1

1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

3 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, )

ROTH FARMS, INC., and WEDGWORTH FARMS, INC., )

4 -and- )

FLORIDA SUGAR CANE LEAGUE, INC., UNITED )

5 STATES SUGAR CORPORATION, and NEW HOPE )

SOUTH, INC., )

6 -and- )

FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )

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

INC., and HUNDLEY FARMS, INC., )

8 Petitioners, )

vs. ) DOAH CASE NOS.

9 ) 92-3038

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039

10 Respondent, ) 92-3040

) (Consolidated)

11 and )

)

12 MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

STATES OF AMERICA, FLORIDA DEPARTMENT OF )

13 ENVIRONMENTAL REGULATION, and FLORIDA )

WILDLIFE ASSOCIATION, )

14 Intervenors. )

- - - - - - - - - - - - - - - - - - - - - - -

16 HEARING BEFORE: HONORABLE J. STEPHEN MENTON

HEARING OFFICER

DATE: FRIDAY, OCTOBER 30, 1992

19 TIME: COMMENCED: 9:00 A.M.

CONCLUDED: 12:45 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:

2 Representing the Petitioners, Sugar Cane Growers

Cooperative of Florida, Roth Farms, Inc., and

3 Wedgworth Farms, Inc.:

4 WILLIAM H. GREEN, ESQUIRE

-and

5 ROBERT P. SMITH, ESQUIRE

Hopping, Boyd, Green & Sams

6 123 South Calhoun Street

P.O. Box 6526

7 Tallahassee, Florida 32314

Representing the 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, Earl & 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

18 Representing Petitioners, Florida Fruit and

Vegetable Association, Lewis Pope Farms,

19 W.E. Schlechter & Sons, Inc., and

Hundley Farms, Inc.:

20 KENNETH G. OERTEL, ESQUIRE

Oertel, Hoffman, Fernandez & Cole, P.A.

21 Suite C

2700 Blair Stone Road

22 Tallahassee, Florida 32301

1 APPEARANCES:

2 Representing Respondent, South Florida Water

Management District:

R. BENJAMIN REID, ESQUIRE

4 Popham, Haik, Schnobrich & Kaufman, Ltd.

400 International Place

5 100 Southeast Second Street

Miami, Florida 33131

7 Representing Intervenor, The United States of

America:

SUSAN HILL PONZOLI, ESQUIRE

9 Assistant United States Attorney

Southern District of Florida

10 Suite 627

155 South Miami Avenue

11 Miami, Florida 33130-1693

12 -and-

13 GEOFFREY GARVER, ESQUIRE

-and-

14 KEITH E. SAXE, ESQUIRE

Department of Justice

15 Environment and Natural Resources

Division

16 General Litigation Section

P.O. Box 663

17 Washington, D.C. 2004-0663

Representing Intervenor, Florida Department of

19 Environmental Regulation:

20 LEE M. KILLINGER, ESQUIRE

Assistant General Counsel

21 Department of Environmental Regulation

Twin Towers Office Building

22 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

1 APPEARANCES:

2 Representing Intervenor, Florida Wildlife Federation:

3 DAVID G. GUEST, ESQUIRE

111 South Martin Luther King, Jr., Blvd.

4 P.O. Box 1329

Tallahassee, Florida 32302

9 * * * * *

12 I N D E X

ITEM PAGE

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

OPENING REMARKS . . . . . . . . . . . . . . . . . . . . . . .5

HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 147

CERTIFICATE OF REPORTER . . . . . . . . . . . . . 148

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCES AT 9:00 A.M. AS

3 FOLLOWS:)

4 HEARING OFFICER MENTON: Okay. Good morning.

5 Let's begin by taking attendance and figuring out exactly

6 who's here. Starting with the petitioners, the

7 Cooperative.

8 MR. GREEN: Mr. Menton, my partner, Bob Smith, and I,

9 Bill Green, are here representing the Cooperative.

10 HEARING OFFICER MENTON: Okay. For the League.

11 MS. KAVANAUGH: Mr. Menton, Judy Kavanaugh and Bill

12 Hyde for the League and related petitioners.

13 HEARING OFFICER MENTON: And for the Fruit and

14 Vegetables.

15 MR. OERTEL: Kenneth G. Oertel.

16 HEARING OFFICER MENTON: All right. For the South

17 Florida Water Management District.

18 MR. REID: Ben Reid with Popham Haik.

19 HEARING OFFICER MENTON: And the U.S. Government.

20 MS. PONZOLI: Susan Hill Ponzoli. I have co-counsel,

21 Keith Saxe and Geoff Garver.

22 HEARING OFFICER MENTON: All right. DER.

23 MR. KILLINGER: Lee Killinger.

24 HEARING OFFICER MENTION: Okay. And I guess Mr.

25 Guest is here.

1 MR. GUEST: That's correct, representing the

2 environmental interest.

3 HEARING OFFICER MENTON: All right. Any other

4 intervenors present? Anybody else that needs to state

5 an appearance? Okay. As I was going over my list from

6 the last hearing of things that needed to be resolved

7 today, it seems to me, I guess, we have four main issues

8 outstanding.

9 The first has to do with the petitioners' entry. I

10 think we resolved most of the issues on the petitioners'

11 entry last time, and the only thing that we need to do is

12 get an order entered to summarize that situation. Is

13 everything on course as far as that entry goes,

14 petitioners' entry into the Park and into the Refuge?

15 MS. PONZOLI: That's my understanding, Mr. Hearing

16 Officer. Mr. Fitzgerald briefed me on this. I briefly in

17 speaking with the petitioners, I think everything is on

18 course, and I think that by mid next week that Mr.

19 Burgess and Mr. Fitzgerald should be able to

20 present that order to you for signature.

21 HEARING OFFICER MENTON: Okay. I just have been

22 tied up in some other matters and haven't had a chance to

23 really focus on this as much, but I think next week my

24 hearing schedule is clearing out, so I intend to really

25 sit down and try to do some housekeeping in this case and

1 make sure we have everything entered that needs to be

2 entered. So if that order can get to me next week, it

3 would be good timing from my perspective.

4 MS. KAVANAUGH: Mr. Hearing Officer, Mr. Burgess is

5 unfortunately stranded in Tampa despite our warnings to

6 come up last night because of the fog. He indicated that

7 there are some minor disputes that he expects to be able

8 to work out, but I will concur they expect to work things

9 out and have an order --

10 HEARING OFFICER MENTON: If there is something we

11 can take up by phone, I will be in town all next

12 week, so I will be available to resolve any minor disputes

13 that we can get done over the phone because I think it's

14 important that we get that order entered and make

15 sure that whole process is underway.

16 I guess the three main issues then that are

17 outstanding is the U.S. entry into the EAA and the

18 financial issues that we talked about on a couple of these

19 different hearings, and then the main one that we set

20 aside for today was the burden of proof. Are those the

21 three that everyone -- while we're all on the same track,

22 anything else that is going to be addressed today?

23 MR. GUEST: Mr. Hearing Officer, I filed an extension

24 on financial things and I have not had an opportunity to

25 brief that. I've been out of town on another case.

1 HEARING OFFICER MENTON: Okay. Well, what I intend

2 to do, and we may be getting ahead of ourselves a little

3 bit, Mr. Green has submitted a proposed order to me.

4 My review of Mr. Green's order I think indicates that it

5 goes not only to the discovery issues but also to the

6 more fundamental questions as to what its role to the

7 financial issues in this dispute, and after reviewing what

8 has been filed to this date, what I intend to do is

9 really do two separate orders on that.

10 The first would be to address specifically the

11 discovery issues. I've looked at the proposed order

12 that was submitted, I believe the U.S. submitted that, and

13 I'm going to make some modifications to that. Again,

14 we're getting ahead of ourselves a little bit. I know

15 there was an amendment to that that was filed yesterday,

16 and I'm not quite sure how that comes into play; but when

17 we get to that issue today, I intend to discuss that and

18 see if we can come to a resolution, at least, on the

19 discovery aspects of it. And then I think we really need

20 to do a separate order that specifically addresses the

21 role that the Hazen and Sawyer Study and the financial

22 issues in the context of this whole case.

