time trying to convince our opponents that their positions

are wrong and too little time trying to understand their motivations and their
objectives and then exploring where there's alignment. You know where what we
need and what they want can be made to work together. And I think what we showed
in the Friant settlement not--it may not--it's not perfect. I wouldn't--no
settlement is perfect because, you know, by virtue of compromise you end up
doing some things that are less than perfect. But I think what we did was we got
out of that mode of arguing over whether what they wanted to do with fishery was
right or wrong and we talked instead about okay, you want to do this, we need
reliability and defined cost. How can we marry these things and make it work?
And when you get people in that kind of dialogue you are more apt to find a
middle ground than if you are arguing over who is right or wrong. And the
reality is there isn't a black and white in this stuff, it's all shades of grey.
>> Tom Holyoke: Now with all these experience, any sense as to what the most
immediate California water crisis is that needs to be solved? What's the big
problem right now that needs to be solved?
>> Dan Dooley: Well it's the same one that's been there for 35 or 40 years and
that's resolving the conveyance questions in the delta and I think it's
important for the Sacramento-San Joaquin delta ecosystem just as much as it is
for increasing reliability on water exports from the delta. You know, we've
tried to manage the fishery and the water quality issues in the delta with flows
alone and we've got 25 years of experience showing that doesn't work. Water
quality has gotten worse and the fishery conditions have gotten worse and we've
kept, you know, throwing more and more water at it and it isn't solving the
problem. And exports have declined precipitously so we're losing on all accounts
in the delta. So we've got to fix that problem and it's gonna take some
different thinking. It's gonna require looking at how can we use different
conveyance regimens, not only to get more water to the pumps with more
reliability but how do we use a conveyance system to better manage the
ecosystem. Number 1. We've got to stop managing species by species, you know. In
some cases what we do for winter-run salmon is antithetical to what you would do
for delta smelt so you gotta choose which fish, you know, you're gonna operate
for. Instead we ought to be looking at an ecosystem plan. How do we manage the
ecosystem as a whole not species by species. And the Endangered Species Act has
a mechanism to do that. And there are some discussion now of taking a look at a
habitat conservation plan for the delta which I think is sorely needed. We gotta
get out of this individual species management and then the final thing is we
have to recognize the delta is not some pristine natural, you know, salt water
estuary. I mean it is a manmade system with levies and stuff that weren't there
until people in the late 1800s and early 1900s started dozing up the cattails
and peat soils and make levies and reclaim the soil. And so it can never be made
perfect because it is not--it is a manmade system to begin with. The final thing
is we have been regulating the salinity in the delta very rigidly so at Vernalis
there's a salinity standard that is fixed at a point in the delta at a certain
concentration. What we know in natural conditions, the salt moves up and back
based on tidal influences and on flows and so if you have big tides and--I mean
there are--you know there are historic occasions where you had very low flows
and large tidal conditions where you got salt water almost to Sacramento, you
know and some people like Peter Moyle for example at UC Davis, a fisheries
biologist, is telling me he thinks that we need to let the salt move back and
forth. That it would create a more vibrant ecosystem because it's more akin to
the way state of nature would have been so we've got to do a whole bunch of
things in the delta. That is clearly the biggest problem we have. Now I'm gonna
say one final thing. There's modeling that shows that there's up to 300,000 acre
feet of water already south of the delta that could be transferred and moved if
we institutionally would allow it, and if you look at the upper east side of the

San Joaquin Valley, you have districts like and I'm not being critical of them,
but Merced, Turlock, Modesto irrigation districts that subsidize their water
rates with power revenues so the water is dirt cheap and there's no real
incentive to invest a lot of capital in water conserving or water efficiency
technologies. The same is true in the Los Banos area with the exchange--what are
called the exchange contractors and basically, they get the water delivered to
their head gates free because Friant pays for it as a substitute supply for the
San Joaquin River water. And so their only costs are whatever it costs their
district or water company to deliver the water once it gets into the head gate.
So it's very cheap as well. I believe there's private capital out there that
would invest in improving water efficiency and water conservation in some of
these areas if they could take some of the saved water and sell it. And
unfortunately, there are ambiguities in our law that make it uncertain whether
you could do that and it affects whether a capital will flow in or not. So I
believe we, in the short term, should be thinking about some reforms to our
legal infrastructure that would secure that water and incentivize private
capital to come in and invest in these efficiencies and conversation
technologies because they would then control some water. And it would take
virtually no state money to do this. And other people are looking at this as
well and I mean, to the point where folks have been on the east coast talking to
private equity firms and saying, if there was certainty would you invest in
this. And I think the answer is yes. So if you look at the short term, you know
meaning 10 or 15 years, we could mitigate some of the effects of reduced exports
if we could develop on legal infrastructure that encouraged this private
investment in water efficiency and water conservation and allow some of that
water to be marketed to meet the short falls that exist in some of the areas
relying upon delta exports. So I think those are--the long term, you gotta fix
the delta. A lot of people like to talk about temperance flat and new storage
and all that sort of stuff. You know my biggest fear for the east side is that
things get so bad in the delta that the exchange contractors exercise their
right to call on San Joaquin River water to meet their needs. And that will only
happen if we don't fix conveyance and the delta. So I see that as the number 1
priority.
>> Tom Holyoke: Last question, they've been releasing water into the San Joaquin
River, rivers been going up. Have you had a chance to see it or go out on it?
>> Dan Dooley: I've seen parts of it. I haven't done the whole stretch as I used
to do when I was memorizing every little nook and cranny in the river. But I
have been on parts of it and looked at the flows and I mean it's understandable
what they were gonna look like. I mean in the Gravelly Ford area, you know it
spread out half a mile wide and that was to be expected because we haven't done
any of the channel work to develop a channel there yet. So, but I think we're
learning some things. I think the plaintiffs are learning some things. The
concerns we expressed about seepage losses and so forth are materializing. So
that's something that's gonna have to be addressed. And yeah, so you know, at
the end of the day I'm a farmer from, you know, Kings and Tulare County and my
family still has interest there. I don't want to see farming stood on its head
in the San Joaquin Valley. And water is the limiting factor. So we have to have
enough water to remain productive and we have to be good stewards of the water
we have. But I'd be happy to say I had something to do with the restoration of a
river at the end of the day. I mean as a citizen, a broader citizen than just a
farmer, you know, we have to recognize a broader stewardship responsibility and
I think the restoration of a river is a noble goal. And I'm personally proud to
have been involved in that. And I think I did it in a way that that served my
client's interests very well.

>> Tom Holyoke: Thank you.
>> Dan Dooley: Thank you.
==== Transcribed by Automatic Sync Technologies ====

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