4
PROCEEDINGS
2 (WHEREUPON, THE HEARING COMMENCED AT 9:03 A.M.,
3 AT WHICH TIME MS. KAVANAUGH, MS. HANDELSMAN, MR. HYDE, AND
4 MR. KOBELINSKI WERE ABSENT FROM THE HEARING ROOM.)
5 HEARING OFFICER: I have received responses from
6 each of the petitioners to the U. S. request for entry
7 upon land for inspection and other purposes. I have
8 never received the request for entry by the U. S.
As I understand it from reading the responses what
we're looking at is the U. S. has requested an entry
upon petitioners' land for testing purposes or whatever,
but we have not received the request for entry that the
U. S. has filed.
MS. PONZOLI: Well, I filed it yesterday, Mr.
Hearing Officer, a motion to compel. Have you
received that?
HEARING OFFICER: I have not received it.
MS. PONZOLI: The request was attached to that. I
have an additional copy. Do you have your copy?
(Handing document to Hearing Officer.)
HEARING OFFICER: All right. Thank you. I have a
couple of housekeeping matters. Our Clerk's Office
asked that I make sure that everyone understands any
pleadings that are filed in this case should be filed
25 referencing all three case numbers, and they are all
5
1 going to be filed as Case No. 92-3038. That is going
2 to be the ongoing docket. If you need to check the
3 docket, everything will be filed under the lower case
4 number. That's the way it works.
5 Some of the pleadings I think have been filed in
6 each of the three separate cases. There is no longer a
7 need to do that. Just file the original and one copy,
8 an original and one, whenever you file something, and
9 the Clerk's Office will keep it all under the lower case
10 number, and then the extra copy goes to me. I keep a
11 simultaneous file, and that way I don't have to take the
12 original out of the Clerk's Office.
13 There may be a little bit, along those same lines I
14 went back through the files the other day, and I tried
15 to make sure that everything got put into -3038, but
16 because of some of the confusion that took place there
17 may be some documents that were filed in both -3039 and
18 3049, etcetera. I think everything is in -3038, as far
19 as I can tell, but during this time period there may
20 have been a little bit of confusion, so if it ever
21 becomes necessary someone needs to go back through the
22 record or to check on that, hopefully from this date
23 forward everything will be filed in -3038.
24 And as we discussed at the earlier hearing, I
25 recognize that there are different issues raised, but I
6
1 think the easiest way to deal with it is to just deal
2 with one case number, and each of the parties will have
3 an opportunity to present separate issues as need be.
4 (WHEREUPON, A BRIEF OFF-THE-RECORD DISCUSSION WAS
5 HELD.)
6 While we're waiting, let me ask as I guess a
7 hopeful matter will it be necessary for me to read the
8 motion to compel before the hearing this morning?
9 MS. PONZOLI: I think we are down to two issues,
10 but I gave Mr. Green and Mr. Hoffman a copy of it, and
11 they probably are aware of their side's presentation.
12 (WHEREUPON, MS. KAVANAUGH, MS. HANDELSMAN, MR. KILLINGER,
13 AND MR. KOBELINSKI ENTERED THE HEARING ROOM.)
14 I think we're down to two issues, a waiver and
15 stipulation regarding enforcement and some inquiry as to
16 my work product that they feel they should be made aware
17 of.
18 (WHEREUPON, A BRIEF OFF-THE-RECORD DISCUSSION WAS
19 HELD.)
20 MR. OERTEL: We had the same problems yesterday
21 about scope of the work. That's how we see it.
22 HEARING OFFICER: All right. Is everybody here
23 now? All right, this is Division of Administrative
24 Hearings Cases 92-3038, -3039, and -3040, "Sugar Cane
25 Growers Cooperative vs. South Florida Water Management
7
1 District," along with several intervenors.
2 Why don't we start out by having those parties who
3 are in attendance state their appearances, beginning
4 with the petitioners, the Cooperatives?
5 MR. GREEN: Bill Green, my partner, Bob Smith, and
6 Gary Perko here for the petitioners.
7 HEARING OFFICER: All right, and for the Sugar Cane
8 League?
9 MS. KAVANAUGH: Judith Kavanaugh, and with me
10 today are Mark Kobelinski and Bill Hyde.
11 HEARING OFFICER: Okay, and for the Fruit and
12 Vegetable Association?
13 MR. OERTEL: Ken Oertel.
14 HEARING OFFICER: And South Florida Water
15 Management District?
16 MR. REID: Ben Reid.
17 HEARING OFFICER: And for the Miccosukee Tribe of
18 Indians? No appearance. United States?
19 MS. PONZOLI: Suzan Hill Ponzoli.
20 HEARING OFFICER: And DER?
21 MR. KILLINGER: Lee Killinger and Lori Handelsman.
22 HEARING OFFICER: I did yesterday enter an order on
23 Florida Wildlife Federation's petition to intervene.
24 I granted that petition to intervene, along with the
25 same conditions set forth regarding the other petitions
8
1 to intervene, and that is the petition as it is
2 currently framed seeks to intervene in support of the
3 SWIM plan as adopted. Participation will be limited
4 to support of the plan as adopted, absent a petition
5 filed to raise additional issues.
6 So that Florida Wildlife Federation is now a party
7 in the case, and Mr. Guest is in the audience, as I
8 see. Are you here by yourself, Mr. Guest?
9 MR. GUEST: And Steve Grigas.
10 MS. PONZOLI: I failed to introduce Tom
11 Watts-Fitzgerald on behalf of the U.S.
12 HEARING OFFICER: Okay. Just to reiterate what
13 I mentioned earlier, Ms. Kavanaugh, I think your office
14 has been doing this, but the Clerk's Office has asked
15 that I mention to all the parties that any pleadings
16 that are filed should be filed referencing all three
17 case numbers. All pleadings that are filed will be
18 filed under Case 92-3038, and that will be the ongoing
19 docket for all the cases.
20 There has been a little bit of confusion, because
21 some of the pleadings that were filed have, you know,
22 just one of the case numbers, but we now hope everyone
23 will follow the procedure of listing all three cases
24 with the 92-3038, and all pleadings will be filed
25 that way.
9
1 MS. KAVANAUGH: With the three numbers?
2 HEARING OFFICER: That's fine. That's appropriate.
3 The original and one should be filed with any pleading
4 with DOAH.
5 Also, as I mentioned, I had received a response
6 from you filed as well as the other petitioners to the
7 U. S. request for entry onto land. I just this minute
8 was handed a copy of the request. It was not filed with
9 us.
10 So I have not at this point seen or reviewed the
11 U.S. request for entry upon land. So I don't know
12 what issues we have to deal with on that, but I have
13 not yet read that nor the motion to compel that was
14 filed yesterday.
15 MR. WATTS-FITZGERALD: Mr. Hearing Officer,
16 at the same time as the filing of the motion filed on
17 behalf of the United States for entry on land, the
18 United States filed a reply to a motion for order
19 compelling discovery that the Florida Sugar Cane
20 League filed on I believe the 30th or somewhere around
21 there, and our reply to that was filed yesterday as
22 well, and I wondered if you received that.
23 HEARING OFFICER: No, I have not received the
24 reply. Generally what happens is if it's filed in the
25 late afternoon unless it's marked expedited the Clerk's
10
1 Office keeps it and files it, and I won't usually get it
2 until the next day, so it may be in my mailbox this
3 morning. I haven't seen it.
4 MR. WATTS-FITZGERALD: It may be convenient for
5 me to give you a separate copy.
6 HEARING OFFICER: Yes, I will take that now.
7 With the exception of the request for entry upon land
8 by the U.S. and the motion to compel and the response
9 handed to me, I believe I have reviewed all the
10 other documents that have been submitted, including
11 various witness lists that the parties have provided.
12 With respect to the witness lists let me reiterate
13 a point that I had made before. I expect and hope that
14 everyone has proceeded with the approach to full
15 disclosure with regard to witnesses and that any
16 witnesses that may be called have been disclosed and
17 the area, the general nature of the testimony, has at
18 this time been provided to the extent it's possible.
19 I recognize in looking at those a lot of experts'
20 opinions have not yet been finalized, but I do expect
21 everyone is proceeding under the assumption that
22 any expert that may be called has been disclosed at
23 this time.
24 I know the final cutoff date is not until
25 October 26th, but I expect everybody has at this point
11
1 disclosed all their witnesses, and hopefully we
2 won't have any problems along those lines.
3 All right. Having said that, as I indicated, I
4 have gone through the witness list. I know there are a
5 number of witnesses who haven't completed their studies,
6 and I also know we have several issues regarding
7 access to the federal properties and apparently to the
8 petitioners' properties as well. Where do we stand on
9 that?
10 MR. REID: If I could, as I told you we had
11 some agreements that I wanted to announce, and then I
12 think, because there is a depo list, we'll leave that
13 until the end, if that's okay.
14 HEARING OFFICER: Ms. Kavanaugh?
15 MS. KAVANAUGH: Well, I would like to just get to
16 request for access and entry. I think everything else
17 we have agreed to between ourselves and hopefully
18 won't be any issue.
19 HEARING OFFICER: Okay.
20 MR. REID: I just want to put this on the record
21 and also some relate to this that you need to know that
22 we agreed to.
23 With regard to the issue of the brief on
24 jurisdiction, I'm sorry, on the burden of proof and
25 those issues, we have agreed to file simultaneously
12
1 briefs within 30 days on that issue.
2 Each side will then be entitled to a single reply
3 within about 15 days.
4 We would like to have an oral argument on that
5 at an appropriate time.
6 HEARING OFFICER: Okay, 30 days from today?
7 MR. REID: That would be fine. Sure.
8 HEARING OFFICER: And 15 days after the simultaneous
9 filing for replies, so we are looking at sometime in
10 October. I think we have a date scheduled in late
11 October.
12 MS. KAVANAUGH: Yes, sir, we were kind of shooting
13 so perhaps the time would take us there.
14 HEARING OFFICER: All right, why don't we go with
15 that date, the scheduling it for October already.
16 MR. OERTEL: We also agreed there would be a
17 limit of 20 pages...
18 MR. REID: Yes.
19 MR. OERTEL: ...and that each side would submit
20 joint briefs. In other words, each side of the table,
21 the two sides of this issue. All representatives
22 would cooperate and submit one brief per side.
23 HEARING OFFICER: Thank you.
24 MR. REID: We have, with regard to discovery, that
25 was one of the required purposes for our meeting
13
1 yesterday, for the September discovery, the two weeks
2 of each, we are going to identify, we have identified
3 now, each side has identified people who are ready to be
4 deposed.
5 The petitioners are going to be able to depose all
6 of our people first, the first two weeks, and we have
7 agreed to depose their people the second two weeks, and
8 we have those, we have exchanged those lists, and they
9 are scheduled.
10 The October round of depositions we have agreed
11 that each party will select the witnesses they wish to
12 depose from the other side, subject to all the obvious
13 requirements in the rules and so forth.
14 MS. KAVANAUGH: So just to make sure there is no
15 misunderstanding they can identify 10 witnesses, we have
16 identified eight, and we all understand it is
17 unlikely that all of those first 10 will be completed
18 in the first two weeks, so we can choose from the group.
19 MR. REID: They have told us to have six ready to
20 start with, and we'll arrange those.
21 We have a hearing scheduled on the 29th of
22 September. It is one of the regularly scheduled ones.
23 We would like to have you if it would be possible to
24 have this in the afternoon, because we would like to
25 have a counsel meeting, and from doing it yesterday we
14
1 thought we could do it on the same day. If the
2 hearing on the 29th could be at 1:30 or one o'clock or
3 two or something like that...
4 HEARING OFFICER: Why not 2:00 p.m."
5 MR. REID: Okay.
6 HEARING OFFICER: That will give you an opportunity
7 for lunch.
8 MR. REID: Okay. During the, during our
9 September 20th meeting we intend to talk about the
10 November/December round of discovery, and we'll know
11 where we are at that point, and we'll set those.
12 We requested that the petitioners, some of the
13 petitioners, this isn't necessarily universal, give us
14 partial opinions in their filings. Essentially when a
15 witness had developed some opinions but still had
16 others, they didn't include the ones they had, so they
17 have agreed to supplement and give us any partial
18 opinions that were not disclosed the first time around.
19 We also requested to some extent, there were no
20 dates given when they would have the opinions, the people
21 that don't have them, and we have talked about that,
22 and I think that will be worked out, subject to some of
23 these other issues.
24 HEARING OFFICER: Okay.
25 MR. REID: I think that covers all of the issues
15
1 that were outstanding with regard to agreement that
2 we made.
3 There are, as you know, cross requests for access,
4 and I'll just conclude by saying it appears that as far
5 as the protocol or, there is general agreement,
6 certainly general agreement, that access can be had,
7 and it can be done a certain way, and we really were
8 able to narrow it down to two issues.
9 The first issue is whether the governmental
10 agencies could agree they would not use anything they
11 found in any other proceeding, and the governmental
12 agencies could not agree to that, so that will be
13 submitted for your consideration after argument.
14 The second issue that remains outstanding is
15 what can we do with the samples we get? In other
16 words, our position is when we get the samples, we get a
17 jug of water, we ought to be able to take it back
18 with us once they know we've got it, and we ought to be
19 able to go back and test it any way we want to test it,
20 and that's up to us.
21 They think we ought to have to say ahead of time
22 what we're going to test it for. Those are two issues
23 that I think are outstanding, and with that I'll turn
24 it over to the United States, because it's their
25 motion.
16
1 MS. KAVANAUGH: May I state it's my understanding
2 the United States' request for access onto our lands,
3 you have just received that. We have not yet responded.
4 We received the motion to compel yesterday, and I
5 thought when you were indicating you would like to defer
6 that, certainly I would like to finish our testing
7 protocol, which of necessity we believe has to begin on
8 September 1st, would like to perhaps get it out of the
9 way.