23 I think those are two distinguishable things. I

24 would like to address both of those, and we can get to

25 that a little bit later. Mr. Guest, I guess what I'm

1 saying in response to your motion is that I think the

2 discovery issues and the financial aspects have been

3 resolved at the prior hearings, and I'm going to do an

4 order on that probably the first thing next week when I

5 can sit down and pull all this together.

6 If you give me something directly related to his

7 order by the end of next week, I'll consider it, but I'm

8 going to be in the process of writing that order next

9 week.

10 MR. GUEST: My concern was not the discovery

11 issue; it's the larger issue.

12 HEARING OFFICER MENTON: Okay. Well, if you get

13 something filed to me by next week, I'll review it and

14 consider in doing it. Again, I'm going to hear argument

15 today on some of those issues and see where we are.

16 Is there any particular order that we need to take

17 these three outstanding issues up? Any suggestions in

18 that regard?

19 MS. PONZOLI: We sort of agreed to finish me first.

20 HEARING OFFICER MENTON: Okay.

21 MS. PONZOLI: My entry, we agreed to it.

22 HEARING OFFICER MENTON: Okay.

23 MS. PONZOLI: And beyond that, I don't think there

24 was agreement quite frankly.

25 MR. HYDE: I think there has been in light of

1 your discussion about what to do with Mr. Guest's request.

2 I think we can do the financial issue second and the

3 burden of proof last.

4 HEARING OFFICER MENTON: All right. I think that's

5 probably good. As I recall, let's go to the U.S. entry

6 issues. As I recall from our last discussions, there was

7 going to be an attempt to see if there could be some

8 agreement on locations, and I think I still left open the

9 mercury issue, although, I indicated how I was leaning on

10 that, and also the issue of whether there was a protective

11 order appropriate regarding the disclosure of any of the

12 test results. Those are the issues as I recall them; is

13 that correct?

14 MS. KAVANAUGH: Yes.

15 MS. PONZOLI: Umm-hum.

16 HEARING OFFICER MENTON: What happened with the

17 location aspects?

18 MS. PONZOLI: I'm in a the glass is half full mood

19 this morning. We have actually finalized more or less

20 25 of the sites. There is agreement among the named

21 petitioners. I guess at the close of this, Mr. Oertel and

22 I should look at the map together, but I don't anticipate

23 there be a large problem. His clients, in fact, own the

24 place. If I need to go, it's my understanding is through

25 his office is that won't be a problem.

1 The sites that remain a problem are particularly

2 four sugar mills are in dispute, whether I can go to the

3 Bryant Mill and just three others, the Osceola, the

4 Okeelanta and Atlantic Mills. Then I still need

5 quite honestly 11 additional sites.

6 Now I have never been able to obtain the property

7 descriptions for Lewis Pope Farms from the Fruit and

8 Vegetable Association. With those property descriptions,

9 I will probably take up several of my additional

10 sites. I would propose that for the 11 additional

11 sites that Dr. Jones and I submit to the petitioners a map

12 with some circles on it and sites that we believe are

13 missing sites for our testing.

14 We have been very constrained by going to

15 where the various petitioners are located, but I think we

16 have worked it out pretty well. I think at this

17 point they may need to go to the larger League membership,

18 to the larger Co-op membership and see if they own

19 property in those locations and if they will supply those

20 sites to us, Mr. Hearing Officer.

21 I can explain that map to you if you would like.

22 What you're looking at, the colors are the named

23 petitioners property, pink being U.S. Sugar. Green, I

24 think, is Mr. Wedgworth or Wedgworth Farms. The brown

25 being New Hope South and so forth and so forth. Although,

1 the brown at the top of the map, even though the Palm

2 Beach County plat book would have indicated that that

3 should have been New Hope South, the name was a little

4 different and they say, in fact, that New Hope South

5 doesn't own that north property, only the south property.

6 There are five, if I may, I would like to show you.

7 There are five yield belts here. We have for the first

8 yield belt around the lake, assuming we were able to

9 get the Bryant Mill, we have all of our eight

10 sites completed for that, so we're fine there. The second

11 yield belt we have six sites. We need an additional

12 one; for the third yield belt, assuming we get the sugar

13 mill, we have four. We are still missing four and so

14 forth.

15 We're almost filled up on the fourth yield belt, and

16 then the fifth we're missing four sites. The sugar mills

17 are an area evidently of serious dispute, although the

18 Co-op has agreed to allow us to enter their site at their

19 mill, the U.S. Sugar and the Flo-sun related mills have

20 not agreed to allow us on their property.

21 There is a sugar mill here Okeelanta. There is

22 Atlantic, and there is Osceola. These are all, as I

23 understand it, associated with the Flo-sun parent

24 corporation which owns New Hope South. Now some of this

25 information you need to realize goes to the type of

1 financial information that we were not allowed to do

2 discovery, so I can only make broad allegations to you

3 regarding the ownership of these various entities because

4 I have no specific discovery on them.

5 This is the Bryant Mill owned by U.S. Sugar

6 Corporation. I had asked to go also to the Clewiston

7 Mill. The Clewiston Mill is very interesting because the

8 public records on the Clewiston Mill show that the

9 phosphorus levels there are something like six times the

10 surface water concentrations in the area which would make

11 them more or less 2,000 parts per billion.

12 The argument of the U.S. Sugar Corporation is that

13 this water drains into the lake and, therefore, does not

14 drain south. It is not part of the Everglades planning

15 area, and I should not be able to go there. Since it is

16 not part of the Everglades planning area, I have

17 agreed to let that one go. But I do want you to be aware

18 that they are claiming it goes here, and we will

19 hear subsequently in this case that the lake water comes

20 down and it's dirty. So I want you to understand we

21 believe there is a very intimate relationship in all this

22 phosphorus.

23 These, however, are not. These mills, these mills

24 are -- this is Talisman, Atlantic. These mills are all

25 part of this whole area. The Bryant Mill, the argument

1 there as I understand it has been that this is a

2 hydrologically isolated sugar mill. I think that that is,

3 from my discussions with the Water Management District and

4 with their technical people, that is something they are

5 attempting to accomplish is to isolate it hydrologically.

6 However, no one believes that in a storm event they would

7 be successful in that effort to keep all their surface

8 water contained there.

9 Furthermore, the situation is that when the mill is

10 in operation it draws so much water up into the mill there

11 is a gradient. They probably are not discharging water

12 into the ground water surface water anywhere. They

13 probably are isolated in that intense activity for about

14 half of a year, but a half of a year that they are passive

15 the belief is that there is seepage.

16 Whether or not they are hydrologically isolated I

17 would respectfully argue is a very complicated proof

18 problem and is a very complicated thing for anyone to

19 prove to you one way or another. I would ask that I be

20 allowed to go and test there. It is not an invasive

21 testing. I think that these are hot spots that are of

22 real interest of where phosphorus is in the EAA, what we

23 can do to contain it and various processes we talked about

24 previously, so I think that particular type of

25 site is very important that we be allowed access to those.

1 So I guess my point is that we have a fair number of

2 the sites agreed to. We have those sugar mills in dispute

3 and we still need the additional sites.

4 HEARING OFFICER MENTON: Okay. Just to make sure

5 I'm with you, you have 25 sites that are in agreement --

6 MS. PONZOLI: Yes, sir.

7 HEARING OFFICER MENTON: -- and everybody is in

8 agreement with those 25; is that correct, Mr. Green and

9 Miss Kavanaugh?

10 MR. GREEN: Yes, sir.

11 MS. KAVANAUGH: Yes, sir.

12 HEARING OFFICER MENTON: All right. Mr. Oertel.

13 MR. OERTEL: I don't think we have a problem with the

14 United States on that.

15 HEARING OFFICER MENTON: All right, on the 25. Then

16 there are four sugar mills; is that what you're saying?

