1

1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

4 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, )

ROTH FARMS, INC., and WEDGEWORTH FARMS, INC., )

5 -and- )

FLORIDA SUGAR CANE LEAGUE, INC., UNITED )

6 STATES SUGAR CORPORATION, and NEW HOPE )

SOUTH, INC., )

7 -and- )

FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )

8 LEWIS POPE FARMS, W.E. SCHLECHTER & SONS, )

INC., and HUNDLEY FARMS, INC., )

9 Petitioners, )

vs. ) DOAH CASE NOS.

10 ) 92-3038

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039

11 Respondent, ) 92-3040

and ) (Consolidated)

12 )

MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

13 STATES OF AMERICA, FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, AND FLORIDA )

14 WILDLIFE ASSOCIATION, )

Intervenors. )

15 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ )

17 HEARING BEFORE: HONORABLE J. STEPHEN MENTON,

HEARING OFFICER

DATE: FRIDAY, OCTOBER 16, 1992

TIME: COMMENCED: 10:00 A.M.

20 CONCLUDED: 5:00 P.M.

21 LOCATION: HEARING ROOM 2, DESOTO BUILDING

1230 APALACHEE PARKWAY

22 TALLAHASSEE, FLORIDA

23 REPORTED BY: KIMBERLY ANN ROBERTS,

COURT REPORTER, NOTARY PUBLIC,

24 STATE OF FLORIDA AT LARGE

1 APPEARANCES: ___________

Representing Petitioners, Sugar Cane Growers

3 Cooperative of Florida, Roth Farms, Inc., and

Wedgworth Farms, Inc.:

WILLIAM P. GREEN, ESQUIRE

5 -and-

GARY PERKO, ESQUIRE

6 Hopping, Boyd, Green & Sams

123 South Calhoun Street

7 P.O. Box 6526

Tallahassee, Florida 32314

Representing Petitioners, Florida Sugar Cane

9 League, Inc., United States Sugar

Corporation, and New Hope South, Inc.:

JUDITH S. KAVANAUGH, ESQUIRE

11 -and-

RICK BURGESS, ESQUIRE

12 Peeples, Ear & Blank, P.A.

One Biscayne Tower, Suite 3636

13 Two South Biscayne Boulevard

Miami, Florida 33131

14 -and-

WILLIAM L. HYDE, ESQUIRE

15 Peeples, Earl & Blank, P.A.

Suite 350

16 215 South Monroe Street

Tallahassee, Florida 32301

Representing Petitioners, Florida Fruit and

18 Vegetable Association, Lewis Pope Farms, W.E.

Schlechter & Sons, Inc., and Hundley Farms,

19 Inc.:

20 KENNETH G. HOFFMAN, ESQUIRE

Oertel, Hoffman, Fernandez & Cole

21 Suite C

2700 Blair Stone Road

22 Tallahassee, Florida 32301

Representing Respondent, South Florida Water

2 Management District:

3 DANIEL J. McGRATH, ESQUIRE

Popham, Haik, Schnobrich & Kaufman, Ltd.

4 400 International Place

100 Southeast Second Street

5 Miami, Florida 33131

6 Representing Intervenor, The United States of

America:

SUSAN HILL PONZOLI, ESQUIRE

8 -and-

TOM A. WATTS-FITZGERALD, ESQUIRE

9 Assistant United States Attorneys

Southern District of Florida

10 Suite 627

155 South Miami Avenue

11 Miami, Florida 33130-1693

12 Representing Intervenor, Florida Department of

Environmental Regulation:

LEE M. KILLINGER, ESQUIRE

14 Assistant General Counsel

Department of Environmental Regulation

15 Twin Towers Office Building

2600 Blair Stone Road

16 Tallahassee, Florida 32399-2400

* * * * *

I N D E X

2 ITEM PAGE

3 HEARING COMMENCES . . . . . . . . . . . . . . . . . . . . 5

4 DIRECT EXAMINATION OF DR. DAVIS BY MR. BURGESS . . . . . . 30

5 VOIR DIRE EXAMINATION OF DR. DAVIS BY MR. FITZGERALD . . . 32

6 CROSS EXAMINATION OF DR. DAVIS BY MR. FITZGERALD . . . . . 78

7 REDIRECT EXAMINATION OF DR. DAVIS BY MR. BURGESS . . . . . 110

8 DIRECT EXAMINATION OF DR. DAVIS BY MR. GREEN . . . . . . . 112

9 DIRECT EXAMINATION OF DR. JONES BY MS. PONZOLI . . . . . . 175

10 CROSS EXAMINATION OF DR. JONES BY MS. KAVANAUGH . . . . . 187

11 CROSS EXAMINATION OF DR. JONES BY MR. HOFFMAN . . . . . . .206

12 CROSS EXAMINATION OF DR. JONES BY MR. GREEN . . . . . . . 212

13 CROSS EXAMINATION OF DR. JONES BY MS. KAVANAUGH . . . . . 220

14 REBUTTAL EXAMINATION OF DR. DAVIS BY MS. KAVANAUGH . . . . 227

15 CROSS EXAMINATION OF DR. DAVIS BY MS. PONZOLI . . . . . . .232

16 DIRECT EXAMINATION OF DR. DAVIS BY MR. GREEN . . . . . . . 233

17 HEARING CONCLUDES . . . . . . . . . . . . . . . . . . . . .253

18 CERTIFICATE OF REPORTER . . . . . . . . . . . . . . . . . .254

1 PROCEEDINGS

2 ( WHEREUPON, THE PROCEEDINGS COMMENCE AT 10:00 A.M.

3 AS FOLLOWS:)

4 HEARING OFFICER MENTON: Good morning. Why

5 don't we start out by taking attendance and figuring out

6 exactly who's here. Beginning with the petitioners, I

7 guess, the Sugar Cane Cooperative.

8 MR. GREEN: Mr. Menton, Gary Perko and myself, Bill

9 Green, are here representing the Cooperative, Wedgworth

10 Farms and Roth Farms.

11 HEARING OFFICER MENTON: Okay. And the League.

12 MS. KAVANAUGH: Mr. Hearing Officer, Judy Kavanaugh

13 and Rick Burgess here for the Sugar Cane League and New

14 Hope South.

15 HEARING OFFICER MENTON: All right. For the Fruit

16 and Vegetables. No attendance today. I don't see

17 anybody. Okay. For the respondents, South Florida Water

18 Management District.

19 MR. McGRATH: Mr. Hearing Officer, my name is Dan

20 McGrath. I'm here on behalf of the South Florida Water

21 Management District.

22 HEARING OFFICER MENTON: And you're new. I

23 haven't seen you.

24 MR. McGRATH: Yes, I'm from Mr. Reid's office.

25 HEARING OFFICER MENTON: And for the U.S.

1 Government.

2 MS. PONZOLI: Mr. Hearing Officer, Susan Hill

3 Ponzoli and Tom Watts-Fitzgerald for the United States.

4 HEARING OFFICER MENTON: DER.

5 MR. KILLINGER: Lee Killinger.

6 HEARING OFFICER MENTON: All right. Anybody else

7 want to state an appearance? Okay. Let me just mention a

8 couple of matters up front. As far as I think I mentioned

9 at the last hearing I was going to do an order on the

10 petition to intervene has been filed by the Sierra Club

11 and the Florida Audubon. I have drafted that order.

12 I've been out of town the last couple of weeks and it

13 hasn't gone, but it should go out either today or first

14 thing next week.

15 Likewise, I have done an order on the motion to file

16 the second amended petition, and that also will go out in

17 the next couple of days. Generally in most of the cases I

18 handle, I like to make sure there is a ruling on record on

19 every motion that is filed, but this case is not like most

20 of the cases that I've handled in the past. And I think

21 the way that this has been developing, especially with

22 regard to the discovery issues, there seemed to be

23 repeated pleadings over and over on second motions to

24 compel and responses to motions and protective orders,

25 et cetera.

1 I think the best way to handle that -- I think we're

2 making progress in all of them. I hope we're making

3 progress in all of them. I guess I'll find out in a

4 minute, but I anticipate we'll try to break them down into

5 issue and have orders entered on each of the particular

6 areas that we're addressing. That deals with the

7 financial issues we've discussed at the last hearing. I

8 know that Mr. Green has submitted a proposal. I believe

9 all the parties have until next week to file their

10 responses to the proposals and ultimately will end up with

11 an order specifically related to the discovery motions

12 that have been filed in the financial issues.

13 Likewise, I think there are separate categories

14 for the separate areas that we're dealing with on the

15 petitioner's request for access to the Park and to the

16 Refuge, which, I believe, we're going to talk a little

17 bit more about today. Ultimately, we'll end up with

18 an order that will address all of the issues raised in the

19 various motions for protective order and motions to

20 compel, et cetera, and establish the parameters for

21 entry into the park; and conversely the U.S. Government's

22 motion for entry into the EAA, and ultimately we'll end up

23 with an order specifically setting forth rulings on those

24 issues as well.

25 Just so everyone is aware as to the way that I'm

1 anticipating handling it, I do think it's important that

2 we keep the record clean in terms of amended petitions,

3 petitions to intervene, et cetera, just so the appellate

4 courts or whoever looks at this thing down the line will

5 know who the parties are and what the operative documents

6 are, and I'll try to stay on top of that. If for some

7 reason it slips through, then somebody please bring that

8 to my attention.

9 In terms of the other motions and such that are

10 filed, I think that roughly categorizes them as I

11 understand them now. If there are orders that people feel

12 need to be entered on specific areas, please make sure

13 that we express that at the hearing and I'll do my best to

14 make sure that we take care of that.

15 Having said that, are there any other areas right off

16 the bat that anybody perceives -- I mean, obviously we're

17 going to need to do an order on the burden of proof issues

18 that the parties have begun to brief. And let me say I

19 have quickly looked over last night the joint motions that

20 were filed, and the concept of joint motions is very very

21 good. So to the extent we can further that process, let's

22 see if we can approach it that way. I think it just makes

23 it a little bit easier for me to handle and keep track of

24 where we are, and I think it helps crystallize the issues

25 a little bit better as well.

1 But putting aside that issue, are there any other

2 areas that people see right now where there needs to be

3 an ordered entered so we can get on the record exactly

4 where we are in the status of the case? Okay. All right.

5 Let's try to go with that attack, with that approach. And

6 again, I wish I could enter an order on every particular

7 motion that's filed, but I don't think that's practical

8 and it's better to try to deal with them in specific areas

9 as we go along.

10 I did receive a motion for protective order that was

11 filed by the League regarding the Larson deposition. I

12 also received this morning responses from the U.S.

13 Government seeking to strike that for failure to comply

14 with requirements of the Division of Administrative

15 Hearings' rules regarding consulting with the other side.

16 It sounds like from the response that I've received that

17 that motion is essentially moot, is that correct, that --

18 MS. KAVANAUGH: I think it probably is.

19 MS. PONZOLI: I think it is, yeah.

20 HEARING OFFICER MENTON: Well, we have that on the

21 record here. I don't know that it's necessary to enter

22 a formal order to that effect. But I do think it's

23 important that the position that was expressed by the

24 U.S. Government in the response is that to the extent

25 possible I think everybody should attempt to confer

1 with all the other counsel. I know there are a lot of

2 people involved, but rather than loading down the record

3 with more motions and more responses and more this, if we

4 can resolve some of this between counsel, I think it's

5 going to save the record and copying expenses and

6 trees and all kind of things like that. So let's try to

7 do that if possible.

8 Okay. I have also received the U.S. Government's --

9 I forget exactly how it was styled, but there are general

10 terms for entry and inspection relating to the

11 petitioners' access to the Refuge and the Park, and I

12 believe that's probably the first issue we we're going to

13 deal with today; is that correct?

14 MS. PONZOLI: Well, Mr. Hearing Officer, if I

15 may, I'm beginning to feel like the forgotten second

16 child. We've been bickering over that one for two

17 and-a-half months. Truthfully, I think they're down to a

18 couple of narrow issues. They're on our property.

19 They've been on our property. I can't get past relevancy

20 in our arguments. I would really like to go first today.

21 HEARING OFFICER MENTON: Well, I was hoping to take

22 the easy one first. I do intend to address your issue and

23 we'll get to it. I guess I wanted to get an update

24 because I think at the last hearing the way we left it,

25 the way I understood it, was that Mr. Burgess and Mr.

1 Fitzgerald were going to, there was going to be a flyover

2 and they were going to get together and they were going to

3 determine that they could reach an agreement as to

4 sites and frequency, et cetera.

5 MR. FITZGERALD: And we did some of that. Mr.

6 Hearing Officer, as you remarked, we did submit a proposed

7 entry order and there were a few difficulties with that,

8 and I have reviewed a document submitted by the League,

9 which is their notice of proposed additional language --

10 HEARING OFFICER MENTON: Right. I received that this

11 morning. I just flipped through it this morning. I have

12 not had a chance to really study it in great deal. It's

13 not that long.

14 MR. FITZGERALD: Mr. Hearing Officer, it really

15 reflects the five issues that I put on the front of my

16 pleading separate from the attachment which was a proposed

17 order. In our conversations, we were able to get, I

18 think, fairly well along, but there were a few issues, a

19 couple that we discussed back on the 29th, the

20 number of stations and that sort of thing. That hasn't

21 been resolved.

22 The League was able to conduct overflights and

23 marking of some stations in Loxahatchee on the 6th, I

24 think, was through about three o'clock. The entire

25 program as they conceived it for surveillance and

1 overflight was not completed, and I had correspondence

2 with the League about identifying another day to complete

3 that overflight process. So as a result of that, I think,

4 and for other reasons they have indicated to me that they

5 still are insisting on the full number of originally

6 requested stations, both the one time and recurrent in

7 Loxahatchee.

8 The five issues we basically have are that total

9 number, the closure date for sampling efforts. You'll

10 recall from our last hearing that this was discussed and

11 it was agreed on the record by all parties, and it's in

12 the transcript because I found it, that it would close at

13 the terminus of discovery.

14 You, in fact, at that point said specifically the end

15 of February discovery in this matter under our existing

16 scheduling order, which you said you wanted to adhere to,

17 effectively closes March 1. That's germane and argued

18 because the sharing of raw data and the employment of any

19 of the results of these testing programs does

20 require a certain availability of the data before we go

21 into hearing, and in order to allow reasonable

22 interpretation of data and possibly last minute but

23 relatively short redepositions of the experts who

24 may suddenly change their minds as a result of that data

25 necessitate a fairly fixed closure date.

1 So I had originally included in our draft order

2 a February 28th, which is the last day of February

3 effectively 1 March for the conclusion of any testing

4 program, and it was indicated by the other parties that

5 they wished to readdress that.

6 The next issue that's identified as still being open

7 is the deadline for sharing of raw data resulting from

8 samples collected under the program. In one sense, this

9 may appear to be a new issue. We had discussed the

10 sharing of data and everybody had agreed since August 21st

11 that raw data would be shared. But in focusing on that

12 because of the timing problem and the problem of

13 utilization of data, it became clear to me at least that

14 unless we set some type of parameter and outside limit on

15 when you've got to get the data to the other party, a

16 party, not specifying either side or anyone in particular,

17 but if they so chose to abate somewhat or sandbag by not

18 providing the data timely, it's probably not as big an

19 issue with regard to both parties testing in Everglades

20 National Park because that's one time and that should

21 become available fairly rapidly.

22 The more difficult issue is the current one,

23 the testing in Loxahatchee. We will test our replicates

24 and the other side will test theirs. I discussed it with

25 our scientists looking for some reasonable period of time

1 in which to fix a date. As a guide, we looked at the

2 regulatory holding times for scientific samples. I think

3 we can establish this later, but I would proffer and I

4 think there is general agreement that for water samples

5 testing for phosphorus, you hold the water sample no more

6 than 28 days. That's an EPA standard which is in the

7 federal regulations. The district lab uses that and the

8 state uses that standard. It's pretty well accepted so --

9 MR. BURGESS: There is no problem with the water,

10 Tom.

11 MR. FITZGERALD: Right. So we haven't reached

12 an agreement on a 45 day from date the sample is

13 collected, not the date you send it to the lab or anything

14 else. We want the labs or any agreements reached by

15 someone contractually with a lab doing this testing for

16 them has time built into it; that they take into account

17 going to a lab and getting it done and certifying it and

18 turn this around so people can use the data.

19 We may all learn something hopefully. The

20 more difficult theory comes with soil samples and sediment

21 samples. Our experts who have been working for a

22 considerable period of time say 45 days is fine there

23 too. There are some procedures indicated in the testing

24 by the League and its compadres that can take an extended

25 period of time depending on the capability and quantity of

1 equipment in the lab. So we need to address that.

2 It's not clear to me from having reviewed what they

3 asked for why any of their tests would extend that

4 45 day period, and we propose 45 days across the board.

5 The League, in the response you looked through this

6 morning, I was out of my office yesterday, so I got it

7 this morning too, have left in their proposed language a

8 separate sentence that would address soils and sediments

9 and leaves open the number of days, and says from receipt

10 of the data from the lab.

11 Well, from receipt from the lab, it ought to be a day

12 or two. We all have faxes and quick delivery. I don't

13 know if that makes much difference. I'm more concerned

14 about the fact that picks a downstream date, if you will.

15 It doesn't key to when it's taken. Soil samples can sit

16 on the shelf more or less indefinitely, at least, in

17 comparison to the time frame of this case. We need a fast

18 turn around on this so everybody can use it and take it

19 into account on our discovery evidence.

20 An additional issue, which I identify in my pleadings

21 but does not have any reflective language in my proposed

22 draft, is the total number of one-time stations to be

23 tested in Loxahatchee. We're agreed on one-time stations

24 pretty much across the board except for one final area

25 or request. The League has looked, and it was in

1 their original entry motion, for during the first seven to

2 ten day period flying a number of historical transects and

3 having an option to land and collect data up to nine

4 stations along historical transects.

5 We objected to that precise language originally

6 because it does not specify the data and argued is

7 unjustifiable in light of the massive number of one-time

8 stations they're already establishing; and, in fact,

9 that they're talking about flying along historical

10 transects where all that data pre-exists so --

11 HEARING OFFICER MENTON: Well, I'm not sure I'm

12 following you on this one.

13 MR. FITZGERALD: They want to --

14 MR. BURGESS: I want to clear something up. It was

15 our motion to compel, but I guess they're going to go

16 first, so I can go second. I just want to make sure he

17 doesn't get to go again after.

18 HEARING OFFICER MENTON: Well, I'm just trying

19 to figure out what the issues are and what's remaining.

20 MR. FITZGERALD: I'm just highlighting the issues.

21 I'm not trying to make argument.

22 HEARING OFFICER MENTON: I don't really sense him to

23 be making arguments. I think he's just trying to set

24 forth what the issues are. And certainly if the issues

25 are not stated as you believe them to be, I'll give you

1 that opportunity, but I don't understand anything he's

2 saying right now to be argument.

3 MR. BURGESS: Okay.

4 MR. FITZGERALD: Basically in addition to what's in

5 my proposed order draft, the League wants to fly a

6 number of historical transects with the option to take

7 nine more one-time sets of data samples of some sort.

8 That was in their original entry order. We opposed it,

9 their entry request, and we opposed it in our response to

10 that.

11 Finally, we were unable to reach agreement on the

12 need to set forth the positions of the parties with

13 respect to the necessity for special use permits. In

14 Paragraph F of my proposal, which is at page three,

15 Commencement of Program, we have drafted in terms of

16 allowing the sampling program pursuant to special use

17 permits, and we would all get together within five days to

18 select commencement dates.

19 The five days we're in agreement on. However, in the

20 League's submittal they would like to add considerable

21 language which talks about the fact that they contest our

22 position and special use permits are required, and in

23 addition, that you are not ruling on those merits, but

24 that we would unilaterally issue -- they want to, I think,

25 putting it in short terms, incorporate all the discussion

1 we had at the last hearing on that subject into the order,

2 which I felt was unnecessary, so I said, you know, you're

3 ordering us or issue the permits or recognizing the whole

4 issue of permits, and more or less that's that.

5 HEARING OFFICER MENTON: Okay.

6 MR. FITZGERALD: Those are the five issues that we

7 face.

8 HEARING OFFICER MENTON: Okay. Mr. Burgess, do you

9 agree with the statement of the issues, or are there any

10 ones that you see -- it seems to me it tracks pretty

11 closely with what's in the notice of additional language

12 that you submitted; is that right?

13 MR. BURGESS: Yes, I think that's correct. I think

14 the five issues are the ones basically left for

15 resolution.

16 HEARING OFFICER MENTON: Okay. What do you

17 anticipate -- I mean, like you said, it's your motion to

18 compel. What do you foresee we need to do today? Do you

19 have witnesses you want to present to explain why you need

20 to do your overflights and all that?

21 MR. BURGESS: Yes, we do.

22 HEARING OFFICER MENTON: Okay. Mr. Fitzgerald, what

23 do you foresee? Do you have witnesses that you have

24 available that are going to testify as to your position on

25 these matters? Is that --

1 MR. FITZGERALD: I anticipate that we won't need a

2 witness, Mr. Hearing Officer. If need be, it would only

3 be for clarification of technical points, but it will be

4 extremely brief.

5 HEARING OFFICER MENTON: Okay. All right. I think

6 it's important that we get this issue done and get this

7 order completed, and I understand Ms. Ponzoli is anxious

8 to get to her issue. I guess I want to get a feel for

9 where we stand on that before we get into the specifics on

10 this one.

11 Where are we -- I obviously received the second

12 motion to compel and the supplemental motion that you

13 filed. I've also received a supplemental response from

14 the Co-op. And I forget how the League styled theirs,

15 but they filed something in addition, and the Fruit and

16 Vegetables adopted basically the position of the League

17 and the Co-op.

18 MS. PONZOLI: I approached each of the petitioners

19 following the last hearing and prior to filing my second

20 motion to compel, Mr. Hearing Officer, in an effort to see

21 if we could narrow something, if we could isolate

22 something, if we could agree on this and only fight over

23 this. To be very candid, their positions are in

24 their briefs. There is no resolution. There has been no

25 closure at any point. They simply believe that we

1 should not be in the EAA for any purpose.

2 HEARING OFFICER MENTON: Okay.

3 MS. KAVANAUGH: That is not exactly what our position

4 was, but our memorandum certainly does outline our

5 positions. We have consistently stated that we think, in

6 fact, there could be access to certain areas of the EAA

7 that would be relevant to this proceeding, but we object

8 basically to the request as it's currently couched, and I

9 think Ms. Ponzoli is correct. There appears to be no

10 movement at all on those fundamental issues that's set out

11 in the current request.

12 HEARING OFFICER MENTON: Okay. What do you

13 anticipate today, Ms. Ponzoli, with respect, or are we

14 just on a legal argument situation to resolve the legal

15 issues as to whether or not there should be access, and I

16 guess whether or not there should be an order limiting the

17 types of tests that could be conducted or the use that

18 could be put to the results of the tests?

19 MS. PONZOLI: Well, I believe that certainly the

20 legal arguments are the dominant presentation that would

21 go on today, but I have brought the research scientist

22 who essentially designed the testing program and would

23 like the opportunity to put him on the stand to explain to

24 you the various parameters that we seek to test and to

25 explain the mercury hypothesis to you; and if they want

1 an opportunity to question him, they can. I would like

2 to have the opportunity to put that on.

3 HEARING OFFICER MENTON: Okay.

4 MS. KAVANAUGH: We have Dr. Davis today who is going

5 to be testifying as to why the specific request, as

6 currently couched, is irrelevant, which is the fundamental

7 argument. I think that the legal issues may, to some

8 degree, it's sort of the cart before the horse sort of

9 thing, is obviously our fundamental position is that

10 mercury may well be an issue in the Everglades, but it's

11 not raised in this proceeding. So I guess as far as the

12 offer to explain the mercury theory from Dr. Jones, we

13 obviously would be objecting on the ground it's not raised

14 by the pleadings or the Plan itself; and therefore, we

15 don't need to hear it.