10 I'm in a position to try and argue, but we have
11 only had the motion to compel since yesterday.
12 HEARING OFFICER: I understand if you need
13 additional time to respond, but since we have everyone
14 here I think it's best if we try to get all of these
15 issues laid out and see where we are. I haven't read it,
16 you see.
17 MR. REID: I think you need to understand, I
18 think they have filed objections a week or so ago.
19 That's what you have to argue. They knew about that,
20 and they filed objections. In fact, they didn't get
21 the motion to compel...
22 MS. KAVANAUGH: If I could suggest, I think the easy
23 one is going to be the first one, our motion to
24 compel, because I think we are very close to closure
25 on that issue, and it's boiling down to essentially a
17
1 legal question.
2 HEARING OFFICER: Okay. Well, let me just back up
3 a second. As I understood from Mr. Reid, there are
4 two issues. One is whether the information that is
5 obtained from the petitioners as part of discovery can
6 be used for other purposes. That's not really outlined
7 in any of the objections I read.
8 MR. REID: They just raised that yesterday.
9 HEARING OFFICER: It's not really within the scope
10 of the motion to where that's been filed yet.
11 MS. KAVANAUGH: We did raise the objection as an
12 invasion of property rights, and I would like to add
13 based on the agreement yesterday we prepared a
14 proposed reciprocal protocol. Assuming the legal
15 objections could be overcome, both sides, of testing,
16 the general terms that perhaps we could agree to, and
17 it was Mr. Reid's request, and the rings under my eyes
18 reflect I got it done, and we haven't had a chance to
19 discuss it.
20 I think there are several other aspects raised,
21 but objections are still at issue other than the ones
22 Mr. Reid raised, and primary one is that the respondents
23 will not tell us what they are testing for, what the
24 test methods are they will use.
25 They have raised that in objection to our
18
1 request. We have said we will specify by Wednesday
2 exactly what parameters we will test for and the
3 treatment we will use, because it does relate to
4 relevance, as they brought out in response to our
5 request, but it's a major obstacles we have not been
6 able to overcome.
7 We have agreed to test for phosphorus, which is
8 obviously a major issue, but we would like to know if
9 they are planning to test for other things.
10 For example, they want to use a Hexaphase model.
11 It's something that samples for hydrocarbons or
12 pesticides, and we have already...
13 HEARING OFFICER: Let me interrupt for a second.
14 I'm getting a little bit confused, because my knowledge
15 of what the dispute is is limited to the motions that
16 have been filed with me and that I have reviewed. We're
17 talking about issues obviously you discussed between
18 yourselves that I haven't.
19 So I'll give you an opportunity to do that, but
20 before we get into that I guess I want to make sure I
21 understand where we are.
22 Let me just make one observation, too, that I
23 forgot to bring up before. I noticed that the request
24 for entry upon land that was filed by the League, there
25 was no corresponding motion filed by the other
19
1 petitioners, and I would like to make sure that we've
2 got everybody on board, because I don't want to have to
3 deal with the issue again.
4 If any of the other petitioners wish to have access
5 to the property or to do any testing they should
6 coordinate that as part of their proceeding that's going
7 on now, because I don't want to have to revisit that
8 issue.
9 MR. WATTS-FITZGERALD: In the document we filed
10 the reply to the Sugar Cane League motion to compel,
11 Exhibits C and D are two letters received by the
12 United States in response to a specific inquiry by us to
13 the Coop petitioner group and the Fruit and Vegetable
14 petitioner group saying basically are you seeking
15 independent entry, or do you wish to avail yourselves of
16 the observer status in regard that the League offered in
17 their entry motion and we offered in ours, and the
18 two replies both preserve the rights to seek entry.
19 One I believe is the Coop said they wanted observer
20 status at this point, and they would have an entitlement
21 under the proposal of the Sugar Cane League to ask for
22 replicate samples at the same time.
23 The Florida Fruit and Vegetable Association in their
24 allied interests said I believe they wanted to preserve
25 their right to seek entry if they so chose, but were not
20
1 asking for entry at this time.
2 So the issue has been addressed and perfected to
3 some degree.
4 HEARING OFFICER: It sounds like it has not been
5 resolved. I'd like to hear from the other petitioners
6 what their position is, you know, whether they will be
7 seeking some other form of broad access.
8 MR. GREEN: On behalf of the Sugar Cane Growers
9 Cooperative I think that Mr. Fitzgerald accurately
10 portrayed our position. We would like to pool our entry
11 interests in with the League and to coordinate and
12 minimize duplication. I think we can do that.
13 However, we would like to reserve the right if
14 discovery justifies to seek additional entry if
15 necessary, but we will not do that lightly. We
16 understand you will scrutinize it carefully.
17 At this point we think our interests can be
18 protected.
19 MR. OERTEL: I would say, Your Honor, with virtual
20 certainty the Association can rely on the League and
21 others here in this case to protect our interests and
22 get the information. We don't need to do it
23 independently.
24 Again, as Mr. Green said, to make sure we don't
25 waive any right, we don't expect to exercise an
21
2 other parties.
3 HEARING OFFICER: Well, Mr. Green, I think your
4 point is well taken. I think it's impossible to
5 anticipate what may come up in the future, and there may
6 be a need for further entries, but if it's possible I
7 want to see all these issues resolved on this go-around,
8 and if we need to take it up we will take it up again in
9 the future, but I will scrutinize that very, very
10 carefully if we need to do that.
11 Okay. Now as far as the actual issues that were
12 raised in the request for entry and the objections and
13 the correspondence I have received on that, as I
14 understand what you're saying most of those have been
15 resolved in terms of the number of times or the monthly
16 access and some of those issues that were presented
17 before. Is that right?
18 MS. KAVANAUGH: With regard to the park and
19 refuge. We have I think one mechanical issue left as
20 to whether there may be duplicate, split samples of
21 soil cores. That's the only thing left on the table
22 other than the legal question of the special use permit
23 issue.
24 MR. WATTS-FITZGERALD: Respectfully, I have to
25 differ. We did reach some agreement on quite a number
22
1 of issues, far more than we had reasonably hoped we
2 would. But there were a number of issues that were
3 never addressed, including the number of entries, and
4 even more troubling the duration of the planned testing
5 program. That may need to be addressed.
6 We really need a few minutes to look at the
7 protocol that has been proposed by counsel for the Sugar
8 Cane League, and if I may suggest it might be an
9 opportunity if we could have a few minutes to do that
10 and to more thoroughly define the issue for the
11 remainder of this session, and it might afford you the
12 opportunity to glance through those documents.
13 The legal standards that will apply to some of the
14 issues would then be briefed from both sides, because
15 the Sugar Cane League can give those in their motion to
16 compel, and we have responded.
17 In fact, we agree on some and have different
18 objections on others.
19 HEARING OFFICER: All right. Why don't we take a
20 10- or 15-minute break and see if you can get together
21 and go through the protocol and see where we are.
22 I think the important thing I wanted to get
23 accomplished today is to make sure we got an
24 understanding on the basic issues that were necessary to
25 get the whole process started.
23
1 Now if there are some timing issues so far as
2 duration and those things, those can be resolved as time
3 goes on and may not necessarily have to be resolved as
4 time goes on once the results come in and experts are
5 able to determine how much access they need or whatever,
6 or how long the testing has to go on.
7 The most important thing I want to see resolved
8 today is that the process get started, and we get the
9 ball rolling.
10 Why don't we take about a 15-minute break and see
11 where we are.
12 (WHEREUPON, THE HEARING WAS RECESSED FROM 9:30 A.M.
13 TO 9:45 A.M.)
14 Where are we?
15 MS. PONZOLI: We aren't at agreement. I suppose...
16 HEARING OFFICER: I thought you were going to tell
17 me you settled that case.
18 MS. PONZOLI: I wish. That will be a happy day.
19 MR. GREEN: An earlier point, if I could.
20 Mr. Menton, we were a little concerned about some of the
21 discussion, preliminary discussion, on the witness list,
22 because it was our understanding, and I don't think what
23 you said is consistent with our understanding, but I
24 would like clarification.
25 We have provided a list of fact and expert witnesses
24
1 in our best judgement that we currently expect to call.
2 We have not included persons that we are not sure about
3 or persons that would respond to discovery that has not
4 yet been answered in depositions and the issues have not
5 been framed, because we have not received the responses
6 to interrogatories.
7 When you said you had expected we would disclose
8 anyone who may be called, that you had a different
9 intent than your order reflected when it says does it
10 now expect to call, we want to be sure we're not
11 foreclosing the opportunity to respond to the issues as
12 they develop, and I respectfully request clarification.
13 HEARING OFFICER: Well, I understand that issues
14 may develop and there may be additional witnesses, but
15 if you have experts you have retained that are
16 undergoing study or have begun to do some analysis, then
17 I think there's, it's a pretty good likelihood they may
18 be called and that they may be disclosed, just so
19 everybody knows the issues and the potential witnesses
20 that are involved.
21 I think you should err in disclosing witnesses who
22 may not be called, rather than holding back witnesses
23 that may end up being called in the future.
24 MR. GREEN: But we are able to follow it with
25 witnesses, and you don't...
25
1 HEARING OFFICER: Certainly if there are issues
2 that come up as part of the discovery of experts that
3 the U.S. Government or the Water Management District has
4 that require experts that or analysis previously that
5 had not been anticipated, then certainly you can
6 supplement your witness list, but on the other hand if
7 you have witnesses now that are undertaking analyses,
8 you know, I think a lot of the issues are clear as to
9 what we are dealing with.
10 If you have witnesses that are conducting analysis
11 they should be disclosed, even if you're not sure
12 whether or not you will need to call them. You should
13 err on the side of disclosing whatever witnesses who
14 have already begun analysis.
15 MR. GREEN: For fact witnesses, of course, they may
16 develop as the case goes along. We have certain issues.
17 I think you clarified it to my satisfaction. Are you
18 satisfied with that?
19 HEARING OFFICER: He's shaking his head.
20 MR. SMITH: Well, let me speak. Let me be
21 forthright about it, Mr. Hearing Officer. You recall I
22 presented last time we were here a motion to stay
23 predicated on the unlawful, unconstitutional coercion of
24 the State of Florida by the federal court without
25 jurisdiction in the composition of this illegal plan.
26
1 The Hearing Officer made a judgment about that,
2 considered my motion, and denied it.
3 I filed in the Fourth District Court of Appeal a
4 petition for a review of a nonfinal administrative
5 action, asking the Court both as temporary relief to
6 stay proceedings and indeed to stay the entire matter
7 until that court or after a full and fair hearing a
8 federal court resolves the jurisdictional issue.
9 The District Court issued an order to show cause,
10 and the responses are due from the allied federal and
11 state governmental people on Monday.
12 I have not undertaken in this condition of things
13 to do a massive search for fact witnesses if this
14 proceeding is not stayed yet to prove the facts about
15 the coercion effect of the federal litigation upon the
16 state agency, requiring them to capitulate to the United
17 States' demands.
18 If I'm under an obligation notwithstanding what we
19 read the order to say, what we expect now, if there's a
20 sheen on that that I misunderstood and I do not have
21 until October to fully develop that witness list and
22 initiate the discovery I'd like to be advised of that,
23 and I think this issue perhaps falls in a little bit
24 different category. But if it doesn't I'd like a week
25 to get moving.
27
1 HEARING OFFICER: No, I think you're right. It
2 does fall in a little different category. My comments
3 are directed mainly towards expert witnesses.
4 MR. SMITH: Thank you.
5 HEARING OFFICER: I think what I want to make sure
6 that everybody is doing is if they have experts out
7 there who are doing studies that may be called as
8 witnesses, they'll be disclosed, so the other parties
9 have some way to begin a literature search.
10 So really my comments are directed mainly towards
11 the expert witnesses.
12 MR. SMITH: Thank you.
13 MS. PONZOLI: Mr. Hearing Officer, the United
14 States I believe has done that, and I guess we would
15 invite the Coop and anybody else who is a little
16 uncomfortable with those comments this morning when
17 they supplement next week by Wednesday that they
18 supplement any additional witnesses that somehow cause
19 them discomfort that might fall into maybe this
20 category, because it's just clear there is a certain
21 level of discomfort on certain parties' parts, and I
22 would invite them to please do that, because I believe
23 we have.
24 HEARING OFFICER: Okay. All right. So you are
25 saying you are asking that everybody have or at least
28
1 within a week can supplement any disclosures that have
2 already been made as to witnesses, especially expert
3 witnesses that may be called in the future?
4 MS. PONZOLI: That's right.
5 MR. SMITH: May I have the issue I described
6 excepted from that?
7 HEARING OFFICER: I think your factual witnesses on
8 those matters, to the extent you know those witnesses
9 are disclosed, but I understand...
10 MR. SMITH: The witnesses are known better to them
11 than to me, and I'm relying on the Fourth District to
12 give me relief, but if I don't I really believe that's
13 the appropriate time to crank up this issue if October
14 has not yet arrived.
15 HEARING OFFICER: I agree with you, and I think
16 the most important thing in my mind is in terms of
17 disclosure, the factual witnesses, the facts and what
18 they are.
19 MR. SMITH: Yes, sir.
20 HEARING OFFICER: But experts I think require
21 more background research on history, and I think that's
22 why early disclosure is essential with respect to
23 that.
24 MR. WATTS-FITZGERALD: We would take the contrary
25 position we know no such witnesses, because as a legal
29
1 matter it never occurred.
2 HEARING OFFICER: Well, we're getting into argument
3 now that we don't really need to get into, you know, and
4 at some point we may have to address what role those
5 issues play within the scope of the proceeding, but
6 that's not today.
7 All right. Any other issues along those lines we
need to take up? Okay. Where are we then on the access
9 issues and objections that have been filed?
10 MS. KAVANAUGH: With regard to our request, which
11 is the first one briefed, apparently we cannot agree,
12 and there do remain some objections.