17 MS. PONZOLI: Yes, sir.

18 HEARING OFFICER MENTON: The four that you have

19 identified including the Bryant one --

20 MS. PONZOLI: Yes, sir.

21 HEARING OFFICER MENTON: -- and you have asked for

22 access and not allowed by the petitioners on those

23 four; is that right?

24 MS. PONZOLI: That's right, those four in dispute.

25 HEARING OFFICER MENTON: All right. And then the

1 other 11 sites that you say that you need are just a

2 matter of trying to get together and trying to figure out

3 where those are?

4 MS. PONZOLI: It's a matter of -- I have exhausted

5 my ability to do a good sampling on the petitioners

6 property really. If you look up there, it is concentrated

7 in certain areas. There is a fair amount of property

8 owned by the League and the Co-op that covers the white

9 areas that we would need testing in, and if their members

10 would agree to our entering the property, then that would

11 resolve that issue. I think it's possible they might, but

12 it's simply not been presented.

13 HEARING OFFICER MENTON: Okay. So the bold black

14 lines, those are the yield belt lines?

15 MS. PONZOLI: Yes, sir.

16 HEARING OFFICER MENTON: And you have just not been

17 able to identify sites within the categories that you

18 want in those specific yield belts and you're looking to

19 them to give you some information on that.

20 MS. PONZOLI: Right.

21 HEARING OFFICER MENTON: And you're hopeful that

22 you'll be able to work that out, so we don't need to do

23 that --

24 MS. PONZOLI: No, we can't work that out in truth.

25 I don't think they actually know where their people own.

1 As they sit here today, they could not agree to something

2 because they don't know -- my understanding is they don't

3 know where their people own.

4 HEARING OFFICER MENTON: All right. So what we have

5 to resolve today then is solely the issue of the sugar

6 mills; is that --

7 MS. PONZOLI: I believe the sugar mills and I think

8 they want to argue about the perameters and the protective

9 order, and I would like to address those briefly.

10 HEARING OFFICER MENTON: All right. Well, let's

11 take the sugar mills first. Where are we on that and

12 what's the problem?

13 MS. KAVANAUGH: Mr. Hearing Officer, as to, first

14 of all, the League, of course, owns no sugar mills

15 and New Hope South, the other named petitioners owns no

16 sugar mills, so the only named petitioner that has a

17 mill in dispute is U.S. Sugar, which does own the Bryant

18 Mill.

19 We have explained to Ms. Ponzoli that that mill has

20 been expressly permitted by both DER and the District as

21 being zero discharge facility. It does not drain to the

22 EPA. Its permit specifically recognizes and determines

23 there is no release of storm water, surface waters,

24 anything else from that site.

25 I agree with Ms. Ponzoli this is a very highly

1 technical proof issue is as a matter of fact whether or

2 not this is a draining entity, but it's been determined in

3 two state permits which were issued, one in May and

4 one in July of this year. So U.S. Sugar's position is

5 since they are not contributing to the phosphorus impact

6 and not really regulated as a contributor to the

7 phosphorus impact, there is no reason to subject

8 their mill to this kind of testing because it won't reveal

9 anything other than what is on their site, which has

10 nothing to do with the Everglades protection area.

11 We're also concerned that it is some sort of

12 collateral attack on the decisions by the two agencies

13 already to the effect that it is hydrologically isolated,

14 and for those reasons they are not willing to offer those,

15 you know, just to come on and take tests that have no

16 relevance to this proceeding.

17 HEARING OFFICER MENTON: Okay. Even assuming that

18 it is hydrologically isolated, it would seem to me as

19 we've discussed before that there may well be some useful

20 information that could be gleaned about the processes that

21 may be going on at a sugar mill site at a certain yield

22 belt.

23 MS. KAVANAUGH: And we would like to suggest that the

24 Co-op has offered its mill and is willing to allow that

25 kind of testing if, for example, in the course of that

1 testing program that, in fact, occurred, there were

2 information. Because our basic position is they're not

3 going to find anything that is going to be of use in this

4 proceeding period. I mean that's what our consultant --

5 HEARING OFFICER MENTON: But your position is --

6 MS. KAVANAUGH: I understand, sir. But before you

7 open a mill private property to testing when the impact of

8 that particular property has nothing to do with this

9 proceeding, I guess we would suggest that at least that

10 first level showing go forward that, in fact, the

11 information they get will give them relevant information

12 about the phosphorus cycle.

13 HEARING OFFICER MENTON: Perhaps one way of dealing

14 with this particular mill is to deal with it in terms of

15 a protective order, which would be that at least on this

16 particular one go out there and do the testing, but

17 because there may be some other issues regarding the

18 permits and opening the door to that, that if the

19 information then is gleaned from the testing at that mill

20 be held within the context of this litigation and not

21 disclosed to other entities. I throw that out as one --

22 MS. KAVANAUGH: And I understand and I haven't

23 discussed that with my clients, but their position is this

24 mill does not impact the regulated area; therefore, there

25 is no reason to open it up to any form of discovery,

1 any kind of testing, because it has nothing to do with

2 this proceeding, so we would have to continue in our

3 objection. And furthermore, as I say, it raises the

4 specter of some kind of a collateral attack on the two

5 permits they already have.

6 HEARING OFFICER MENTON: But isn't that protected

7 if you get a protective order where it's not going to be

8 disclosed and that, I mean, that's exactly the issue --

9 MS. KAVANAUGH: But you don't get res judicata

10 from these permits. The agencies have determined this,

11 that mill doesn't drain to the EPA, doesn't impact the

12 EPA.

13 HEARING OFFICER MENTON: But the threat to those

14 permits if we restricted the disclose of that information,

15 I mean, that concern is alleviated; isn't it?

16 MS. KAVANAUGH: Well, that's overcoming the fact that

17 this mill has nothing to do with this proceeding in the

18 first place. They could, for example, go to, I guess,

19 somewhere in Palm Beach County and find some other

20 fertilizer plants that may have phosphorus, but that has

21 nothing to do with this proceeding because it's not

22 draining, it's not impacting the regulated area.

23 I guess that's our threshold objection to the

24 Bryant Mill. It has nothing to do with these proceedings,

25 and if the point is that they need to get information

1 about phosphorus cycle from a mill site, well, they have

2 a mill site to do that. There has been no showing there

3 is any difference.

4 HEARING OFFICER MENTON: One of the issues that's

5 come up before is that there may be useful information

6 from taking tests at the different yield belts, and aren't

7 you talking about a mill site at a different yield belt?

8 MS. KAVANAUGH: There may be, but I don't think

9 there has been any showing on that. I think we could be

10 more than willing to present information that the mills

11 are mills are mills, and, again, there is the threshold

12 problem that this is not in part of what's being regulated

13 under this Plan.

14 HEARING OFFICER MENTON: Well, I understand that.

15 But even if you can present evidence ultimately that there

16 is no difference in the yield belts, this is discovery. I

17 don't know that it's appropriate for me to make that

18 determination at this stage of the proceeding.

19 MS. KAVANAUGH: But isn't it appropriate to make

20 a determination as to whether there should be discovery

21 against entities that are not regulated or under this

22 Plan? Are we going to be allowed to get discovery

23 outside the boundaries of the Plan? Are we going to be

24 allowed to get discovery against entities and individuals

25 who are not described at all in the Plan?

1 HEARING OFFICER MENTON: At least with respect to

2 this particular mill, we're talking about one of the

3 petitioners in this case as I understand it who has

4 specifically challenged some of the fundamental

5 assumptions and conclusions that are set forth in the

6 Plan, and they, you know, we're at an early stage in

7 discovery.

8 At this point, I don't know what particular relevant

9 evidence may come out as a result of this discovery, but

10 it would seem to me that I don't understand where the

11 confidential or protected interest is that we need to

12 guard against when we're talking about simply going out

13 and taking a couple of samples off the property.