16 HEARING OFFICER MENTON: Okay. Well, I think the

17 best thing to do is to start with the access to the Refuge

18 in the park and get those issues resolved, and then once

19 we can conclude that we can come back to the second

20 matter, which is the access to the EAA; and at that time,

21 I think we can give a little bit more thought about how we

22 want to proceed on that. If the witnesses are here, then

23 we may want to put the testimony on the record.

24 But it seems to me that the fundamental issues we're

25 dealing with in that second matter with access to the EAA

1 is the legal question, at least, up front. We need to

2 resolve that conclusively and everyone has an

3 understanding as to how those legal issues are going to be

4 resolved, and then I think that may clarify what we need

5 to do with respect to the witnesses. So why don't we go

6 with the legal presentation or, at least, address some of

7 those legal issues up front on that issue.

8 Okay. Mr. Burgess, do you want to go first? I sense

9 that you wanted to be first on this.

10 MR. BURGESS: I guess as it's not only two and-a-half

11 months; it's actually been two and-a-half years if you go

12 back to predessor litigation. So, yeah, it is our motion

13 to compel, and I hope we do and finally resolve all these

14 issues this morning.

15 Similar to what Tom did, I want to both give our

16 understanding of the issues and also our argument is prior

17 to putting on our evidence. There really is nothing left

18 in dispute regarding the park entry alone, the mechanics

19 of the park entry, to the extent that issues such as

20 the terminus date of discovery, the application of

21 supplemental -- I'm sorry, special use permits and the

22 date on which data is shared, to the extent that that also

23 applies to the Park and to the Refuge, it's a generic

24 issue, but as to the mechanics of the park entry and

25 where we visit, the sampling time period, that sort of

1 thing is reflective in the filings before you. And there

2 is agreement.

3 I should say that similar to what we experienced last

4 week in the Refuge on our aerial reconnaissance some

5 things do come up; and of course, that's why we wanted to

6 do it in the first place. In the course of that

7 reconnaissance that would be unexpected, and we may

8 anticipate that would happen in the park also, I don't

9 know. We haven't conducted aerial reconnaissance there,

10 but to the extent that it does, we will try to work it

11 out. To the extent that we can't, we may be back before

12 you.

13 HEARING OFFICER MENTON: Well, as you say that, let

14 me just see if I -- to clarify what Mr. Fitzgerald said

15 earlier, where are we on the issue of completion on the

16 issue of the overflights? You said that they did one day

17 of it, but --

18 MR. FITZGERALD: Did one day and I've invited

19 them to give me a list dates they want to go back and do a

20 second date in Loxahatchee, and I have invited or extended

21 a request that they provide tentative dates that would be

22 available and convenient for them for the overflights

23 and the full testing program in the Everglades National

24 Park because --

25 HEARING OFFICER MENTON: So there is really no

1 dispute this time. You just really haven't agreed upon a

2 date for --

3 MR. BURGESS: Yeah, we started the overflight at

4 7:00 in the morning last Monday because we wanted to go

5 to sundown and try to complete it in one day, and they

6 agreed to start with us at 7:00. But their federal

7 observer had to leave at 2:30 and it coincided with the

8 refueling stop, so basically at 3:00 it ended.

9 We need to go back into the Refuge, as our witness

10 will provide, perhaps not for the full day, hopefully not

11 for the full day. We would like to go back, so that's

12 where the overflight is there. And we are attempting, I

13 just got the correspondence, I think, yesterday or the day

14 before, the invitation to the Park, and I'm working with

15 my people to set that up and conduct that overflight.

16 With respect to the Refuge, I think that the

17 majority, certainly the substantial issues have been

18 resolved. There is really two that remain from a sampling

19 standpoint. It is the number of one-time and the

20 number of monthly stations. Our program as it has

21 existed since our first filing in this matter has involved

22 a four-part program. I think it's safe to say two have

23 been resolved and two are unresolved.

24 With respect to what's resolved, there are 14

25 stations in the Loxahatchee that the SWIM Plan says will

1 be sampled on a monthly basis by the District to determine

2 water quality in the Loxahatchee. Those are the numbers

3 that are going to be used to regulate the farmers, and we

4 want to be able to sample on a monthly basis on those 14

5 stations. That's not in dispute.

6 As a result of the overflight, it may be an issue in

7 dispute as to where those stations are located because we

8 were somewhat surprised to learn that they weren't located

9 when we went out there. There is no physical structure or

10 station, and we had to locate them ourselves with long

11 coordinates. We want to be sure where we go on a monthly

12 basis as to where they're going to go pursuant to the

13 SWIM Plan. So we'll be asking to ensure that into

14 your order.

15 These 14 stations in the Loxahatchee we basically

16 have taken the north, south and east to west transects in

17 the Loxahatchee and we tried to incorporate some of those

18 14 stations on our transects. We want to be able to go in

19 one time only to 18 --

20 HEARING OFFICER MENTON: Are these the 14 stations

21 that are in the plan are you talking about?

22 MR. BURGESS: Yes, the 14 station in the plan that

23 we're going to sample on a monthly basis is not in

24 dispute. We established an east to west transect and a

25 north to south transect. We incorporated some of those 14

1 stations. We're going to go to a total of 18 stations

2 on a one-time basis. Again, that's not in dispute.

3 HEARING OFFICER MENTON: Okay. 18 in addition to

4 the 14.

5 MR. BURGESS: No, no, sir.

6 HEARING OFFICER MENTON: 14 plus 4?

7 MR. BURGESS: Actually I believe we're going to use

8 eight or nine of the 14 then add an additional eight

9 or nine to establish the 18. But what's remaining today

10 for decision basically includes two items that as I reread

11 the prior transcript I think got mixed up, and they

12 include our requests that has existed from the beginning

13 to establish six additional monthly sampling stations in

14 addition to the 14, and also a request to overfly

15 historical transects in the Refuge for purposes of

16 stopping and collecting data at nine stations on these

17 transects.

18 Now we know where the transects are from the

19 literature. We have never seen them. We were not able to

20 go there during the overflight. That's where we want to

21 go back. But I think we have a sense of where we want to

22 go on those additional transects. What I would like to do

23 is call Dr. John Davis to the stand to help us with these

24 two remaining issues.

25 HEARING OFFICER MENTON: Okay. So these -- let me

1 just ask, Mr. Fitzgerald, you essentially agree these are

2 the two issues that we have left, is that --

3 MR. FITZGERALD: There are some additional issues

4 that I think need to be dovetailed in because presumably

5 their witness needs to address it, any assertion that 45

6 days is not an adequate period of time to produce the

7 results of the testing from the date of sampling needs to

8 be addressed. Because if there is a technical basis for

9 claiming that can't be done, the witness is going to have

10 to say that. I think those three issues probably only

11 need to be addressed by a witness.

12 MR. BURGESS: The witness can address it, but just

13 as Tom said he consulted with his scientist, said 45 days

14 is a reasonable period of time, I can tell you I

15 consulted with my scientist with respect to water quality

16 data, we have no problem with that. With respect to soil

17 and sediments as I explained to him on the telephone, the

18 cesium 137 studies and lead-210 studies are not and cannot

19 physically be completed within that period of time. So we

20 either establish a longer period of time for soils

21 and sediments or those parts of soils and sediments, and

22 in any event we need to have some sort of an escape

23 language that allows a party for what we're saying right

24 now are foreseen circumstances that we know we can't get

25 it.

1 My people said they can't turn it around that fast,

2 that we can come back before you and explain the

3 circumstances. This is a two-way street. They're going

4 to be conducting, subjecting their samples also to review

5 and provide us the data and we're going to provide it to

6 them. We want to work that out, but I think there's, you

7 know, the fundamental dispute is on that time. Maybe we

8 can talk a little bit more about it and try to have some

9 sort of relief language in there. And Dr. Davis will

10 address it, but there has not been any evidence on

11 their side as to why it's sufficient.

12 HEARING OFFICER MENTON: Okay. Doctor, do you want

13 to step forth. Let me just make sure here. I'm not sure

14 I quite follow what you're saying about in addition to

15 the 18 sites that you're going to do on a monthly basis

16 that there is agreement on; is that what I understand?

17 MR. BURGESS: Not on a monthly basis, that's a

18 one-time only, initial seven to ten days.

19 HEARING OFFICER MENTON: Okay. But you're going to

20 test monthly on the 14 sites that are in the --

21 MR. BURGESS: That's right.

22 MR. FITZGERALD: And the additional nine sites on the

23 historical transects they want to do as part of one time,

24 which would run that up to 27 total one-time stations.

25 HEARING OFFICER MENTON: Okay. So we're talking

1 about nine additional one-time sites; is that right?

2 MR. FITZGERALD: Right.

3 HEARING OFFICER MENTON: Are there any monthly

4 testing sites beyond those that are set forth in the

5 plan?

6 MR. FITZGERALD: Six more that they want. Nine

7 one-time in dispute and six or however many monthly.

8 HEARING OFFICER MENTON: Okay. I just want to make

9 sure I understood where we are.

10 MR. BURGESS: That's not completely correct, but I

11 think Dr. Davis can clear it up for us.

12 HEARING OFFICER MENTON: Okay. Doctor, would you

13 raise your right hand please.

15 * * * * *

16 Whereupon,

17 DR. JOHN DAVIS

18 was called to testify and, having been first duly sworn, was

19 examined and testified as follows:

21 HEARING OFFICER MENTON: Please state your name

22 and spell your last name.

23 THE WITNESS: John Armstrong Davis, D-A-V-I-S.

1 BY MR. BURGESS:

2 Q What's your professional occupation, sir?

3 A I'm and environmental consultant.

4 Q Where did you do your undergraduate work?

5 A At the University of Mississippi.

6 Q And in what field?

7 A Had a double major in biology and chemistry.

8 Q Where did you do your graduate work?

9 A I got a masters degree from the University of

10 Mississippi for chemistry, and a PhD from Auburn University in

11 water chemistry, aquatic ecology.

12 Q Okay. Did I or a representative of my firm contact

13 you at some point and ask you to provide expert assistance with

14 respect to the issue or issues in the SWIM Plan?

15 A Yes.

16 Q And when was that done?

17 A Two to three years ago.

18 Q Okay. Have you at my direction attended public

19 workshops at the District regarding Everglades issues?

20 A Yes.

21 Q And for how long have you been doing that?

22 A A couple of years.

23 Q How many hours would you estimate you have spent

24 preparing for or attending these workshops?

25 A Hundreds.

1 Q Have you at my direction in anticipation of

2 litigation conducted sampling activities in the water

3 conservation areas of the Everglades?

4 A We've sampled in water conservation area 2A and 3A.

5 Q And what type of sampling?

6 A We've taken water samples, sediment samples,

7 biological samples, physical measurements such as water depth

8 photographs, characterized vegetation in various areas.

9 Q Are you presently a member of any public body or

10 committee investigating the Everglades issues?

11 A Yes.

12 Q And what is that?

13 A The scientific advisory group for the Everglades has

14 an acronym of SAGE.

15 Q And what is the purpose of SAGE?

16 A To provide scientific or technical input to the Board

17 of South Florida Water Management District.

18 Q How many hours do you estimate you spend in

19 connection with your work for SAGE?

20 A Probably in order of a couple hundred hours. We met

21 basically two days a month for eight to ten months.

22 Q Have you reviewed the SWIM Plan and the technical

23 appendices?

24 A Yes.

25 Q As a result of that review, are you familiar with how

1 the District intends to determine compliance with the

2 phosphorus limits and levels contained in that document?

3 A Yes.

4 Q How do they intend to do that?

5 A Basically for the Loxahatchee, they established a

6 relationship between water depth and total phosphorus in the

7 water. They then put forth a program whereby they would sample

8 the phosphorus and measure the water level at the stage station

9 at the Loxahatchee and use the model basically to predict what

10 the concentration should be at each of those 14 station, then

11 they would collect empirical data on a monthly basis and

12 average that over a 12-month rolling average to determine if

13 based on the data collected on an ongoing basis, monthly data,

14 whether or not the discharges were in compliance with the

15 limits.

16 MR. BURGESS: Your Honor, for the record, I would

17 like to tender Dr. Davis qualified to provide by reason of

18 his education and research and experience expert opinion

19 today regarding sampling activity in the Everglades.

20 MR. FITZGERALD: Voir dire, please.

22 VOIR DIRE EXAMINATION

23 BY MR. FITZGERALD:

24 Q Dr. Davis, prior to being retained by counsel for the

25 Sugar Cane League, how much of your time or percentage of

1 hours, whichever is convenient for you, did you spend

2 conducting research in the Florida Everglades?

3 A Before we were retained by any parties?

4 Q Yes.

5 A None.

6 Q And you say we, who are you referring to, you

7 mentioned just now when you said earlier we sampled in 2A 3A?

8 A My firm.

9 Q How many people in your firm?

10 A 25 to 30.

11 Q Have you conducted the field work you described, or

12 is it conducted by others and then you reviewed it?

13 A I've collected probably the majority of it.

14 Q Have you conducted a literature search and review of

15 issues related to research of water quality and water chemistry

16 characteristics in the Everglades?

17 A Yes.

18 Q Have you done the same for the EAA as defined in the

19 SWIM Plan you expressed your familiarity with?

20 A We have tried to collect the documents that we're

21 aware of.

22 Q I'm sorry. I may not have formulated the question

23 correctly. Have you done it? Have you reviewed that

24 literature?

25 A I have reviewed the documents that we have collected

1 to obtain information relative to that, yes.

2 Q And can you describe the nature of the sampling

3 program you conducted upon which you have been tendered as an

4 expert?

5 MR. BURGESS: I have not tendered him as an expert

6 with respect to any specific sampling programs, rather

7 I tried to give the Hearing Officer a flavor for the

8 activities he's conducted in the water conservation areas

9 preparatory to offering opinion with respect to the

10 proposal that's before the Hearing Officer.

11 I think that what I hear we're getting into is maybe

12 an attempt at discovery, which, I think, I clearly laid

13 out the work that he has done in the water conservation

14 areas was done at my direction and in anticipation of

15 litigation. We're not at deposition at the moment.

16 HEARING OFFICER MENTON: I don't know if it's

17 necessarily discovery, but it's sort of cross examination

18 I think --

19 MR. FITZGERALD: Respectfully, Mr. Hearing Officer,

20 counsel tendered this witness on the basis -- an expert

21 on the basis of two things, his education and training

22 and field work he has conducted. I want to know what the

23 field work is. I think that's very germane to whether he

24 is, in fact, an expert in Everglades testing. He's going

25 to present to you, based on counsel's earlier proffer, a

1 substantiation of the need for the scope of testing

2 program and what they are after.

3 HEARING OFFICER MENTON: Well, I understand, you

4 know, where you are going with it, and certainly I think

5 you have an opportunity to explore it. I think we're

6 getting maybe a little bit out of turn though. I don't

7 know at this stage -- this is not the final hearing where

8 we need to be qualifying experts, you know, and having

9 them voice final opinions, et cetera.

10 I think he's going to present his case as to why he

11 thinks they need to do testing in certain areas and the

12 locations, and you'll have an opportunity to explore that

13 on cross. But let him present his direct testimony, then

14 you can get into those areas on cross.

16 BY MR. BURGESS: (Continuing)

17 Q Dr. Davis, at my request and in anticipation of

18 litigation, did you develop a scientific testing protocol in

19 order to evaluate the SWIM Plan proposal to determine

20 compliance as you've phrased it today?

21 A My work with a team to do that, yes.

22 HEARING OFFICER MENTON: Let me just interrupt you

23 for a second. I have two questions. First, I would like

24 to go back and make sure I understand how you described

25 the method in which the SWIM Plan anticipates testing

1 compliance, then I had a little bit of a problem with the

2 way you phrased your question in terms of adopting a --

3 I'm not sure if you're asking him whether he has worked

4 with some other people to develop a methodology to

5 evaluate the compliance process.

6 MR. BURGESS: Yeah, I was about to show him what

7 our requests for entry and access, and I haven't

8 identified that, the one that's pending before you as the

9 program that he put together, together as he said

10 with some others for purposes of evaluating the

11 allegations in the SWIM Plan and the conclusions with

12 respect to the phosphorus limits and levels and how

13 they are to be determined.

14 HEARING OFFICER MENTON: Okay. Are you saying that

15 what he has put together tests the allegations of the SWIM

16 Plan generally or specifically the compliance testing in

17 the SWIM Plan?

18 MR. BURGESS: Right. We're right now concerned with

19 the compliance testing in the Loxahatchee --

20 HEARING OFFICER MENTON: I'm just not sure I

21 understood what you've asked him to undertake.

22 MR. BURGESS: There are a lot of statements in our

23 amended complaint with respect to the SWIM Plan, and

24 there are many grounds on which it's being challenged. But

25 for purposes of today, what is in dispute is the ability

1 of the petitioners to gain access to the Refuge and

2 conduct their sampling program.

3 The sampling program as I think Dr. Davis testified

4 is geared toward evaluating the methodology that the

5 respondents have chosen with respect to the 14 stations

6 and how they're going to be examined on a monthly basis

7 and what type of data they are going to receive. We would

8 like to test in the Refuge, not only test their

9 methodology, but in addition, as I think you will see when

10 we get into his testimony, test some other areas if

11 we see, in fact, the allegations contained in the

12 SWIM Plan are correct. Whether --

13 HEARING OFFICER MENTON: I'm just trying to

14 understand what you've asked him to undertake. Is it just

15 to evaluate the compliance procedures that are set forth

16 in the SWIM Plan; is that what you're saying? Is that

17 what it's limited to?

18 MS. KAVANAUGH: Can I inject myself a little bit.

19 HEARING OFFICER MENTON: Sure.

20 MS. KAVANAUGH: As I understand, he knows -- probably

21 I was the source of the confusion earlier -- he knows more

22 about these 14 stations. As I understand the 14 stations,

23 and Rick, correct me if I'm wrong, were used -- not only

24 are used for compliance, but they were also used,

25 where they not --

1 MR. FITZGERALD: I object to this. This is absurd.

2 Counsel carrying on colloquy between themselves of what

3 they understand --

4 MS. KAVANAUGH: Can I confer with him. I think I

5 understand what you want to know.

6 HEARING OFFICER MENTON: I'm just trying to make

7 sure that I'm following where we're going.

8 MS. KAVANAUGH: Right.

9 HEARING OFFICER MENTON: I prompted the question, so

10 I accept full responsibility.

11 MR. BURGESS: I think that the testimony will

12 hopefully show that the 14 stations were used for a period

13 of time, I think, last sampled back in 1984, for purposes

14 of determining the numbers that are in the SWIM Plan, and

15 again they are going to be resurrected, if you will, in

16 the future for testing programs, so it's both evaluating

17 of what they've done in the SWIM Plan and what they intend

18 to do in the future.

19 HEARING OFFICER MENTON: Okay. All right. And

20 Dr. Davis, can you explain to me one more time and go back

21 and explain your version of the compliance of testing as

22 set forth in the SWIM Plan, just to make sure that I fully

23 understand it.

24 THE WITNESS: Basically in Appendix E of the SWIM

25 Plan, they put forth an analysis that was done to

1 allegedly draw a relationship between water elevation as

2 measured in being sea level and the concentration of water

3 or phosphorus in the water at 14 stations which are

4 sprinkled over the Loxahatchee, and we have an overlay in

5 a minute to show where those are.

6 They established, they based their analysis and

7 limits on the OFW Rule which requires them arguably to use

8 baseline of what is March '78 through February of

9 '79, and the District collected some data during that

10 period. They also collected some data for a few following

11 years up to about the middle of 1983 and went through some

12 statistical manipulations to adjust that data to arguably

13 the same base period. So they used basically 16 sampling

14 events collected between 1978, early 1978 and about the

15 middle of 1983, to draw a relationship between water

16 phosphorus concentrations and stage or water elevation.

17 They developed a regression analysis to predict what

18 that would be at a given stage, then they talk about a

19 sampling program that would be started for the District

20 presumably would go out and collect samples at those 14

21 stations. They would collect that data on a monthly basis

22 and calculate, I believe, a geometric mean of that

23 phosphorus and compare it to what the model predicts. And

24 if the samples were less than what the model predicted

25 would be the appropriate baseline, then they would say

1 everything was fine.

2 If the values were higher than what the model

3 predicted, they would say we have to look at the reasons

4 why. Perhaps, we need to reassess the limits of the STA

5 or take other appropriate action to make those values come

6 into compliance with those numbers.

8 BY MR. BURGESS: (Continuing)

9 Q Let me show you what we're going to have marked as

10 Exhibit A and ask you if you can identify that document.

11 (WHEREUPON, PETITIONER'S EXHIBIT A WAS DULY MARKED

12 FOR IDENTIFICATION.)

13 A This is the original document that we complied for

14 submission to the Department of Justice requesting entry into

15 the Loxahatchee and Everglades National Park.

16 Q Did you consult with any other scientists for the

17 preparation of that document?

18 A Yes, I did.

19 Q Okay. Who was that?

20 A Dr. Mike Dennis, Dr. William Patrick, and Dr. Curtis

21 Richardson.

22 Q And what are their areas of expertise, if you know?

23 A Dr. Richardson is head of the center at Duke

24 University. He's a wetland ecologist. Dr. Bill Patrick is

25 head of the LSU Wetland Center. He's a wetland ecologist/soil

1 scientist. Dr. Mike Dennis is a botanist or plant ecologist

2 with the firm of Love, Dennis & Associates in Orlando.

3 Q Okay. And have they input in this document?

4 A Yes.

5 Q Let me direct you to page six, General Terms, where

6 you request additional areas of reconnaissance. What was the

7 --

8 MR. FITZGERALD: Mr. Hearing Officer, not to be

9 disruptive, but there is no issue of initial

10 reconnaissance.

11 HEARING OFFICER MENTON: I thought there was no

12 dispute on those issues.

13 MR. BURGESS: But I think there is with respect to

14 stations where we're requesting aerial reconnaissance to

15 establish the stations. What they're saying is you can

16 have the reconnaissance, but you can't have your stations,

17 and I'm trying to develop why the need for aerial

18 reconnaissance to establish the stations in dispute. It

19 goes to that issue.

20 HEARING OFFICER MENTON: Go ahead.

22 BY MR. BURGESS: (Continuing)

23 A Would you repeat the question.

24 Q Yes. With respect to initial aerial reconnaissance

25 referenced on page six, why did you include that as an item for

1 the program?

2 A We were told that we could not fly over the Refuge at

3 low levels and we wanted to request permission to fly over the

4 area at low levels to be able to discern the various community

5 types and the boundaries between those communities, where they

6 were, to get an idea of mixture of plant communities in the

7 area, water depth, just physical locations of things out there.

8 Q And, in fact, you did that last Monday; is that

9 correct?

10 A We spent, as you indicated earlier, approximately six

11 hours flying over it last Monday, but we were only able to

12 visit the 14 stations or actually 16 stations that were

13 identified in Appendix E of the SWIM Plan.

14 HEARING OFFICER MENTON: How do we get to 16 then?

15 THE WITNESS: There are 16 stations identified in the

16 Appendix E of the SWIM Plan. But in their analysis,

17 they determined they wanted to not use two of the 16.

18 HEARING OFFICER MENTON: Okay.

19 THE WITNESS: So they ended up using 14 stations to

20 draw the relationship we talked about, but there were

21 actually 16 stations that were sampled.

23 BY MR. BURGESS: (Continuing)

24 Q At a previous hearing in this case, Dr. Davis, there

25 was reference by counsel for one of the respondents that

1 scientists from the League had, in fact, been in the interior

2 marsh area of the Refuge. Other than last Monday, have you

3 ever been there before?

4 A I have never been in the Refuge except for last

5 Monday.

6 Q Please turn to page seven, Timing and Sampling on

7 Exhibit A --

8 HEARING OFFICER MENTON: Just so I understand it,

9 you said that last Monday in your overflight --

10 THE WITNESS: We went a week ago Monday.

11 MR. BURGESS: The 6th.

12 HEARING OFFICER MENTON: The 6th.

13 THE WITNESS: The 5th.

14 HEARING OFFICER MENTON: The overflight that you

15 did, did you say you got to all 16 sites?

16 THE WITNESS: Yes, we did get to the 16 sites, but we

17 did not get to any of the historical transects or the

18 other additional sites that we wanted to establish.