13 The primary objections, and I'm sure Mr. Fitzgerald
14 will supplement, as I understand them to be now, are
15 the number of times, the number of sampling days per
16 month.
17 The United States has taken a position we only need
18 two days. Our scientists say we need four.
19 The United States is concerned, because we believe
20 the appropriate sampling programs require 12 months, but
21 I have represented we fully understand we have to go
22 with what we have by the time discovery cutoff occurs,
23 so that our experts will have opinions when it gets to
24 be that time, whether they think 12 months is better or
25 not, but we understand that.
30
1 We are looking at actually a six-month period,
2 which is what we anticipated, to finish by February in
3 accordance with the scheduling order, and arrange for
4 those experts to be deposed.
5 The other area is the question as I have indicated,
6 the soil cores and whether or not they should be split.
7 Our scientists say that will give them bad data if they
8 are compelled to actually split the sample, because they
9 seal it, and this is what they tell me.
10 We have proposed replicates, side-by-side soil
11 samples, and we certainly are willing to share raw data
12 if indicated, but we think it important. We are at an
13 impasse. They want to split soil samples. We have
14 agreed to split the water samples as well as replicate
15 them.
16 HEARING OFFICER: All right, going back to the
17 first one in terms of the number of times, if I
18 understood from reading the motions there is no dispute
19 to the park, that there is just a period at the outset
20 that concerns the refuge where there is some question as
21 to ongoing access, is that right?
22 MR. WATTS-FITZGERALD: Yes, Mr. Hearing Officer, to
23 the extent, as we pointed out in our objections
24 initially, that any surveillance flights be rolled into
25 the seven- to 10-day maximum period, the one-time
31
1 location and subsequent sampling within the park to
2 occur.
3 We have a great number of scientists collectively
4 on the respondent/intervenor's side of the case who
5 have more time in the Everglades collectively than
6 probably any of us have alive today, all say the same
7 thing, that it can be done in incredibly less time than
8 requested.
9 I understand once the 636 physical samples, not
10 counting replicates, are taken by the League that, you
11 know, they are done and they go home, because essentially
12 whatever should come in would terminate at that point.
13 But we do feel that work expands to fill the time
14 allotted. It's a common principle of management and
15 common sense.
16 Absent, you know, some weather condition or some
17 mechanical failure of the aircraft we'd like to keep
18 that down.
19 I point out in my response and my reply, and I
20 think it's capable of notice under Chapter 22 by you,
21 that these are unique areas, and this includes
22 Loxahatchee, with a special management regime not
23 established by us, not connected to the case directly,
24 but mandated by Congress.
25 The resource managers are mandated to protect this.
32
1 Minimizing impacts is part of this. We do not think
2 that should prolong the testing interests. So long as
3 surveillance is contained to locate suitable sites would
4 be part of that time period, I think we can accomplish
5 that in terms of time.
6 Loxahatchee is...
7 HEARING OFFICER: You're talking again about the
8 park?
9 MR. WATTS-FITZGERALD: Just the park.
10 HEARING OFFICER: Do we have an agreement as to the
11 parks in terms of what he's saying, that the
12 reconnaissance has to be rolled into a seven- to 10-day
13 period provided for or requested in the motion for entry?
14 MS. KAVANAUGH: I don't know, to be frank with you,
15 without talking to the principal investigators, but I
16 think the most we are talking about is a one-day
17 difference, because we anticipated a single overflight,
18 one day in the park, to choose the sites, so I can't
19 say, Mr. Hearing Officer, whether that one day required
20 for the reconnaissance will suffice, looking at that
21 day's sampling data, because it takes time to set it up.
22 HEARING OFFICER: Was that the, didn't you propose
23 September 5th or something like that as the flyover
24 flight?
25 MS. KAVANAUGH: Yes, sir.
33
1 HEARING OFFICER: Did that relate to the refuge and
2 the park?
3 MS. KAVANAUGH: I think one day for the park and
4 one day for the refuge.
5 This is simply because it would take so long. It
6 was going to take a day each for selection of the
7 sampling sites, and the federal observer was to
8 obviously assist us in finding sites that are already
9 there and historical sites where they are sampling.
10 HEARING OFFICER: I'm just trying to narrow this as
11 much as possible. From what I'm gathering there
12 shouldn't be any problem, I mean, maybe there's a one-
13 day difference there, but hopefully that can be worked
14 out, there shouldn't be any problem in getting at least
15 the park aspect of it going, get the overflights and
16 pick the sites and get that testing on the way and
17 completed without any problem. I would anticipate that
18 will occur.
19 So when we're talking now about the refuge, which
20 will require an initial aerial reconnaissance, and then
21 the petitioners are seeking monthly access for four days
22 a month, is that right?
23 MS. KAVANAUGH: Yes, sir.
24 HEARING OFFICER: And the position of the U.S.
25 Government is four days unnecessary?
34
1 MR. WATTS-FITZGERALD: Yes, that's correct. This
2 is kind of a lengthy assessment. They have the initial
3 period set up of the 58 collection devices, taking the
4 initial samples and what not on a series of transects,
5 which is also a problem, and then according to what's
6 being announced today if in fact this cuts off at the
7 end of discovery, which is a very important issue,
8 counting six months, that's 24 days of entry.
9 That doesn't differ tremendously from what the
10 United States estimates is the outside limit to
11 necessary entry under its program.
12 But in fact the original request in terms of a year
13 or 48 days, in fact some of the entry into Loxahatchee
14 for testing under this proposal is one time. It simply
15 is not going to take four days to do that, and again we
16 are reluctant to accede across the board to something
17 far exceeding what's necessary.
18 In both areas the number of samples are an issue
19 that relates to this, because we've got the replicate
20 samples or split samples, depending on how it's
21 resolved, depending on how the United States wants these
22 samples split.
23 The other parties on petitioners' side have
24 indicated they may want samples of their own. It's not
25 clear in some areas they won't.
35
1 Looking at 636 samples, not counting replicates or
2 splits in the Everglades and even more on the
3 Loxahatchee, that takes up a certain amount of space on
4 the aircraft. We really want to keep it down to one
5 aircraft entering and not have the President's entourage
6 stacked up in a holding pattern watching what's going
7 on.
8 But as a practical matter we're talking about
9 coolers on the aircraft, a government observer who will
10 be there, and needs to be there, and when you start
11 considering that and ferrying things out because of
12 distances, and it will be a problem in terms of what
13 helicopters can do, it becomes a very expensive and
14 interesting proposition.
15 With regard to Loxahatchee, there is a proposal to
16 establish additional stations in excess of the
17 historical sites. We are willing to offer Dr. Jones'
18 split samples that already exist, that they already have
19 the data from his tests, but if for some reason they
20 don't believe them we will give them split samples from
21 the existing samples which Dr. Jones has available at
22 the testing center at FIU, which is the official testing
23 center for the State of Florida.
24 That will alleviate many flights, the need to do a
25 lot of the initial data testing. They can have
36
1 the results before they go in and verify the fact that
2 Dr. Jones' tests are correct.
3 There's no plausible or well reasoned scientific
4 basis to have to redo the tests.
5 The reason we feel replicates are not as important
6 as split samples...
7 HEARING OFFICER: We're getting a lot of different
8 issues mixed up all at one time, and I'm trying to get
9 them...
10 MR. WATTS-FITZGERALD: They don't easily resolve.
11 HEARING OFFICER: Okay. Maybe I'm trying to force
12 them to do that and see if we can do it.
13 But it seems to me that the initial issue that
14 we have to address is the question of access and
15 how often it has to be done, and from what I
16 understand you're saying there's a problem, number one,
17 with access in terms of the amount of times that access
18 should be granted, as well as locations in addition,
19 which I had not picked up earlier was going to be a
20 problem.
21 So why don't we start out with the number of times
22 we have to deal with it and see if we can reach some
23 consensus as to what's necessary.
24 Again I go back to as I understand it there is no
25 problem with respect to the park, because it will
37
1 only be the initial testing period up front, and we
2 should be able to resolve that.
3 Then we get to the question of how often there has
4 to be monthly access to the refuge, and from what you
5 were just saying you were saying there's some
6 locations where there's only going to be an initial
7 access and no need for continuing access?
8 MR. WATTS-FITZGERALD: I'm not sure I follow, but
9 under their proposal that's correct.
10 Mr. Hearing Officer, perhaps I can expedite this.
11 Four days is an outside limit for a six-month period to
12 closure of discovery to the United States access. We
13 will not quibble over that. But we expect a good faith
14 effort, and our observer will be watching. People
15 who know what they're doing and have Everglades
16 experience can do it faster, and we expect a
17 minimization of the impact, adverse impact, on an
18 aquatic resource.
19 HEARING OFFICER: You are saying you're not going
20 to have a problem with agreeing up front to four times a
21 month, but you expect if it gets going it's not going to
22 need that much, and if your person feels it's not
23 working out, file a motion, and we'll take it up and
24 resolve it.
25 MS. KAVANAUGH: That's acceptable. We have
38
1 already indicated once we get out there we may find we
2 don't need to come that often. We don't know. Our
3 people's guess is three to four days. That's
4 acceptable.
5 MR. WATTS-FITZGERALD: And we also are offering to
6 expedite that process and alleviate the need for a lot
7 of the initial site testing which they propose to do in
8 the historical transects Dr. Jones was involved in, Ron
9 Jones, by providing through split samples from those
10 tests.
11 It means you literally cleave it. The way the
12 scientists would optimally do that is they go out with a
13 pipe, drive it in the ground, and there's the core.
14 That core is not specially sealed. It's put in a cooler
15 and carried back to the lab.
16 Some time, three days, five days, or a week later,
17 it's forced out onto a piece of polypropylene, and you
18 cut it down the length of it.
19 The other way to do it if everybody was
20 cooperative, and we're doing a lab check, you simply
21 take a cross-section, grind it up in a household
22 blender, that's a fancy one, but that's what it is, and
23 then you take half of it and send it to one lab and say
24 this is the split sample.
25 Dr. Jones has pre-existing sealed samples from
39
1 earlier samples, the results of those split samples.
2 We'll give them to them.
3 The advantage to split samples is if both labs are
4 equally capable and competent you have no difference of
5 evidentiary value later. Replicates can result in a lot
6 of quibbling, even if they're taken a few feet apart,
7 because you drive two separate cores, and everybody goes
8 away with their own.
9 We're looking primarily for phosphorous and
10 phosphorus related processes. If you can get biological
11 material, a decomposed bug in there, or if you happen to
12 pick the one spot one of the few remaining bears in the
13 Everglades relieves himself, you're going to get a spike
14 of phosphorous.
15 That could be used to try and demonstrate some
16 discrepancy, and these lead to issues or evidence at a
17 hearing that really don't need to exist.
18 If you do splits it's not a problem.
19 The League objected to splits on this in the water,
20 and we said in the water we know how to split. You pour
21 it into a separate jug. That's agreed.
22 You can do splits on the soil. The reason we are
23 concerned about this is if we don't we'll be driving a
24 lot of cores, because they have three replicates of
25 their own for every one, and we are going to need them
40
1 or any other parties and will be leaving the Loxahatchee
2 and the Everglades with potholes
3 everywhere.
4 That's probably an exaggeration, but it also
5 increases flights, the expense, the time, and that's
6 where the ripple effect comes in that is not easily
7 isolated.
8 MR. OERTEL: You are being asked now to prejudge
9 whose method is the best method, and you're being
10 asked to really assess the way the evidence comes
11 here at hearing. It's not appropriate to make that
12 decision.
13 MR. WATTS-FITZGERALD: Well, I don't know it
14 necessarily is going to be necessary to, it may be as
15 part of the hearing, but we're talking about a factual
16 dispute from two lawyers who obviously believe their
17 experts are correct, but I don't have the experts to be
18 able to evaluate that.
19 So I guess the split issue we can get to in a
20 minute. I just want to make sure we get the access,
21 timing, and location resolved. It sounds like we've got
22 the timing resolved.
23 In terms of location do I understand you to say
24 there is no dispute now as to the location for where the
25 cores will be taken? Are we...
41
1 MS. KAVANAUGH: We have agreed to take core
2 samples, 14, in the refuge at the historical stations
3 that were established when the park, when they did their
4 own research.
5 And we certainly appreciate the offer of
6 Dr. Jones' data, but a crucial issue is whether or not
7 in fact his core samples were taken exactly at the right
8 place, obviously.
9 We have also asked to establish eight additional
10 stations, because we believe that that additional
11 sampling is done, but this core sampling will only occur
12 once, and he's correct there will be replicates, but
13 there were replicates also in the federal
14 researchers. We're not talking about huge potholes. We
15 have substantially reduced our original request.
16 But we feel we ought to be able, our experts tell
17 us where they think they should take the sample, and we
18 should have that ability so long as it's not where, for
19 example, we're taking a core sample in the middle of a
20 nest of an endangered species or something that
21 will damage something. We would not want to do that
22 anyway.
23 HEARING OFFICER: Let's get to the replicates in a
24 second. I just want to make sure we...
25 MS. KAVANAUGH: One other thing. The refuge is
42
1 state owned lands. While the Fish and Wildlife Service
2 operates it under a lease, those are owned by the State
3 of Florida.
4 So it doesn't, hasn't really said anything, but
5 they are landward, and they are state owned lands. I'm
6 sorry. Licensed.
7 MR. WATTS-FITZGERALD: Loxahatchee is more
8 complicated. A portion is federal, and there is a
9 wildlife refuge, because it's home to 23 endangered
10 species or something of that order, and it's identified
11 in many places.
12 HEARING OFFICER: I don't know if it's pertinent to
13 the issue I'm seeing that has to be resolved, and that
14 is the location. Is there an agreement or not an
15 agreement as to the location for where the testing will
16 be done?