14 MS. KAVANAUGH: I would suggest that the protective

15 aspect is separate and apart from the threshold question

16 as to whether or not there can be discovery as to

17 facilities regardless of whose they are. U.S. Sugar owns

18 other things in other parts of the state that have nothing

19 to do with this. Whether there should be discovery on

20 private property that is not encompassed within the agency

21 action that we're talking about here. That's our

22 threshold question.

23 HEARING OFFICER MENTON: But it is in the EAA. I

24 mean, even if it doesn't drain, you know, even if it is

25 hydrologically isolated, it is in the EAA.

1 MS. KAVANAUGH: This is true, but there are other

2 parts of the EAA which are not subject to the Plan which

3 are subject to other plans, for instance, Lake Okeechobee

4 SWIM Plan. So mere geographic presence it seems to me

5 that -- and certainly it's our position that absent a

6 showing that this particular piece of property impacts

7 or drains or has anything to do with the --

8 HEARING OFFICER MENTON: But you're creating a very

9 difficult burden at a very early stage in the discovery

10 process, it seems to me.

11 MS. KAVANAUGH: No, sir. I don't think we are. We

12 have two state permits that have said it's hydrologically

13 isolated; that it is not impacting these areas. There is

14 a finding in one of the permits that there is no impact on

15 the resources. So I guess having that determination is

16 res judicata unless we're going to reopen the permits, in

17 fact, go and assess whether it's true, I suggest this is

18 not the proceeding to do that. So I guess we may, we

19 continue in our objection as to that matter.

20 HEARING OFFICER MENTON: Ms. Ponzoli.

21 MS. PONZOLI: This is part of the Everglades Planning

22 Area, Mr. Hearing Officer. I let the one mill go that is

23 one of the dirtiest mills out there as far as I can

24 determine from public records because it was not within

25 the planning area. This is within the planning area. I

1 do not believe that these permits that are frankly not in

2 front of us here today are dispositive of the issue which

3 she concedes is a very difficult proof problem.

4 As to whether there is seepage, I did my consultation

5 with the Water Management District with the experts. They

6 believe there is seepage into the protection area. I'm in

7 discovery. I should be able to -- I'm not looking to

8 disprove her permit. I'm not doing the type of seepage

9 work you need to disprove that.

10 I'm looking for phosphorus cycling at hot spots, and

11 there is something to me fundamentally unfair even as to

12 the United States that we would go to the single entity

13 that was cooperative out there and said you may come to

14 our mill. Every other mill is fighting our entry coming

15 in.

16 U.S. Sugar Corporation owns that mill. We've let

17 one mill go by. This one should be included, and I very

18 respectfully submit that Flo-sun's mill should be included

19 also.

20 HEARING OFFICER MENTON: What is your position

21 regarding the protection order regarding the disclosure

22 of information from the mills?

23 MS. PONZOLI: I think the protective order, I don't

24 think that she has met on behalf of her clients her

25 burden. She has to show that there is something that is

1 going to be jeopardized and destroyed or ruined. I think

2 it's set out in Harris versus Amoco.

3 HEARING OFFICER MENTON: What about her permits?

4 MS. PONZOLI: I can't disprove her permits by my

5 phosphorus cycling work. All I'm looking at is how much

6 phosphorus is in my soil core and how much phosphorus

7 or whatever is in my water sample. I cannot prove by

8 water sample and soil sample that, in fact, the water

9 flows downstream.

10 HEARING OFFICER MENTON: But even if you can't prove

11 the flow of the water, couldn't the information that you

12 glean be used by someone who may want to come in and

13 collaterally attack her permits? Isn't that one of the

14 main concerns she's voicing?

15 MS. PONZOLI: That is her main concern. I don't

16 think that's a valid objection. I have to tell you

17 truthfully I have not studied her permits. I'm not

18 familiar with her permits. Pardon? Oh.

19 Mr. Reid is telling me they can do that anyway.

20 MR. REID: Somebody else can do that. I mean, if

21 somebody wanted to attack, they can do a procedure

22 and do the same thing. It's not secret from the whole

23 world. It's obtainable by somebody.

24 MS. PONZOLI: I think what we have here is we have

25 a very protective industry that doesn't want us to come in

1 under any circumstances, and we're continually having

2 almost like specters raised of fears of what's going to

3 happen. We're talking about a soil core and water sample

4 here at a sugar mill site.

5 I mean we're not taking 50 different samples on

6 transects across the sugar mills and through the ponds.

7 It's a fairly noninvasive entry, and I believe that it

8 would be probably not very representative if we have

9 a single sugar mill within the EAA, that we're foreclosed

10 from every other sugar mill in the EAA knowing that these

11 are the hot spots for phosphorus within the agricultural

12 area.

13 I would like to point out also to the petitioners

14 that this concept of eliminating these sugar mills from

15 discovery, that is not a one-edged sword. If these sugar

16 mills are eliminated at this point for all purposes, then

17 if we go into any regional impact, or if we go into any

18 economic impact, if we go into anything going on out

19 there, those sugar mills ought to be gone. They're not

20 part of this proceeding.

21 I mean, if it cuts one way, it cuts every way. That's

22 something that I think is important. I think they're not

23 going to let the economic impacts on their sugar mills

24 go on a regional basis. They're going to want to argue

25 it. It's important to them. It's important to us to look

1 at the hot spots in the EAA for phosphorus.

2 HEARING OFFICER MENTON: Mr. Green has something he

3 wants to say.

4 MR. GREEN: Mr. Menton, in fairness to the other

5 parties, I understood at the last hearing to be at least a

6 preliminary determination that entry would be allowed, and

7 that's the basis upon which we did not object to having

8 the Cooperative mill examined. That certainly shouldn't

9 be construed as a concession that we believe any of the

10 theories that Ms. Ponzoli has are correct, but I also

11 assume that you still have before you the issue and have

12 been discussing whether the information obtained should be

13 protected if that entry is allowed not only from

14 disclosure in other proceedings but from enforcement

15 because we have three enforcing agencies that are

16 here at this table.

17 And we think it would be appropriate to limit the use

18 of that information to these proceedings and would support

19 that. And I think I understood Ms. Ponzoli at earlier

20 hearings to say that the Federal Government would be

21 guided by whatever you decided on that. I don't mean to

22 mischaracterize that, but that's the way I understood it.

23 I think it would be appropriate to protect that

24 information should you believe the discovery is relevant.

25 HEARING OFFICER MENTON: Okay. Well, let me just

1 say we've talked about this in a couple different hearings

2 and we've spent a lot of time going back and forth. I

3 think I've expressed before and I continue to have some

4 question in my mind as to exactly what is the protected

5 interests here that you're seeking me to offer you some

6 protection for.

7 Obviously the case law in discovery requires a

8 balancing of the various interests that are involved.

9 At this point, it seems, as I've expressed before, it

10 seems to me that there is a wide range of potentially

11 relevant information that could be gleaned as a result of

12 testing in the area. For that reason, I think that, you

13 know, given the early stage of this proceeding and the

14 general notion of discovery serving to afford the parties

15 opportunities to crystallize their positions, that the

16 U.S. has demonstrated that they should be entitled to get

17 access to the property. I expressed that last time.

18 I still am not completely clear as to what the

19 protected interests that the petitioners are asserting is.

20 I mean, is it protection from the enforcement agencies,

21 and to what degree is that protected interests that

22 you're asserting entitled to protection within the scope

23 of this proceeding? That's what I have a hard time trying

24 to see from the petitioners standpoint.

25 MR. GREEN: Well, we briefed that to the extent we

1 were able to find cases that are relevant, and I know you

2 asked us to go back and look at that again, and we did.

3 And I don't have any additional case authority to

4 cite except to say that Ms. Ponzoli is interested in the

5 phosphorus cycle, and that's what she said was the

6 purpose.