20 BY MR. BURGESS: (Continuing)

21 Q Dr. Davis, with respect to the timing and sampling on

22 page seven, how long did you contemplate the total sampling in

23 the Refuge would take?

24 A As indicated in the document, we felt that 9 to 12

25 months would be the minimum amount of time we would need to

1 collect the samples.

2 Q Is that for both soils and water?

3 A No. We felt that a one-time sampling of the soil

4 would be adequate, but that since the Appendix E of the SWIM

5 Plan says that they're going to regulate our clients based on a

6 12-month rolling average we would need to sample for the full

7 12 months in order to have an adequate measure of the

8 variability that we expect out there.

9 The data that was collected by the District earlier from

10 the period of '78 through '83 does not really contain a

11 continuous 12 month sampling interval. We feel that that's

12 absolutely necessary in order to really evaluate how their

13 proposed regulatory scheme would work.

14 Q Have you reviewed the scientific literature with

15 respect to seasonality of the data, or at least some of it?

16 A Yes.

17 Q Let me show what we're marking as Exhibit B.

18 (WHEREUPON, PETITIONER'S EXHIBIT B WAS DULY MARKED

19 FOR IDENTIFICATION.)

20 Q I'll ask you if you've ever seen that document

21 before?

22 A Yes.

23 Q And have you reviewed it?

24 A Yes.

25 Q Do you know either one or both of the authors?

1 A I know of Dr. Robert Kadlec.

2 Q And how do you know him?

3 A He is a wetlands scientist that has been retained by

4 the Department of Justice as I understand as an expert witness

5 in their case.

6 Q In this case?

7 A Yes.

8 Q What does Dr. Kadlec say about seasonality of data?

9 A If you look at on the first page in the abstract

10 about half way you see the statement that says diurnal,

11 seasonal and historic time patterns are necessary for complete

12 understanding. He's talking about what's going on in wetlands.

13 If you look at the title of paper, it says Wetlands and Water

14 Quality.

15 In addition, over on page 438, if you look at the

16 beginning of the first paragraph, top of the page and it says "

17 Wetlands, like other ecosystems, display several scales of time

18 variability. Any water quality parameter can change diurnally,

19 seasonally, and historically. The time trace of any such

20 parameters will appear as ripples upon waves upon long

21 undulations."

22 Q Let me also direct you to the conclusion of that

23 paper on page 451.

24 A Okay.

25 Q At the bottom of the page, does Dr. Kadlec also have

1 anything else to say with respect to the seasonality of data?

2 A At the bottom of that page, wetland water quality

3 varies with time (diurnal, seasonal, historical) and water flow

4 distance. The variability makes measurements difficult, and

5 lengthens the period of study required to successfully develop

6 conclusions.

7 Q Do you agree with those statements that you have read

8 from Dr. Kadlec's paper?

9 A Yes.

10 Q Okay. Does the SWIM Plan, which you said you've

11 reviewed, address the issue of seasonality of data?

12 A Yes.

13 Q I'll show you what we'll mark as Exhibit C.

14 (WHEREUPON, PETITIONER'S EXHIBIT C WAS DULY MARKED

15 FOR IDENTIFICATION.)

16 Q Can you identify that document.

17 A These are excerpted papers from the March 13, 1992

18 Everglades SWIM Plan.

19 Q Okay. And do those pages that are excerpted address

20 the issue of seasonality of data?

21 A On page 38, second paragraph under item four, they

22 take about the seasonality of the area, and then in the second

23 sentence they talk about the wet season extending from May to

24 October and the dry season occurring from November to April.

25 Q Okay. Dr. Davis, if you were able to commence your

1 monthly sampling program in the Refuge for water quality

2 related parameters in November of 1992 and you were not

3 permitted to continue that monthly sampling program past March

4 1st of 1993, would you have collected data similar to that

5 collected by the District for the establishment of the

6 phosphorus limits and levels contained in the SWIM Plan?

7 A We would only be allowed to collect a portion of that

8 data which would only cover the dry season as it's stated in

9 the SWIM document.

10 Q So the period of time, November to March, would not

11 be representative of the 12-month period; is that your

12 testimony?

13 A Correct.

14 Q Did you bring any charts or graphs to demonstrate

15 that point?

16 A Yes, I did.

17 Q Okay. Let me show you what we'll mark as

18 Petitioner's Exhibit D.

19 (WHEREUPON, PETITIONER'S EXHIBIT D WAS DULY MARKED

20 FOR IDENTIFICATION.)

21 Q Can you identify that document.

22 A It is a report produced by the U.S. Fish and Wildlife

23 Service Unit of the Cooperative, a research unit at the

24 University of Florida as I understand it, under contract at

25 Loxahatchee Wildlife Refuge.

1 Q Are there figures contained in that document that

2 deal with rainfall?

3 A Yes, there are.

4 Q Have you, in fact, prepared a chart of that figure?

5 A Yes.

6 Q Can you show us the chart and tell us the figure in

7 the document.

8 A This is simply a bar graph, which is a reproduction

9 of Figure 45 in this document. I believe the page number is

10 96.

11 Q 96. And basically what does that bar graph reflect?

12 A Basically this graph reflects the monthly rainfall in

13 inches over the long-term average. The figure in the document

14 at the bottom says an average over 1970 through 1984, at the

15 top it says 1973, 1985. We just reproduced it as exactly as it

16 is here. I don't think it makes any difference.

17 The point is the long-term monthly average. It shows you

18 get most of the rainfall during this May to September period.

19 The sampling period proposed by the Department of Justice is

20 simply the blue months, the months we show in blue here.

21 You can see if we only sample during those months we're going

22 to miss the time when the majority of the water comes into the

23 Loxahatchee via rainfall.

24 I also have a figure that shows the amount of water in

25 cubic feet per second flowing into the Loxahatchee from the S5A

1 pump station, which is the large pump station at the northern

2 end of Loxahatchee. You can see that its pattern follows

3 pretty closely to rainfall pattern since you normally pump when

4 it rains and need to get the water off the land.

5 You can see that the majority of the pumping event occurs

6 during the period arguably May through October. So, again, if

7 we only sample during the November, December, January, February

8 months we would not include the period when most of the

9 rainfall falls in the area and most of the pumping from the

10 agricultural area goes into the Refuge, so we would not be able

11 to adequately evaluate the effects of rainfall or pumping on

12 the Refuge and the water quality.

13 Q Would you, by sampling in November, December, January

14 and February, would you be obtaining seasonality of data over

15 the 12-month period?

16 A No.

17 Q Dr. Davis, please turn to page nine on Exhibit A.

18 A A, that's the petition?

19 Q Yes, sir. Let me ask you, did you participate in

20 drafting paragraphs one, two, three, and four which extend from

21 page nine to page eleven?

22 A Yes.

23 Q Okay. Paragraph three, beginning on page ten,

24 provides for monthly sampling at 14 stations --

25 HEARING OFFICER MENTON: Hold on a second. I'm

1 looking at the -- you're saying the initial proposal.

2 MR. BURGESS: Yes.

3 HEARING OFFICER MENTON: I'm sorry. Go ahead.

4 A Did you finish your question?

5 Q Paragraph three on page ten provides for monthly

6 sampling at 14 stations. Was it your intention to sample at

7 the same 14 stations that are evidenced in the SWIM Plan where

8 compliance will be determined?

9 A Yes.

10 Q Okay. Have you prepared a map depicting those 14

11 stations?

12 A Yes, I have.

13 Q Can you show that to us, please. And what does that

14 map depict?

15 A This is the outline basically of the Loxahatchee

16 Wildlife Refuge. These squares on here are one mile square

17 grids. So to give you some spatial reference, they're

18 basically 221 square miles inside the Loxahatchee Refuge. These

19 stations shown as squares are the 16 stations that was used

20 originally sampled by the Water Management District. They

21 picked 14 of those 16 to use as part of the limits process.

22 The triangles depict the three stage or water level stations

23 that they used in Appendix E.

24 Q Why do you need to sample those 14 stations as

25 opposed to perhaps choosing 7 of those and 7 from somewhere

1 else?

2 A Well, the Appendix E proposed regulatory program

3 would be based on 14, all 14 of the stations, not just seven of

4 them, not just two of them, not just ten of them, but all 14 of

5 the stations. And we need to be able to sample them on a

6 monthly basis other a full year so we can calculate

7 statistically variation so that you have an idea of how good

8 the model really fits the data and how well it should predict

9 the values.

10 Q To your knowledge, is the District presently sampling

11 at those stations?

12 A I would have to conclude based on the overflight that

13 we had on the 5th that they are not since Dr. Maffei told us

14 that there were no markers out at any of the stations

15 identified and that no one at the District who had taken any

16 samples out there was available to show us where the 14 or 16

17 stations were.

18 Q Did you see any physical markings surrounding the 14

19 stations?

20 A There were -- obviously at this station there's a

21 staff gauge there, which is physically there, and survey points

22 there. There is also a water level station here and one over

23 here. With the exception of those three locations, we saw no

24 markings in the field to indicate that anything had been marked

25 or was being sampled.

1 Q How did you look at the stations?

2 A Dr. Maffei --

3 Q Who is Dr. Maffei, excuse me?

4 A He's a biologist, I guess, researcher employed by

5 Loxahatchee Wildlife Refuge. He had a list, which he did not

6 provide us a copy of. He was reading a set of loran

7 coordinates from the list. He said the list was provided by

8 the District, and he stated to me that that was all of the

9 information from the District. He would provide the

10 coordinates to a helicopter pilot who would put them in, punch

11 them into his little loran unit, and then the helicopter would

12 be flown to the point indicated by the loran.

13 HEARING OFFICER MENTON: Are you talking about how

14 the District is doing it's monthly site location, or are

15 you talking about when you went out there?

16 THE WITNESS: When we went out to find them.

18 BY MR. BURGESS: (Continuing)

19 Q Did you ask Dr. Maffei that directly to the

20 additional 14 stations utilizing the SWIM Plan?

21 A Yes.

22 Q Dr. Maffei was along with the federal observer?

23 A Yes. He would simply give those coordinates to the

24 pilot and fly to that area, and he would say simply, well, the

25 station is somewhere in this location, pick where you want to

1 sample. I expressed to him that I wanted to be sure that we

2 sampled where the District and/or the U.S. would be sampling to

3 apply the regulatory program and in Appendix E, and basically I

4 told him that I wanted to be able to say that he didn't have

5 any problem with where we were establishing those stations, and

6 actually asked him if you have someone from the District can

7 see that those would be the stations that would be used in the

8 future for implementation of that regulatory procedure.

9 Q Okay. Portions of paragraph three, the fifth bullet

10 down, speaks in terms of an additional six stations. What's

11 the significance of those additional six stations?

12 A Okay. We wanted to be able to establish six stations

13 independent of this grid. These stations were established by

14 the South Water -- South Florida Water Management District, I

15 assume, perhaps in conjunction with the Refuge staff for their

16 sampling purposes. But as you can see, there are some large

17 areas, several square miles that are not represented in this

18 area. There's a big area up in here that is influenced by the

19 pump station up there. We also wanted the ability to establish

20 some stations specifically in the cattail areas, and most of

21 these station were not in those areas.

22 Q Do you have an overlay that shows those six

23 additional stations?

24 A Basically --

25 Q And also the transects that you've established for

1 Loxahatchee?

2 A That's on this one. Basically what we have proposed

3 to do is put a couple of stations as you can see out in a few

4 locations like this along the edge over here where the cattail

5 strands are. I need to stress we are not saying this is exactly

6 where these stations would be. That was for the purpose of the

7 overflight to be able to go to these stations and identify

8 exactly where they should be. So this is just an approximation

9 of the general location we think that we want them in.

10 Q Would you be able to establish that on the second

11 overflight?

12 A We would hopefully be able to do that, yes.

13 Q Okay. Let me ask you to turn to paragraph four on

14 page eleven of Exhibit A.

15 A Okay.

16 Q What is the significance of the historical transects

17 referenced in that paragraph?

18 A Basically at the time of drafting this entry request

19 we were not fully aware of all the transects or data that had

20 been collected by the Federal Government or the Water

21 Management District in the Loxahatchee, and we wanted them to

22 identify for us where additional data had been collected out

23 there so we can determine if we needed to sample in those same

24 areas.

25 HEARING OFFICER MENTON: Where additional data,

1 what do you mean by --

2 THE WITNESS: Well, we knew, for instance, by the

3 SWIM Plan and other documents that they had sampled, you

4 know, at these 16 stations out there. We used generally

5 from some other documents that they were doing additional

6 sampling out there, and we wanted to be able to sample

7 along some of the same transects that they had.

8 For instance, we knew that Dr. Jones sampled

9 transects, I believe, across the Loxahatchee over here

10 and another transect generally running out this location,

11 and we wanted the ability to sample along some of those

12 transects and any other historical transects where data

13 had been collected so that we could determine how the

14 communities change over time and gather data on why those

15 changes might occur.

17 BY MR. BURGESS: (Continuing)

18 Q Okay. Dr. Davis, have you, in fact, prepared a map

19 depicting Dr. Jones' stations as you know them?

20 A Yes.

21 Q How many stations appear on that map?

22 A As we understand it, there are approximately 33 or 32

23 stations to sample along this east-west transect, and

24 approximately nine stations sampled along this location. These

25 were -- this is based on longitude coordinates that were

1 provided. You notice some of those fall outside of the

2 eco-border of the Loxahatchee, so we suspect those are in

3 error.

4 Q What sampling activities are you aware of that Dr.

5 Jones conducted at those 41 stations?

6 A As I understand it, vegetation -- I'm sorry, sediment

7 samples were collected at those stations and water quality

8 samples. I understand that other researchers collected or made

9 observations about vegetation at those locations or at least

10 some of them.

11 Q Are you aware of any other sampling activity in the

12 Refuge?

13 A Yes.

14 Q That's conducted by whom?

15 A There's a good bit of data that has been collected by

16 the researchers at the Fish and Wildlife Service Co-op unit at

17 the University of Florida under contract at Loxahatchee.

18 Q And do you have a map depicting those stations?

19 A Some of them. Actually this overlay is showing Dr.

20 Reddy's samplings. Do you want to go through those?

21 Q Sure. Who is Dr. Reddy?

22 A Dr. Reddy is a soil scientist at the University of

23 Florida who is hired, as we understand it, by the South Florida

24 Water Management District to analyze -- collect and analyze

25 soil samples from the Loxahatchee Wildlife Refuge.

1 Q Was he doing that in connection with any scientists

2 from South Florida Water Management?

3 A I guess.

4 Q And who was that?

5 A I believe Dr. Sue Newman and Marjorie Cook were

6 involved.

7 Q And how many data points are there on Dr. Reddy's

8 map?

9 A Well, on this map we're showing 90 sampling sites the

10 coordinate of which were provided by Dr. Maffei during our

11 Monday overflight. I have also seen documents that indicate

12 that they have authorization to collect up to 150 sediment

13 samples from the Loxahatchee.

14 Q Okay. Are you aware of any other work and sampling

15 activity in the Loxahatchee?

16 A This is an overlay that is a reproduction of Figure

17 12 in --

18 Q Exhibit B.

19 A This report, which I believe to be the location of

20 the vegetation quadrants that were sampled out in the

21 Loxahatchee. Flipping to a figure, I believe it's --

22 Q Figure 12 is on page 48.

23 A Page 48. If you notice on that page or turn one page

24 previous to that, on page 47 at the last paragraph under

25 methods, it says a total of 246 vegetation sample plots were

1 surveyed, then it continues on describing those and references

2 Figure 12.

3 Q Okay.

4 A On Figure 12, you notice it says, shows a map of a

5 grid survey and vegetation site collections. If you look at

6 the legend there, you see little squares related to vegetation

7 transects, so that's what I've shown on this overlay.

8 Q How about the grid survey sites in connection with

9 the survey?

10 A This includes the grid sampling sites too. If you

11 notice, if you follow on, they say on page 49, for instance,

12 that a sample of the top is centimeters where collected from

13 five by five meter plots. We're talking vegetation plots. So

14 based on the reading of this, it appears that they collected

15 sediment samples at all of the squares from here, that the

16 Co-op unit did that, and Dr. Reddy collected samples from all

17 of the magenta, whatever you want to call this symbol here.

18 Q If my math is correct, then I think you're testifying

19 that your maps there depict 377 stations at which sampling

20 activity have been conducted by either the South Florida Water

21 Manage District, the Department of Justice through its witness

22 Ron Jones, or the Federal Fish and Wildlife Service; is that

23 correct?

24 A I won't testify to your math, but that sounds

25 correct.

1 Q Okay. You know me too well. Okay.

2 MR. FITZGERALD: I'm afraid the United States can't

3 stipulate to his math either.

4 Q Dr. Davis, are you aware of any other sampling

5 activities or transects within the Refuge that have been

6 sampled on a historical basis?

7 A Yes.

8 Q Okay. And what ones are those, sir?

9 A I think I turned over two overlays a while ago, this

10 overlay shows a couple of transects B, A, and C, which were

11 historical transects that were first sampled apparently in 1979

12 (sic). This is taken from Figure ten of the same co-op report

13 and --

14 Q Did you say 1979?

15 A '59. Did I said '79? I meant 1959.

16 Q Figure ten is on Exhibit B I believe.

17 A If you look back on page 34, the second paragraph, it

18 says a series of vegetation transects were started in 1959 and

19 continue intermittently until 1969. These three transects,

20 Figure ten, were analyzed quantitatively for species

21 composition. They provide an excellent baseline for vegetation

22 near the canal.

23 Q Are these some of the historical transects A, B and C

24 there, that you intended to but didn't have time to overfly on

25 the October 5th overflight?

1 A Yes.

2 Q And would those be the transects that you would want

3 to go back to on the next overflight?

4 A Yes.

5 Q Without having the benefit of being able to do this,

6 could you tell us what type of sampling or data collection you

7 would contemplate at those transects?

8 A What we would like to do is be able to sample on a

9 one-time basis just as we have for all the other sediment

10 samples that they're described in the petition. We can

11 basically take a sediment core, take a water sample, measure

12 water depth, take an institu reading with a meter and a probe

13 of PH conductivity and temperature, characterize vegetation in

14 the area visually.

15 If the botanist runs across a plant he did not know, we

16 want to take two or three representative samples of that back

17 so he can identify the species correctly.

18 Q And that would be done on a one-time basis in the

19 initial seven to ten days allowed for entry?

20 A That is correct.

21 Q Is there an additional transect or transects that you

22 wish to carry out the same activity?

23 A We would also like to sample along this historical

24 transect here which was done by Ron Jones and others. Basically

25 starting at six and going across this area here. We don't

1 intend to go all the way across. We simply want to go through

2 the cattail area into whatever the adjacent community is, about

3 a hundred meters or so.

4 Q And would the overflight -- you would be able to tell

5 from the overflight how far that would be; is that correct?

6 A Right. One of the things we wanted to do on the

7 overflight and didn't have time to do is basically start, for

8 instance, at the dike here. Let the helicopter fly out this

9 way, note where the cattails ended, and then go about a hundred

10 meters in there and have the helicopter loran unit tell us how

11 far that was.

12 He can make those calculations internally and tell you

13 your tempera mile, quarter miles or whatever. They wouldn't

14 know the length of these transects, but you go out on these

15 locations.

16 Q That's, for the record, A, B and C, and the western

17 edge in the Ron Jones' transect?

18 A Correct.

19 Q Again without having the opportunity to view that,

20 did you estimate how many stops where sampling points along

21 those transects might be necessary in order for you to gather

22 the samples you contemplate gathering?

23 A We thought a maximum number of nine stations would be

24 adequately transect. If it's conceivable once we're able to go

25 out there and physically look at the area on the ground, we

1 might reduce that number somewhat.

2 HEARING OFFICER MENTON: You're saying nine along A,

3 B, C and --

4 THE WITNESS: Nine here, and nine here along A, and

5 nine along C, and nine along the Ron Jones east-west

6 transect.

7 HEARING OFFICER MENTON: Not the --

8 A No, sir. We're not going to sample this one.

10 BY MR. BURGESS: (Continuing)

11 Q Again, that's a one-time sampling event?

12 A Correct.

13 Q Dr. Davis, did you learn anything else on your first

14 overflight into the Refuge that might affect the sampling

15 program as you outlined it here in Exhibit A?

16 A We learned that the water depth was a lot deeper than

17 expected to be out there in several locations. When I got out

18 of the helicopter to mark the stations with bicycle flags and

19 get a GPS reading several places, I sunk down into my knees or

20 over the mid-thigh in the muck and stuff, and the water was up

21 to my waist or maybe my diaphragm.

22 Taking sediment samples in those areas would be, you know,

23 difficult, so it might be necessary to go back to a few of

24 those stations where the water is so deep and actually collect

25 the sediment sample when the water levels are lower and more

1 conducive to getting a good sample.

2 If we did decide that was necessary, we would not sample

3 them during the initial sampling event, but ask permission to

4 go back and sample those whenever the water level got down.

5 We understand that the District is currently putting a lot of

6 water into the Refuge and the gate at the other end are opened

7 and closed, so the water levels could be too high to allow

8 adequate samplings in some locations. However, we think we can

9 get the vast majority of them still.

10 Q To your knowledge, Dr. Davis, would -- let's start

11 with the A, B, C, and Ron Jones transect. Would any of them

12 or all of them be accessible by air boats?

13 A We believe that just based on, you know, a brief

14 overflight over the areas when we're visiting the 14 stations

15 that we could take an air boat in the canal around here and run

16 through the cattails, which we don't think anybody at the

17 Refuge is concerned about damage to cattails and don't like

18 them, run around the cattails and perhaps up to a hundred

19 meters or yards into the adjacent community.

20 Q So that you wouldn't need nine separate helicopter

21 landings along this, for instance?

22 A No.

23 Q Would that make sampling along those points easier?

24 A We think it would be a lot easier and probably a lot

25 quicker and cheaper for everybody.

1 HEARING OFFICER MENTON: Is that just on the C

2 transect?

3 THE WITNESS: No, sir. I believe we could also do

4 that on B, A, C, and even the Ron Jones transect because

5 they only -- we think that although we were not able to

6 measure it, the distance we're talking about here in all

7 cases would probably be less than a half mile, perhaps

8 less than a quarter of a mile in length.

9 HEARING OFFICER MENTON: You mean the total amount

10 that you have to go in and do your nine sites?

11 THE WITNESS: Right.

12 HEARING OFFICER MENTON: What about on the Ron

13 Jones?

14 THE WITNESS: Well, certainly I would -- our intent

15 is to just simply start at the canal and sample through

16 the cattails, and, again, as I say, about a hundred

17 meters into the adjacent community. So it's whatever that

18 length is, and in most cases it's going to be well less

19 than a mile.

20 HEARING OFFICER MENTON: At this point, you

21 don't know for sure though where the cattails are

22 located, do you?

23 THE WITNESS: No, no --

24 HEARING OFFICER MENTON: Or even if there are

25 cattails?

1 THE WITNESS: No. We do know, if you recall, we

2 weren't able, for instance, to fly to this point

3 and to this point and to this point. We know, for

4 instance, as I recall that this point is outside of the

5 cattail area, so it's going to be, you know, basically

6 inside of that up to that point for instance.

7 Down here you can see basically the cattails are

8 limited to a narrow band along the canal here, so it's not

9 like we know, for instance, it doesn't go all the

10 way out to here, and these members are square miles. So

11 this is basically if you went this way, it would be about

12 a mile and a half.

13 Down this way, that's about one, two miles, two

14 and-a-quarter miles or so, but the cattails don't extend

15 all the way out to this point. Probably something about

16 like this. So we just go through that cattail area

17 and whatever adjacent community, about the length of a

18 football field or so. That's the purpose of going out

19 there and physically determining that so we know exactly

20 how long the transects would be.

22 BY MR. BURGESS: (Continuing)

23 Q Dr. Davis, do you know whether the Fish and Wildlife

24 Co-op utilized their boats in any of their testing depicted on

25 your map there?

1 A I have reviewed several documents that indicate that,

2 you know, the Co-op was allowed to use air boats during a lot

3 of their sampling. As a matter of fact, there's a couple of

4 reports that where they were monitoring bird colonies out in

5 the Loxahatchee and they specifically said that they sampled

6 all the locations via air boats.