17 MS. KAVANAUGH: For the 14 stations there's an
18 agreement. The eight additional stations haven't been
19 established, because it has not been overflown.
20 HEARING OFFICER: But you are in agreement there
21 can be eight additional sites, based on your agreement,
22 or is there no agreement on that?
23 MR. WATTS-FITZGERALD: There's no agreement on
24 that. You have it down to six.
25 MS. KAVANAUGH: I think you're right.
43
1 MR. WATTS-FITZGERALD: Unless we're looking at
2 something different.
3 MS. KAVANAUGH: It's six.
4 HEARING OFFICER: But there is no disagreement that
5 there can be six additional sites, but they just haven't
6 been pinpointed yet?
7 MR. WATTS-FITZGERALD: That's the disagreement, the
8 number of sites. They are already excessive, given the
9 nature of the property and the availability of
10 historical data with people with no contemplation of
11 litigation and recent work which has been provided to
12 the other parties on a number of projects, and it's
13 public information.
14 HEARING OFFICER: Well, I can understand the
15 petitioners' point, that they should be entitled to
16 their own samples, and I don't think they have to trust
17 somebody else's work in order to do the samples that
18 were done correctly or whatever.
19 MR. WATTS-FITZGERALD: I agree, but you're talking
20 about 578 sets of samples out there on the initial run,
21 not counting ongoing samples by 58 collection devices.
22 What we anticipate will happen, and they can say it
23 won't, they're going to validate the pre-existing data,
24 because it was not developed for litigation, unless
25 there's something very aberrant which will show
44
1 up immediately on the historical transect.
2 If the historical transects, and they want to test
3 there, too, 20 odd, whatever it is, 14, if they come up
4 with widely variable results from what all the
5 historical data has been on the same type of tests, then
6 I think we have an issue to come back and say more
7 testing might be appropriate from their perspective. It
8 is not going to happen.
9 Because we believe it is not going to happen, we
10 think 578 is an excessive number, given the nature of
11 the resources that ought to be protected and the policy
12 issues which you must balance under case law and the
13 competing interests of the parties.
14 HEARING OFFICER: I'm having a hard time
15 understanding exactly where the dispute is here. We are
16 agreed upon the need to do some new testing that the
17 petitioners should have the ability to take new samples,
18 Is that right? Do you agree they have the ability to do
19 it? You're saying they should only be able to do it at
20 the historical sites with no other sites at all, is that
21 right? Because as I understand the proposal the
22 petitioners want to go into the refuge, test at all the
23 historical sites, and in addition want to test at six
24 new sites based upon the aerial reconnaissance that is
25 done.
45
1 MR. WATTS-FITZGERALD: They want to establish six
2 additional more or less permanent sampling sites for the
3 duration.
4 HEARING OFFICER: Every time they go in on their
5 monthly tests they can go to the same site and redo it,
6 is that right?
7 MR. WATTS-FITZGERALD: Forty-two additional
8 landings, 120 additional sets of samples, sets, not
9 samples, replicates and everything.
10 HEARING OFFICER: So the initial dispute, you don't
11 have any dispute then with the historical sites, that
12 they should be able to do that?
13 MR. WATTS-FITZGERALD: (Nodding head.)
14 HEARING OFFICER: So those 14 sites, there is no
15 dispute at al in terms of location or in terms of
16 monthly access, is that right?
17 MS. KAVANAUGH: That's my understanding.
18 HEARING OFFICER: Everybody is in agreement they
19 should have a right to go in there on a monthly basis
20 four days if necessary, and hopefully it won't be needed
21 for that long, correct?
22 MR. WATTS-FITZGERALD: Some of those stations are
23 one-time stops, but we have no problem with those 14,
24 and we'll help them find them to the extent we can, but
25 we are convinced that when they have analyzed that data
46
1 they will realize the historic available data is
2 correct.
3 HEARING OFFICER: You're saying they need six
4 additional sites in addition to the 14?
5 MS. KAVANAUGH: Yes, sir, we do dispute the
6 representative nature of some of the sites selected by
7 the federal government, and our consultants tell us they
8 would like to take, establish six other stations.
9 We have agreed to have a federal representative
10 assist us in selection to ensure we are not getting into
11 an area that will disturb the resource or the wildlife.
12 We have represented to them that if they object to
13 a specific site and can give us a good reason why we
14 won't do anything until we can come back before you on a
15 dispute. We have made that offer to them.
16 But we want to conduct our testing, I mean, I
17 appreciate Mr. Fitzgerald's confidence in Dr. Jones'
18 work and his consultants, but we want to conduct our own
19 testing and are willing and will make every effort we
20 can to mitigate any disturbance.
21 HEARING OFFICER: I can understand you want to do
22 your own testing, but if you are going to do your own
23 independent testing do you need to completely replicate
24 at all 14 sites? I mean...
25 MS. KAVANAUGH: That's an issue we could discuss.
47
1 would be happy to talk to them if that's a concern.
2 HEARING OFFICER: Well, what I'm saying is if it's
3 a concern about the repeated access maybe you can
4 eliminate some of the historical sites and go with some
5 new ones, maybe six new ones and six old ones.
6 MR. WATTS-FITZGERALD: Mr. Hearing Officer, we may
7 have misled you somewhat collectively by not making
8 clear there are 18 sites that are one-time data
9 collections they want to do right up front in
10 Loxahatchee, so 18 sites and collect water and soil and
11 look at everything, just look at the vegetation. That's
12 18 sites, one time.
13 Then there are the 14 historical transect sites
14 that some of them they want to visit on a monthly basis,
15 they ant to establish collection devices and 58
16 different pieces of equipment, and then they want to add
17 another six brand new ones along with the 14 potentially
18 permanent sites, monthly visits, equipment on scene, so
19 we're actually talking about 38 sites.
20 We have no problem with the 18, one time. They
21 will pick the sites and get a full, representative
22 sample of various site selection possibilities when they
23 do the surveillance and tell us where it's going. So
24 long as it's not in the middle of an endangered species
25 nest we have no problem, and we have no problem
48
1 with the 14 sites, but six more is getting a little
2 ridiculous.
3 HEARING OFFICER: What if they don't go to all 14
4 historical sites and pick six new ones? Do you have a
5 problem with that?
6 What I'm seeking to do is to limit the times they
7 have to go in, and so if it's eight historical sites and
8 six new ones that gives then a representative
9 opportunity to test Dr. Jones' results as well as the
10 independent.
11 MS. KAVANAUGH: If it could be done it would give
12 us significant information to rebut Dr. Jones' work. We
13 want to challenge the research. We don't agree with the
14 conclusions. I think that's something we would
15 consider.
16 But at this point we want to test at the exact
17 areas he did as well as examine the data, because we
18 don't agree with the conclusions.
19 MR. WATTS-FITZGERALD: I'll give them the split
20 samples from the sites. I'll give them to them.
21 MS. KAVANAUGH: But we don't want to just look...
22 HEARING OFFICER: I understand you should have an
23 opportunity to independently verify the tests that were
24 done, but the question that rises in my mind is does
25 that mean you have to monthly go in every one of
49
1 the 14 sites? And it just seems to be a little
2 excessive in terms of having the opportunity to verify
3 his study.
4 Maybe one-time access to the historical sites and
5 then monthly access to the new sites in a view of the
6 historical sites would give you the information.
7 MS. KAVANAUGH: I would represent we will look at
8 it, but we haven't been in there, and so we don't know.
9 That's why we're saying monthly access might not be as
10 much as it would be.
11 I certainly would represent that if our consultants
12 tell us they can get the data to render their opinions I
13 don't see any problem. I'll certainly ask.
14 MR. KOBELINSKI: Mr. Hearing Officer, if I may, our
15 understanding is that's exactly what Dr. Jones did. To
16 replicate his study, he did go in there and check as
17 many times as he did, so to replicate his study
18 you would have to replicate what his testing methods
19 were.
20 MS. KAVANAUGH: What I'm saying, we're talking
21 about water sampling, basically going in and getting the
22 samples, because the soil cores are one time.
23 So basically I'm assuming they are concerned with
24 the actual six to be visited on a monthly basis and
25 trying to reduce those.
50
1 The refuge is very large, and it's not like the
2 stations are all clustered together.
3 The problem is to draw water quality analyses,
4 that's why we need the period of time, because you
5 have to have representative samples over climactic
6 changes that occur, and I can't say to you because we
7 have been told we have to do monthly sampling, I can't
8 say to you I can mix and match new stations and historic
9 stations.
10 We want to rebut Dr. Jones' work. We also question
11 to some degree his methodology.
12 Mr. Hearing Officer, the intrusion is still going
13 to be minimal, compared to the typical research that the
14 refuge people have performed and Dr. Jones has
15 performed. This is not an outrageous request, and
16 we are not going to go in and harass endangered
17 species or anything. We have no intention of doing
18 that.
19 HEARING OFFICER: It's hard for me to evaluate the
20 necessity without having experts here, but it seems to
21 me we need to get the ball rolling, that there should be
22 an opportunity to verify at least on a one-time basis
23 the historical sites, and in addition to have some new
24 sites there.
25 Now whether there has to be monthly access at all
51
1 of those sites is another matter. I think maybe I need
2 to listen to some expect witnesses testify and give me
3 their explanation as to why.
4 So why don't we get started with that process, and
5 then at the next hearing in September you can come back
6 and bring your experts and tell me why you need to have
7 monthly access to all 20 of those sites, and we'll take
8 it from there.
9 MS. KAVANAUGH: And I'm assuming they will also
10 present information as to why it would be helpful.
11 MS. KAVANAUGH: Exactly. At that time we will have
12 an idea what the access looks like, and maybe how
13 often...
14 MS. KAVANAUGH: That's true.
15 HEARING OFFICER: ...and how long the duration has
16 to be.
17 MR. WATTS-FITZGERALD: Do I understand you would
18 enter some sort of order permitting the initial
19 surveillance flights for site selection, the one-time
20 visit and testing at the 18 sites that they lay out in
21 one and two related to Loxahatchee, the one time on the
22 historical transects, which may be as many as 14, but
23 not the establishment of the additional sites until we
24 have resolved that issue?
25 HEARING OFFICER: No, I think they ought to be able
52
1 to establish new sites, and the question is whether
2 there would be monthly access to all 14 historical and
3 the six new, and that's what we will take up in
4 September.
5 They'll bring their experts to explain why they
6 should do it, and you bring in somebody to tell me why
7 not, and I'll resolve that based on my evaluation of
8 their testimony.
9 Okay. I guess the remaining issue is the split
10 versus the replicate, is that right? Okay. Well,
11 before we get into that it raises an issue that I know
12 has been touched on in the motions to compel when I
13 mentioned to you I will be entering an order
14 establishing it, I have some question as to the
15 jurisdiction I have to order access to the park.
16 I don't know that it's within my authority to enter
17 an order saying that the U. S. has to grant access in
18 that regard.
19 I am expressing my opinions as to what I think is a
20 reasonable solution to it. I think within the
21 scope of this proceeding my authority may be to limit
22 testimony or limit participation if they don't present
23 or grant access that I feel is reasonable, but I don't
24 know that I have the authority to order access to the
25 park.
53
1 MR. WATTS-FITZGERALD: Mr. Hearing Officer, I have
2 enclosed with my recent reply in there Judge Hoeveler's
3 order. It seems to us the best way to handle this is to
4 avoid the problem entirely.
5 HEARING OFFICER: I agree with that.
6 MR. WATTS-FITZGERALD: Judge Hoeveler clearly left
7 the door open if you were boxed in on that issue, the
8 parties have a farm interest in the federal suit to go
9 back to the federal court in Miami and say, "You enter
10 the order for us, because the Hearing Officer thinks we
11 ought to be allowed in," and presumably you would issue
12 an advisory opinion, I guess, and Judge Hoeveler would
13 enter whatever necessary federal order to show the
14 federal government would permit entry.
15 What we have proposed, which has not been found
16 entirely acceptable to either side, is to the extent you
17 render a decision in this area that we don't file a show
18 stop or whatever, and I can't see that happen, we will
19 cause the two resource managers, and they are in
20 agreement on this, to issue special use permits under
21 the procedures through the original objections response
22 documents as Respondent's A and B. Those are the
23 typical ones, and those special use permits mirror
24 whatever entry you have ordered, and in that fashion
25 basically everybody can be happy.
54
1 We don't need to waste the time and go to the
2 effort or confront the issue of what is the nature of
3 your authority to order it, short of saying invoking
4 sanctions against the United States for not allowing it.
5 We will allow it under this mechanism through your
6 order, and it will not delay the process.
7 We have always taken the view the special
8 management regimes operate in the absence of this order,
9 so should a party go in there or anybody go in there in
10 either of these and do something that is contrary to the
11 existing regulatory regime they would be subject to
12 normal federal procedures and regulations.
13 A special use permit obviates that, because we do
14 not anticipate any of the petitioners or field people
15 will do something outrageous. They will abide by your
16 order as well.
17 We essentially avoid that problem.
18 HEARING OFFICER: Good.
19
19 MS. KAVANAUGH: Mr. Hearing Office, if you remember
20 what the United States is proposing, they are proposing
21 a different jurisdiction on questions of discovery. We
22 are not applying for research. This is a discovery
23 vehicle.
24 Were we still in a federal lawsuit it would have
25 been under an order, and in fact that was the position
55
11 they took.
22 Our concern is that, I mean, if they are, if there
33 is something they do not like, and recognizing your
44 power to impose sanctions, they will exercise their own
55 administrative regulatory powers and basically veto the
66 discovery order.
77 We will then be faced with a position of going back
88 to Judge Hoeveler under the federal APA and that whole
99 process which is involved when you have a federal
10 permit, as opposed to a discovery vehicle.
11 Judge Hoeveler's order moved everything here. He
12 said you were empowered to grant discovery except where
13 there was a jurisdictional question, but at this time if
14 they are agreeing to it I don't understand why you would
15 even want to inject the federal administrative
16 procedures and permitting.