7 She's going to take cores, water and cores, and I

8 would say that anything that goes beyond that should be

9 brought before you because we don't know what she's going

10 to find. We have no reason to hide anything. We have no

11 reason to think there is going to be an enforcement set of

12 facts that would be generated by these trips, but we think

13 it be inappropriate if all of a sudden in the guise of

14 phosphorus cycling, the government develops factual

15 information that they normally couldn't get without

16 probable cause and then because of the public nature of

17 these proceedings we got chastised for it in a different

18 format.

19 So I guess I can't give you any additional case

20 authority for that, Mr. Menton, for that balancing

21 and fairness of the situation, because we have three

22 enforcing agencies at this table. It's one thing to

23 defend the SWIM Plan, and it's another to go beyond that.

24 We would ask that they not be allowed to go beyond that.

25 HEARING OFFICER MENTON: But I mean that is a very

1 general statement --

2 MR. GREEN: It is.

3 HEARING OFFICER MENTON: -- when you're talking

4 enforcement agencies present, and, you know, she's

5 articulated the notion that some potential collateral

6 attack on her permits or whatever. That's the first real

7 concrete protection interests, you know, potential

8 interests that I've heard that needs to have some

9 protection here.

10 MS. KAVANAUGH: Could I add to that? All of these

11 mills, all of them without exception, are permitted, are

12 permitted by the state agencies, both the District and

13 DER. All of them have permits that set perameters for, you

14 know, the conditions for the pollutants that Ms. Ponzoli

15 wishes to test separately for. So all of those mills have

16 essentially that same potential attack on permits they

17 already have on state agency determinations that have

18 already been completed.

19 Certainly, you know, there are various enforcement

20 mechanisms the state agencies can go on under these

21 permits and do certain inspections under certain

22 circumstances and criteria. But in this proceeding, it's

23 almost turning into almost what I would characterize as a

24 grand jury sort of situation where we're being to look

25 at everything regardless of whether it's permitted or

1 regulated by other agencies whether they have already made

2 the requisite showing to obtain those permits, and then

3 we're going to put it all back on the table.

4 That's our concern. That's our concern. Now we have

5 separate concerns too about the whole question of Flo-sun

6 and mills --

7 HEARING OFFICER MENTON: But when you talk about the

8 actual procedures that are involved, the invasiveness of

9 what the U.S. is asking to do, that is not that big of a

10 deal.

11 MS. KAVANAUGH: Except that are going into samples,

12 the very same, as I understand it, one of the places they

13 want to sample, for example, are what they call treatment

14 ponds. Those are permitted. Those are permitted right

15 now. And why are they going into --

16 HEARING OFFICER MENTON: It's not like they're

17 coming in and taking blood out of you or --

18 MS. KAVANAUGH: Of course not. Well, I guess water

19 is blood; blood is water. But they are going to make a

20 physical intrusion and take samplings on our land.

21 And as far as U.S. Sugar goes, our bottom line position is

22 that mill has nothing to do with this proceedings and I

23 have a different argument as far as the others.

24 HEARING OFFICER MENTON: All right. We can go on

25 and on this forever.

1 MR. REID: I just have one thing to say. The

2 petitioners brought this action and now they're saying

3 because of this action, all of the other regulatory

4 schemes that are out there in the state somehow have to

5 close down because it will be fruit of the poisonous tree

6 or something in this proceeding.

7 Everything is permitted out there. I mean, the use

8 of water is permitted. Some of the other places we're

9 going is permitted. That's totally irrelevant to the

10 claims made in this case. The claims made here and as to

11 the mill go, she's talking about phosphorus, we're not to

12 the other issues now, there's no basis to say because

13 they're permitted for other purposes, that somehow

14 changes what's happening in this case.

15 We can regulate them under law whether we have this

16 case going or not. If there is something out there that

17 we wanted to deal with, if we thought they were violating

18 the permit that they have, we can do that whether this

19 case is going on or not. So I don't see how by filing

20 an action which calls into issue a specific question,

21 phosphorus, you can suddenly say that gives me -- I can

22 stop discovery by the party who is defending this case

23 and you're basically tying our hands.

24 Their suggestions is you should tie our hands because

25 there is a permit. Well, the whole area is permitted.

1 That shouldn't make a difference. Now you've already

2 dealt with the question of the invasiveness, and it's been

3 negotiated and through what your indications it's a

4 limited invasion.

5 Again, you've looked at that and we've agreed to

6 that. That ought to be the end of discussion it seems to

7 me. But to say at the beginning somehow that they get to

8 decide what's relevant in our case, in the case that we're

9 trying to put on to defend the claim that they are making

10 against the SWIM Plan is not, I submit, is not the

11 appropriate way to go.

12 HEARING OFFICER MENTON: Okay. Mr. Killinger.

13 MR. KILLINGER: I would just like to say that Ms.

14 Kavanaugh stated that the permitting agencies do have a

15 right to go out and do compliance testing under their

16 permits, and I agree with that. I think that argument in

17 favor of allowing the testing is not invasive to be

18 conducted, I don't think that that constitutes an attack

19 on the permit in and of itself.

20 And I think if the agency has the right to go out and

21 test for compliance and it just happens to do the same

22 thing, I think it goes to what has been said up and

23 down the table. I don't think that this test is going to

24 affect their permit in and of itself. I think if we have

25 a right to test for compliance as an agency, I don't think

1 that this is going to affect that, should affect it.

2 HEARING OFFICER MENTON: All right. Ms. Kavanaugh,

3 one last comment.

4 MS. KAVANAUGH: One last final thing. Obviously,

5 everything I have said I've already said. With regard to

6 what Mr. Reid said, contrary to what he said, we have not

7 raised issues that call the mills into play. Now they are

8 arguing that Dr. Jones' phosphorus cycle theories

9 raise the whole question of phosphorus and the phosphorus

10 cycle. But we have not raised, our position has not

11 raised the mills and what they do or don't do in any other

12 issues, and as you're aware, we have not raised the

13 economic issues that Ms. Ponzoli is addressing and don't

14 intend to present any mill information in this proceeding.

15 We had not contemplated that, and I represent to you

16 now that we're not going to. So we have not by coming

17 into these proceeding subjected, you know, volunteered for

18 this. This was not contemplated certainly and we don't

19 intend to raise the issues because we don't think

20 they are relevant.

21 I am surprised to hear them keep saying phosphorus.

22 I thought the current proposal, in fact, and the mills

23 and everywhere else was to test for whatever they wanted

24 to test for. If they're willing to limit it to

25 phosphorus, recognizing the mercury issue is maybe a

1 phosphorus issue --

2 MR. REID: I'll clear that up. I didn't mean to

3 limit -- I was talking about phosphorus because that's the

4 one issue we're talking about now. We're not changing our

5 views on --

6 MS. KAVANAUGH: I just saying that might make things

7 easier. I don't know. But I guess they're not

8 representing that, so we continue in our objection.

9 MS. PONZOLI: If I may, Mr. Hearing Officer, the

10 mills are part of the EAA. They raise the whole issue of

11 the source of water quality impacts downstream. That's

12 exactly what all their petitions go to. And I have to

13 tell you very honestly we feel frequently that getting

14 down to what the real issues that they want to litigate

15 here is like trying to nail jello to the wall.

16 They keep slithering around. We're not real sure.

17 Maybe we're getting closer and closer, but there is no

18 question that water quality impacts downstream are what

19 the SWIM Plan is devised to address. They have alleged

20 they're not the source of it. The mills are a primary

21 source, and we would like to test there. And I think a

22 single mill is not very representative.

23 HEARING OFFICER MENTON: We've talked about the

24 Bryant Mill. Are there different issues involved with the

25 other three mills that we're talking about?

1 MS. KAVANAUGH: Yes, sir.

2 MS. PONZOLI: They are owned by -- and this I have to

3 do from broad knowledge because I'm not allowed discovery

4 on it -- those other three mills my understanding is are

5 owned predominately by the Flo-sun Corporation which owns

6 New Hope South. It is an inter-related family corporation

7 that, in fact, Mr. Hearing Officer, it is my understanding

8 owns plus or minus 200,000 acres of the entire EAA.