7 I don't have the overlay for that, but there are a lot of

8 them. And generally this area down, this area here and this

9 area over in here, when we were flying over looking for these

10 stations up here, here, here, we noticed that there were air

11 boat trails out there. And I asked Mark about those, and he

12 said, yes, that during, you know, high water, which we had when

13 we were out there, the stage at this point was measuring 17

14 feet, I mean sea level of NGVD, that they allow air boats out

15 into this area, asking if we might be allowed to do that. He

16 said that's up to the lawyers.

17 Q Mark is Dr. Maffei, for the record?

18 A Yes.

19 Q Would the use of the air boats for your testing

20 program make it more likely that you will be able to complete

21 that initial seven to ten day reconnaissance in the time

22 allowed?

23 A We believe that the use of air boats out there will

24 make everything go a lot easier because of the requirements

25 for, you know, the observer and the number of people and

1 equipment and helicopter. One of the problems is that with

2 using the helicopter with the floats you have to use out there

3 and the number of bodies, you're limited to the amount fuel you

4 can carry because of weight restrictions, so you're limited to

5 perhaps two hours, two and-a-half hours over the site.

6 If we're able to use an air boat, we don't have that

7 problem, plus you have a platform that you can work from out

8 there. So we think ultimately it would probably be quicker to

9 do a lot of the samplings via air boats, especially in all of

10 these that are very close to the canals.

11 MR. FITZGERALD: Mr. Hearing Officer, if I may for a

12 just a moment if I can invite you to Paragraph E1 of our

13 proposal. Air boats are provided for. There is no

14 issue about air boats. I don't know why we're beating

15 this to death. This was discussed by counsel, and, yes,

16 the lawyers made the decision Dr. Maffei was absolutely

17 correct. I'd never contradict one of our scientists.

18 MR. BURGESS: As you recall, counsel, during

19 discussions that we would have liked the provision that

20 you've just provided access via helicopter and air boat.

21 Instead, we have a provision where you're going to

22 determine authorization and appropriateness and I'm laying

23 the predicate for that on the record --

24 MR. FITZGERALD: Well, to be absolutely correct,

25 by air boat, helicopter, foot and van.

1 HEARING OFFICER MENTON: Well, but, I guess, the

2 other issue though is to what extent the number of

3 sites that they want to go testing to, I think it's

4 important to understand what they're talking about in what

5 the degree of the intrusion and potential damage may

6 exist, so I think it's pertinent to that as well.

7 MR. FITZGERALD: I don't dispute that, but simply the

8 facts of whether there is a dispute over the use of air

9 boats per se is not an issue.

11 BY MR. BURGESS: (Continuing)

12 Q Dr. Davis, what parameters, to your knowledge, would

13 the soil cores which are taken from the Refuge, what parameters

14 would be tested?

15 A There is a list of the parameters that was provided

16 in one of the documents you filed. I don't recall all of them,

17 but we're obviously going to measure for total phosphorus in

18 the sediment. We're going to do phosphorus fractionation to

19 determine the various forms of phosphorus and how it got in and

20 why it's tied up in those sediments.

21 We're going to do magnesium dating on those samples and

22 also do some confirmatory lead-210 dating, nitrogen is going to

23 be measured on them, going to try to measure the poor water in

24 the sediment samples, PH of the samples for bulk density of the

25 samples. There are probably some other parameters.

1 Q Have you in the past had soil samples analyzed for

2 parameters like those?

3 A Yes.

4 Q And what is your experience, sir, with the amount of

5 turn around time, if you will, between the time the samples are

6 collected in the field and the data that's yielded back from

7 the laboratory?

8 A Well, for instance, on the cesium 137 counting,

9 you're basically counting isotopes with a counter, and usually

10 the lab has no more than two of those counters. You have to do

11 the samples individually. You also need to understand that

12 we're talking about taking a core that may be, that's this

13 long, then we're going to divide it, that core, up into small

14 increments like this, all the way down there. So you have a

15 core, let's say it's 50 centimeters, and assume for a moment

16 you took five centimeter increments of it, that would be ten

17 measurements on each one of the cores.

18 So we're talking about an awful lot of analyses, and

19 obviously it takes time to do those. And I think that it's

20 probably inappropriate to be sending in data, you know, from

21 this segment and later one from this one down here and then,

22 you know, a sample from this core over here. I think it's

23 going to be real confusing.

24 Q Do you have yourself any experience with respect to

25 the turn around time of the cesium 137 before?

1 A I have not done the analyses myself. I've seen data

2 that was collected by Dr. Richardson, and it took six months to

3 get a lot of those cores measured. As a matter of fact, he's

4 still measuring some cores they took a year ago down in water

5 conservation area 2A.

6 Q With respect to the other parameters that you've

7 listed, what type of circumstances seen or unforeseen could

8 develop in the laboratory to expand the period of time that you

9 would expect to receive the data back?

10 A You have equipment malfunction or break down; the

11 agencies to do the analyses, you have technicians that get sick

12 obviously, and you just have, you know, a tremendous work load

13 or backload of samples that need to be analyzed.

14 Q How many cores in your estimation are we talking

15 about subjecting to that laundry list of parameters that you've

16 outlined?

17 A We're talking about extensively sampling 40 stations

18 out over the Refuge plus however many we ultimately decide to

19 collect on these four transects here, which, if you took up to

20 the full nine would be 36, so that will be total of 76.

21 HEARING OFFICER MENTON: Where is the 40 coming

22 from?

23 THE WITNESS: If you add up all of these 16 -- 14

24 stations here plus the additional ones that we want to put

25 on those transects to fill in the gaps, you can see these

1 little asterisks here. Those have not been in dispute, so

2 I didn't bother going over them.

3 It's my understanding no one has any objection to

4 those. So if you add up those squares plus the little

5 asterisks on here, that would be -- I take that back, that

6 would be 39 -- 31 stations, and then if you add the

7 nine each for these four, that would be, you know, 31

8 plus 36 or 67

10 BY MR. BURGESS: (Continuing)

11 Q So cores for those -- at the moment you contemplate

12 taking cores from about 67 stations?

13 A Right. And you have to bear in mind that we're

14 talking about doing replicates on that, so that's times two for

15 all of the chemical parameters. So you're talking about 156

16 measurements, and then you're talking about multiplying that by

17 the number of segments in each core. If you assume for easy

18 math, 10, you're talking about 76 times 10 would be 670 times 2

19 which would be 1200, 1300 analyses roughly.

20 Q Do you have an opinion, Dr. Davis, with respect to

21 what period of time you might expect the results for the

22 parameters other than lead-210 and cesium 137 to be received

23 back by a laboratory after submission of those samples from the

24 field?

25 A Oh, I think that probably 90 to, you know, 180 days

1 is not totally unreasonable. If we're lucky, we'll have them

2 all done in 90.

3 Q What have you added to that chart?

4 A I was just basically adding to this drawing over here

5 the stations that we're talking, all the locations we're

6 talking about sampling. What we originally divide these two

7 up, so you basically see the amount of sampling we were

8 proposing in the Loxahatchee. I think this represents

9 basically all of the locations that we are asking permission to

10 sample, and we think it's pretty minor compared to, you know,

11 the sampling that's been done by other people out there.

12 Q Dr. Davis, with respect to your previous testimony

13 regarding the water quality data to be collected over a

14 12-month period, do you have an opinion as to whether or not

15 the data which you may be able to gain in less than a

16 12-month period of time would be of assistance to you in

17 formulating any opinions or conclusions?

18 A Well, obviously any data that you collect is better

19 than none. But as I explained earlier, when we talked about

20 the seasonality of the rainfall and pumping into the Refuge

21 that in order to get a good conclusion, you need to sample over

22 the entire 12-month period. And we would concur with the

23 U.S.'s expert, Dr. Kadlec, that wetlands do undergo a lot of

24 seasonal variation, and that we need to account for that in our

25 sampling program; and that if you only sample basically, if you

1 want to call them in Florida, the south Florida winter months,

2 November, December, January, February, that we're going to miss

3 a period where you're going to have, you know, maximum plant

4 growth, for instance.

5 You have missed the period where you're going to have

6 majority of the water falling into the Refuge via rainfall or

7 being pumped in via pumps.

8 HEARING OFFICER MENTON: Are you basically saying

9 that we can't schedule a final hearing in this case until

10 next November; is that what you're saying?

11 THE WITNESS: That's my opinion. Obviously, you have

12 your opinion and all them have theirs. But from a

13 scientific perspective, I believe that since the SWIM

14 Plan envisions a regulatory program based on, you know, a

15 12-month rolling average of data collected from, you know,

16 those 14 stations over there, that for us to fully

17 evaluate, you know, how that's going to impact everyone

18 and whether or not it's an appropriate relationship, that

19 we really need the seasonal data in that area, and that

20 you need that in order to statistically calculate the

21 amount of confidence that you can have in those numbers.

22 And that is the appropriate thing and the best thing to

23 do from a scientific perspective.

24 HEARING OFFICER MENTON: I don't mean to interrupt

25 you. I'm not quite sure I follow why you need to do the

1 additional sampling along those -- along the Ron Jones

2 transect and the A, B, C transects. What information do

3 you expect to get from those samples that you can't get

4 from the other samples that you've already established

5 along the --

6 THE WITNESS: If you recall back in the Co-op's

7 report, I believe it might have been page 37 -- yes,

8 that's it, on page 34. They talk about these, you know,

9 transects we've shown as A, B and C, that they were

10 measured in 1959, and we haven't seen the raw data as far

11 as I know from those transects.

12 But what we would like to be able to do is to see how

13 these areas relate to what it was in 1959 because a lot of

14 the structures and dikes around the Refuge as I recall was

15 completed around that time or shortly thereafter. The

16 phosphorus loading in the Refuge has changed over time.

17 There is a major dispute, I guess, or different

18 opinion as to what causes, you know, the cattails in

19 these areas. We believe that it is largely controlled by

20 the disturbance that is caused when you build these

21 canals. And one of the reasons these canals are in there

22 is that they use material from the canal to build a dike,

23 so you end up disturbing all the soil in this area.

24 In addition, these dikes can be looked at and called

25 down because there's impounding water in that area making

1 it deeper. We believe that we will be able to show that

2 its water depth and the fluctuation of that water has a

3 major impact on why no cattails are there, why you have

4 those things.

5 HEARING OFFICER MENTON: Well, with respect to the

6 A, B and C transects, as I understood what you just said,

7 at this point you have not seen the 1959 data that was

8 taken. Is that available? Are you going to be able to

9 see it? Do you expect to see it? I mean, what are you

10 going to compare your new results to?

11 THE WITNESS: Well, we hope to get that from the Fish

12 and Wildlife Service Co-op Unit for Loxahatchee since they

13 cited in their report, I assume they have it. I have not

14 seen it, and I don't think it's been turned over yet.

15 HEARING OFFICER MENTON: Okay. Well --

16 THE WITNESS: I should say there is also some other

17 information that I personally have not seen, but I've

18 talked to someone about it, Dr. Dennis came upon recently

19 that shows that in this area generally down in here, and

20 actually I haven't seen the map myself, but as I

21 understand it, the Refuge personnel maintains a large area

22 down in this area of open water using pesticides to spray

23 the vegetation and kill it to maintain open water in this

24 area down here.

25 Now they have alleged, as I understand it, that the

1 cattails come in here and push the saw grass out and take

2 over the saw grass areas. That's one of the allegations

3 that's been made in the SWIM Plan and in the documents

4 from the U.S.

5 We believe the data, for instance, along

6 this area may very well show -- the sediments will show

7 that while this area was being managed as open water area

8 with the use of pesticides and water level manipulation

9 that they set the stage for these cattails and things to

10 come into this area, and that by collecting data in this

11 area down here will be able to show through analyzing the

12 cores that this sequence of events occurred; that

13 by measuring the water depth out here, we're likely to

14 show that the water level is a lot deeper if you assume

15 to make the cattails, and this shouldn't be taken accurate

16 here.

17 But let's say the cattails are here, we believe that

18 data will likely show that the water depth is deeper in

19 these areas, and that when you get to this band of

20 cattails and saw grass out here, that you will see the

21 water depth change and perhaps the type sediments, because

22 when you have an area managed as a lake, you have

23 different community out there forming the detritus that

24 makes up the peat in these areas.

25 That's the reason we really want to go look at these

1 transects and those areas. And we think we will be

2 able to show, you know, disturbance in these areas. We

3 don't know, for instance, when they conducted these

4 levies how far it may have impacted the area right

5 here.

6 Those are the things that need to be looked at and

7 part of the reason we want to go in and do the samplings.

9 BY MR. BURGESS: (Continuing)

10 Q And would you be able to better determine that after

11 the overflights where you, in fact, travel to these historical

12 transects?

13 A We will be able to determine how far out to be able

14 to do the sampling, yes.

15 Q In your previous testimony you talked about use of

16 pesticides. You mean pesticides or herbicides?

17 A Well, pesticides is a generic term with herbicides.

18 A lot of people consider plants to be pests too.

19 MR. BURGESS: Your Honor, with respect to some of

20 the other issues especially with terms of discovery, I

21 have some arguments to be made. But at the moment, I have

22 no other questions.

23 HEARING OFFICER MENTON: Okay. Mr. Fitzgerald.

2 CROSS-EXAMINATION

3 BY MR. FITZGERALD:

4 Q Dr. Davis, who is the source of the information upon

5 which you are relying citing to Dr. Dennis to justify the

6 southern testing region, I can't see the letter on that

7 particular transect, the one you're just asking --

8 A C.

9 Q C.

10 A I have not seen the documents, but I believe the

11 sketch, it was prepared by the U.S. Government Service.

12 Q Do you know when that was?

13 A No.

14 Q But you're relying on Dr. Dennis on this --

15 A Correct, I have not seen the documents.

16 Q And where is the data you have not examined regarding

17 the work done by the Co-op at the University of Florida?

18 A Where is it?

19 Q Yes.

20 A I have no idea. I assume it's at the University of

21 Florida Co-op Unit.

22 Q Have you made any effort to get it?

23 A We've made, you know, several requests for documents

24 from them.

25 Q And what did they tell you?

1 A That they have turned over the material that they

2 have. We have not specifically requested -- let me back up.

3 I don't know that we have specifically requested the 1959 data.

4 We've made requests for documents that they used in, you know,

5 formulating their reports and the presentations that they

6 recently made at the wetland meeting in September I guess it

7 was, and I have not seen all of those documents. They could be

8 in there. I don't know. What we intend to do is make a

9 specific request for that information.

10 Q You're going to look first to see if you have it

11 before you ask?

12 A Sure.

13 Q But it's clear to you that that was not employed by

14 any of the -- either you or the other individuals you named to

15 design this test program? You didn't take that --

16 A No, that's the reason we simply said historical

17 transects because at that point in time we had not received a

18 lot of these documents. We had not had time to review them.

19 We knew a lot of historical data had been collected in the

20 area, and we thought it was reasonable that the federal

21 representatives would be able to say these are the locations

22 where we have sampled the Refuge.

23 Q Now you mentioned Dr. Richardson, Curtis Richardson,

24 was involved in this design. How did he become involved in it?

25 A I'm not sure I understand your question.

1 Q Who's paying the bills for Dr. Richardson?

2 A I don't process any of his bills, so I don't know.

3 Q Well, how did you know to go to Curtis Richardson?

4 A He was at a meeting that I was at that was convened

5 by counsel for the purpose of putting together the entry

6 petition.

7 Q And Dr. Patrick was involved in that too?

8 A Yes.

9 Q Same basis?

10 A Yes.

11 Q So far as you know?

12 A Yes.

13 Q And who is the third?

14 A Mike Dennis.

15 Q Was there anyone else?

16 A The attorneys were there.

17 Q I meant scientists mostly. We always assume the

18 attorneys are there. The clock is running. To whom was this

19 program submitted for peer review?

20 A The four of us basically worked as a group to put the

21 information request together and did not send it out to people

22 outside that circle.

23 Q So you would not then characterize that as a peer

24 review, the design of it and the only participants -- there was

25 no peer review?

1 A There was not an outside peer review.

2 Q I may not have understood your testimony correctly

3 with regard to the four transects, A through D. Did you say

4 that you want nine test sites on each?

5 A (The witness nods his head.)

6 Q Can you show me where on Exhibit A that is part of

7 your plan?

8 A I believe that when you were making your original

9 comment you made the statement that you thought that we were

10 asking for nine sampling stations along transects plural, and I

11 believe that's at the top of one of the pages.

12 Q If you can go to D and cite that to us, I'd

13 appreciate that.

14 A Paragraph -- I guess it's page 11, paragraph 4. It

15 says -- well, it begins -- it says, With option to land and

16 collect the data and up to nine stations along the historical

17 transects plural.

18 Q So now despite everything to date you're saying

19 that's 36 stops?

20 MR. BURGESS: I object to the form. That's

21 argumentative.

22 MR. FITZGERALD: I'm sorry. I'll rephrase it.

24 BY MR. FITZGERALD: (Continuing)

25 Q You interpret that, or you're design contemplates in

1 your mind stopping at nine test sites on each of those four

2 transects?

3 A I believe my testimony was that we envisioned

4 stopping at 9 locations along historical transects which would

5 be identified hopefully by the federal representatives. The

6 federal representatives aren't very helpful in defining where

7 those historical transects are. So as part of our ongoing

8 efforts, we're trying to determine where the historical data

9 has been collected.

10 We've noticed in the Fish and Wildlife Service Report for

11 the Co-op in the Loxahatchee that they had these A through C

12 historical transects in there. We noted that Dr. Jones had

13 sampled along two transects, and we thought that those

14 locations would be appropriate for historical transects.

15 Q 36 total sites?

16 A We think that's appropriate at this point. Like I

17 said before, once we're allowed to land and inspect the areas

18 like we asked for in paragraph four, that we may be able to

19 reduce that. If you notice the language, it says up to nine

20 stations, which means we contemplate the possibility that it

21 would be less.

22 Q So it does not -- you will agree it does not say up

23 to 36 stations?

24 A No, it says up to nine stations --

25 Q Thank you.

1 A -- along transects plural.

2 Q Now in locating -- you made a comment about locating

3 the sites and with reference of the relationship to the

4 overflight necessity, are not the sites for all the Richardson

5 work, and that's John Richardson, different from Dr.

6 Richardson, they're all contained in the report you put in as

7 an exhibit?

8 A Yes --

9 Q So you know where those are?

10 A We know where they are on an eight and a half by

11 eleven map that you see in the documents. Obviously, each one

12 of those squares could have up to a mile, so we don't know

13 precisely where those stations are in the field.

14 Q And that may be in the data that you haven't looked

15 at?

16 A No, I don't think we will find any data that says

17 precisely that this station is right here with latitude and

18 longitude coordinate.

19 Q You don't think that Dr. Richardson, Blinds,

20 Kitchens, Matson and Mr. Pope took precise positions for the

21 samples?

22 A No -- let me rephrase that. I was thinking about the

23 1959 transects. I believe that it is entirely possible that

24 they have coordinates for all of these, you know, grid surveys,

25 all the vegetation surveys. We understand that based on

1 presentation made by several of those people at a September

2 1992 wetland conference in Columbus, Ohio, that they have the

3 systems, the GIS system and that they now have coordinates for

4 those. We made requests for that information, and to my

5 knowledge as of the middle of last week that had not been

6 received.

7 Q You would have had access, have you not, to the

8 documents received in discovery by your employers?

9 A Certainly.

10 Q Have you been involved in this for two to three years

11 by your testimony?

12 A Yes, but not all these documents were received two or

13 three years ago.

14 Q I don't think there was a question, Doctor. Were you

15 not aware from your employers or from any source that Dr.

16 Jones' data on those transects including the lines of position

17 utilized were turned over three times over the last three years

18 or four years of litigation?

19 A I have no knowledge of how many times turned over --

20 Q You have no information whatsoever other than what

21 you got from Dr. Maffei on the 6th?

22 A No, I have information relative to it, some field

23 notes that were turned over by either Dr. Jones or one of the

24 other people that was involved with them that list some of the

25 coordinates. That was the basis that we plotted this line on

1 the overlay.

2 Q You recall being at Dr. Jones' deposition and during

3 the federal case; don't you?

4 A No, sir, I do not.

5 Q You were not there?

6 A No, sir, I was not.

7 Q Well, then your memory is good. What is your

8 experience with air boats in the Everglades?

9 A I've ridden on them many times.

10 Q In the last two to three year I assume?

11 A Yes.

12 Q What percentage of your time overall is spent on this

13 case?

14 A It varies. If you look at it over a year's time

15 probably 50 to 60 percent maybe.

16 Q And what is the extent of your sampling experience in

17 the Everglades?

18 MR. BURGESS: Excuse me. I'm going to let the witness

19 answer in a general sense, but I think I made clear in my

20 questions to the witness that his work in the Everglades

21 was done at my direction and in anticipation of

22 litigation.

23 MR. FITZGERALD: Mr. Hearing Officer, they proffered

24 him as an expert to establish why this test program is

25 right. If he has the experience --

1 HEARING OFFICER MENTON: Go ahead.

3 BY MR. FITZGERALD: (Continuing)

4 Q What's your experience?

5 A As I indicated previously, I've been on air boats and

6 in helicopters taking samples in the water conservation area 2A

7 and 3A on numerous occasions. I don't recall exactly how many,

8 but more than a dozen.

9 Q Who designed the testing programs that were being

10 implemented during those several dozen visits or whatever?

11 A Myself, people that worked for my firm, Dr. Dennis,

12 Dr. Patrick. There may have been other involved at various

13 points.

14 Q Did those involve taking soil cores in 2A and 3A?

15 A Yes, they did.

16 Q Did they involve taking water samples?

17 A Yes, they did.

18 Q And to what lab were they submitted for analysis?

19 MR. BURGESS: Your Honor, again, I think that --

20 MR. FITZGERALD: Your Honor, he's testifying --

21 HEARING OFFICER MENTON: I'm not sure why this is

22 particularly relevant.

23 MR. FITZGERALD: He's testifying to how long they

24 get back from lab. The lab is obviously an issue.

25 MR. BURGESS: In his general experience. They're not

1 with respect to the cores that he may have submitted from

2 the Everglades and other design programs.

3 MR. FITZGERALD: Respectfully, we're talking

4 Everglades cores. I'll ask the witness if he thinks

5 it's going to be much different, if that's what you mean.

6 MR. BURGESS: I don't think the specific

7 lab is germane at all. I think --

8 MR. FITZGERALD: I withdraw the question and approach

9 a different way.

11 BY MR. FITZGERALD: (Continuing)

12 Q Have you sought a lab to do the analysis you require

13 for the testing program you assisted in designing?

14 A Yes.

15 Q Have you lead a contract, or are you aware of a

16 contract being led to a lab to conduct this analysis?

17 A No.

18 Q How many labs have you surveyed to determine if a

19 certified capable lab is available to do this work?

20 A I'm not sure because I asked someone who works for me

21 to do it.

22 Q Who is that?

23 A Caroline Seaman.

24 Q So at this point you cannot state with certainty

25 whether whatever lab or labs have been surveyed can or cannot

1 do the work in a given period of time, correct?

2 A Would you like to restate the question.

3 Q You stated in your testimony in response to Mr.

4 Burgess that the number of pieces of equipment, for example, to

5 conduct a cesium 137 test would affect the turn around time?

6 A Right.

7 Q The same thing would be true with PB 210, correct?

8 A Right.

9 Q The fact is the same thing would be true with every

10 analysis you want done?

11 A Right.

12 Q If you select a highly capable lab, then you wouldn't

13 expect in your experience problems with equipment break down,

14 technicians being sick and agents having to be reordered to do

15 the work would not be a problem?

16 A I do not expect that to be the case. These labs have

17 other clients. We don't have total control over, you know, how

18 the lab organizes the samples that are going to be done.

19 Q But you have not taken measures to determine that the

20 lab can get you the turn around time you've been talking about?

21 Your 90 to 180 days is just a general estimate based on

22 historical experience?