17 HEARING OFFICER: Well, I agree. I think we're
18 talking about some points of administrative law here in
19 terms of discovery and how it interplays with the
20 federal, and I hope we don't have to get into that. It
21 seems like we may be able to avoid it.
22 So if we can, I'm going to express my opinions as
23 to what I think a reasonable decision will be as to when
24 discovery can start, and hopefully we can proceed and
25 resolve all that within that framework. If we
56
11 can't then we may have to deal with that later on.
22 It sounds to me like this issue right now we'll
33 reach at least a preliminary consensus and take it up
44 again in September and see where we are then.
55 But I understand there are a lot of issues out
66 there, and to be honest with you I haven't done the
77 research to resolve in my own mind what the scope and
88 nature of my authority is and how it interrelates with
99 the federal court action and all. I'm sure Mr. Smith
10 could advise me.
11 MR. SMITH: I'd be glad to, Judge. I think you
12 ought to go ahead and do your duty, and if these people
13 wish out of your hearing, off the record of this
14 proceeding, to go through a licensing proceeding to
15 satisfy them, they should have at it, but it should not
16 be brought into this proceeding until they want to bring
17 it in. It's just further evidence of the coercive
18 nature of their attempting to interject...
19 HEARING OFFICER: I think they are attempting to go
20 forward within the scope of the resolution that I'm
21 suggesting, and at this point if my resolutions don't
22 sit with them then we may have to deal with it. I don't
23 think we have to deal with it now.
24 MR. SMITH: Absolutely.
25 HEARING OFFICER: All right. So that gets us to
57
11 I guess the split versus replicate issue. Is that the
22 only remaining issue that we have in terms of the
33 discovery?
44 MS. KAVANAUGH: I think so. As far as I know it
55 is.
66 HEARING OFFICER: All right. And I guess I can
77 understand the concern that's been voiced by the U. S.
88 Government that they want to avoid the potential
99 arguments that, "Well, your sample was taken from a
10 different spot than our sample, and therefore we want to
11 go with replicates." That makes a lot of sense in terms
12 of making sure everybody's dealing with apples and
13 apples instead of apples and and oranges. Why can't
14 that be done?
15 MS. KAVANAUGH: Could I suggest this? It came up
16 kind of suddenly when it will basically kind of call the
17 sample into question if it's split. Could we possibly
18 get back with the consultant and see if there's any way
19 he can describe this split sample? We don't have any
20 objection so long as it doesn't change its nature and
21 see if there's any way we can do it, in which case we
22 would agree to split.
23 HEARING OFFICER: It may be the experts the U. S.
24 Government has have a methodology or a procedure that
25 may satisfy your consultants.
58
11 MS. KAVANAUGH: That's it, and we will make that
22 known immediately if we can get that straightened out.
33 HEARING OFFICER: All right, so why don't you see
44 if you can, maybe your expert can provide the tools or
55 whatever that he uses that enables him to do it to their
66 expert and see if that will resolve it?
77 MR. WATTS-FITZGERALD: We generally use a cane
88 cutting knife.
99 MS. KAVANAUGH: That might explain it. Just
10 teasing.
11 MR. WATTS-FITZGERALD: A carefully sanitized and
12 sterilized one.
13 HEARING OFFICER: Okay. What other issues do we
14 need to get resolved? Is that everything?
15 MS. PONZOLI: You're only talking about their
16 access.
17 MR. WATTS-FITZGERALD: There is an issue, talk
18 about getting down into the weeds, vegetation. Our
19 proposals speak in terms of doing a vegetative
20 inspection and mentions nothing about cutting.
21 We seek clarification because of the vague language
22 and were not clear on the response. I think we kind of
23 crossed in the night on that matter.
24 They came back and said their consultant said
25 they were not vague on that, and there was a letter
59
11 saying such vegetation as we cut, if any, it's not a
22 lot. It does not say if they are testing or not.
33 We are not challenging or dictating what tests have
44 to be performed or how they perform them. We recognize
55 the case law. In fact, they cited it to us, and I
66 recited it in response to you.
77 A party in discovery can't dictate the tests the
88 others will take or can conduct.
99 All we are saying is we are entitled to know as
10 they are entitled to know that when you make entry under
11 the rule what are you going to take? You're taking a
12 picture? Fine. Take a picture. If you want to take
13 cuttings, take cuttings, but we're entitled to know
14 that, because the scope is relevant to the
15 reasonableness and the balancing test.
16 HEARING OFFICER: Okay. Well, in terms of the
17 vegetative issues I don't think we're facing the same
18 sort of ongoing type of testing that needs to be done
19 with respect to the water samples, and as I understood
20 their response they basically said if the representative
21 of the U. S. Government is there and doesn't agree with
22 the sample that is being done that they'll halt it
23 immediately and that we'll bring it up and take it up at
24 a hearing.
25 MS. KAVANAUGH: We don't know, frankly, because we
60
11 don't know what we're going to take. We're not planning
22 to go in if the federal observer says no.
33 HEARING OFFICER: Isn't that acceptable? I mean,
44 it's not like they have to do it at that particular
55 time. They can go in the next time they go in.
66 MS. KAVANAUGH: If we can resolve it, we'll do it
77 the next time.
88 HEARING OFFICER: So it will put the power to your
99 guy if he thinks the sampling that's being done will be
10 excessive that he can halt it right there.
11 MR. WATTS-FITZGERALD: Because of the number of
12 trips we really didn't plan to send the Superintendent
13 of Everglades National or the Resource Manager of
14 Loxahatchee along on these.
15 HEARING OFFICER: Not every one, but maybe the
16 time...
17 MR. WATTS-FITZGERALD: And those are people that
18 have the authority to make that call. We're just
19 asking. We want to know in advance.
20 MS. KAVANAUGH: We're not going to know until we
21 get there.
22 HEARING OFFICER: On any opportunity or any
23 entry when they're going to be doing vegetative
24 sampling if you can give them enough notice you can
25 make sure someone goes along who has authority or has
61
11 the ability to halt this or come back and revisit the
22 issue.
33 MR. WATTS-FITZGERALD: If we can get advance notice
44 we can do that.
55 MS. KAVANAUGH: If I may say, once we go in on the
66 first trip we will see what vegetation is there, and
77 perhaps at that point our consultants can say, "We will
88 need leaf samples here, we will need them here," and we
99 can tell you, and we would agree to that.
10 I don't think we intend, if you will, in other
11 words since we will be going back on a monthly basis we
12 could do it the second time after we talk.
13 HEARING OFFICER: Why don't we do this. No
14 vegetative sampling without seven days prior notice to
15 the U. S. and then...
16 MS. KAVANAUGH: An appropriate observer?
17 HEARING OFFICER: And the appropriate observer can
18 halt it if they think it's excessive, and we'll take it
19 up at the next hearing.
20 MR. WATTS-FITZGERALD: Yes, sir.
21 HEARING OFFICER: Is someone writing all this down
22 for a final order?
23 MR. REID: She is.
24 HEARING OFFICER: Is somebody going to give me a
25 transcript so I can put it all down? Will there be a
62
11 transcript ordered?
22 MS. PONZOLI: Oh, yes.
33 MS. KAVANAUGH: Mr. Hearing Officer, Mr. Kobelinski
44 just clarified we are only going in once, and we're
55 going to go into the first 18 sites, and we won't know
66 what we want to take until we get there, so I just want
77 assurances and an understanding that if, since
88 we won't know what we need to take until we get there
99 that if we can't take it on the first trip we won't be
10 allowed to go back and conduct further sampling.
11 HEARING OFFICER: Well, I think that's what
12 basically I understood the process to be, if the U. S.
13 observer halts it and no vegetative sampling is done and
14 we come back here and you bring them in and I'll
15 listen to the testimony and we'll determine, you know,
16 I'll make my determination as to whether I think it's
17 reasonable or not, and assuming that you establish the
18 need to do the vegetative sampling as proposed then it
19 will be my decision he should be able to go back in and
20 do it, and we'll get back into the procedural issues and
21 deal with that as we get there, but hopefully we will
22 not need that.
23 Okay. Is that it with respect to the petitioners?
24 Are there any other issues that need to be resolved?
25 MR. WATTS-FITZGERALD: There was a request as part
63
11 of the original response, in the Everglades National
22 Park, to do low level flying over the research sites,
33 the two centers that do not appear anywhere in the SWIM
44 plan or are quite remote from any physical sampling
55 site, and there is a special consideration in wilderness
66 areas.
77 MS. KAVANAUGH: We withdraw that, Mr. Hearing
88 Officer.
99 MR. WATTS-FITZGERALD: Never mind.
10 MS. KAVANAUGH: We'll pass.
11 MR. WATTS-FITZGERALD: That's gone. Whoa.
12 Closure.
13 HEARING OFFICER: Any other issues then on the
14 petitioners' request for entry? We have resolved all
15 outstanding disputes on those for the time being?
16 Right?
17 MR. WATTS-FITZGERALD: Perhaps preliminarily.
18 MS. PONZOLI: Round two. I don't think this is
19 quite as complicated. We seek a much more modest entry
20 to take a total I believe of 13 days. I guess the
21 problem is it doesn't seem to relieve the anxiety level
22 of the people on the other side of the room. I'd like
23 to go through just briefly things we are seeking, what
24 we're seeking, and have the numbers.
25 I do think we are down to two issues. While you
64
11 were out I got a "Yes, you can have entry," a "Yes, you
22 can have entry," "Maybe you can have entry," and I think
33 it slipped to yes, maybe, maybe, but I do think we are
44 down to two issues.
55 HEARING OFFICER: Before we get into it let me back
66 up for a second. I assume by the silence the issues in
77 terms of what can be done with the information that has
88 been resolved as a result of that?
99 MS. KAVANAUGH: No, sir, that is one of the two
10
10 issues.
11
11 MS. PONZOLI: That is one of the two issues, and I
12
12 don't know if you think you have the power to resolve
13
13 it. I guess I leave that to you.
14
14 I do not have the authority to waive the
15
15 enforcement powers. I frankly can understand their
16
16 anxiety about what would be done with the data, and
17
17 since we have a spirit of openness, made an offer to
18
18 share our raw data, that now is the issue if it's shared
19
19 with the world, and I guess that raises our anxiety on
20
20 their part.
21
21 HEARING OFFICER: Okay. This only, maybe I don't
22
22 understand or didn't understand earlier, but that all
23
23 relates to your request for entry onto the petitioner's
24
24 property, doesn't go the other way?
25
25 MS. PONZOLI: No, sir, it doesn't go the other way.
65
11 But let me, I would like to share with you by way of
22 illustration a couple of maps or images, just so you're
33 familiar with what we're talking about.
44 They have seen these before, you know, and I'm not
55 asking them to waive objections. I think they are
66 relatively fair representations of south Florida. One
77 is a satellite image, and one is a stylized map.
88 Where you see the satellite image, Mr. Hearing
99 Officer, you see the lake as the dark circle in the
10
10 middle, and the highly developed crosshatched area
11
11 underneath it is the EAA. Loxahatchee is the diamond up
12
12 to the right, the dark diamond labelled, kidney, I'm
13
13 sorry. Whatever you like. That's what you've been
14
14 using it for.
15
15 MR. REID: I would like to see what he would do on
16
16 a workshop test.
17
17 MS. PONZOLI: Anyway, you have the water
18
18 conservation area coming on down to the park.
19
19 I want you to understand that the EAA gets
20
20 rainfall coming onto it and water from the lake. It
21
21 also has the ability to draw water up from the
22
22 water conservation areas. You will not get my long
23
23 speech on the hydrology, but you do need to realize that
24
24 water does go downhill, and this water flows on into
25
25 the water conservation areas and into the park by
66
11 various methods.
22 We are seeking to go into the EAA to collect there
33 the rain, ground and surface water, soil and biological
44 samples.
55 We are looking at five yield ranges within the EAA,
66 and my understanding of these yield ranges is that they
77 basically reflect the value of the land for agricultural
88 purposes, higher yield being deeper, much richer muck.
99 Maybe apple muck is typical of this. That would be the
10
10 highest yield.
11
11 Then you go down to where the muck is seriously
12
12 depleted, the compaction and oxidation of the muck has
13
13 gone on for so long that you have a very little amount
14
14 of much that is left for growing purposes. This
15
15 extracts the value of that particular property.
16
16 If you look through the expert witnesses for the
17
17 petitioners it is very clear that socioeconomic impacts
18
18 of this SWIM plan are a very major issue, so the value
19
19 of the land is a major issue in the lawsuit.
20
20 We want to look at phosphorus and phosphorus
21
21 related processes. Now I think it's fair to state that
22
22 the number of samples we're taking is fairly minimal.
23
23 We're taking 40 samples with two replicates, 120 of
24
24 the soil and the water. We're going to take air
25
25 samples.
67
11 I think that they have raised a fair number of
22 issues in their petitions, and they seem to keep telling
33 me that I am here on a very limited basis, and I believe
44 that is an issue that if there's a problem we need to
55 get it resolved real fast, because I believe that I am
66 the attorney for the United States and represent
77 essentially two natural resources. It's really I
88 believe my client's ox that's being gored.
99 If this plan goes down because of what goes on at
10
10 the hearing my client is the one suffering and will
11
11 suffer in the end.
12
12 So I want to do that discovery that is necessary to
13
13 dispute what they have raised in their petition, where
14
14 they raised water quality issues in their petition,
15
15 where they say phosphorus levels going into the water
16
16 conservation areas are not this, are not that, so that
17
17 this process is going on and I want the ability to
18
18 present evidence that will dispute this.
19
19 If they say that, as they have given every
20
20 indication in their petitions, that the economic impact
21
21 is going to be so great on them, I want to be able to
22
22 say, "But that soil when we did our testing," I want to
23
23 be able to say, "That soil does not have that type of
24
24 value." I have that right to have access to their
25
25 property.