9 I mean we're talking about U.S. Sugar and Flo-sun

10 80 percent of the EAA. That's a huge amount of the

11 agricultural area that we're talking about. This is no

12 small entity out there. Those mills are related to a

13 named petitioner and certainly to members of the League,

14 and they will have to represent to you what the

15 relationship is because they know it better than I.

16 MS. KAVANAUGH: Mr. Hearing Officer, the League does

17 not own any land or any property. It's a trade

18 association just like the environmental groups that are

19 before you, like other trade associations that have come

20 in. There are two named petitioners who are members of

21 League and whose property, you know, we have worked out

22 access to. The companies that own the other three mills

23 are not named petitioners. They are members of the

24 League.

25 I would suggest to you that just by being a member of

1 a trade association, be it pilot fighters, be it the

2 Florida Power group, with respect to my colleague here, be

3 it the Sierra Club, does not subject the individual

4 members of that association to discovery on their private

5 property unless it can be argued that somehow those

6 individual members have raised issues, issues are raised

7 that goes to those specific members property. That hasn't

8 happened here, sir.

9 We're not going to present any data about Okeelanta's

10 property or Atlantic Sugar's property or Flo-sun's

11 property for that matter, and therefore, we think that to

12 allow this type of expansion where you have a

13 representative party is opening the door to a Pandora's

14 box. Are we going to be allowed to take the depositions

15 of every member of the environmental group to determine if

16 the standing allegations are exactly true?

17 I can assure you they would resist that mightily when

18 they say their members use the Park, et cetera, et cetera.

19 It's inappropriate unless we intended to present -- we

20 don't want to sandbag them. We're not trying to bushwhack

21 them. So at this point, sir, we cannot agree, and we

22 object strenuously to any discovery other than on the

23 named petitioners property.

24 As far as Ms. Ponzoli's request that we approach

25 non-named members of the League to see if they would be

1 willing voluntarily outside the scope of these proceedings

2 as third parties to allow access to their land, we would

3 certainly be willing to do that. But I did ask the

4 entities that own those mills, and they say, no, it's not

5 relevant.

6 HEARING OFFICER MENTON: All right. So I guess the

7 bottom line is that we have with the four sugar mills,

8 we have one that is claimed to be hydrologically isolated

9 and, therefore, not part of the planning process for the

10 SWIM Plan, and therefore, we shouldn't allow discovery

11 there.

12 Then with respect to the other three mills, the

13 issue is ownership and the fact that those mills are not

14 owned by any of the named petitioners in the case; is that

15 where we are?

16 MS. KAVANAUGH: That's correct, sir.

17 MR. REID: May I ask a question? New Hope South,

18 that wasn't responded to. We're a little unclear for the

19 record. Is that part of the same company that owns -- New

20 Hope South, Incorporated, is a party, and Ms. Ponzoli made

21 reference to their owning some of the same parent

22 corporations. It sounds like that would make a

23 difference. I wonder if we can find --

24 HEARING OFFICER MENTON: That they're owned by the

25 same parent corporations.

1 MS. PONZOLI: Right. Flo-sun owns New Hope South

2 and the sugar mills --

3 MS. KAVANAUGH: Flo-sun is not a named party either,

4 sir.

5 MR. REID: Well, New Hope South is. I think we're

6 getting closer, and it sounds like they're not answering

7 but maybe they do -- if you're talking about inter-related

8 corporate entities, I'm not sure you can draw a line and

9 say if Flo-sun is in this case because of one of its

10 subsidiaries is in the case, I think it's harder for them

11 to say they're totally unrelated.

12 I think we ought to be able to find out the answer

13 to that perhaps before you can make that decision.

14 MS. KAVANAUGH: Flo-sun is not -- if Flo-sun is

15 related, and I can tell you exactly how, certainly New

16 Hope South, but it is a separate corporate entity. It's a

17 separate corporation, and it's not a party to this suit

18 either so --

19 HEARING OFFICER MENTON: Is it a member of the

20 League?

21 MS. KAVANAUGH: Oh, yes, so is New Hope South, so is

22 Atlantic Sugar, so is U.S. Sugar, so are various other

23 entities other than where the mill sites are. There are a

24 lot of members of the League.

25 MS. PONZOLI: Mr. Menton, I really respectfully

1 believe that I either, One, should be able to have access

2 to these mills to do this very very noninvasive simple

3 discovery, or I should be allowed discovery on the

4 corporation relationship of these mills with New Hope

5 South and Flo-sun, and I should be allowed discovery of

6 the hydrologic isolation of Bryant Mill.

7 If those are the reasons I would be denied access of

8 those areas based upon counsel's representation, then I

9 should be allowed discovery to determine whether, in fact,

10 those are as globally represented, not that you would

11 misrepresent it, but there is more to this picture than

12 meets the eye.

13 MS. KAVANAUGH: I'm trying to understand. Is the

14 allegation that New Hope South somehow controls one of

15 these mills, or is the allegation that New Hope South

16 is related somehow to --

17 HEARING OFFICER MENTON: I think they're saying they

18 don't know. I --

19 MS. KAVANAUGH: What I'm telling you, and I will

20 represent that New Hope South is related to Flo-sun which

21 is not a named party to this suit.

22 MR. REID: I think when you cut off discovery at this

23 stage of the case based on corporate lines, that you ought

24 to have a chance to find out if those lines really ought

25 to be adequate to cut off discovery, which is a severe

1 decision.

2 HEARING OFFICER MENTON: But nobody at least in my

3 recollection of the briefs that were filed in the cases

4 that were cited and I pulled most of the cases, nobody has

5 really cited me to any cases that specifically address

6 this issue as to when the League is a named party and

7 members of that League, you know, to what extent

8 they're subjected to discovery.

9 I have not researched that issue. I don't know if

10 there is any case law on it. I think it is, it's a very

11 peculiar interest. I think we have a peculiar twist to it

12 in the sense that the members actually own property within

13 the planning area in this case, so I'm not sure that any

14 of the cases that may be out there are particularly

15 relevant.

16 I do think that without having looked at any of the

17 that case law, my feeling is that the League members,

18 at least for this noninvasive testing purposes, should

19 provide access of their property for the tests that are

20 sought here. Now if we get into a dispute and

21 you're going to take the position that because they're not

22 League members, then I think that Mr. Reid's point is well

23 taken that there ought to be some discovery allowed in

24 order to explore those opportunities as well.

25 So I think we've been going back and forth on this a

1 long time. It's important to get this issue resolved.

2 My feeling is that the fact that the hydrological

3 isolation of the Bryant Mill is claimed by the owner of

4 that mill, I don't think it's controlling for purposes of

5 discovery in this case.

6 I think the U.S. Government and the respondents

7 should be entitled to access in order to conduct the

8 relatively noninvasive tests that they seek, and the same

9 thing with the sugar mills that are owned by other League

10 members even though they are not named parties.

11 All right. That gets us to the next issue in terms

12 of this entry, which is, I guess, the protective order

13 aspects of it. There has been and threw out earlier that

14 maybe one way to resolve some of the issues in terms of

15 the permits is by means of a protective order.

16 Ms. Kavanaugh or Mr. Green, I don't know if you

17 want to take a stab at arguing that a little bit further.

18 MR. GREEN: Mr. Menton, unfortunately Mr. Perko is

19 having the same flight problems. He was down at

20 depositions yesterday, and I defer to Ms. Kavanaugh.

21 HEARING OFFICER MENTON: Okay.

22 MS. KAVANAUGH: Thanks. We've briefed the issue, Mr.

23 Hearing Officer, and it's our -- obviously, you know, we

24 believe that none of this information is relevant, and

25 that the threshold question of relevancy particularly when

1 we're dealing with regulatory agencies needs to be

2 addressed and you have addressed it whether we agree with

3 it or not.