23 A That's true.

24 Q What were the turn around times on the samples you

25 did submit under the programs you assisted in in some fashion

1 in the Everglades?

2 A They varied anywhere from probably 60 days to 120

3 days.

4 Q And were they testing for the precise, the same

5 parameters seeking to test for in the program you assisted in

6 designing?

7 A They were testing for a lot of the same parameters,

8 yes.

9 Q Does your testing program as you designed it

10 contemplate testing for herbicides?

11 A No, it does not.

12 Q Does it contemplate testing for pesticides?

13 A No.

14 Q Then what is the relevancy of C to determine whether

15 or not at some point it may, in fact, have been utilized or

16 substances utilized in the southern part of the Refuge? How

17 are you going to determine that?

18 A We're going to look at the type of peat that's in

19 that area and how the peat built up and how the phosphorus that

20 is in that peat and type of peat it is, the accumulation rate.

21 Q And you expect that to tell you something about

22 pesticides and herbicides?

23 A I think that as I indicated to you before, Dr. Dennis

24 has located data that says the herbicides were used to control

25 vegetation in that area. I would not expect much residue from,

1 you know, those pesticides to still be there assuming they were

2 used in accordance with the labeling of those herbicides.

3 There might still be some there, but we do not intend to do a

4 lot of pesticide analysis. It was not on the list as I recall

5 for the parameters that we filed with you.

6 Q You testified that you didn't think it appropriate to

7 provide data on a piece meal basis for raw data because it

8 would be confusing; is that correct?

9 A (The witness nods his head.)

10 Q That's a subjective judgment; is it not?

11 A Yes, it is. But I would also add that when we had

12 asked some of your scientists for data, they continually say

13 all of the work is not done. When it is all completed and we

14 have done all of our QC's and QA controls and the report is

15 drafted, we will provide the data to you.

16 Q And you would concede, would you not, that is a

17 considerably different circumstance?

18 A I would not.

19 Q In this case, no analysis is being done other than

20 the technical analysis in a lab that applies its own QA, QC

21 program?

22 A I believe that it would have been appropriate for

23 your people to provide their laboratory data under the same

24 kind of conditions that you're talking about here.

25 Q You understand, do you not, that you know all

1 laboratory data resulted from this will be exchanged in the

2 same way?

3 A I'm talking about data that was collected by Dr.

4 Reddy and others that are involved in sampling in the

5 Loxahatchee.

6 Q You understand that Dr. Reddy is not an employee of

7 the United States and is not an expert designated by the United

8 States in this case; don't you?

9 A I do not know who designated him as an expert. I

10 understand he was designated an expert.

11 Q When you say you, you're not referring to the United

12 States, you're referring to somebody in the case?

13 A That's correct.

14 Q Doctor, you've been designated as an expert by the

15 Sugar Cane League for purposes of this case; is that correct?

16 A Right.

17 Q Have they turned over your data from the testing

18 programs you've done from 2A and 3A in response to discovery,

19 has that been shared with any parties in the case?

20 MR. BURGESS: I'm going to object to the form. There

21 is absolutely no predicate.

22 HEARING OFFICER MENTON: Why is this --

23 MR. FITZGERALD: I will link it up with my next

24 question, but I'm going back to the lab thing.

25 HEARING OFFICER MENTON: Okay.

1 MR. BURGESS: There is no predicate. There is no

2 evidence that that was asked for --

3 HEARING OFFICER MENTON: Well, that dispute isn't

4 before us today. I don't want to get into the dispute --

5 MR. FITZGERALD: I'm not.

6 HEARING OFFICER MENTON: If you're going to tie it

7 to the lab issue, then I'll give you some leeway.

8 MR. FITZGERALD: Would you answer the question.

9 THE WITNESS: What was the question?

10 MR. FITZGERALD: Would you read it back please.

11 (WHEREUPON, THE COURT REPORTER READ BACK THE

12 AFOREMENTIONED QUESTION.)

13 MR. BURGESS: Object to the form of question, turned

14 over to whom.

15 HEARING OFFICER MENTON: You want to clarify.

17 BY MR. FITZGERALD: (Continuing)

18 Q Was the data from those testing programs shared with

19 other petitioners in the case?

20 A Not to my knowledge.

21 Q How long after the collection of water samples did

22 you have the lab reports, not analysis of results, but just lab

23 reports on water?

24 A All of the samples were analyzed within prescribed

25 holding period which you had mentioned earlier to me, 28 days.

1 Q Let me repeat the question so you understand it. Not

2 how long the samples were held, but when did you get the

3 results back?

4 A I don't recall how long it took to get each piece of

5 data that we got. What I was trying to tell you is that we

6 would have gotten the data within probably 30 to 45 days

7 because the lab analyzes the samples within 28 days holding

8 time. Typically they might take a week to generate the

9 information and send it to us.

10 MR. BURGESS: Again, for the record, there is no

11 dispute with respect to the water quality data.

12 Q Were your soil cores analyzed at the same lab you did

13 your water quality?

14 A No.

15 Q Is that a commercial facility?

16 MR. BURGESS: Objection.

17 HEARING OFFICER MENTON: What's the objection?

18 MR. BURGESS: I think he's getting into a testing

19 program done at the direction of counsel that's work

20 product in this case, and my question --

21 HEARING OFFICER MENTON: I don't think he's asking --

22 I think he's just asking for the time frame of the

23 lab results, and I don't think he has gotten into any work

24 product information there.

1 BY MR. FITZGERALD: (Continuing)

2 Q I asked was it a commercial facility?

3 A Some of the samples were done by a commercial

4 facility.

5 Q Where were the other samples done?

6 MR. BURGESS: Objection. Your Honor, I think what

7 he's getting into is what I'm going to term specifics of

8 the testing program done in anticipation of litigation at

9 direction of counsel constitutes my work product. I did

10 not get into this. I asked him in a generic sense in

11 respect to his sampling experience the likely turn around

12 time.

13 HEARING OFFICER MENTON: I'm going to overrule you.

14 At least at this point, I mean, if he starts going beyond

15 the generics of the laboratory results and the time

16 period of getting those results, then you can renew

17 your objection. At this point, I think you put at issue

18 the time frame in which he can realistically expect to get

19 the soil samples back, and I think he's entitled to

20 explore it.

21 MR. BURGESS: I think the time frame, yes, but --

22 HEARING OFFICER MENTON: Well, I think he's entitled

23 to ask him about his experiences in other instances,

24 and I don't think he has tapped into any work product

25 situations.

2 BY MR. FITZGERALD: (Continuing)

3 Q What was the noncommercial facility that tested some

4 of the parameters for you?

5 A A university facility.

6 Q Associated with one of the testing program designers?

7 A Correct.

8 Q Did you achieve quicker turn around from the

9 university facility than you did from the commercial?

10 A In some instances.

11 Q Is there any reason in your opinion why the work to

12 be done cannot be farmed out among multiple facilities as

13 apparently was done in order to expedite the results?

14 A When we used separate labs in the instances we talked

15 about it was for different portions of the work. We did not

16 split the work or a particular segment of the work between

17 labs. We think it would be better to have, you know, one lab

18 do, for instance, all of the phosphorus analysis; perhaps might

19 have another lab do the seasonal analysis, but we don't think

20 it would be appropriate to send Core A to one lab and Core B to

21 another lab. You're just concerting another potential

22 variability in your analyses.

23 Q In your overlay on your extreme left, there are 16

24 red stations identified, correct?

25 A Are you talking about my right?

1 Q I'm sorry. No, your left.

2 A My left is over here.

3 Q Your far left.

4 A Okay. You're talking about this?

5 Q Far left, yes. There are 16 red stations there?

6 A There are 16 squares on there representing the 16

7 stations sampled by the District from '79 through '83.

8 Q And when you went on the 6th, you bicycle flagged all

9 those stations, you marked them roughly?

10 A That is correct.

11 HEARING OFFICER MENTON: When he went on the what?

12 MR. FITZGERALD: The 6th of October --

13 A We went out on a Monday, and I think it was October

14 the 5th.

15 Q Was it the 5th when we so generously offered you the

16 opportunity to slog up to your waist in muck? 14 of those are

17 included in your request, are they not, as the 14 monitoring

18 stations?

19 A That's correct.

20 Q Two of them are not included in the 14, are you

21 stating now that you want to use two of those as part of the

22 additional six recurrent sites?

23 A That is correct.

24 Q And then you want to establish four more recurrent

25 sites?

1 A That's correct.

2 Q And those are marked how? They're not marked?

3 A Well, basically what we would like to do is to decide

4 exactly where those are going to be during the overflight, and

5 since we were prevented from going to those locations, and Mark

6 said that the U.S. Attorney's Office had instructed him not to

7 let us land anywhere except the 16 stations. So he said we

8 could not land to help us select any of the other, you know,

9 six stations. So we decided, well, we the say four, if you're

10 counting those four, that's correct. So we decided to look at

11 the historical transects or specifically Ron Jones' transect

12 across there.

13 At that point, the helicopter pilot said we need to get

14 more fuel; wherein Mark said, well, that's it for me. I can't

15 do anything else today. So we did not get to visit those but

16 --

17 Q The four you intend to select on your return trip,

18 what environment are you looking for to place those stations?

19 A We would like to put a couple of those stations we

20 believe now in, you know, the cattail fringe area and perhaps

21 use a couple more to fill in perhaps some of the areas that are

22 not covered well we think. I can't tell you precisely where

23 they're going to be because that's what the purpose of

24 overflight was for to help select those.

25 Q Well, you do not overfly the areas you have your

1 one-time stations marked in blue, do you?

2 A No.

3 Q So how did you select those with no knowledge of what

4 the environment would be in those vicinities?

5 A Because we decided that we wanted to do a transect

6 going down the middle of the Loxahatchee which we think is

7 referenced pretty much by that line and another one going

8 across east and west. And when we look at it, if you count the

9 squares here, there is basically one, two, three, four, five,

10 six miles between the two stations.

11 We think it's appropriate to have something in the middle

12 of that. So we said we want to put one approximately in the

13 middle. We want to establish the fact that where that station

14 is when we go out there we're saying somewhere about half way

15 between station CA1 and station CA3 we think it appropriate for

16 a station.

17 If you go from 5 down to 15, you notice that there is one,

18 two, three, four, five, six, seven, eight, nine, ten, eleven

19 miles between those. We think it's appropriate to fill in that

20 gap with some other stations. You want me to go on to the rest

21 of them or --

22 Q No, that's okay. The District data that was

23 available to you included a 16-year hydroperiod range over the

24 entire Refuge; did it not?

25 A I don't recall precisely.

1 Q Well, you've got Exhibit D there. I'm looking at

2 Figure 56?

3 A Tell me what page it's on.

4 Q Page 114.

5 A That says it's a 16-year hydroperiod. It's a 3D

6 dimensional drawing, so it's very hard to really ascertain what

7 any of those levels are. Maybe you can tell me, but I can't

8 tell. That's a percent.

9 Q Well, if you turn back a page, those are data charts

10 with specific lines, right?

11 A What pages are you talking about now?

12 Q 112, 111.

13 A Okay.

14 Q They utilize 35 sampling stations within, this is the

15 District again, within the Refuge to obtain water quality data;

16 did they not?

17 A I don't know.

18 Q Well, you're seeking water quality data, right?

19 A Yes.

20 Q And you reviewed the available literature and data on

21 water quality over time to assist you in designing your

22 program; did you not?

23 A That's correct.

24 Q I invite your attention to page 70 in the same report

25 you put in evidence through your testimony at the top of the

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1 page water quality maps.

2 A Okay.

3 Q The end of the first sentence, 35 sampling stations

4 located in the Refuge and then refers to the figure on next

5 page --

6 A Yes.

7 Q -- those sampling stations, in fact, appear to cover

8 the areas that you seek to put all your stations along the

9 eastern and southern boundary of the Refuge; do they not?

10 A No, they do not. I would point out that 1-1 through

11 1-16 are the identical 16 that we're showing up here.

12 Q Umm-hum.

13 A But the other stations there, according to my reading

14 of this and my recollection of looking at records provided by

15 the District, that all those other samples are actually in the

16 canal itself and are not in the marsh.

17 Q When you visited the Loxahatchee you didn't go on the

18 land in the 16 sites, did you?

19 A We landed at the parking lot to pick up Dr. Maffei,

20 then we flew out and landed at, let's say, approximately half

21 of the stations, then the pilot said we need to go get gas. He

22 dropped us off at the parking lot again, so we landed there.

23 He picked us up there again, and we went out and looked at

24 the other 16 stations, then we landed at the S10 structure to

25 get a GPS reading so we could adjust any of our readings if we

101

1 needed to, and Dr. Dennis and I spent five to ten minutes

2 discussing what we had accomplished, what we needed to do to

3 complete today.

4 We thought it appropriate to try to make sure we organized

5 the rest of the day to make sure we got everything done. Then

6 we started to go back and look at the historical transects just

7 like the other stations and to take some photographs at one of

8 the stations where we forget to take a photograph.

9 Q Didn't you want to do some water depth measurements

10 at other than the 16 sites inside the Refuge?

11 A We did -- when we were -- we did land at the --

12 there's a water gauge station close to this CA1-6. We did land

13 at it to -- no, I take that back. We didn't land at that one.

14 We landed at this water gauge station ST1-9 to get a water

15 level reading and get the coordinates on that since that is a

16 physical spot out there, and again it was to make sure our GPS

17 readings are correct, and landed at the STA1-7 station. So

18 those are the only other two places that I recall landing.

19 Q Okay. So when you testified earlier with Mr. Burgess

20 that you weren't allowed to land anywhere but at those sites,

21 that's just an oversight?

22 A Yes, that slipped my mind.

23 Q Who did you speak to at the District and asked for

24 locations in data on the 14 stations for any all ready

25 occurring testing under the SWIM Plan's contemplation of the 14

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1 monitoring stations?

2 A Are you talking about in reference to overflights and

3 establishing where these 16 stations are?

4 Q Umm-hum.

5 A I didn't talk to anybody at the District. It was my

6 understanding that the Federal Government's representative was

7 going to be able to locate those stations and he would have all

8 of the appropriate information.

9 Q So did you have some belief for some reason there was

10 like a little structure out there, there was some unique

11 designator that, you know, a little sign that says SWIM Plan

12 Station Number One?

13 A I thought it was in all likelihood that there was a

14 marker out there. When we were flying over the Refuge, we saw

15 signs all over the place that were purportedly in there to

16 identify, as Mark said, duck hunting portions of the Refuge.

17 You can't go beyond this sign for duck hunting, or you can

18 canoe up to this point.

19 There were a lot of signs out there. We thought that

20 since the District, and as we understand it, the Federal

21 Government have agreed on the regulatory program in Appendix B

22 based on six 14 stations out there, that that was entirely

23 reasonable to expect that those 14 stations would be

24 identified.

25 Q Dr. Maffei explained to you, did he not, they don't

103

1 generally flag things and discourage actively flagging things

2 out in the Loxahatchee Refuge?

3 A I don't recall him explaining that. But as I pointed

4 out to you before, there are a lot of signs out there that we

5 saw continuously in flying over the area, and when we asked

6 Mark about those, he said they were markers that the Refuge

7 personnel had put out there to mark the boundaries of, you

8 know, hunting areas and that sort of thing. And we also saw an

9 old plane that had crashed out there and other things.

10 Q In designing your program, other than the report from

11 University of Florida personnel the Co-op, and the two other

12 items that you mentioned, did you become aware of any other

13 testing programs that had been conducted in the Refuge relative

14 to water quality and quantity?

15 A What are the other two items that you're referring to

16 that I mentioned?

17 Q I was afraid you were going to say that. You talked

18 about the SWIM Plan reference data. There was the Ramch Reddy

19 data. Is there any other data you relied upon to determine

20 what was needed?

21 A Well, as I'm sure you have in your office or your

22 experts have in their offices, they have volumes, book shelves,

23 file cabinets full of material.

24 Q I'm sorry. That was not the question. The question

25 was, were you aware of any other research conducted out there

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1 by anybody relative to water quality or quantity?

2 A Quite frankly, I can't remember what I was aware of

3 two years ago, whenever the first petition was drafted.

4 Q Dr. Davis, let me focus your attention. We're not

5 talking about the petition or the amended petition. We're

6 talking about the entry request.

7 A That's what I'm talking about is the entry petition

8 that was originally filed.

9 Q Let me focus you on something else. The entry

10 request was filed in this case not two and-a-half years ago.

11 This case is less than six months old. Document A, Exhibit A,

12 what did you know in the way of research having been conducted

13 out there when you submitted this program?

14 A Again, what I'm trying to give you an honest answer

15 to is I can't sit here and tell you exactly what I knew at that

16 point in time and what I know at this point in time.

17 Q Okay. I can make it easy for you. I understand the

18 problem. Today, not two years ago, not two months ago, are you

19 aware of any other research having been conducted in the

20 Loxahatchee National Wildlife Refuge relative to water quality,

21 water quantity or soil composition?

22 A Yes.

23 Q What other research?

24 A I looked through some of the special use permits, for

25 instance, and there were permits for some other sampling out in

105

1 the Refuge.

2 Q And where did you come by that information?

3 A They were provided by the attorney.

4 Q By Mr. Burgess or his firm you mean?

5 A Yes.

6 Q Okay. The attorney in this case is kind of

7 ambiguous. And when did you do that?

8 A Say within the last two weeks.

9 Q So you did not use any of that to consider whether,

10 in fact, such an intrusive testing program is necessary, such

11 an extensive program, I wouldn't say intrusive --

12 A I wouldn't characterize our program to be extensive

13 or intrusive. If you compare our arguably 70 stations with the

14 probably 400 stations that other people have sampled out there,

15 I would say ours is very unintrusive compared to that.

16 Q And those 400 go back, according to your testimony

17 about the testing regimes to 1959?

18 A The majority of it has been done within the last,

19 well, all of Dr. Reddy's stuff, the 150 or 100 samples he's

20 taken have been taken in the last, I believe, a year.

21 Q Do you have his results?

22 A We have Dr. Maffei during our overflight provided a

23 copy of the coordinates for resampling location.

24 Q Doctor, if you can just answer the question please.

25 Do you have his results?

106

1 A I'm trying to give you a complete answer to the

2 questions.

3 Q I said nothing about locations, sir. Do you have the

4 results of Dr. Reddy's approximately a hundred tests?

5 A I saw last week two sheets of paper, as I recall,

6 which contained some of the locations and some of the

7 parameters that were measured.

8 Q Doctor --

9 A The cover letter indicated there was additional work

10 as I recall being done that was not included in that, and just

11 looking at the analyses which it did not look to me to be a

12 complete set of the data he collected.

13 Q Dr. Reddy is employed with the South Florida Water

14 Management District?

15 A I think he's an employee of the University of

16 Florida.

17 Q Had you sought through a public record request to

18 acquire that data?

19 A Yes.

20 Q And is it going to be forthcoming or just been

21 resisting for some reason?

22 A I have no idea when it's going to be coming. I asked

23 Dr. Reddy personally if we could have the information, and he

24 told me I needed to talk to Dr. Newman at the District. I

25 called Dr. Newman at the District and asked her the same

107

1 question, and she said, deal through the attorneys. So when it

2 goes into the attorney mill, who knows when it's going to come

3 out.

4 Q So you don't know if the District is freeing it up or

5 don't know if someone is pursuing it right now?

6 A I know we're pursuing it. How effective we're being,

7 I don't know.

8 Q Is it not possible that the results of Dr. Reddy's

9 work will obviate the need for some of the testing that you're

10 proposing?

11 A No.

12 Q The one-time testing?

13 A No.

14 Q Why not?

15 A Based on the limited information I saw about his

16 sampling, it appears that he is only -- well, the data that we

17 have shows that the phosphorus is being measured in ten

18 centimeter increments. It only had zero to ten as I recall and

19 ten to twenty. The soil cores is actually a lot longer than

20 that. I do not think that Dr. Reddy is taking any cesium

21 measurements or to date the core to allow us to calculate a

22 phosphorus uptake reading. Dr. Reddy is not doing the same

23 phosphorus fractionation we proposed to do.

24 Q Is that the same line of -- go ahead.

25 A He's doing a different method for doing the

108

1 phosphorus analyses also.

2 Q Do you have any reason to doubt the quality of the

3 work being done by the University of Florida testing lab?

4 A I would like to reserve judgment on that until I see

5 the data in QA, QC procedures.

6 Q Have you turned over your test methodologies to

7 anyone to demonstrate how you're going to conduct the tests?

8 A Do you mean by that analyze the samples?

9 Q Yes.

10 A I provided a copy of that to the attorneys.

11 Q When was that?

12 A I don't know, in the last month.

13 Q As a scientist don't you regularly rely on published

14 data from labs that you have limited experience with?

15 A Yes, but I also caveat my conclusions based on that

16 too.

17 Q So if I review your publications I'll find a caveat

18 in them that I didn't go to the lab and check the QA, QC

19 program?

20 A No, it would be that someone else collected and

21 analyzed the data, and I'm taking the face value if I am, or if

22 it's likely I think there is an error in it, I'll say it looks

23 to me like this data is in error.

24 Q What in Dr. Richardson's report, Exhibit D, appears

25 so in error to you that you question the data, if anything?

109

1 MR. BURGESS: I object to the form.

2 HEARING OFFICER MENTION: Excuse me?

3 MR. BURGESS: I object to the form. That's

4 argumentative. There's no predicate. There is nothing

5 that appears in the question -- he said, in fact, he

6 wanted to see the QA, QC and results before he offered

7 an opinion. It's argumentative and lacks predicate.

9 BY MR. FITZGERALD: (Continuing)

10 Q Is there anything in the report as they exist that

11 you find to be fundamentally in error in terms of the testing

12 protocol?

13 A The testing protocol is not adequately described in

14 the report for me to make that judgment.

15 Q Do you have any reason from the report as it exists

16 to question the results of the tests to which the samples were

17 subjected recognizing you would like to do other tests as well,

18 that issue aside?

19 A I'm not sure I understand the question.

20 Q Do any of the test results reflective of the analysis

21 --

22 A If you can be specific about the analysis you're

23 talking about.

24 Q Water quality analysis.

25 A There's not a lot of water quality data in the

110

1 report. There is mostly summary information and that sort of

2 thing. In order to make the kind of judgment we would like to

3 make we would like to see the raw data which is not provided as

4 I recall in the report.

5 Q Have you relied on raw data from any other testing

6 program in the Loxahatchee Wildlife Refuge?

7 A No.

8 MR. FITZGERALD: Nothing further.

9 HEARING OFFICER MENTON: Okay. Mr. Burgess,

10 do you have anything?

11 MR. BURGESS: Yes.

13 REDIRECT EXAMINATION

14 BY MR. BURGESS:

15 Q Dr. Davis, with respect to the aerial reconnaissance

16 on the historical transects, was that proposed in order to, in

17 fact, locate some of the historical transects located in the

18 Refuge?

19 A Yes.

20 Q And what --

21 HEARING OFFICER MENTION: Historical transects, I

22 mean, they're really, you're talking A, B and C, or are

23 you talking about the Dr. Jones' transect, or all of

24 them together? I mean they're --

25 Q Dr. Davis, when you, in fact, proposed aerial

111

1 overflights low level over historical transects in the Refuge,

2 what did you envision at that time?

3 A We envision that the Loxahatchee personnel and the

4 south Florida personnel would identify for us where data had

5 been collected in the Refuge, then we wanted to fly over and

6 observe those areas and pick a few of those areas to do some

7 measurements in.

8 We're not asking to sample 400 locations that have been

9 sampled by other people out there. We're asking to look at a

10 few representative samples of where historical data has been

11 collected and to sample in specific locations for specific

12 reasons. A lot of this sampling was done for presumably some

13 specific purpose. Our purpose is in some cases different.

14 Q Is it your understanding with respect to, at least,

15 with respect to stations A, B and C, those areas are where

16 there have been the hydroperiod alteration?

17 A Certainly, you know, along the canals we think there

18 has been, you know, hydroperiod alteration.

19 Q And you envision beginning your transects at the

20 levies of the canals; is that correct?