68
11 They have raised in the League's petition in
22 particular, it's so global, 47 pages, the Coop has
33 embraced it, and I think the Fruit and Vegetable people
44 did not necessarily embrace it whole cloth, I can't
55 remember, but they copied so many of the paragraphs that
66 it appears to be whole cloth.
77 On page 36 of the petition by the League they
88 raised the issue of whether the SWIM plan has
99 scientifically established that in waters flowing from
10
10 the EAA it causes adverse impacts on, and it lists,
11
11 birds, mammals, reptiles in the waters downstream and in
12
12 the waters of the park, etcetera.
13
13 The next paragraph is very revealing, because I
14
14 believe the phosphorus, I don't think they have a
15
15 problem with testing for that. I think they will agree
16
16 that very rapidly levels of phosphorus concentration are
17
17 important. It is the next one that causes the greatest
18
18 anxiety.
19
19 Page 36, paragraph (b)(v), they say whether the
20
20 SWIM plan has scientifically established the levels at
21
21 which dissolved solids, chlorides, iron, trace metals,
22
22 and pesticides are harmful to the waters for the park
23
23 and the refuge and the water conservation ares, and I
24
24 believe as you go through their entire petitions,
25
25 which I believe I am here and have the ability to
69
11 dispute, that as to any of those issues I may do data
22 collection within the EAA, that phosphorus and
33 phosphorus related processes and any of those things
44 they have raised I may go in and do testing for that.
55 The two issues that really are the core, the crux
66 of the dispute is the business of what can my data
77 collection be used for.
88 I am going in for research to understand the
99 process. I'm not going in to just sample for a RCRA
10
10 violation. But I do not have as I sit here today the
11
11 ability to weigh the other uses. I state that.
12
12 I believe you can do what you want to do with the
13
13 other uses of this data collection. I don't think they
14
14 should ask for a waiver. I cannot give them a
15
15 stipulation. I don't think they should ask for one.
16
16 What you choose to do with the other uses I believe
17
17 is within your power to rule, and I cannot even waive
18
18 what arguments other agencies would take in the future
19
19 as to your ruling. I cannot deal with that. That is
20
20 where we begin to differ. We have a problem.
21
21 But I believe you can make a ruling on how you feel
22
22 about other uses.
23
23 As to the scope, I believe the scope of what I am
24
24 testing for, phosphorus and phosphorus related
25
25 processes, as I test for metals and pesticides, it is
70
11 clear in the SWIM plan those are issues raised in this
22 litigation, and I should be able to test for those.
33 I think I have touched on, I guess I would like to
44 hear their response to the scope issue, because they
55 filed such a broad-brush objections, it's vague, it's
66 overbroad, it's oppressive, and only in our personal
77 discussions was I able to get to some of the crux of the
88 problems.
99 I think i'd like to hear the problems and their
10
10 response.
11
11 HEARING OFFICER: Okay, let me make sure I
12
12 understand the issues before we get that. We are
13
13 dealing then with two issues, and the first is what can
14
14 be done with the test results after you have gone out
15
15 and done the sampling on the petitioners' property.
16
16 MS. PONZOLI: Other than uses in this particular
17
17 proceeding. I believe that as to any particular piece
18
18 of evidence I want to put before you that it runs the
19
19 normal course of is it relevant, will you accept my
20
20 introduction of it, and it has a clear limitation. I
21
21 don't think that's the one they're concerned about.
22
22 HEARING OFFICER: Just whether you can disclose the
23
23 results of your tests to other parties or whatever?
24
24 MS. PONZOLI: Not disclose. It's the use. It
25
25 will be disclosed, because we are sharing raw data, so
71
11 it is an open public document, is my understanding.
22 HEARING OFFICER: And part of a public hearing as
33 well.
44 MS. PONZOLI: Right. Right.
55 HEARING OFFICER: So just...
66 MS. PONZOLI: And I dumped that one in your lap is
77 basically what I have done, because I'm not coming in
88 for those other purposes. I simply don't feel I have
99 the ability to waive.
10
10 HEARING OFFICER: All right, I guess I will have to
11
11 have Ms. Kavanaugh explain exactly, maybe you can give
12
12 me a better idea what it is, and the second one now is
13
13 just the types of testing you can do once you get the
14
14 samples?
15
15 In other words, at this point have you disclosed to
16
16 them the testing you're going to do, or are you just
17
17 saying you're going to take samples and do whatever you
18
18 want?
19
19 MS. PONZOLI: I have disclosed to them generically
20
20 the types of issues that I am looking at, which quite
21
21 frankly is all they have done with us.
22
22 They are taking water. They're taking soil.
23
23 That's what they have done with us. And that's what I
24
24 have done with them.
25
25 Now that this issues is raised they want to say,
72
11 "Well, we'll tell you, and you tell us, and we'll agree
22 whether you can do it or not." I have described to you
33 the other types of issues I believe I'm entitled to test
44 for, the metals, the pesticides, all water quality
55 parameters, how they process, how they function in the
66 scheme of this. As long as it is raised by their
77 petitions or in the SWIM plan or the District's
88 response, but really that's the state permits, the SWIM
99 plans, and their petitions, I should be able to test for
10
10 those.
11
11 HEARING OFFICER: All right. Ms. Kavanaugh?
12
12 MS. KAVANAUGH: Mr. Oertel wanted to add something.
13
13 MR. OERTEL: This is our perspective on this case.
14
14 I only really speak for my clients, so I'm not sure some
15
15 of the things I say will be shared by the others, but
16
16 they will speak for themselves.
17
17 We start the case off really knowing were it not
18
18 for the entrance of the United States into this case as
19
19 an intervenor they would have no right or opportunity to
20
20 enter upon our lands and do any sampling or testing.
21
21 The only theoretical access they could get would be
22
22 perhaps pursuant to a search warrant, which they would
23
23 have to obtain pursuant to a criminal investigation
24
24 based on the existence of probable cause stated in an
25
25 affidavit and approved by a Magistrate.
73
11 They are here now as an intervenor in the case. We
22 do not object to their request to enter the land and do
33 testing. We have no problem with that, but beyond that
44 is where we separate.
55 We would like to make sure that the testing they do
66 is reasonably related to their position in the case, and
77 that position in your order is to support the SWIM plan,
88 not to oppose the petitions in the case.
99 I think there is quite a difference between their
10
10 participation in the case.
11
11 We proposed to them...
12
12 HEARING OFFICER: You lost me right there. What's
13
13 the difference? If they come in, and support the SWIM
14
14 plan, and you are challenging it, don't they necessarily
15
15 have to oppose your petitions?
16
16 MR. OERTEL: I think there's a difference on that.
17
17 Supporting the plan does not necessarily mean they will
18
18 take on every allegation in our petition.
19
19 But let me outline to you our, where we believe
20
20 this matter ought to be resolved. We would like them
21
21 to tell us after they enter the land what they
22
22 would like to do, and they have told us they would
23
23 like to sample air, water, soil, rainfall, I suppose it
24
24 would have to be raining during the inspection, so
25
25 perhaps that would be something that fortune would have
74
11 to bless their inspectors, so they would also have to
22 take water samples, and again we have no problem with
33 data collection or sample collections.
44 We want to be told what they wish to test for,
55 what test procedures they will then subject those
66 samples to.
77 If we have no problem with relevancy to the samples
88 we will advise them, and we will do the same for them.
99 We'll tell them what test procedures we want to take and
10
10 subject the samples to.
11
11 If we think they're looking for things that are
12
12 irrelevant to the case, and perhaps the distinction
13
13 between our petition and your order isn't perhaps that
14
14 important to this direction, if there is no problem
15
15 with the procedures they wish to undertake then there
16
16 will be no problem at all with the entry and
17
17 inspection.
18
18 If they wish to subject the samples to analysis
19
19 which is unrelated to irrelevant to the proceedings in
20
20 this case, then I think we are reasonable in requesting
21
21 that they not do so, because their sole entry to the
22
22 property is for this case, and if they seek to use the
23
23 opportunity to enter upon the land to undertake an
24
24 unlimited investigation or a fishing expedition then I
25
25 think we have the right and the necessity to object,
75
11 because just by the opportunity to enter into the case
22 does not give them free hand in an undisciplined
33 investigation on anything that's going on on my client's
44 property.
55 That's the nature of our objections. I think our
66 proposal is reasonable, that they tell us the tests they
77 wish to undertake. We may not have an objection even if
88 we think it's questionable or irrelevant, but we'd like
99 to know in advance what the opportunity to
10
10 enter upon our land could result in. That's our
11
11 objection.
12
12 HEARING OFFICER: Okay;
13
13 MS. KAVANAUGH: Mr. Oertel has certainly, I concur
14
14 in his remarks. I would like to note that we have
15
15 previously, prior to the initiation of the proceedings,
16
16 offered to cooperate in a reasonable program for
17
17 participation in the EAA, and while, I mean, I think the
18
18 process is obviously the big issue, and we have made
19
19 that offer.
20
20 As Mr. Oertel noted, now they want to test for
21
21 whatever, and they don't wish to disclose whatever else
22
22 they may wish to test for, and we object.
23
23 The crux of the SWIM plan is not what is happening
24
24 on the farmers' land. It is to address the impacts
25
25 the plan alleges on their downstream lands, and the
76
11 picking and choosing through petitions to find the word
22 pesticide or trace metal, if you go back to the SWIM
33 plan, the paragraph referenced by Ms. Ponzoli is
44 referencing whether those items exist at the point the
55 water leaves the EAA and enters the Everglades Park
66 area.
77 They can test there. It's in state waters. They
88 are asking to come onto private property where you know
99 they've got no regulatory jurisdiction other than did
10
10 they have probable cause, which is an enforcement
11
11 action.
12
12 So phosphorus we will be willing to consider.
13
13 Phosphorus related activities or whatever, we don't know
14
14 what that means. We have to know.
15
15 If we can work that out I think we would have a
16
16 cooperative plan, but at this point frankly there's
17
17 nothing that they could present relating to whatever
18
18 they will test for, and we don't know, we have heard
19
19 pesticides, and they want to put something in, another
20
20 test, but those are not the issues.
21
21 What's happening in the area is not the issue.
22
22 It's what's happening in the waters of the state. It's
23
23 not founded on testing of the District or what occurs on
24
24 private property.
25
25 So I make the offer again that we will certainly
77
11 consider reasonable phosphorus testing programs, but we
22 feel it's irrelevant, and whether it's irrelevant we
33 don't know what else they're going to test for, and we'd
44 certainly like the opportunity to know what they're
55 going to test for and present appropriate objections as
66 to relevancy.
77 It's a three-month program, so there's time to do
88 that. If they would submit an offer to specify exactly
99 what tests we would perform and the samples by Wednesday,
10
10 if they would make a detailed definition of what they
11
11 are going to do, then if we object, if they say, "We're
12
12 going to test for PCBs," as Ben was saying, then...
13
13 MR. REID: I was giving hypotheticals.
14
14 MS. KAVANAUGH: He was giving a hypothetical.
15
15 Let's say that were on the list. Then we could come
16
16 back to you, and you could resolve it.
17
17 But at this pint in the thing that's at issue by
18
18 our plans and the SWIM plan is what the water's like
19
19 when it comes out of there and what is occurring there.
20
20 Our access program is directed to that, as we can
21
21 testify. Theirs is not. So we do object and would
22
22 request that they be required to tell us.
23
23 On the issue of use, Mr. Hearing Officer, they are
24
24 regulatory agencies. In the case of a prosecuting
25
25 agency they would have no ability to come onto our
78
11 private property under other circumstances.
22 We are very concerned, because we don't know what
33 they will test for or why or the potential for misuse
44 of the information that will be available, as you
55 noted.
66 Therefore we think that since private property is
77 involved it needs to be a narrowing, and it needs to
88 address issues in the SWIM plan, phosphorus and whatever
99 else we agree upon.
10
10 HEARING OFFICER: Mr. Green? Do you have something?
11
11 MR. GREEN: Yes, I do. I think it's an
12
12 interesting situation we're in. We're talking about a
13
13 third party coming onto private property. The third
14
14 party is the United States Government, and it's
15
15 being approached like a grand jury investigation, it
16
16 seems.
17
17 This SWIM plan is like the New York phone book. It
18
18 mentions every water body and parameters, the code
19
19 references, and there's historical material, and it's
20
20 something for everyone, but the bottom line of it is it
21
21 talks about phosphorus, and it talks about building
22
22 36,000 acres of phosphorus reduction wetlands out of
23
23 productive farm lands that are currently owned by
24
24 different ones of our clients for the most part.
79
25 It talks about phosphorus reduction efficiencies.
79
1 It talks about phosphorus related impacts on areas that
2 the United States Government is interested in protecting
33 and the State of Florida is interested in protecting,
44 and it talks about a lot of other protection parameters
55 as background information.
66 Now to use this as an opportunity to come in with a
77 very broad brush, "Let's go see what we can find," this
88 approach, which is the way it appears, you will have
99 great concern for the reasons mentioned. I think it
10 would be inappropriate and a misuse of this process.
11 We would like to see the tests to be conducted,
12 parameters be conducted.
13 Biological samples were mentioned. We would like
14
14 to know how that's relevant. There's a lot of
15
15 uncertainty and concern.
16
16 We know the United States would like to visit these
17
17 areas on October 1. There's some time to think about
18
18 those. If there are areas that need to be briefed,
19
19 maybe they should be. I would urge you to be very
20
20 circumspect on this. There is a great potential for
21
21 abuse. It may not be the intention. We would hope it
22
22 is not.
23
23 I think you should assure yourself that is not
24
24 occurring.
25
25 HEARING OFFICER: I will give you an opportunity to
80
11 respond, but let me see if I can clarify a couple of
22 those.