4 However, at a minimum, we feel we should be

5 protected from misuse of the information because there is

6 the potential, we're talking about a humongous area out

7 there, hundreds of thousands of acres. Frankly, we don't

8 anticipate any problems, but, you know, we have not tested

9 every spot they're going to test too. So we would like to

10 suggest to the Hearing Officer that it is appropriate

11 since we are in a proceeding with what we thought

12 were limited issues, that we be given some protection as

13 to the use of the information.

14 And furthermore, with regard to the other perameters,

15 we continue in our objections to test for anything that

16 is not addressed in this SWIM Plan, which includes

17 pesticides and heavy metals that the United States for

18 some reason seeks to test. We think you have the

19 authority to enter conditions limiting the use of the

20 information to these proceedings and would ask you to do

21 that. The cases we've cited indicate that that is a

22 fairly common --

23 HEARING OFFICER MENTON: I guess -- and I agree. I'm

24 familiar with the case law. I've looked at it. I guess

25 one of the issues that occurred to me in trying to think

1 this thing through is we have a number of expert witnesses

2 involved in this case, and obviously the soil samples

3 or whatever samples taken are going to be sent to these

4 expert witnesses. They're going to be sent to labs and

5 sent to -- and just from a mechanics standpoint, I'm not

6 quite sure how we would go about imposing a protective

7 order and how you could establish conditions.

8 Are you asking that an order that I enter essentially

9 be binding on all of the experts in this case who

10 may review the samples and that they're not allowed to

11 disclose any information that they have; they can't write

12 any articles on what they come up with, or what?

13 MS. KAVANAUGH: I can speak to that because I'm in a

14 very large products liability case right now wherein we

15 have exactly such an order of confidentiality and each

16 party is allowed to designate discovery information as

17 confidential and then no party is allowed to reveal it to

18 anyone. It extends to their experts as well without the

19 prior written consent of the designating parties.

20 And as I said, it's a common -- this confidentiality

21 is a form. I've got it in seven or eight of my federal

22 cases. I'd be happy to provide that exact language to

23 sort of pattern here to you. I discussed this with Ms.

24 Ponzoli, and she had indicated no problem in telling her

25 lab, but maybe I misunderstood her, but that her

1 lab and experts that information was confidential.

2 The problem is also that we have two state agencies

3 who, in fact, are public entities. We're more concerned

4 about the ability for them to misuse this information than

5 anything else and use it to bootstrap something else they

6 may have in mind since we can't understand why they want

7 in in the first place. So I think we could craft an order

8 that would restrict the use of the information, perhaps

9 presenting the information to you in camera first,

10 something like that, and then a determination could be

11 made as to what things are really sensitive or not.

12 Hopefully none of it will be sensitive. We just don't

13 know.

14 HEARING OFFICER MENTON: Are you seeking at this

15 point a blanket order regarding any samples that are

16 taken in any tests that are conducted; is that essentially

17 what you want?

18 MS. KAVANAUGH: Our concern are the perameters other

19 than phosphorus period, and also the information with

20 regards the mills simply because we feel we have a

21 vested interest in our permits and there is a potential

22 there for misuse of that information by others, not the

23 state agencies but by others.

24 HEARING OFFICER MENTON: Mr. Oertel, did you have

25 anything on this issue?

1 MR. OERTEL: No, I don't plan to address this issue.

2 HEARING OFFICER MENTON: Okay.

3 MS. PONZOLI: Mr. Hearing Officer, this is not a

4 products liability case. This is distinctly different.

5 This is a case where those of us sitting from about

6 here over have been sued 20 times in Sunshine lawsuits and

7 FOIA lawsuits to keep every, virtually every

8 aspect of this overall global litigation out in the

9 sunshine.

10 I believe that the legal standard is they have to, in

11 order to obtain any kind of a protective order most

12 especially the type that Ms. Kavanaugh is suggesting

13 for anything beyond phosphorus can come to your eyes only,

14 they have to show good cause, will of the wisp or

15 ghosts somehow misused is somehow insufficient to

16 meet that legal standard of good cause.

17 I think that no good cause has been shown. I think

18 that this case should remain in the sunshine, and I think

19 that simply it's a very straight forward matter. We go

20 and do our work, we do our discovery, we're sharing our

21 work with them. If you ever place such restrictions on

22 anyone, I would ask you in all honesty to place

23 it on everyone. Make them place all of their data

24 collection for your eyes only when they go into the Park

25 and Refuge.

1 I mean the United States in this case does not have a

2 public relations firm that handles our case as it

3 moves through this litigation. Other people in the room

4 do. We're not going to the press with what we find in our

5 raw data for these proceedings.

6 HEARING OFFICER MENTON: Well, Ms. Kavanaugh, let me

7 make sure I understand. You're not, when you say limited

8 for an in camera review or whatever, you're not going to

9 try to restrict what experts they may choose to disclose

10 this to in any way?

11 MS. KAVANAUGH: No, sir, not at all. As I understand

12 your position, sir, is you feel you aren't conceding

13 or disagreeing or agreeing whether ultimately this

14 information would be admissible or relevant. We're in the

15 early ages of -- ages, seems like ages -- stages of

16 discovery, so we had thought that an in camera submission

17 then would allow us to actually get rulings on whether

18 this is going to be an issue in this case or not before it

19 becomes, you know, public domain.

20 We would have no objection, no -- we're not trying

21 to limit their expert access to the information, certainly

22 not. We would expect the experts to abide by

23 confidentiality, and we -- I haven't talked to Mr. Oertel,

24 but Mr. Green has indicated that we would have no problem

25 with similarly, you know, maintaining our data

1 confidential too without, you know, until there is some

2 sort of ruling as to relevancy and admissibility.

3 HEARING OFFICER MENTON: Well, I guess you're hinting

4 at a motion in limine or something along those lines.

5 MS. KAVANAUGH: Yes, sir, exactly, at some point. I

6 think that's what is going to have to happen in this case,

7 sir, otherwise we're going to have the world's longest

8 trial. At some point the issues are going --

9 HEARING OFFICER MENTON: I think we may anyway.

10 MS. KAVANAUGH: We may, you're right. But that's

11 what our thought was. I would be more than willing to

12 take a shot at crafting specific language that I have

13 myself used in other proceedings or have been subjected to

14 frankly in other proceedings and present that to you and

15 the parties.

16 But because this is the early stages of discovery,

17 and I guess we feel very strongly that this has the

18 potential to be a fishing expedition. We don't see the

19 relevance of a lot of their information that they're

20 intending to seek. We're entitled to that kind of

21 protection. This is private property and these

22 proceedings are not an enforcement --

23 HEARING OFFICER MENTON: I guess from a procedural

24 or mechanical standpoint then, I guess the next issue

25 would be that even if a protective order were entered at

1 this stage in the proceedings, what happens when we get to

2 the final hearing and how does that come into play in the

3 context of numerous members of the public that may be

4 present? Am I going to have to exclude --

5 MS. KAVANAUGH: No, sir. We're not suggesting that.

6 We're suggesting that the confidentiality be maintained

7 until you have sufficient information and the issues are

8 sufficiently framed in this proceeding for, in fact,

9 appropriate motions in limine to be filed and you make the

10 determination whether this information is even going to be

11 involved in the hearing. That's what we're asking for.

12 Also, we would like assurances they do not intend to

13 use this information for any other purpose or any other

14 proceeding.

15 MR. REID: This is -- I've never heard anything like

16 this before. They're asking you to do an in camera

17 inspection for relevance.

18 HEARING OFFICER MENTON: Well, that's not what I'm

19 gathering her to say. I think she's asking that an order

20 be entered protecting the disclosure of any of this

21 information to the public until such time that they have

22 an opportunity to address by motion in limine some of the

23 issues that, you know, maybe involved. In other words --

24 MR. REID: When is the in camera inspection going to

25 be?

1 HEARING OFFICER MENTON: I guess as part of this

2 motion in limine --

3 MR. REID: Well, in camera usually means

4 that judge looks at it and nobody else is in the room.