21 A That's correct.

22 Q And as you understand it, is one of the theories with

23 respect to the SWIM Plan challenge as advanced by the League is

24 the fact that the alteration of the hydroperiod has, in fact,

25 caused the cattails that are present in these areas near the

112

1 canals?

2 A Yes.

3 Q And among other reasons?

4 A Yes.

5 Q And that's one of the reasons that you want to

6 establish those transects?

7 A Yes.

8 MR. BURGESS: I have nothing else of the witness

9 other than a summation.

10 MR. FITZGERALD: I think we just had it.

11 HEARING OFFICER MENTON: I really didn't mean --

12 Mr. Green, do have any questions?

13 MR. GREEN: Just one for clarification of the record.

15 DIRECT EXAMINATION

16 BY MR. GREEN:

17 Q One of our petitioners is the Sugar Cane Growers

18 Cooperative of Florida, so it's known as the Co-op. And I

19 believe, Dr. Davis, you testified that the Co-op had done some

20 sampling in the Loxahatchee area. Can you tell me which Co-op

21 you had in mind when you testified?

22 A It was the U.S. Fish and Wildlife Cooperative Unit

23 located at the University of Florida.

24 MR. GREEN: Thank you. No further questions.

25 HEARING OFFICER MENTON: Mr. Killinger or

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1 --

2 MR. McGRATH: The District has no questions at this

3 time of Dr. Davis.

4 HEARING OFFICER MENTON: Okay. Why don't we take

5 about a ten-minute break.

6 (WHEREUPON, A BREAK WAS HAD AT 12:50 P.M. AND THE

7 PROCEEDINGS CONTINUE AT 1:10 P.M AS FOLLOWS:)

8 HEARING OFFICER MENTON: Okay. Mr. Burgess.

9 MR. BURGESS: Thank you. If I can briefly summarize.

10 What we're asking you to do is enter an order allowing the

11 establishment of six additional monthly sampling stations

12 in Loxahatchee. The United States' original objection to

13 our proposal was that it was an extremely intrusive

14 program in an environmentally sensitive area.

15 There is no doubt that it's an environmentally

16 sensitive area, but I think based upon the testimony

17 you've seen today, ours, on a comparative basis, is not

18 extremely intrusive.

19 HEARING OFFICER MENTON: Well, let me ask you if the

20 six additional monthly sites were granted, would there be

21 enough time to do all of the monthly sampling that needed

22 to be done in one day? I mean, I didn't really gather

23 that from the testimony. Are you talking two different

24 days to go out and do --

25 MR. BURGESS: You've already ruled on a monthly

114

1 basis. We're allowed four days a month to come in

2 and sample and that has been decided. We have agreed that

3 should it take less to experience, then we're going to

4 take less. They've agreed and you've ruled that we're

5 allowed four days a month to come in and monitor, and the

6 program is predicated on those 20 stations for the 4 days

7 a month, so it's not adding any additional time to do the

8 monthly sampling.

9 HEARING OFFICER MENTON: So you're saying you can

10 accomplish the additional sites within the time

11 frame.

12 MR. BURGESS: Right. That's how it was laid out in

13 the original proposal for 20 stations.

14 In addition, we're asking that you allow us to

15 collect data one time only at the four transects and at up

16 to nine points along four transects A, B, C, and the

17 western edge of the Ron Jones' transect.

18 I think that's subject to confirmation by the

19 continuance of the initial aerial reconnaissance, but at

20 those areas in order to allow us to round out our sampling

21 program and to basically sustain allegations of our SWIM

22 Plan challenge that we have made with respect to the

23 hydroperiod influencing the growth of the vegetation that

24 is minimally necessary for us to be able to offer evidence

25 as to that at the time of the final hearing.

115

1 In addition, with respect to the 14 stations, I think

2 if as the SWIM Plan contemplates they're going to attempt

3 to regulate us for the very large foreseeable future based

4 upon water quality at those 14 stations, and I don't think

5 it's too much to ask for us to be able to test there at

6 those 14 stations on a monthly basis. So we simply would

7 like the order to incorporate that to the extend that they

8 do not agree where we have placed our bicycle flags that

9 are representative of those 14 stations, that the

10 respondents will assist in marking those, and in addition,

11 to determine the representativeness of those 14 stations

12 by establishing six others.

13 And it's really only four others. We're going

14 to take two that they threw out, and we would like to see

15 why they threw them out, and establish four others to

16 determine representativeness. The whole area, Your Honor,

17 is 22 miles by 14 miles. Some stations that they have out

18 there on their map are eight miles from the perimeter.

19 We're just simply attempting to fill in some of the gaps

20 on that map.

21 With respect to the special use permit language as

22 contained in their proposal versus ours, I'm reminded of a

23 comment that Mr. Fitzgerald made at last month's

24 hearing where he said when we discussed this -- this is on

25 page 14 -- the issue of special use permits and the regime

116

1 under which entry would occur for the Federal enclave, and

2 I pointed out the optimum way to handle that was to side

3 step the issue entirely.

4 We can't agree more, but we don't think the language

5 that they have proposed does that at all. Instead it

6 says, the United States is going to allow the sampling

7 programs to begin pursuant to special use permits.

8 And the language we tried to incorporate, which, I think,

9 embodies the side step of the issue is that they

10 claim a sampling programs can only be done pursuant to

11 sups. We contest that position, and that without ruling

12 on the merits, you're going to acknowledge that they're

13 going to issuance, and we're going to acknowledge that

14 we're going to abide by this order.

15 They say they're going to issue sups in performance

16 of the order. We're filing the order. They're

17 unilaterally issuing the sups. And that's what our

18 language accomplishes and theirs does not. With respect

19 to raw data, we're willing --

20 HEARING OFFICER MENTON: Well, just on that issue,

21 wasn't there an agreement reached the last time that the

22 visits would be conducted in accordance with the

23 conditions of the special permits that are issued?

24 MR. BURGESS: Well, we asked in our conversations

25 this week that if you're going to issue special

117

1 use permits, then the conditions need to be in this order.

2 And he said to me, well, tell us what special use

3 conditions you don't want.

4 I've seen 25 permits with a lot of different special

5 use conditions, and I'd rather him tell me which ones he's

6 going to make me abide by rather than me tell him which

7 ones I don't want. I don't know what they're going to

8 say, and they should be a part of this order.

9 He should issue, he can issue conditions and issue

10 them because we plan to follow this order. And if

11 your order is going to be -- if he's going to issue

12 permits pursuant to your order, we want to follow your

13 order and conditions need to be laid out ahead of time.

14 HEARING OFFICER MENTON: Well, so you're saying you

15 have not seen the conditions that are in the special

16 use permit; is that --

17 MS. KAVANAUGH: Right.

18 MR. BURGESS: Right.

19 HEARING OFFICER MENTON: So you don't know whether

20 you would agree to the conditions or not, or if we have a

21 problem.

22 MR. BURGESS: We would have a problem agreeing to

23 conditions because it could be agreeing to the permits

24 themselves which we contest the necessity of in this case.

25 HEARING OFFICER MENTON: Well, I am trying to figure

118

1 out whether we really have a dispute here or not on this.

2 It seems to me if the visits can be conducted reasonably

3 within the conditions that are set forth in the special

4 use permits, we can avoid a lot of legal wrangling over,

5 you know, some of the jurisdictional issues that we all

6 know are out there and I don't think anybody wants to

7 spend hours and hours researching.

8 MR. BURGESS: There is, in fact, a provision within

9 the agreed order that allows where the application of

10 special conditions are in dispute we can come to you with

11 that, but we just don't know what they are yet, so we

12 can't agree to be bound by them.

13 MR. FITZGERALD: Mr. Hearing Officer, in the

14 discussions, I agree with your recollection and

15 interpretation, that is part of the reason why I did not

16 accommodate counsel in adding all that language which

17 merely raises the issue further rather than essentially

18 avoids it unless it should become a true issue.

19 If it becomes a true issue, as counsel pointed out, I

20 succeeded in putting a term in the dispute resolution

21 section. It says if some condition does in the judgment

22 of one or the other party come into issue because the

23 government observer feels they are violating a special

24 condition where they feel that it is unreasonably

25 restricting their ability to carry out the rest of the

119

1 authorized program, we come back to you. We don't go to

2 the administrative hearing. Nobody gets a violation.

3 Nobody gets tossed off to jail or any other hyperbolic

4 suggestions that were made earlier on when we were

5 much further apart.

6 Because that provision is there, the precise nature

7 of the special use conditions is somewhat problematic.

8 We represented to you twice now on the record that we

9 would issue a permit that would allow them to do

10 everything that is incorporated in your order. That is

11 why in our view it's appropriate for you essentially in

12 that provision on access to say or commencement that the

13 United States shall allow this program pursuant to special

14 use permits to be issued.

15 And if we issue one that has a condition that negates

16 or prohibits or any way prevents the carrying out of a

17 program, then I think we have an issue. But that's not

18 going to happen. I told counsel that's not going to

19 happen.

20 HEARING OFFICER MENTON: Mr. Burgess, let me just

21 tell you that the portion of your proposal that I have a

22 little bit of a problem with is the language that says,

23 and not the special use permits. That's almost --

24 MR. BURGESS: We can withdraw it. The Florida Rules

25 of Civil Procedures and the order of the Court and this

120

1 tribunal, that's fine.

2 MS. KAVANAUGH: We just wanted our objection clear on

3 the record and that certainly doesn't --

4 HEARING OFFICER MENTON: Mr. Fitzgerald, what is

5 wrong with the language if they delete that one little

6 phrase, and not the special use permits?

7 MR. FITZGERALD: I'm re-evaluating it now with that

8 out, Mr. Hearing Officer. Is the Hearing Officer

9 contemplating only putting in the sentence that starts,

10 without ruling and ending at use permits, just that

11 one sentence?

12 HEARING OFFICER MENTON: I'm sorry. I lost you.

13 MR. FITZGERALD: The whole paragraph is

14 objectionable. First, at the outset, we don't claim the

15 sampling program may commence pursuant to sups issued by

16 the respective as soon as possible. That's not what we're

17 doing. We're not claiming a concern. We're saying we're

18 going to issue and it's going to go forth. So the first

19 sentence is objectionable and somewhat pointless --

20 MR. BURGESS: Change it to shall allow the sampling.

21 MR. FITZGERALD: I think we could live with the

22 modified sentence as suggested by the Hearing Officer that

23 begins, without ruling and end at permits, and then the

24 final line is already in the order, The United States --

25 that's already there. But the insertion of that

121

1 additional line with the removal of the sups stopping

2 at the tribunal would be acceptable.

3 HEARING OFFICER MENTON: I think we have people on

4 three different wave lengths here. Let me see if I can

5 figure this out. You're saying you don't object to taking

6 that language --

7 MR. FITZGERALD: That one line and inserting it into

8 Paragraph F starting with the word without.

9 HEARING OFFICER MENTON: Well, how about the word

10 petitioners, the sentence before? I mean, that sort of

11 summarizes what their position is. You take that and

12 then continue on, without ruling on the merits. We'll

13 just keep it in and then take out the last phrase and not

14 this, you know, end of sentence after tribunal.

15 MR. BURGESS: Yes --

16 MR. FITZGERALD: We can take that line.

17 HEARING OFFICER MENTON: So we're talking about

18 taking from petitioners contest United States' position on

19 special use permits are required in addition to this order

20 allowing entry and access to the Park and Refuge without

21 ruling of the merits or the position of either party is

22 acknowledged that the United States intends to

23 unilaterally issue special use permits in conformance with

24 this order while -- I don't know if we need to say it --

25 petitioners intend to be governed by this order and the

122

1 Florida Rules of Civil Procedure.

2 MS. KAVANAUGH: That's kind --

3 MR. FITZGERALD: I don't --

4 HEARING OFFICER MENTON: Why don't we just end it

5 with this order and just insert that, so at least you have

6 your position stated on the record. Is that all right,

7 Mr. Burgess?

8 MR. BURGESS: Yes.

9 HEARING OFFICER MENTON: Mr. Fitzgerald, is that

10 okay?

11 MR. FITZGERALD: Yes, Your Honor.

12 HEARING OFFICER MENTON: All right. So we're going

13 to take that language out of the proposal and stick it

14 into the U.S. proposal, and someone will draft all this

15 and put it down for me, right?

16 MR. FITZGERALD: We have a word processor. We can

17 just add it on and send it back.

18 HEARING OFFICER MENTON: Okay. One down

19 four to go.

20 MR. BURGESS: Continuing in that spirit of

21 accommodation, if we look at the raw data language there

22 is no disagreement with the respect to 45 days from

23 sample collection with respect to water quality. Soil

24 sediments presents another problem and especially

25 lead-210 and the and cesium 137.

123

1 I think we can live with a 60-day provision from

2 sample collection and can do without the necessity of

3 someone to tell their lab to hold off processing on

4 something, but there needs to be a provision that that is

5 applicable with respect to the phosphorus parameters other

6 than lead-210 and cesium 137, some sort of caveat language

7 that the parties acknowledge the fact that both foreseen

8 and unforeseen circumstances may delay meeting the time

9 table, and to the extent that it's necessary, that we

10 approach the Hearing Officer for additional time that

11 that's contemplated.

12 I mean the foreseen circumstance right now from

13 my expert with respect to lead-210 is that polonium is

14 needed to do lead-210 analysis. This is supposedly no

15 polonium in the United States. It's supposedly

16 back ordered from the Soviet Union. When it will be here

17 is kind of anybody's guess. That may make it problematic

18 that we might not be able to do that test, but it

19 certainly tells me that I can't get that lead-210 analysis

20 within 60 days or two weeks from now.

21 I think we need some caveat language, but we're

22 willing to go with 60 days from the sample collection.

23 MR. FITZGERALD: Mr. Hearing Officer, I thought

24 polonium was the Shakespearean character who said neither

25 borrow nor lend. I can live with 60 days, but personally

124

1 I don't think we need to clutter up an order to say if

2 something changes we come back, or if there is a problem

3 we come back. That's inherent in the proceeding, same as

4 it was in the scheduling of discovery. We don't need to

5 specifically address that.

6 The concern I do have, though, with any drafting

7 of that language is 180 days doesn't make it, even 60 days

8 is a problem with the last month's tests because that

9 returns the last month's worth of data after the hearing

10 has begun, so --

11 HEARING OFFICER MENTON: Which is another issue we

12 have to get to in a second.

13 MR. FITZGERALD: I believe you already ruled on that

14 --

15 MR. BURGESS: I think that all they said about

16 sampling is being done in the first order, the initial

17 seven to ten days.

18 MR. FITZGERALD: Okay. That's right. 60 days from

19 the initial seven to ten days. Okay. That will do it.

20 If there is a problem, obviously we can come back and we

21 try to work it out. If we can, you don't even need to

22 here about it. I mean, the degree to which we have

23 resolved this already, I think is a testament to how

24 successful we'll be at that. If it becomes a problem,

25 we'll address it.

125

1 HEARING OFFICER MENTON: Let's put down 60 days. If

2 there is an issue, I understand what you've expressed that

3 there could be a problem. If there is, then we'll just

4 deal with it as it comes up. But, you know, I think 60

5 days is reasonable and we'll revisit it if we have to.

6 I understand Dr. Davis's testimony about some of the tests

7 may take longer and we'll have to see.

8 MR. BURGESS: Okay. With respect to the ending

9 date of this discovery, they have proposed, I believe,

10 February 28th, 1993 and --

11 HEARING OFFICER MENTON: Well, let's put that

12 one down for last because that's going to be a big one.

13 Let's go back to the other two and see if we can finish

14 off the sites and the frequency while we're here

15 and resolve it.

16 MR. BURGESS: I think we made the first two offers

17 so --

18 HEARING OFFICER MENTON: Let me just say that after

19 listening to the testimony, I'm not sure at this point why

20 we need to get into nine sites along the A, B, C transects

21 when we don't even have the historical data available

22 to compare it against.

23 I understand there may be some relevance in doing

24 some sampling along the canal to test the theories that

25 he's talking about, but I don't know if we need to tie it

126

1 to the A, B, C transects. It would seem to me that at

2 least from what I heard that we maybe could agree upon a

3 site, go in and take some soil samples somewhere maybe

4 along the canal maybe by the C transect. So I throw that

5 out as --

6 MS. KAVANAUGH: Just on this one point simply because

7 I'm the one who deals more with the information requests

8 than Mr. Burgess. We have attempted to get that data,

9 the historic date. In fact, I received a letter

10 yesterday, and I think they received it in Miami earlier,

11 I don't remember the date of the letter, and they have

12 taken the position at the University of Florida that we

13 can't have it.

14 That it's proprietary. The field notes and raw data

15 and all that information we tried through public records

16 rather than subpoenaing. You can't have it. It's not

17 public record. Obviously we have to explore whether we

18 have to subpoena the information.

19 They also won't give us, apparently there are further

20 reports relating to this co-op study they won't give us

21 because they're copyrighted, so we are attempting to get

22 that information and we're going to continue to try, and I

23 guess we sure could use some help. At this point, we're

24 not able to get it.

25 HEARING OFFICER MENTON: Help from?

127

1 MS. KAVANAUGH: Help from whoever is controlling. I

2 mean, it's the U.S. Fish and Wildlife is certainly

3 a federal unit. I mean, if we can get some assistance,

4 otherwise, we'll go through the subpoena process and so

5 forth. I frankly don't know if any of the respondent

6 parties have any of the information, but we're pursuing

7 document production requests. I just wanted to let you

8 know we are trying to get it and have been.

9 MR. FITZGERALD: Let me make one thing very clear.

10 That's the University of Florida. It's not the Fish and

11 Wildlife Service that won't cough it up. It's not the

12 United States Government. We don't have it. They

13 won't give it to us. If somebody wants it, they are going

14 to have to do it the hard way because copyright doesn't

15 protect anything under circumstances. That's a joke.

16 They're worried about other people cribbing their

17 work and getting something published before them. That's

18 what scientists worry about. In this case, it's a real

19 worry because there has been one instance where one

20 scientist copped an idea mentioned by another one during

21 a deposition and now is floating it as his construct.

22 So it's understandable that somebody might be

23 concerned. We really can't help right now.

24 MS. KAVANAUGH: Well, I guess we'll have to go the

25 other route. I just wanted you to know we are going to

128

1 get it.

2 MR. BURGESS: What we can do is establish, while

3 we're trying to get that, the baseline information that

4 would develop from going to --

5 HEARING OFFICER MENTON: Mr. Fitzgerald, what

6 do you think of the idea of allowing him to take some soil

7 samples down around that C transect?

8 MR. FITZGERALD: Mr. Hearing Officer, I know this is

9 going to come to a surprise to everybody, but 27 stations

10 -- 36 stations was never in anyone's contemplation with

11 regard to that paragraph they've raised. The way it reads

12 to us and always read is a total of nine anywhere along

13 those three --

14 HEARING OFFICER MENTON: Well, let's just leave aside

15 what the proposal was and where we are and see if we can

16 reach some --

17 MR. FITZGERALD: A couple of one-time sampling

18 stations down there, no problem. 36 of them, absurd.

19 HEARING OFFICER MENTION: No, I don't think 36 is

20 necessary either, but why don't, as part of the

21 overflight, give them an opportunity to go down in that C

22 area to go in by the canal where I think he should be able

23 to take some soil samples, see if you can reach an

24 agreement as to how many are necessary. I wonder if you

25 really need to take nine within that small area.

129

1 MR. BURGESS: It's not so much the soil samples, Your

2 Honor, it's the transect, when you go along the transects

3 you take water depth, not just stick a pole in the ground

4 and get a measurement. We want to be able to do that at

5 nine points along the transect. We want to be able to

6 stick a bottle in the water where the cattail is, where

7 the mixed marsh is starting from the canal.

8 The soil samples, in fact, I'd even agree just take

9 instead of one, two, three replicates, just take two

10 replicates at each station along the transects. We're

11 more interested, our theory being hydroperiod. We're

12 more in water quality and elevation along those transects

13 and along all of this transects. That goes to the heart

14 of the theory of our case.

15 MR. FITZGERALD: Is counsel saying he wants to take

16 water quality samples and water depth only along transect

17 C?

18 HEARING OFFICER MENTON: He said two soil, I think.

19 MR. BURGESS: Two instead of three soil at each

20 of the stations.

21 MR. FITZGERALD: The number of replicates is really,

22 that's -- nobody needs replicates three times because

23 they know if they do it, we're going to replicate once and

24 still have three replicates now at each site. And as

25 their witness has testified, there is so much water out

130

1 there and it's deep out there because their theory is deep

2 waster equals cattails, they're not going to be able to

3 take them anyway.

4 MR. BURGESS: We'll get our elevation measurements

5 which will certainly enhance the evidence we intend to put

6 on at trail. We would like permission, Your Honor, if

7 you're going to limit us to C, we would like to be able to

8 fly over during our reconnaissance of the other areas so

9 we can come back and present evidence as to why it

10 would be necessary --

11 MR. FITZGERALD: I hate to put any of the issues

12 off even further, but it has got to be with their entry,

13 so I have no objection to leaving that issue in abeyance

14 for the time being until the additional overflights.

15 HEARING OFFICER MENTON: Well, why don't we do this.

16 There needs to be another overflight, right?

17 MR. FITZGERALD: Yeah.

18 HEARING OFFICER MENTON: When they go out to do the

19 other overflight, let them go over those areas and get

20 some ideas, see if they can pick a site down in the area

21 of C that everybody can agree to where they can go out

22 and do their water quality tests and see if you can reach

23 a consensus on that one area where they can do some

24 of the additional testing.

25 I think they are entitled to go down to at least

131

1 one area which is the canal area around C where they can

2 take some sampling and test their theories there. If they

3 need to do more and can't agree to it, we'll take it up

4 again. But let's put it down now where they have an

5 opportunity to go out at least and establish one

6 site down by the canal area.

7 MR. BURGESS: We're not talking about actually

8 doing the sampling on the aerial recon day, are you?

9 HEARING OFFICER MENTON: Well --

10 MR. BURGESS: We can take some water depth and we can

11 take some samples, yeah.

12 HEARING OFFICER MENTON: Okay. I guess on the first

13 overflight you're just establishing the area and then you

14 go back out once the area is established --

15 MR. BURGESS: For seven to ten days, yeah.

16 HEARING OFFICER MENTION: Right. So after you got

17 out and establish the sites, see if you can reach

18 an agreement on the one site, then when you go back

19 out, you take the sampling -- before you go back out,

20 hopefully you can reach an agreement as to how --

21 MR. FITZGERALD: Mr. Hearing Officer, in our view, we

22 don't agree to the sites. They say that's the spot down

23 on what would have been C that we want to do our test

24 site, that's fine with us.

25 We're not going to tell them, no, you can't use that

132

1 site. I think they have the right to pick the site in

2 certain limitations. So in the overflight they would say

3 we found the site. This is the set of coordinates border,

4 and that's it right down there, and that's where we're

5 going back when we go out for our seven to ten days, we

6 have no problem.

7 HEARING OFFICER MENTON: Okay.

8 MR. BURGESS: We would like to stick a tape measure

9 in the water so we can measure the depth. That will tell

10 us how many spots we need to read on the other transects

11 if we can stick a tape measure in the water and get a

12 depth measurement.

13 HEARING OFFICER MENTON: Any problem with that?

14 MR. FITZGERALD: Did we go from one site now to

15 many many sites?

16 HEARING OFFICER MENTON: No. I think they're talking

17 about one site down along that transect where they would

18 be, as he indicated earlier, he wants to go maybe a

19 hundred yards from the cattails, and that's what I'm

20 talking about too, giving them one of those transect areas

21 where he can go out and walk the cattail area and then

22 walk a short distance from there or wade or whatever,

23 swim.

24 MR. FITZGERALD: So we're talking two sample

25 sites, one in cattail and one out of the cattail, is that

133

1 based on the testimony?

2 HEARING OFFICER MENTON: I'm trying to see if we can

3 reach an agreement, and I'm not sure -- what's your

4 problem with giving him access to one of the transect

5 sites down by a canal so he can do the test necessary for

6 him to review his theory basically?