33 I'm not sure I understand the testing and the
44 types of test issues. In terms of the use issue
55 I'm not clear exactly what it is you are asking me to
66 do. Are you asking me to enter an order? I guess
77 I'm not sure what level we are seeking with respect to
88 that.
99 MR. OERTEL: Your Honor, we asked yesterday that
10
10 the government give us an assurance that whatever they
11
11 discovered would not be used in any prosecutorial or
12
12 other administrative, civil, penal type proceeding.
13
13 They said they could not do that.
14
14 An assurance like that I know would have calmed
15
15 us to some degree but not to every degree, because
16
16 there are citizen lawsuits still an ever constant
17
17 threat.
18
18 So I didn't address it in my comments, because
19
19 I don't know if there is an answer or if you can enter
20
20 an order satisfying us or binding them, but we did
21
21 mention it yesterday. I'm sure that's why she brought
22
22 it up.
23
23 HEARING OFFICER: I guess I'm just looking at what
24
24 relief can I offer you.
25
25 MS. KAVANAUGH: Can we have an opportunity to
81
11 brief it? It's my understanding to see if anyone had,
22 it's my understanding that in this, bearing in mind it
33 is not a criminal prosecution, it's a state
44 administrative proceeding, and these kinds of agreements
55 are not all that uncommon, and I think I would like to
66 have the opportunity to give you something in writing
77 and some documentation of that and brief the question of
88 whether you could enter an order to protect the rights
99 of the parties, and I would like the opportunity to give
10
10 you something on that.
11
11 HEARING OFFICER: I think it's reasonable, since I
12
12 haven't read the request for entry.
13
13 MS. PONZOLI: Mr. Hearing Officer, we can brief the
14
14 other use issue if we could resolve the right to entry
15
15 today. That could be an issue. I mean, I'm making it
16
16 clear to you I have no desire for other use. I don't
17
17 have an ability to waive.
18
18 We can brief that separate use or enforceability.
19
19 I'm not the only entity here that has in its clients
20
20 regulatory agencies. How can they extract from South
21
21 Florida Water Management District, from DER, similar
22
22 types of immunities? I mean, this can be put aside as a
23
23 separate issue, and we're not even starting the testing
24
24 until October 1.
25
25 HEARING OFFICER: Well, there are two things.
82
11 One, I know there are trade secrets and other things
22 like that in documents that are produced or whatever,
33 and there are agreements that can be reached and have
44 been reached in cases I have handled where information
55 has been restricted to the use of the attorneys in the
66 case. I guess that's what...
77 MS. KAVANAUGH: That's the kind of thing.
88 HEARING OFFICER: ...you're getting at. Whether I
99 have the authority to do that is another issue, and I
10
10 think, you know, I think that does need to be briefed,
11
11 and everybody has an opportunity to lay out their
12
12 positions.
13
13 In terms of your suggestion that we can deal with
14
14 the access issue and resolve that, the only problem is
15
15 there may be some irrevocable prejudice if the access is
16
16 granted and the tests are done and we subsequently find
17
17 out that I don't have the authority or I won't enter an
18
18 order along the lines that they request, and then there
19
19 may be some prejudice there. We're looking at, go
20
20 ahead.
21
21 MS. PONZOLI: If we might brief this, then we could
22
22 resolve this before we set foot on their property. We
23
23 cannot resolve it September 29th.
24
24 HEARING OFFICER: Okay, I do think we need to
25
25 resolve it before any access is given. I wasn't sure if
83
11 you were suggesting we go ahead and get the access and
22 resolve it. I don't think that's appropriate. We need
33 to resolve it before the access is given.
44 MS. PONZOLI: But you're going to delay granting me
55 access at all based upon the further use of the
66 information? Is that what I'm understanding you to say?
77 HEARING OFFICER: No, not yet. What I'm saying is
88 you need to get these issues resolved so that we can get
99 to the access, and since access isn't even sought
10
10 until October 1st why don't we see if we can get the
11
11 issues resolved before then, and if we have to push that
12
12 back a little bit we may have to push it back a little
13
13 bit, but I think the main thing to do is to let
14
14 everybody have an opportunity to lay out their
15
15 positions, and I'll take a look at it, and hopefully we
16
16 can get it resolved, but if we have to push it back a
17
17 little bit, so be it.
18
18 MR. REID: But we could get everything else,
19
19 protocols and the other issues, that could be done today
20
20 and just leave that one briefed?
21
21 MS. KAVANAUGH: The other issue still is because we
22
22 may have objections when they tell us what they will
23
23 test for or relevancy, as well as whatever, and
24
24 until they tell us the pollutants they are going to
25
25 test for in addition to phosphorus we could certainly,
84
11 my clients want to reserve their ability to object and
22 address that.
33 MR. OERTEL: So far as my clients go, we don't know
44 if we have a problem until they tell us what tests they
55 wish to undertake. I don't see that as a burden. I
66 assume their experts already know what they want to do.
77 HEARING OFFICER: Why can't you tell them what you
88 want to do?
99 MS. PONZOLI: I guess I can say the "M" word here,
10
10 and we'll confess right up that we're looking for
11
11 mercury as it is related to the phosphorus process. I
12
12 can point to the SWIM plan to repeated references to
13
13 mercury throughout the plan and the interrelationship
14
14 with phosphorus. I think it's probably the one that is
15
15 sending them through the ceiling.
16
16 I think that pesticides are an issue. I have told
17
17 you that frankly yesterday when we talked to them I
18
18 said, "I will only do phosphorus and phosphorus
19
19 related processes, and I'm not even looking for
20
20 phosphorus in the air, because it's water quality
21
21 issue that we're concerned with." We're concerned with
22
22 how phosphorus, the source of the phosphorus in the EAA,
23
23 as Mr. Green so aptly put it, that phosphorus reduction
24
24 efficiencies, how that works. We want to understand
25
25 these procedures.
85
11 We have to go back up to the source to understand
22 some of these things, but, you know, I sat there last
33 night and went through their petitions and I found I had
44 a right to do a whole lot of things. I think that's a
55 pretty important issue. I believe in the SWIM plan I
66 have a right to defend against the attacks.
77 HEARING OFFICER: I think that's one issue. I
88 guess what I'm suggesting is it would be easier to tell
99 them what you're going to test for, and then we'll see
10
10 if we have a problem. If we don't have a problem, then
11
11 fine.
12
12 MS. PONZOLI: I have never been given this. You
13
13 understand, this law that they cited in their motion to
14
14 compel, they can't dictate to the other side what tests
15
15 they can do on the samples that are taken.
16
16 HEARING OFFICER: I don't think they're trying to
17
17 dictate what you're going to do. They just want to know
18
18 what they are.
19
19 MS. KAVANAUGH: On the gross irrelevancy.
20
20 HEARING OFFICER: You know, that's not going to
21
21 determine, if they object it doesn't necessarily mean
22
22 you can't do it.
23
23 MR. REID: I just wanted to make a couple of
24
24 points, more overriding, because I think we will hear it
25
25 again in various places.
86
11 There's a SWIM plan, and it says what it says, and
22 the petitioners chose to attack it by filing hundreds
33 and hundreds and hundreds of attacks.
44 We filed a motion to strike a lot of things, and at
55 the time, assuming I'm correct, your finding that you
66 couldn't rule on that point. So we're left with their
77 complaint as framing the issues.
88 Now to say that there's a difference between
99 supporting the SWIM plan and refuting the petition, I
10
10 just don't see that difference. I mean, without their
11
11 objections we wouldn't be here.
12
12 The SWIM plan says what it says. They have
13
13 attacked it. The issues are joined, and that's the
14
14 issue that has to be dealt with in the proceeding. I
15
15 don't think I can start making decisions in discovery,
16
16 like it's relevant if it supports the SWIM plan, but it's
17
17 irrelevant if it's only an attack on the petitioners.
18
18 So I just wanted to be heard on that point, that I can't
19
19 agree with that distinction and to the extent it's ever
20
20 going to be used again I'll object to it at the time it
21
21 occurs. That doesn't make sense here.
22
22 It seem to me in this case the United States
23
23 has taken the initiative to do the specific gathering
24
24 and so forth. Obviously I intend to use that in the
25
25 case.
87
11 I'm the target party here, you might say. If I say
22 that testing is done for my benefit as well, that
33 obviates all the argument, how they are intervenors and
44 all that, because I'm not an intervenor. I'm the
55 target.
66 I think to say that the only issue is what's the
77 water like in the WCAs or Everglades Park is also an
88 overriding point I want to contest. Obviously that
99 water had to come from somewhere.
10
10 Their standing in the case that they claim they are
11
11 injured because their property, the use of their
12
12 property and the water coming off their property, that's
13
13 why they are here, so it obviously makes sense we be
14
14 entitled to go and look at the source.
15
15 And to say that their land, I understand what
16
16 they're saying, "We can't really keep you off, but
17
17 because our land is irrelevant we ought to be limited
18
18 somehow," and that doesn't make sense, either.
19
19 The source of whatever we are dealing with on the
20
20 issue, so really what we're left with is a situation
21
21 that the SWIM plan talks about, and they have raised
22
22 specific issues in their petition.
23
23 I frankly have a problem with their having
24
24 anything. In other words, it seems to me the opposite
25
25 sides for both sides should have the opportunity
88
11 to go in and get a jug of water and take it out, and see
22 what's there.
33 The relevance is the same intrusion as to them.
44 In other words, I want to go in and get a jug of
55 water. Then to go through what I plan to do with it it
66 seems to me is a gross invasion of all kinds of work
77 product doctrine and perhaps the attorney-client
88 privilege.
99 Clearly if I try to admit it into evidence then it
10
10 becomes an issue of relevance, and that's where the PCB
11
11 came up.
12
12 Just to sort of set a model yesterday I said, "If
13
13 I'm going to pull it out I might decide for some crazy
14
14 reason to run a test for PCBs, and I ought to be able
15
15 to."
16
16 Now if I try to come in and offer evidence that
17
17 there was PCB in the water then I might have a problem
18
18 with relevance, and it would either be admitted or not
19
19 admitted, but I don't think the opposing side has any
20
20 basis to say what I can do with my sample once I get it
21
21 back to the lab.
22
22 What they're saying is, "We need to know what
23
23 you're going to do with it so we can object." I don't
24
24 think they even have the right to object. They have the
25
25 right to raise the issue of access, and we have
89
11 argued about that all morning, and we've got parameters
22 now, and it seems like everybody is agreeable. But once
33 we get them...
44 HEARING OFFICER: Let me just throw this out,
55 and I think some of the issues you have raised are
66 larger picture issues than the specific question of
77 whether or not they should know what tests will be
88 conducted.
99 Isn't it possible that one of the petitioners, for
10
10 example, when they find out exactly what tests are going
11
11 to be conducted may decide that, "Heck, if they're going
12
12 to test I don't want any part in this case," and
13
13 withdraw, and therefore you have no right to access
14
14 their property?
15
15 Shouldn't they be in a position to make that
16
16 evaluation as to whether or not their continued
17
17 participation in this case is, you know, going to
18
18 subject them to tests they may not want to subject
19
19 themselves to?
20
20 MR. REID: Well, you see, that gets back to the
21
21 decision of what's an intrusion. They make that
22
22 decision once you decide we can go and get the water,
23
23 and they might also make that decision on once I
24
24 disclose an expert and tell them what his opinion is,
25
25 that "I have found PCBs on your property, and I'm going
90
11 to be offering this in the case," they can make the
22 decision then.
33 I don't think they have the right though to know at
44 all just in the abstract talking about the principle
55 here what the parties are going to do with it back at
66 the lab.
77 Because of the intrusion how they have been damaged
88 or hurt or in any way inconvenienced is going on the
99 land and getting it, and we have passed that, and we
10
10 have come up with, you know, you have limited the number
11
11 of times, and all of that has been done.
12
12 Now I get my jug of water. The next question is,
13
13 all right, what can I do with it when I take it back?
14
14 They are saying, "Well, we need to know everything
15
15 you're going to do, because we think we have the right
16
16 to object, because if you're going to do something
17
17 that's irrelevant we need to stop you."
18
18 I'm saying it doesn't become an issue until we try
19
19 to use it somehow in the case.
20
20 It seems to be such an invasion of, they want me
21
21 to tell them, you know, my scientist may say, "Gee,
22
22 I read an article that said thus-and-such, and I maybe
23
23 want to test for this." I could run over and say,
24
24 "My scientist thinks there's a possibility of this, and
25
25 we want to test for it." That's a gross invasion of
91
11 attorney-client and work product.
22 HEARING OFFICER: I think there are a number of
33 issues here that probably everybody needs an opportunity
44 to brief, and again I haven't even read the request at
55 this time, and I need to do that.
66 I do think though that we are dealing with some
77 issues that the repercussions of which may extend far
88 beyond the particular issues in this case, and I can
99 understand the concern of the petitioners.
10
10 I have no idea what civil actions or administrative
11
11 actions or anything else may be pending out there, and I
12
12 can understand that a petitioner may have some concern
13
13 about continuing its involvement in this case, for
14
14 example, if it's going to maybe prejudice them in some
15
15 other arena.
16
16 So, you know, I guess in terms of that particular
17
17 issue I'm willing to read whatever you may suggest, but
18
18 I don't see that the burden of disclosing what the tests
19
19 will be conducted are should be all that much a concern
20
20 on the United States Government, because you will have
21
21 to disclose it down the line anyway. But those are some
22
22 of my initial thoughts.
23
23 MR. REID: And I was speaking for the second issue,
24
24 not the criminal investigation issue. I was speaking
25
25 to the second issue, and I was talking about I think
92
11 that in theory they don't have any right to do it, but I
22 think the next step is if we tell them, they sure don't
33 have any right to veto it, and that's what...
44 HEARING OFFICER: We are not to that issue. They'll
55 raise objections, and I'll...
66 MR. REID: They will claim it's irrelevant, and I
77 would...