7 MR. FITZGERALD: Water depth.

8 HEARING OFFICER MENTON: Water quality.

9 MR. FITZGERALD: Water quality.

10 HEARING OFFICER MENTON: And one or two soil cores.

11 MR. FITZGERALD: At how many sites? The whole idea

12 here is --

13 MR. BURGESS: We don't want to take soil samples. We

14 just want to land the helicopter and stick the tape

15 measure in the water and you go out along the transect we

16 can see what the elevation is and come back and say we

17 only need to stop at three points on this transect, not

18 nine. We only need two soil cores from one or two of the

19 sites instead of more.

20 I mean we're not asking to do anything but take

21 elevation by taking a tape measure and sticking it in the

22 water along C. But we are asking for permission to

23 perform aerial reconnaissance over the other transects, we

24 could see the composition of the macophites (phonetic) at

25 those areas with respect to cattail and open water, and

134

1 come back and say whether we would like also to sample

2 that.

3 MR. FITZGERALD: That really doesn't resolve --

4 MR. BURGESS: That's aerial reconnaissance.

5 MR. FITZGERALD: Yeah. You have the whole day to do

6 fly where they want, but what they now want to do as well

7 is ground reconnaissance along C, then they want to

8 come back to you later and say, we looked and now we want

9 to do A, B, and D as well.

10 HEARING OFFICER MENTON: Well, let me just say based

11 upon the testimony I have heard so far is they have not

12 established in my mind that they need to go out to A and B

13 as well. I mean, I think they have established that they

14 need to go to one area, probably C seems to be the most

15 reasonable given the testimony I have heard, and I think

16 as part of the overflight, if they can land there

17 and go out and take some water depth measurements and then

18 establish what they think they need to do in terms of

19 testing, run it by you. If there is a problem, we can

20 take it up.

21 Hopefully, there won't be a problem. It just may be

22 they need to go out and take some water samples that you

23 won't have any real difficulty with. It is going to

24 entail, as I understand it, walking along that transect

25 and through the cattail areas --

135

1 MR. FITZGERALD: As I understood the testimony based

2 on my own observations in the area, you're talking really

3 about a distance of three quarters of a mile tops and

4 probably closer to a half.

5 HEARING OFFICER MENTON: If they go out with an air

6 boat, they can do it that way.

7 MR. FITZGERALD: Air boat is easy, but, you know,

8 taking measurements along that transect for a certain

9 distance in to a football field clear of the cattails, I

10 don't have any problem with that on the observation.

11 It's my understanding it will come back to me

12 and say we want to do 30 test sites on that, just as

13 an example, then we decide amongst ourselves if that's

14 okay and resolve it.

15 HEARING OFFICER MENTON: Yes, see if you can do it,

16 all right.

17 MR. BURGESS: And we can fly over the others.

18 HEARING OFFICER MENTON: You can fly over the others.

19 MR. FITZGERALD: It's 30 days they can fly

20 wherever they want within --

21 HEARING OFFICER MENTON: Okay. All right. We have

22 that one resolved. We're making progress. As I

23 understand the testimony, there is no problem with the 14

24 historical sites and monthly testing on the 14 historical;

25 is that right?

136

1 MR. FITZGERALD: That's correct.

2 HEARING OFFICER MENTON: You do have a problem with

3 them establishing any additional sites at all; is that

4 right?

5 MR. FITZGERALD: Yes, six additional coupled with the

6 number of one-time test sites.

7 HEARING OFFICER MENTON: Now you have no objection

8 to the one-time test sites along the transects of the

9 historical; is that right?

10 MR. FITZGERALD: That's correct.

11 HEARING OFFICER MENTON: So we're in agreement

12 there.

13 MR. FITZGERALD: The only one-time test sites that

14 were ever in dispute were the 9 or 36, and we have

15 resolved that for the time being.

16 HEARING OFFICER MENTON: Okay. So the one issue

17 then is whether they need additional sites other than the

18 14. It seems to me if two of them have been thrown

19 out, that were identified and thrown out, I know I'd

20 want to know why they were thrown out and want to be able

21 to look at them. So why shouldn't they have the

22 opportunity to do that?

23 Maybe it's a totally innocent reason they were

24 thrown out, but certainly I would be curious to find out

25 why.

137

1 MR. FITZGERALD: Actually the SWIM Plan sort of

2 tells you why, but -- and analysis of the data that was

3 employed, which I know Dr. Davis is very capable of doing

4 it; if not, some of the other people are. They have

5 commented on it in numerous meetings to which he attended

6 to which he referred the reason they're not being employed

7 by the SWIM Plan is very clear from the data.

8 If it gets to that point, we will explain by

9 witnesses at final hearing why they're not being used, if,

10 in fact, that's a relevant issue. To the extent that

11 they're picking any data sites, the whole line of

12 argument that the 14 are necessary because we're going to

13 challenge how the District is going to do that, this is a

14 regulatory plan, not a regulatory program. So you will

15 note from what was said on the witness stand there is no

16 implication cited on the record for what happens if the

17 model and the empirical don't match, you know, just as the

18 witness said, then decide what needs to be done.

19 That is part of the issue that we're proceeding

20 long-range terms in this case; that there is no direct

21 impact plan. So if the District finds that the monitoring

22 sites, for example, are not adequate, they can move them.

23 I mean there is no talisman to them necessarily other than

24 the fact they put a current model and we'll put on a

25 scientific basis for that if it becomes relevant.

138

1 If they want to pick any other sites, they have the

2 option to go to 14, what we've agreed to. They don't have

3 to match those 14, and the witness was unable to say that

4 we need a particular type of environment out there in

5 order to have a representative sample.

6 HEARING OFFICER MENTON: You did say something about

7 some cattail areas which weren't necessarily included

8 within the sites that were established by the District.

9 MR. FITZGERALD: I also understood that that was the

10 purpose of test lines along L47 --

11 HEARING OFFICER MENTON: I think he also mentioned

12 it in terms of just within the context of 14 sites too.

13 MR. FITZGERALD: Well, I don't know where their

14 additional sites will be, so it's going to be an argument,

15 in fact, they're not in cattails. But if they're going

16 to be in interior sites of the marsh, they're not going to

17 find cattails. They're not going to get cattail

18 evaluation in the interior marsh in the big empty spaces

19 they're talking about.

20 HEARING OFFICER MENTON: Well, as I understood what

21 he said was that he wanted to establish a couple of

22 additional sites in areas that might represent a different

23 environment than what has been established as the

24 District's sites, and I don't know if there is any

25 uniformity to the sites the District has established

139

1 or not. But he did mention that one area would be

2 where there are some cattails. I don't think that's

3 necessarily the only areas he talked about.

4 I guess I think at the earlier hearing I had

5 expressed before some question as to whether there needed

6 to be monthly monitoring at all of the sites that have

7 been establish by the District, and I'm still not sure on

8 the testimony today why that's necessary. I understand

9 that the District or the plan contemplates determining

10 compliance based upon an average of those 14, at

11 least, that's what I understood.

12 MR. BURGESS: On a monthly basis.

13 HEARING OFFICER MENTON: On a monthly basis.

14 But that issue is not really -- I mean while that may be

15 the plan on how to do it, I think, as Mr. Fitzgerald

16 pointed out, that's not necessarily -- the results of that

17 testing are not necessarily at issue in this case, are

18 they? I mean it's not like you need to be able to compare

19 exactly what results the District is getting as part of

20 this proceeding now.

21 MS. KAVANAUGH: If I can respond. The data was used

22 to develop, as I understand it, and perhaps, you know, the

23 expert obviously can explain it, but my understanding is

24 the data was used to develop these statistical models

25 that they've used --

140

1 HEARING OFFICER MENTON: Right.

2 MS. KAVANAUGH: -- and the statistical models, of

3 course, are set out in the plan, the equations are set out

4 in the plan, and the reason we need to sample at those

5 sites is to determine whether, in fact, the data base on

6 which -- I agree with you that how the statistical models

7 are used ultimately in the future may not be an issue in

8 the future. But the question is whether they

9 appropriately used the station data as the representative,

10 what would you call it, skeletal, I guess, it's the

11 foundation of their future compliance program is at issue

12 because it's set out in the plan.

13 HEARING OFFICER MENTON: But one-time sampling

14 at least of the 14 sites wouldn't be enough for you?

15 MR. BURGESS: It's monthly --

16 MS. KAVANAUGH: And the reason that we need,

17 obviously, we said we would like to have 12 months, but we

18 have to live within the frame work of what we can get, is

19 to show they used monthly data and they're going to be

20 using a rolling 12-month average, so we should at least

21 get as many months as we can to determine if there is

22 unusual variability in the results, to determine if those

23 stations -- we have outlyers apparently, the two that they

24 didn't use, to see perhaps those shouldn't have been

25 thrown out.

141

1 Again, I agree that the results of the use of model

2 aren't at issue here. The question is whether or not the

3 model itself is based on reliable data, and we have no

4 way to test that other than to see if they used those

5 stations correctly, if they're sampling is correct without

6 going in and doing our own sampling --

7 HEARING OFFICER MENTON: Well, I understand what

8 you're saying and certainly I recognize the need to do

9 monthly sampling at some sites. I am just wondering

10 whether you do one-time sampling in all 14 of the

11 sites, and then you do monthly sampling at a

12 representative number of the other sites wouldn't give you

13 adequate information.

14 MS. KAVANAUGH: But how do we tell which ones are

15 representative? That's the problem. They're going to use

16 all 14, and so how do we know which ones are

17 representative? The best we can do is do our monthly

18 sampling and station three starts to look funny, then we

19 can go back and look at their station three getting ready

20 for the case in chief to see if there is some basis to

21 question their use of that particular station's data in

22 their statistical model.

23 So one time, what if we hit the month when they're

24 all perfect or whether we hit the month when they're all

25 great? So for consistency in the program as I understand

142

1 it we need all of the stations because they've used all of

2 the stations. I may not be saying that well, but that's

3 what I'm trying to say.

4 MR. GREEN: Mr. Hearing Officer, if I can interject.

5 I also heard Dr. Davis to say that the compliance formula

6 was based upon the data at 14 stations. There were

7 16 originally and two were dropped, and we have put into

8 issue in our witness list the statistical analysis that

9 led to the compliance formula, and I think that you've

10 heard evidence today that there are two types of

11 questions: One is whether, if we go out there, if

12 consultants of the League go out and find water quality

13 and stage data at these 14 stages, do they correlate the

14 way the District says they should based upon your

15 projected formula? Is there a causality between what

16 comes in this whole big area and what is seen there?

17 Because if there isn't, that means the formula is not

18 right. That's an issue. Everybody understands that.

19 The second thing is they divide statistical tests

20 based upon 14 stations, and as any other test when you

21 determine how you comply with it, you sort of pick the

22 outcome and we debate whether the 14 stations are properly

23 located, whether several of them might be in the wrong

24 place. And I think unless you allow that issue to be

25 pursued in this discovery, then you won't have before you

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1 a correct representation of that issue.

2 So, I guess, I would just support what Mr. Burgess

3 and Dr. Davis have been saying and Ms. Kavanaugh about the

4 need to allow these other stations to be looked and on the

5 same frequency basis, what the District's compliance

6 formula would require, and I believe it's monthly. I

7 don't think that's in dispute.

8 HEARING OFFICER MENTON: Okay. Mr. Burgess, I

9 believe the question I asked earlier, and you answered the

10 additional sites could all be accomplished within the same

11 time frame that was already established, so we --

12 MR. BURGESS: Yes, sir --

13 HEARING OFFICER MENTON: Mr. Fitzgerald, you were

14 anxious to say something a minute ago.

15 MR. FITZGERALD: I think it should be clear from the

16 SWIM Plan and from portions submitted as an exhibit

17 during Dr. Davis's testimony that the -- and you have the

18 entire SWIM Plan as an enclosure to the challenging

19 petitions, that you'll find if you examine E and you

20 examine the discussion of the plan, you find that the

21 mathematical model has a regression factor in it, which I

22 vaguely understand to mean you take any particular set of

23 data.

24 Let's say they drop from month, and then come back

25 with that, all 14 or 16 stations. Say the 14. They apply

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1 it to the model. They have established, and we do not

2 contest there are wet seasons and dry seasons. There are

3 also wet years and dry years. You get aberrant

4 conditions. It's so automatic that it's unnecessary to

5 ask, but the witness could have been asked and still

6 could. They could, for the 12 months they like or

7 four to six months that they're going to have, and what

8 they are going to get is very aberrant results that don't

9 fit the pure model very well.

10 That's why you don't look for a hundred percent fit.

11 You use a confidence interval that takes into account the

12 fact you get variations. Of course, there are variations,

13 and you may apply an 80 percent confidence level and you

14 can construct a mathematical model that way.

15 the way they will be compelled to challenge the

16 mathematical model is through the same mechanism. If they

17 collect data for whatever number of months, they can

18 construct their own better model and their statisticians

19 can argue with our statisticians and you'll get to decide

20 who's right.

21 HEARING OFFICER MENTON: Well, my old calculus

22 book again. I think I threw them away.

23 MR. FITZGERALD: But in any event, that calls into

24 question the validity, and I suppose it's a question we

25 might all want to pose to Dr. Davis, even if he got one

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1 year, no competent scientist is going to put his

2 reputation on that one year data as the absolute

3 expression of what's going on out there.

4 They're going to want four years or five years,

5 and they're going to apply it to a model. And if you

6 go to the SWIM Plan and find they didn't apply it to

7 one year's set of data, they used all the data referenced

8 in there, everything that Dr. Davis looked at that was

9 available --

10 HEARING OFFICER MENTON: It seems to me

11 you're argument now is the time frame, which is the next

12 issue we need to get to. I think the first thing we have

13 to establish are the locations, and maybe they go hand in

14 hand. I don't know.

15 MR. FITZGERALD: To some degree they do.

16 HEARING OFFICER MENTON: But at least from what I've

17 heard now, the addition of the four sites is not going to

18 extend really -- I mean, it's not going to extend the

19 time that they are out there. Maybe they have a couple of

20 different areas to go to.

21 It seems to me that that's a reasonable request. I

22 think they should be entitled to set up some independent

23 sites that are outside of what the District has done if

24 for no other reason but to test whether the sites are

25 representative or not. So given that, I think they should

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1 be allowed to set up four additional sites.

2 MR. FITZGERALD: As opposed to six?

3 HEARING OFFICER MENTON: Well, 4 plus the 16 that

4 are identified in the plan.

5 MR. BURGESS: For a total of 20.

6 HEARING OFFICER MENTON: Right.

7 MR. FITZGERALD: I would just want to add for the

8 record, and I realize this jumps into Ms. Ponzoli's issue,

9 I find it extremely difficult as to numbers expressed by

10 Dr. Davis to find this program not intrusive and invasive

11 and considerably lower level of testing that we're

12 proposing to --

13 HEARING OFFICER MENTON: We're going to get to the

14 next issue.

15 MR. FITZGERALD: But that's really ahead of the game.

16 HEARING OFFICER MENTON: All right. That resolves

17 all of the issues then except for how long the testing

18 needs to go on for; is that right?

19 MR. BURGESS: Yes.

20 HEARING OFFICER MENTON: It seems to me we have a

21 date, a hearing date set. I know some people have

22 expressed in the past it may be overly optimistic. I

23 think it's premature at this point to determine. Let's

24 start the program and get everybody out there, and when

25 the results come in, it may be that, you know, the

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1 regression analysis can be done, as you indicated, without

2 having the full 12 months. Maybe it can. We'll just have

3 to see.

4 Let's save that issue for a later date. I think

5 the important thing is getting the testing program going

6 and --

7 MR. FITZGERALD: Mr. Hearing Officer, the reason that

8 is, although, superficially very appealing, is it has

9 insidious effects on the whole case. If you

10 examine the designation of experts, you find that none of

11 their experts are going to form an opinion until they have

12 all the data out of the testing program. If you don't

13 give us a date certain, that cuts off. Every time we

14 try and go in and depose, as we got today on Mr. Burgess

15 on behalf of Dr. Davis, no final opinions. That's what

16 we're seeing.

17 We will not get to the core of their case because

18 everybody will point at this thing, and respectfully it's

19 not just the Sugar Cane League; that many of the Co-op's

20 witnesses have the same -- their experts will not express

21 final opinion until they see this data.

22 MR. BURGESS: I think we can settle it. There is

23 going to come an end. Discovery is going to close,

24 and the final hearing is going to be held. And instead of

25 inserting their date of February 28th, 1993, we just say

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1 at this moment 30 days before final hearing.

2 MS. PONZOLI: Mr. Hearing Officer, if I may. That

3 gives us 30 days to depose giants in their fields on

4 conclusion, and it's inadequate. It is inadequate, and it

5 has been a source of real concern to the Federal

6 Government from the outset, from the very first meeting,

7 and it grows as we sit here that we will not know their

8 case until the night before trial. That is substantial

9 prejudice to the respondents.

10 HEARING OFFICER MENTON: Well, I understand that. I

11 guess this is something that concerned me from the time

12 that I got into this case, but if they've never been

13 granted access to conduct any of their tests, then we have

14 a problem. They've got to have an opportunity to

15 formulate their opinions too. And I understand you need

16 to have time to depose them and conduct discovery to find

17 out what their positions are, but we have not even got

18 them out to do the testing yet.

19 That's the first step that we have to get going right

20 now, and I am very aware of the concern that you're

21 raising; that if they keep coming back and saying they

22 don't have any opinions formulated, you know, as of

23 February 27th, then we're just going to really have a hard

24 time.

25 I think as we go out and getting the testing programs

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1 started, their experts are going to have a better idea as

2 to what they need to do in order to formulate or finalize

3 their opinions. And if we run into a problem where

4 they're saying, no, we need eight years of testing before

5 we can finalize an opinion, well, then, heck, we're

6 going to yank everyone in here and sit down, and you bring

7 your experts in and tell me why that's unreasonable, and

8 I'll sit down and make a determination as to what's

9 an appropriate time frame.

10 But at this point, the important thing to do is get

11 the testing underway and get everybody out there. I think

12 we have established the frame work for that today. Let's

13 leave the February 28th day in there, and if we have a

14 problem, then everybody better be prepared to bring

15 their experts and explain to me what is appropriate

16 and why they should have their opinion formulated by this

17 time or why you can't have them formulated by then, and

18 I'll make that determination.

19 But at this point, it's premature. I think they have

20 to have an opportunity to go out and test, and they have

21 to have an opportunity to analyze the results of

22 their tests, and I don't think that's unreasonable.

23 MS. KAVANAUGH: Mr. Hearing Officer, I would

24 like to call one other thing to your attention. That is,

25 that as you learned at the last hearing there are other

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1 things going on outside of the scope of these hearings

2 that may affect, in fact, what happens. In the course of

3 depositions as well as yesterday's District

4 board meeting, and it appears, and I've been previously

5 advised by Mr. Smith from DER that on the 23rd DER is

6 going to issue the permit, and that -- I know -- I'm just

7 warning you, and that the respondents are going to seek to

8 consolidate, and the District, in fact, has internally

9 already prepared a new time schedule that contemplates

10 another three months.

11 So I would just -- we will bring this to you in a

12 more formal fashion obviously, but your sense that it

13 might be premature is correct.

14 HEARING OFFICER MENTON: I just think we need to

15 try to keep everyone on task moving ahead as quickly as

16 possible. If there is -- if I start sensing that

17 things are being dragged out unnecessarily, then I'll make

18 that known. But I don't sense that at this point. I

19 sense that people are trying to progress and move forward

20 in trying to put their cases together and no one has

21 demonstrated to me elsewise. But if that starts coming

22 up, then bring it to my attention as soon as possible and

23 we'll sit down and figure out what's going on.

24 I don't know what's going to happen with the permit

25 situation. As someone pointed out when I expressed my

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1 concern about consolidating the cases, the statute does

2 encourage consolidation. Whether or not that's really

3 practical or not, I don't know. We'll just have to see.

4 I'll be interested to hear from everybody as to what

5 their positions are on that.

6 All right. I think that resolves, I think, all of

7 the issues on this portion; is that right? Mr.

8 Fitzgerald, is that right?

9 MR. FITZGERALD: (Nods his head.)

10 MR. BURGESS: We'll prepared an order --

11 HEARING OFFICER MENTON: You can prepare an order in

12 accordance with the drafts that have already gone through

13 and run it by him --

14 MR. FITZGERALD: It appears, Mr. Hearing Officer, the

15 bulk of the language is in mine and they had submitted

16 extras, probably, mostly for me to insert little bits and

17 circulate it to Mr. Burgess.

18 HEARING OFFICER MENTON: All right. If you want to

19 do that. Do you have a problem?

20 MR. BURGESS: That's fine, no problem.

21 HEARING OFFICER MENTON: But let's get that order

22 put together and on record, and let's get that testing

23 program going. You want to take another break? Why don't

24 we take a five-minute break.

25 (WHEREUPON, A BREAK WAS HAD AT 2:00 P.M. AND THE

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1 PROCEEDINGS CONTINUE AT 2:15 P.M. AS FOLLOWS:)

2 HEARING OFFICER MENTON: Okay. I have been through

3 the, let's see, the second motion to compel and the

4 supplement that was filed by the U.S. Government and DER's

5 concurrence in it, and the, I think, the Co-op and the

6 League just filed a response to the second motion to

7 compel or whatever style, they've each filed additional

8 memoranda since the last hearing, and I think the Fruit

9 and Vegetable Growers have essentially joined on with what

10 the Co-op and League have said.

11 Let me, just at the outset, tell you what my thoughts

12 are in this, and I'll give each of you an opportunity to

13 respond. I understand, and I think at the last

14 hearing I indicated as well, I understand the petitioner's

15 position that the SWIM Plan manages or measures the

16 discharges at the pump stations and not at any points on

17 an on farm basis, and I understand the arguments that the

18 League has set out pretty fully in their petition.

19 Nonetheless, I do not believe that those issues

20 or the location of the measurements within the SWIM Plan

21 necessarily controls with respect to the discovery aspects

22 of this case. In that regard, it seems to me that the

23 reason that we're here and the whole purpose of this

24 proceeding is to fully air the position of all parties

25 with respect to the SWIM Plan and the program that it

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1 implements.

2 In that regard, I can see without even having

3 to hear from expert witnesses several scenarios which I

4 think testing within the agricultural area could very well

5 reveal relevant and pertinent evidence. At this point, I

6 have no idea what that will be or whether it may turn out

7 that it's not particularly relevant.

8 But this is discovery. I think we're early on in

9 this case. I think the allegations of the petitions put

10 in issue the practicability as well as the feasibilities

11 of the STA's, and I think that testing in the EAA could

12 very well shed some light on that. I think the petitions

13 also put at issue the source of the phosphorus and whether

14 the SWIM Plan is adequately accounted for other potential

15 sources of the phosphorus levels that exist, and I think

16 that testing in the EAA could very well shed some light on

17 that as well.

18 As far as I'm concerned, nothing in the supplemental

19 memoranda that has been filed has changed the opinion that

20 I expressed at the last hearing that I think the motion to

21 compel that has been filed by the U.S. is well taken. I

22 think they're entitled to access to the EAA. I think what

23 we need to do is establish the parameters of that.

24 Now I think the two remaining issues that we sort of

25 talked about last time were whether we could or should

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1 establish ground rules as to the types of tests that could

2 be, that can be conducted, and also whether or not

3 there should be a protective order or some sort of

4 limitation on the disclosure of any information that's

5 obtained as a result of the testings. And I do not at

6 this point have opinions or have not formulated conclusion

7 on either of those two issues.

8 So I don't know if that will help short cut some of

9 the issues, but I do think at least from what I have read

10 so far by the petitions that have been submitted by all

11 the parties that I have not seen anything to change my

12 mind, that there should be access to the EAA. I think

13 the petitioners have presented or framed some issues that

14 could be elucidated as a result of the testing, and I

15 think the nature of discovery and the need to give

16 everybody a full opportunity to fully test their theories

17 as well as to prepare to refute the theories that might be

18 advanced by other parties in the case necessitates that

19 need.

20 So having said that, I'll give each of the parties an

21 opportunity to state any opposition that they want on the

22 record and also to state their position with the remaining

23 two issues as I see them. And I think the third issue

24 really is to establish parameters as we did this morning

25 in terms of locations, et cetera.