88 HEARING OFFICER: That's another issue.
99 MS. KAVANAUGH: Mr. Hearing Officer, I'm
10
10 confused, because the response I received with
11
11 regard to the request of the United States, and we
12
12 received it informally, the United States stated that it
13
13 required an identification of the tests we intended
14
14 to perform, and to quote, "Unless the tests are
15
15 appropriate to the issues in this case they are not
16
16 likely relevant and should not be contemplated as
17
17 discovery."
18
18 We therefore said we will give you a detailed
19
19 description of what tests we want, what we are testing
20
20 for, and I don't understand if they are taking that
21
21 position in the one case why they cannot reciprocate.
22
22 The relevancy is the threshold.
23
23 We would certainly urge you to ask us both to
24
24 reveal what tests we propose, and then we would have
25
25 time to resolve the relevancy objections.
93
11 MR. WATTS-FITZGERALD: Mr. Hearing Officer, that
22 objection specifically addressed the granting of a
33 request by the League in regard to the entry upon
44 federal property, specifically the Loxahatchee, to
55 collect data, and we went back and said...
66 MS. KAVANAUGH: And to get samples.
77 MR. WATTS-FITZGERALD: We said we wanted data. Are
88 you going to take a core? Are you going to take flora
99 and fauna? What are you doing? We just want to be told
10
10 if they're using the centrifuge, Joe Bialestock Test No.
11
11 22. We recognize we have no right to do that.
12
12 They cited the case for that proposition,
13
13 "Spermer vs. Firestone Tire," I think a federal case out
14
14 of Ohio, I believe it was, where there is no direct
15
15 state, it was good law, and I could find nothing to the
16
16 contrary. We accepted that.
17
17 I told you in my response twice we are not asking
18
18 and we know we're not entitled to tell you what tests to
19
19 do.
20
20 We're going to give you our data, and they will
21
21 know what we've decided to do. We may do other tests
22
22 later.
23
23 I think Mr. Reid made a very telling point, but
24
24 it's a distortion to ask what specific tests are going
25
25 to be done. Are you talking about the core sampling?
94
11 Are you talking about this and that? And it has nothing
22 to do with vegetative sampling and addresses
33 specifically their desire to go to an unidentified site
44 as described only as historical transects.
55 What are you going to do there? The same think
66 everyone is entitled to know, not relevancy, not
77 materiality, not admissibility, but are you going to
88 take pictures? Are you going to take core samples?
99 We are trying to ascertain what is the resource
10
10 impact.
11
11 MS. PONZOLI: Mr. Hearing Officer, if I may, if we
12
12 can next Wednesday, I want to move this. I want to be
13
13 in by October 1st. I want to be honest. I don't think
14
14 a delay is appropriate.
15
15 We have expedited theirs, and I think we should
16
16 move quickly.
17
17 I would like to, I will go back and talk with my
18
18 full team of lawyers. I think that next Wednesday I
19
19 could do the type of exchange so long as you will allow
20
20 me the right to reserve the right to come back to do
21
21 further testing on the samples I have if my people
22
22 decide there are further tests that they would like to
23
23 do on the samples.
24
24 That might get us past this hump, and what I'm
25
25 also trying to do is to narrow the number of issues
95
11 that we are briefing.
22 I would seek a ruling from you today that I am
33 allowed to limit the issues in their petitions. I have
44 never understood that that was not within my full party
55 status as an intervenor.
66 HEARING OFFICER: Well, I don't think at this
77 point I'm in a position to make a determination as to
88 relevant or irrelevant, but I certainly agree with the
99 position that the petitioners have raised certain
10
10 issues, and you're entitled to discovery on those
11
11 issues.
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12 MS. PONZOLI: All right.
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13 HEARING OFFICER: You know, what that means or the
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14 scope of it, I'm not in a position to know.
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15 MS. PONZOLI: I understand.
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16 MS. KAVANAUGH: There's been no answer filed,
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17 so...
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18 HEARING OFFICER: There's a motion to dismiss and a
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19 motion to strike.
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20 MS. KAVANAUGH: Which didn't raise the things we're
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21 talking about now, so insofar as where the fact disputes
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22 are I agree it's framed by the parties.
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23 I would make an oral motion, I would, on behalf of
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24 my clients, you know, to put them in there, and we may
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25 have to amend, and later if it becomes an
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11 insurmountable obstacle where we'll be in a dogfight
22 over something other than what we think the SWIM plan
33 involves...
44 HEARING OFFICER: Well, we talked at the first
55 hearing we had at some point that I think it will be
66 important to narrow the scope of the issues that are in
77 dispute, and certainly any of the parties or any of the
88 petitioners are free to file an amended petition at any
99 time they choose, but I do think the nature of the
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10 proceeding, I agree with Mr. Reid's characterization of
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11 it, is that there is a plan that has been adopted by the
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12 Water Management District, and the petitioners have
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13 challenged certain aspects of that.
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14 MS. KAVANAUGH: I think our clients agree with
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15 that. At this point those are what is framed. I think
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16 we questioned the relevancy, and it may be important to
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17 address it.
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18 MR. REID: Let me make a suggestion. What if we go
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19 to the fact of what they test for and then object and if
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20 everything is irrelevant, you could rule on it, or
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21 whether it is an issue, and you can decide it?
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22 HEARING OFFICER: Okay, why don't we do that. Why
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23 don't we say by Wednesday we can do that disclosure. If
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24 there are issues that we need to resolve, we have the
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25 hearing on the 29th of next month. If that's not
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11 early enough...
22 MR. REID: We will object within a week if
33 there's any...
44 MS. PONZOLI: One week to brief, one week to reply,
55 and, I don't know, maybe a phone hearing. I don't think
66 it will take long on the phone.
77 MR. SMITH: We request respectfully we have a real,
88 live hearing.
99 MR. OERTEL: This is a little cumbersome on the
10
10 phone. I don't mind doing it on paper without a formal
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11 hearing at all.
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12 May I ask for clarification? When you say do the
13
13 testing, we'd like to know specifically, not just
14
14 generically, what tests will be applied. If they say
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15 phosphorus and phosphorus related, we'll be right back
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16 here. We need precision. We need to understand
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17 exactly what they will do, and then see if we have an
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18 objection.
19
19 HEARING OFFICER: Well, I think Ms. Ponzoli at this
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20 point can go back with her experts and her other
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21 attorneys that are working on it, and they're going to
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22 make a determination as to how far they're willing to
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23 go, and hopefully they'll make a disclosure that will
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24 satisfy you, and if they don't we'll have at it.
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25 I don't think she's in a position today to know
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11 exactly what she will be able to disclose, so let's give
22 her that opportunity to confer with her people and make
33 that determination, and if it's not sufficient we'll
44 deal with it.
55 MR. REID: So we'll have a week after the
66 disclosure?
77 HEARING OFFICER: Yes, a week after disclosure to
88 file written objections. So far as the other issue goes
99 regarding other issues, is a week sufficient to address
10
10 those issues as well?
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11 MS. PONZOLI: What other issues?
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12 HEARING OFFICER: The use.
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13 MS. PONZOLI: The same one week? I would ask for
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14 the one week. They seem to be, they have had this for
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15 weeks. They have had my request for weeks. I forget
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16 when it was issued.
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17 MR. GREEN: I just have to say in fairness for the
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18 record I think she said today for the first time
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19 contrary to what I thought she said yesterday that
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20 mercury is now an issue in the proceedings. Is that
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21 correct?
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22 MS. PONZOLI: No, I said it's a phosphorus
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23 related process. I cannot prove it at this point,
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24 but I believe it to be a phosphorus related process. It
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25 is a water quality issue that is laid out. I can
99
11 point, Mr. Hearing Officer, to four places in the SWIM
22 plan where the source of mercury, the route it takes,
33 and what is causing the problem is at issue. They have
44 raised it within their petition, which Mr. Green
55 adopted.
66 MR. GREEN: Well, let me finish my point. If
77 that's the case I think we have just added four to six
88 months to these proceedings, and it would be
99 disadvantageous on the part of anyone to contend that
10
10 that's the nature of the proceedings when our petitions
11
11 were filed well within the scope of what anyone
12
12 intended.
13
13 Be that as it may, I think it's a complicated
14
14 issue, and we should not assume we will reach resolution
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15 on Wednesday, because we don't. I don't think it will
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16 happen.
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17 MR. REID: We have a week to object.
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18 MR. GREEN: I'm just saying for the record in
19
19 fairness to everyone the import of what we have heard
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20 today for the first time.
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21 HEARING OFFICER: Okay, and I think maybe it is a
22
22 little bit beyond what we can deal with today, because
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23 I'm not sure of the implications of it, and, you know,
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24 where it will lead, but let's stick with that
25
25 schedule, and it may crystallize the issue a little bit
100
11 more, and if matters are disclosed by Wednesday of next
22 week I think a week from Wednesday is sufficient time to
33 brief both of the issues that are outstanding regarding
44 the use as well as just the testing matter.
55 That put us, where, roughly September 3rd. Okay.
66 If need be I may be able to schedule, I'm trying to
77 figure out my schedule, as may be able to move the
88 September 29th hearing up, if we need to.
99 MS. PONZOLI: Can we schedule it, is your schedule
10
10 that tight, Your Honor, that we could wait, Mr. Hearing
11
11 Officer, a little while? Because they're objecting to
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12 my document requests and interrogatories.
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13 I think we will have a fair number of issues pretty
14
14 rapidly that you will have to deal with.
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15 HEARING OFFICER: Well, at this point just let me
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16 say that I have a pretty tight schedule that's been
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17 booked out, but I have discussed with the Division
18
18 Director, and there is a recognition as to the size of
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19 this case, and they have promised me, now I'll believe
20
20 it when I see it, that there will be an accommodation
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21 where I may be able to open up some time on my schedule
22
22 if need be.
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23 At this time it hasn't been done, but what I'm
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24 going to do in accordance with promises made to me, I'm
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25 going to schedule this case as I think it needs
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11 to be scheduled, and if I have conflicts I will have
22 those resolved, and someone else can take those up.
33 So this case will get priority in terms of that.
44 So if there's a need to move that 29th date up we can do
55 it.
66 MR. REID: I would suggest we leave it the 29th.
77 There will be a lot of issues. If we need another one
88 in the meantime...
99 HEARING OFFICER: Then you can request it as part
10
10 of the written motions you file.
11
11 MS. KAVANAUGH: I agree with that.
12
12 HEARING OFFICER: And actually if you want I'll
13
13 just grab my calendar and let you know what my openings
14
14 are. I do have a couple of things I will not be able to
15
15 get around.
16
16 (WHEREUPON, THE HEARING WAS RECESSED FROM
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17 11:30 A.M. to 11:32 A.M.)
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18 HEARING OFFICER: The only thing I have, the week
19
19 of the 14th will be difficult for me to get anything in,
20
20 so I think we probably need to eliminate that. The week
21
21 of the 21st, Monday is wide open at this time. I do
22
22 have hearings scheduled the rest of the week,
23
23 but...
24
24 MS. PONZOLI: May we request the 21st, since
25
25 Mr. Oertel wants oral argument, and I want to...
102
11 HEARING OFFICER: He said we may be able to do it
22 on written pleadings...
33 MS. PONZOLI: Oh. I'm sorry.
44 HEARING OFFICER: ...or arguments. It is
55 difficult with this many people to do a phone
66 conference.
77 MR. REID: You'll tell us if you want a hearing?
88 HEARING OFFICER: Yes, if someone has a particular
99 request they can put it in there and...
10
10 MR. REID: We'll get an order or....
11
11 HEARING OFFICER: I'll have my secretary call,
12
12 because timing will be hard to get it out for everyone
13
13 to know.
14
14 MR. REID: We will get an order ruling on the
15
15 issue, or it will be called up for hearing?
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16 HEARING OFFICER: Right. We'll put that down on
17
17 the 21st tentatively, if necessary.
18
18 Anything else to take up today?
19
19 MR. OERTEL: Will you be issuing a scheduling
20
20 order?
21
21 HEARING OFFICER: Well, the discovery order had a
22
22 lot of the scheduling.
23
23 MR. OERTEL: I mean, for what happened today. Just
24
24 use our notes?
25
25 HEARING OFFICER: In terms of the agreements?
103
11 MR. OERTEL: Right.
22 HEARING OFFICER: Yes, I was going to, I think it's
33 probably good to put it down in writing. I don't know
44 if anyone wants to volunteer.
55 MS. PONZOLI: I'll draft it and pass it through
66 you.
77 MS. KAVANAUGH: We'll get the transcript right
88 away.
99 HEARING OFFICER: Okay. Give it to me. Thank
10
10 you.
11
11 (WHEREUPON, THE HEARING WAS CONCLUDED AT
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12 11:34 A.M.)
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13 * * * * *
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104
CERTIFICATE OF REPORTER
32 STATE OF FLORIDA )
3 SS
44 COUNTY OF LEON )
66 I, SUE HABERSHAW JOHNSON, Certified Court Reporter,
77 Registered Professional Reporter, and Notary Public in and
88 for the State of Florida at Large:
99 DO HEREBY CERTIFY that the foregoing hearing was
10 taken before me at the time and place therein designated;
11 that my shorthand notes were thereafter reduced to
12 typewriting under my supervision; and the foregoing pages,
13 numbered page 1 through page 103, are a true and correct
14
14 record of the aforesaid proceedings.
15
15 I FURTHER CERTIFY that I am not a relative,
16
16 employee, attorney, or counsel of any of the parties, nor
17
17 relative or employee of such attorney or counsel.
18
18 WITNESS MY HAND AND OFFICIAL SEAL THIS 22nd DAY OF
19
19 AUGUST, A.D., 1992, IN THE CITY OF TALLAHASSEE, COUNTY OF
20
20 LEON, STATE OF FLORIDA.
22 SUE HABERSHAW JOHNSON
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