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1 I think there are some additional issues that have

2 been raised that the League points out that some of the

3 farms might not be willing to grant access. I mean that

4 certainly is an issue. I'm not sure how that fits into

5 this whole frame work, but I think that's open for

6 discussion as well. It may be we can establish some

7 sites and avoid those problems. But if we can't, we'll

8 need to face those head on.

9 Ms. Ponzoli, since this is your motion to compel is

10 there anything that you want to state on behalf of the

11 U.S. Government? Assuming that you'll be granted access,

12 what do you view in terms of the need to limit the types

13 of testing that can be conducted? And also what's

14 your position with respect to the protective order that

15 has been voiced as necessary?

16 MS. PONZOLI: Thank you, Mr. Hearing Officer. I think

17 my position in regard to the parameters that I would seek

18 to test for, I think, you did the comparison of soil and

19 water and the nutrients. There's a very high correlation

20 as to those between what the petitioners would be seeking

21 to test in the rest of the Everglades and what we would

22 seek to test up in the EAA.

23 You don't test only for phosphorus. You test for

24 some other elements that would interact with the

25 phosphorus. I think the most efficient way to resolve the

156

1 parameters issues is if you would allow me to put on

2 Dr. Ron Jones who designed this testing program with some

3 input from other people and allow him to explain the

4 testing program and what it was designed to discover.

5 And I think I can do that very rapidly. I don't think I

6 need to take a long time. I don't think Dr. Jones needs

7 to take a long time.

8 HEARING OFFICER MENTON: All right. Before we do

9 that, I'll give each of the parties to make a statement on

10 the record if they want to object to what I've already

11 said. Ms. Kavanaugh --

12 MS. PONZOLI: May I address the use issue though.

13 HEARING OFFICER MENTON: Okay.

14 MS. PONZOLI: I believe in regard to the use issue

15 the United States has repeatedly in this forum stated

16 that we are doing this for discovery in these proceedings.

17 We are not granting, I mean, that is a procedure that I

18 would suggest to you is very complicated and not very

19 useful if we were to try to grant the types of immunities

20 that they are basically asking for.

21 We are coming in to do this for discovery here,

22 and we have indicated every willingness to live by

23 your orders as they provide here. I believe, however,

24 that when you enter a case and when you put issues into

25 dispute, if you raise them, then whatever discovery

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1 flows from those issues is normally open. Why would you

2 close it?

3 If you're in a car accident and you put your mental

4 condition at issue, your records are not closed to the

5 public. I mean, you've opened it up, so it's open. I

6 think that there are some very almost sinister

7 implications to this closing up of this evidence. It

8 doesn't seem appropriate here.

9 We're in an open set of hearings, and that's the

10 way they should remain. You can, of course, order us how

11 you want us to use it, and I think that we've indicated

12 clearly that we comply with your orders. I think that's a

13 very clear thing.

14 I do find, and I am compelled to say that the

15 suggestions by the League that you impose -- I'm sorry,

16 I'm not capable of thinking of a better word, but they are

17 insulting that you would not only have to order us to do

18 something, but the laboratory would have to be served with

19 the order and certify to you they only did X and that the

20 methodologies, these would have to be promised.

21 In discussions with the League, the reason they want

22 methodologies is, is that when we say we're only going to

23 do X, Y, and Z, they don't believe us. That's wrong.

24 I mean, when we say we'll do X, Y, and Z, we'll do it.

25 We'll abide by your order, and we should have no greater

158

1 impediments on our entry than they have on theirs.

2 I mean, if they want all of their information sealed

3 to what they find in the Loxahatchee and the Park, well, I

4 guess maybe there's some equity there. They want orders

5 issued on the laboratories, I don't think -- that's not

6 appropriate in open hearing. I think the United States

7 has a very serious problem with those protective order and

8 use issues, so I would ask you not to issue any of those,

9 just simply order however you want this done in a very

10 equitable way on the two entries.

11 HEARING OFFICER MENTON: Okay. Give me a second.

12 Let me see if we can find someone to fix this thing. It's

13 kind of hot in here. Okay. Ms. Kavanaugh.

14 MS. KAVANAUGH: First of all, I want to make it clear

15 on the record that our clients, the League, New Hope South

16 and U.S. Sugar, have never taken the position that the

17 U.S. could not have any access in the EAA. That's not

18 been our position. It's not our position now. As I think

19 as was set out in the last documents we filed, we clearly

20 believe that some access and some testing is relevant to

21 the issues in the proceeding.

22 We have, in fact, raised questions about the STA's

23 and whether they will remove phosphorus as opposed to

24 other alternatives that we intend to present evidence

25 about, phosphorus reduction alternatives. And clearly

159

1 that information is discoverable, and they have asked for

2 document production, and we have started providing that

3 information. So I just want that to be understood.

4 Our problem is more with this particular request and

5 it's overbreadth and what it seems to want to do. We

6 feel very strong since we, and I will represent to you now

7 as we did with regard to the financial and economic

8 information, we never have had any intention to submit on

9 farm information to try to rebut the phosphorus loading

10 calculations or to address the phosphorus loads as set out

11 in the plan.

12 We will be talking about how they develop their

13 statistical, the calculus that you were talking about

14 earlier, the mathematical aspect. We have no intention of

15 presenting any on farm. We don't contest there is

16 phosphorus flowing out of the EAA into the EPA. But as we

17 have indicated nothing in our -- and I'm prepared to put

18 on Dr. Davis -- the information about on farm information

19 about phosphorus can't be used for anything in this

20 proceeding.

21 I mean it just doesn't have any relevance. It can't

22 be plugged into the model. It can't be used for anything

23 other than insofar as these other phosphorus reduction

24 strategies.

25 HEARING OFFICER MENTON: Couldn't it go to the

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1 viability of the establishment of the STA's? I mean,

2 wouldn't that --

3 MS. KAVANAUGH: There is no, I guess that's what I'm

4 trying to express is there is no on farm data. It's not

5 as if -- in fact, the EAA regulatory program which we

6 submitted contemplates this monitoring to go on to find

7 out more about what is going on in the EAA, and that

8 information can be used in future proceedings. But this

9 entire plan is based on what they have measured in the

10 state waters. And as I say --

11 HEARING OFFICER MENTON: I understand that but

12 --

13 MS. KAVANAUGH: What I'm saying is we're not

14 contesting that aspect.

15 HEARING OFFICER MENTON: And I understand that. But

16 just because you're not contesting it doesn't mean that

17 they should not have access to the property in order to

18 test either the viability of some of the theories that

19 they have advanced in order to test the reasonableness of

20 their assumptions regarding the STA's and whether they'll

21 work or not in order to test their theories as to the

22 source of the phosphorus even in the state waters.

23 I mean, there is a wide variety of issues I can see

24 that could very well be tested. And it may turn out that

25 the data won't show anything, won't support them and may

161

1 not even support them, but that's another issue.

2 MS. KAVANAUGH: I think we may be getting to more

3 where they're going to test to get the information, but

4 the information that they -- and as I said, we're prepared

5 to put on Dr. Davis, the information they have asked

6 on this particular request can't be translated into

7 any of the disputes about the issues you've just

8 described. And frankly, because of that, we see no reason

9 for this broad testing.

10 For example, and a clear example are the sugar

11 mills. The sugar mills are not at issue in this

12 proceeding. The plan doesn't use sugar mill data. No

13 one has raised that as an issue unless the United States

14 is planning to contest the plan assumptions. I don't know

15 if it even mentions the sugar mills.

16 The memorandum that they provided to you is a

17 memorandum that was generated after the plan was adopted

18 and even references another ongoing study that's outside

19 these ongoing proceeding. So we say that any testing at

20 the mill sites can't reveal anything that would be

21 relevant to this proceeding. But for that reason, we feel

22 that the request as currently couched is too broad.

23 HEARING OFFICER MENTON: Well, we're going to deal

24 with the specifics and get to those as we go through.

25 MS. KAVANAUGH: Right. And on the question of what

162

1 they test for, and we provide you with all the law about

2 your ability to control that, our concern is this is, in

3 essence, a fishing expedition. We have a good reason to

4 feel that way.

5 In answer to interrogatories, and I think we provided

6 this to you, the United States has said that one of

7 reasons it wants access is to try to and identify water

8 quality violations on the property in the EAA. Now we

9 don't think those violations are there, but the point is

10 that's not within the scope of this proceeding. This is

11 not an enforcement action. There is no question of a

12 permit at this point anyway in this proceeding and

13 certainly not our permit, so we have a very strong concern

14 about the motives.

15 And if we don't clearly control what is tested

16 to the pollutant issue in this plan, which we say is

17 phosphorus, that there's a real potential for abuse there.

18 They should at least have to show why they need these

19 other parameters. Now it's not clear to me what

20 parameters we're talk about anymore. Ms. Ponzoli and I

21 have had pretty many discussions, and I'm not sure whether

22 they still intend to test for pesticides and heavy metals

23 toxins. I just don't know frankly.

24 HEARING OFFICER MENTON: Okay. We'll hear about the

25 specifics in a minutes.

163

1 MS. KAVANAUGH: And for that reason, as I indicated

2 earlier, we're going to object to the testing as to

3 mercury, as to any testimony about it, because mercury is

4 not at issue in this plan. We don't have any experts

5 who are going to talk about mercury.

6 It may be a theory that mercury somehow is involved

7 in the phosphorus cycle. It is a theory, but it's a

8 subject of another study outside of the scope of this

9 plan. The plan expressly states, we don't know what the

10 mercury's role is. It doesn't address mercury, so we

11 would object to any efforts to test for mercury.

12 I guess what we're saying, Mr. Hearing Officer, is --

13 yeah, the study is a ten-year study. Someone just pointed

14 it out to me. It just shows how complex the issue is.

15 I guess our point is, we believe that the phosphorus

16 reduction strategies are at issue in this case, whether

17 it's the STA's or the ones that we intend to present. As

18 we indicated in our document, we are not sure whether they

19 are arguing over the IFAS study on which the 25 percent

20 phosphorus reduction, load reduction that the plan

21 assumes.

22 We aren't -- that's not part of our case. But if

23 they're contesting that, they need to tell us that because

24 we were not preparing a case on that issue. And that the

25 testing program, and we concede that there should be

164

1 access, appropriate access to the EAA, should be limited

2 to the issues that are, in fact, you know, before us.

3 If, in fact, the District is going to change its

4 position or the United States is going to itself contest

5 some of these assumptions in the plan, then they should

6 have to file appropriate pleadings, and we'll all have to

7 deal with it. But I'm representing to you we have no

8 intention -- it will also require us to get experts,

9 do more testing, and prepare basically I guess to defend

10 against a case we truly didn't intend to do.

11 HEARING OFFICER MENTON: Okay. Mr. Green.

12 MR. GREEN: Mr. Menton, briefly, I have some of the

13 same concerns that were expressed by Ms. Kavanaugh. But

14 our client, the Cooperative, has about 54 members

15 scattered here and beyond throughout the EAA. I don't

16 know that they control them.

17 As a matter of fact, the purposes of discovery, I

18 haven't really considered that issue quite honestly until

19 you mentioned it earlier in the context of the Sugar Cane

20 League, but I think the largest dispute we have here with

21 the request is it's so broad, the people just don't know

22 what's going on. There's been so much in the media and

23 everything else, there may be a level of distrust or at

24 least concern about what is being objected to in the

25 proceedings here.

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1 You mentioned two areas where you thought EAA type

2 testing could be relevant. I have to say I tend to agree

3 with you. If the Government wanted to test farm lands to

4 have to show that for some reason they would work as

5 STA's, if that's what they were looking at, and that's the

6 first we really thought of that, that might be relevant.

7 But we have not heard that.

8 If the Government needed on farm data to find out

9 what was coming out of the farm so you could proportion

10 what's coming out of the farm with other sources, which is

11 the second area you indicated you thought might be

12 relevant, then they may have a point. But we have not

13 heard that. And the reason that I'd be surprised on the

14 second one, however, as we mention in our pleadings, is

15 there are literally over a hundred discharge points, it's

16 my understanding, from the farms into waters of the state

17 inside the EAA.

18 Normally if you want to see where something is coming

19 from you take it right at the end of pipe. That's not

20 what they're asking for here. They're asking to go up

21 inside the farms and the mills to sample ponds and all

22 kinds of things in there, and naturally my clients have

23 concern. Why do they want to do that if they can just

24 take what comes out of our pump and do that? So that's

25 why we're concerned.

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1 And with regard to mercury, I'm about to wind this

2 up, mercury from what we submitted, I think you can

3 conclude is a nationwide question, certainly statewide.

4 And the Governor's task force and Department of

5 Environmental Regulation and others, in fact, the

6 Environmental Protection Agency is involved in what we

7 read to be at least a seven-year study of trying to figure

8 out what's going on with mercury.

9 You can say, well, why do you care about mercury? We

10 care because we have not had explained to us what could

11 legitimately be within the scope of the SWIM Plan that

12 relates to mercury. No one has come to my client to say,

13 gee, would you cooperate with us in a study on mercury

14 separate and apart from this litigation? We might do

15 that. But we're under the gun here with the plan under

16 extremely tight time frames, and Your Honor is under the

17 gun as well, we're sensitive to that, and we think if we

18 start folding in issues that the plan is not really

19 designed to address that are not mentioned in the

20 plan that are not within the scope of what we thought

21 would be appropriately in litigation of this case, we're

22 never going to get finished.

23 And I would just say that I think Your Honor is going

24 right down the line trying to be fair. You have to do

25 whatever you think is fair. But I believe the Government

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1 ought to be as specific and defend everything they want to

2 do on this private property that the League and others

3 have had to do in the Loxahatchee, and I see them in a

4 little different light.

5 The Loxahatchee is owned by the state of Florida, and

6 the Government is there through a license agreement

7 or a lease, and that is where the problem that is trying

8 to be solved is located. On the other hand, the

9 brunt of this plan deals with how to solve the problem as

10 the waters leave the farm. And we haven't yet been

11 satisfied that these requests are narrow enough that we

12 can intelligently respond. Thank you.

13 HEARING OFFICER MENTON: Okay. Well, I think

14 Dr. Jones is going to give us an idea to what exactly

15 is --

16 MS. PONZOLI: May I respond for just a second.

17 HEARING OFFICER MENTON: Sure.

18 MS. PONZOLI: I heard out of both counsel's mouths

19 broad, broad, broad, and I just think that that was the

20 purpose of that, the chart, to show that this is so much

21 broader than ours. If they want to hold us to just

22 phosphorus, let's just eliminate all these other

23 elements on their list. They know there is an

24 interrelationship. They know you don't do just

25 phosphorus. That's why their list goes on for a full

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1 page.

2 I mean, if we're going to cut everything back to

3 phosphorus, then let's cut it back across the board. As

4 to mercury, Mr. Hearing Officer, I have to tell you

5 truthfully I have gone on much further than most people

6 ever have to go in substantiating the mercury hypothesis.

7 If this interrelationship between phosphorus, which they

8 cannot deny is at dispute here and mercury exists in the

9 way that we and our hypothesis believe, this is an

10 element that we need to know in this SWIM Plan challenge.

11 We should have this at our fingertips. Pesticides

12 came out of their mouths this morning. Pesticides are in

13 that plan. Pesticides were in the first petition. They

14 stripped it out hoping to avoid it. I think they have

15 still contested all water quality impacts downstream. So

16 I just think that's not an accurate argument that it's

17 too broad and you can only test for phosphorus, and you

18 can't have these interrelated nutrient issues.

19 As for the trade associates not being able to control

20 their members, that's a real troubling aspect in this

21 hearing. Who is in this room? Who are these people

22 who will throw out the entire Everglades restoration

23 program? Are they ghosts, they have no substance? They

24 pay for dues that pay for these lawyers to sit in this

25 room. I have that in deposition testimony this

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1 week. I think they're bound here.

2 If it's possible that we would only go on the named

3 petitioner farms and we can get into our five belts in

4 EAA and our eight little sites in each belt, I could live

5 with that, and then they don't have to go to all these

6 other members. But if we can't, I still maintain we have

7 a right.

8 HEARING OFFICER MENTON: There was an issue that was

9 raised by the League in their petition. There was no case

10 law specifically addressing that, and I certainly

11 haven't researched the issue. It had occurred to me

12 earlier in the proceeding as to how we would deal with it.

13 At this point, I just don't know where it is. I would

14 have to sit down and think it through a little bit more.

15 Maybe we won't deal with it. Maybe it's like that

16 federal jurisdictional issue we could somehow avoid

17 around. I do, I almost hesitate to say this because I'm

18 afraid we'll open the door and get into some prolonged

19 discussion that is kind of off issue a little bit, but I

20 have notice and obviously have read the objections that

21 have been raised by the petitioners regarding the mercury

22 issue, and I know that that is something you had mentioned

23 before.

24 I'm still not quite sure I understand how you see the

25 mercury issue coming into play within the context of the

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1 challenge to the SWIM Plan and exactly what you intend to

2 do with that. Now that may be part of Dr. Jones'

3 testimony or not, but, you know, we're not seeking to

4 supplement the SWIM Plan with a new portion to address the

5 mercury problem or to try to somehow cure that.

6 I don't know that the SWIM Plan itself is predicated

7 on trying to address that problem, at least as I read it

8 in my initial breeze through.

9 MS. PONZOLI: Well, first of all, this is discovery.

10 It is a hypothesis, and it is a very limited entry, not a

11 broad one. It's very limited. We're not taking a lot of

12 samples. But if we were able to satisfy ourselves that

13 the hypothesis were true, that the relationship between

14 the nutrient enrichments, the phosphorus going into the

15 water conservation areas were triggering a methylation

16 process that was, in fact, was the source of the

17 downstream enormous mercury impacts that are undeniable

18 in the state, I think the immediacy of needing to

19 build the STA's to contain these problems in certain

20 limited areas as opposed to expanding across the entire

21 water conservation areas unchecked and uncontrolled would

22 be a matter that we need to know and we need to deal with,

23 and we need to move rapidly on those STA's.

24 HEARING OFFICER MENTON: But is that something I can

25 really take into consideration in the current context of

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1 --

2 MS. PONZOLI: Let's see where we go, let's see

3 where we can go with it. I think we have a right to go do

4 the discovery. I think that their enormous fears are not

5 well founded. I think they've shown no particular

6 prejudice or harm that's going to come from these limited

7 samplings, and their sugar mills are certainly one of the

8 largest sources of the phosphorus in the EAA, and they

9 have in various proposals indicated that they believe they

10 can contain all kinds of phosphorus in these tight little

11 compartments around the sugar mills.

12 We have a right to go and see what really exists at

13 those sugar mills. They're right, there is not a lot of

14 data out there, because every time someone tries to go out

15 there they're really met with the wall of resistance.

16 Can I put Dr. Jones on?

17 HEARING OFFICER MENTON: Yes.

18 MR. HYDE: I have very brief remarks. I think we're

19 ignoring the very fundamental issue about this whole

20 mercury testing theory. It's a jurisdictional issue.

21 That's what we need to focus on. You can search the

22 entire SWIM Plan in vain to find any mention in the plan

23 about blaming the Everglades agricultural area or

24 phosphorus for causing the mercury problem as it exists in

25 south Florida.

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1 I know about it. I reviewed the entire plan. I've

2 looked through what we have in our computer system. I did

3 a word search. It doesn't exist. None of the petitioners

4 raised that as an issue. We have not put it at issue.

5 More importantly, the U.S. or any of its allied parties

6 haven't raised it as an issue.

7 They didn't file a petition saying that this was a

8 deficiency in the plan within the 14 day time frame. If

9 that's what they felt was the case, they should have done

10 it. They waived the right. It can't be raised at this

11 time. I think it's jurisdictional --

12 HEARING OFFICER MENTON: Well, I understand what

13 you're saying.

14 MR. HYDE: -- and have no business reviewing it.

15 HEARING OFFICER MENTON: I think we get sidetracked

16 sometimes on the mercury issue, which, I obviously

17 just injected back into the proceedings here. But I think

18 the issue that we have to deal with now is the access and

19 resolving that issue and establishing the parameters for

20 it.

21 And as I expressed before, I don't know that mercury

22 is particularly relevant or that it is going to fit

23 into play. But we're at a discovery stage in the

24 proceeding, what we need to do is get the testing process

25 going. I don't see that the access and the testing

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1 procedures are that invasive that they need a

2 great deal of concern.

3 Now that's why we're here today to try to figure that

4 out. I think we're getting tied off into this mercury

5 issue as to whether or not it's part of this proceeding

6 or not. I don't think we really need to deal with that in

7 order to resolve the access issue. Let's resolve the

8 access issue, set up where the testing is going to be and

9 what is necessary, and if there needs to be a protective

10 order or not and get that resolved, and move forward with

11 the discovery in this case.

12 I don't think we need to worry about deciding whether

13 mercury, whether the process they're talking about is

14 in existence or not. I'm trying to find out what's

15 a reasonable, what's reasonably necessary for discovery in

16 this case, and establish the parameters and enter an order

17 so we can get on with the process and get the discovery

18 going and get the testing going and get the case on the

19 way here.

20 MS. PONZOLI: May I call Dr. Jones please.

21 HEARING OFFICER MENTON: Okay.

22 MR. FITZGERALD: Mr. Hearing Officer, while Dr. Jones

23 is coming up, maybe we can revisit the other issue

24 again. Counsel, at least on this end, and this transcript

25 is going to be unintelligible for anyone that does not

174

1 have the benefit of those charts and the various

2 reiterations. We would request that be made part of the

3 record and reproduced for the record so somebody can

4 follow all of this.

5 HEARING OFFICER MENTON: If somebody wants to bring

6 them down to size and file them as an exhibit, and I'll

7 attach them as part of --

8 MS. KAVANAUGH: Feel free to do that.

9 MS. PONZOLI: They're introducing it.

10 MS. KAVANAUGH: We're not introducing them as

11 evidence. We're using them for demonstrative purposes.

12 If they want to, that's fine with us.

13 MR. FITZGERALD: They went far beyond demonstrative

14 exhibits, and in deference to what the Hearing Officer

15 said earlier --

16 MS. KAVANAUGH: We have reductions. We will provide

17 them.

18 HEARING OFFICER MENTON: Okay. If you have

19 reductions, provide them. Just file them as exhibits,

20 and I'll have them attached to the transcript if this

21 transcript of this hearing is filed. It's kind of a -- I

22 was thinking about this earlier. We have all these

23 documents that are being introduced. They're not in

24 evidence per se because we're not in a final hearing,

25 but they're exhibits to the transcript, and we'll just

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1 treat them that way.

2 Doctor, raise your right hand please.

4 * * * * *

5 Whereupon,

6 DR. RONALD JONES

7 was called to testify and, having been first duly sworn, was

8 examined and testified as follows:

10 HEARING OFFICER MENTON: Please state your name and

11 spell your last name.

12 THE WITNESS: My name is Ronald Dean Jones,

13 J-O-N-E-S.

15 DIRECT EXAMINATION

16 BY MS. PONZOLI:

17 Q Dr. Jones, by whom are you employed?

18 A I'm employed by the state of Florida and I work at

19 Florida International University.

20 Q And what are your responsibilities at Florida

21 International University, Dr. Jones?

22 A I have several different responsibilities at the

23 university. I'm the director of the south eastern

24 environmental research program, which is the program designed

25 to integrate on fairly large scale regional environmental

176

1 problems. I'm an associate professor and researcher in the

2 research center, which is a state sponsored research institute,

3 looking at water quality issues, and I'm also an associate

4 professor in the department of biological sciences where I do

5 my teaching of various courses. I teach microbial ecology,

6 limnology, marine microbiology, biogeochemistry, and a few

7 others that I can't remember at the moment.

8 Q Are you also an expert witness for the United States,

9 Dr. Jones?

10 A Yes, I am.

11 Q What research projects are you currently engaged in?

12 A I have a wide variety of projects. I have a fairly

13 large program at the university. I have about 20 people

14 working for me on and off. So I have areas working all the way

15 from carbon cycling, carbon monoxide, how it affects the ozone,

16 and oceanic waters, et cetera, to projects in the Everglades.

17 And this is probably more