5 You're not going to have experts?

6 MS. KAVANAUGH: Not always.

7 HEARING OFFICER MENTON: Well, that's what I was

8 trying to ask her. She doesn't intend to limit the

9 ability to disclose the information to whatever experts

10 that --

11 MR. REID: I mean, how do you decide that this in

12 limine motion without having testimony, without having

13 argument of counsel, and we do all that in secret?

14 HEARING OFFICER MENTON: No, I think what we would

15 do, again, just -- I may be putting words in her mouth, at

16 least as I understand the process she's asking us to

17 follow would be that hold the information within the

18 context of this case to the experts that are retained in

19 this case, and then at some point we will have a motion in

20 limine at which there will have to be obviously experts

21 who will come in and testify to try to discuss the scope

22 of the issues that we're going to address at the final

23 hearing in this cause.

24 I think once we get to the final hearing, this goes

25 back to the question I was asking her, I think the

1 information that comes out at the final hearing, I have a

2 hard time saying that we're going to limit public access

3 or keep anybody from coming into the final hearing.

4 MR. REID: I have another question here. I mean,

5 essentially what we're doing -- normally you have

6 protective orders because you have trade secrets or you

7 have something that has some legal protection, not

8 something that you think would be harmful to you.

9 I mean you don't get protective orders because

10 you're worried that somebody might find out somebody is

11 doing something illegal on your property, for instance.

12 That's not the reason for protective order.

13 So here we're really talking about relevance it sounds

14 like. They're saying let's keep it all secret until it's

15 finally decided that it's going to be part of the case.

16 So, in effect, we're getting a confidentiality order until

17 you decide that it's relevant.

18 I've never heard of confidentiality order in that

19 context before. And there are so many practical problems.

20 My agency, if somebody in my agency looks at this, there

21 is a good chance that it's part of the public, you know,

22 under the Sunshine law because as Ms. Ponzoli said

23 we've been doing two levels of discovery here: One

24 through the case and one through repetitive public

25 information requests made by the petitioners to my agency,

1 and that's been going on for years.

2 So I'm not sure that we can, that we can keep it from

3 anybody else. I mean if some third party comes in and

4 asks for this, I'm not sure that you can, I'm not sure

5 you can enter an order that obviates the Sunshine

6 Act. It's just a practical problem.

7 MR. GUEST: May I be heard just briefly, Mr. Hearing

8 Officer. I haven't heard anything that sounds like a

9 protectable interest yet. My understanding when I used to

10 be with Tressler (phonetic) we often received trade

11 secrets. What I'm hearing here is, gee, willikers, who

12 knows what they might find. That is not really a

13 protectable interest. That's speculation that there may

14 be something out there.

15 I don't think as a matter of law that this

16 would fall within an exception to Chapter 119. I just

17 don't see it. I don't see how it would happen, and as a

18 practical matter -- of course, trade secrets are covered,

19 but I don't see how a protective order could be

20 entered here absent clear articulation of true protectable

21 interest.

22 HEARING OFFICER MENTON: Well, I'm not an expert on

23 the public records law, and I guess I don't know how that

24 fits into play in this particular instance. It was my

25 impression from wherever I got it that if I entered an

1 order as part of this proceeding that I could limit the

2 disclosure even with respect to the public records law.

3 MS. KAVANAUGH: Yes, sir. I wish -- I took it out of

4 my briefcase before I came. I can give you law on that.

5 In fact it has, these are under the Rules of Florida

6 Civil Procedure, and I believe the courts have already

7 ruled that discovery information, which is what this is,

8 are not considered to be subject to the public records

9 law, otherwise no courts could ever enter protective order

10 if public agency is involved. Clearly that's not

11 contemplated by statute.

12 HEARING OFFICER MENTON: I'm not sure that I even

13 need to resolve that. I guess we can spend a lot of time

14 arguing that. The bottom line is if I decide that a

15 protective order is appropriate then some, you know, some

16 interest group may come along and challenge that and seek

17 discovery of the information and sue DER or Water

18 Management District and all that, and I'll let some

19 circuit judge worry about that.

20 MR. REID: Will they pay our legal fees and

21 fines? Will they not agree to pay our legal fees and

22 fines for when we have to defend that case?

23 MS. KAVANAUGH: About the way you've agreed to pay

24 ours so far.

25 HEARING OFFICER MENTON: That's an issue that's out

1 there. I don't know that it's pertinent within this

2 context. I guess, you know, we need to put this issue to

3 bed, so what I think we ought to do is you submit to me

4 your proposed language. I'm going to look at the case law

5 a little further, and I'll sit down and I'm going to do

6 an order. I'm not sure what I'm going to do with it

7 at this point.

8 I think I've heard enough argument. I've heard

9 everbody's position. I have enough briefing on it. I

10 think it's more important we get the process underway, see

11 if we can agree on the other 11 sites. I will try to get

12 an order out on that, say, within the next two weeks --

13 well, how long are you going to need to give me -- you

14 have submitted I think something.

15 MS. KAVANAUGH: Yes, I submitted a proposed order on

16 the financial -- I think I simply listed conditions. I

17 didn't set it out as proposed order language.

18 HEARING OFFICER MENTON: Well, send me a proposal

19 and I'll take a look at it, and I will sit down and review

20 the case law and review what's been filed, and then I'll

21 just do an order on it and get it out.

22 MS. PONZOLI: May I at least have an opportunity to

23 respond to her proposed order. There might be things that

24 I found very very troubling aside from the issues we have

25 discussed and debated with you, but I would at least like

1 an opportunity to point out to you. I can do it fast. I

2 can turn it around fast.

3 HEARING OFFICER MENTON: How long do you need to

4 get me a proposed order?

5 MS. KAVANAUGH: I'm sure I can get you one by next

6 Friday.

7 HEARING OFFICER MENTON: Next Friday. Can you get

8 me one by the following week, your response?

9 MS. PONZOLI: Yes, sir.

10 HEARING OFFICER MENTON: Okay. Let's do that.

11 MS. PONZOLI: The following Friday?

12 HEARING OFFICER MENTON: Yes.

13 MS. KAVANAUGH: With regard to the third party

14 members of the Co-op and the League, I take it you don't

15 want any briefing on whether members of the trade

16 associations --

17 HEARING OFFICER MENTON: Well, you can put that on

18 the record if you want. You can submit something if you

19 want to put it on record. And, you know, if there is a

20 particular relevant case that I haven't seen yet that

21 may cause me to revisit it, then bring that to my

22 attention. But at this point, I think that at least from

23 my research, I don't think that question is necessarily

24 conclusively resolved in the case law, and it would be my

25 position that at least in the context of this proceeding

1 that they have or that they are subject to that access.

2 You know, if somebody disagrees with me and they want

3 to tell me otherwise, then they can go ahead and do it.

4 MS. KAVANAUGH: Mr. Hearing Officer, on the question

5 of mercury and the other perameters, we have not really

6 addressed that this morning, although, we addressed it at

7 length in the last proceeding.

8 We have suggested that at a minimum number since the

9 mercury theory is not at this point not even theory but

10 just a hypothesis to be validated in January or February,

11 that that testing might be delayed, and you indicated you

12 would think about it. Our position has not changed

13 about mercury and the other perameters. We don't need to

14 reargue it, but --

15 HEARING OFFICER MENTON: I think it's more important

16 to get -- I have thought about it, and I think it's more

17 important to get the discovery process underway, and I

18 think we're just potentially opening the door to stringing

19 this case out longer than if we have to come back in

20 January and reargue all this stuff.

21 I think it's more important to get the discovery

22 underway. I think the testing that's involved from what I

23 understand is the same testing, essentially the same as

24 the sampling that's involved for phosphorus. Go out

25 and get the samples done, and we'll -- I think it's

1 important that we get that moving along.

2 MS. KAVANAUGH: The other thing, just so you have it

3 in your mind, I hate to be the one to keep reminding

4 you, but the DER permit intent to issue did, in fact,

5 issue on the 20th.

6 HEARING OFFICER MENTON: I was hoping you

7 weren't going to tell me that.

8 MS. KAVANAUGH: The 14 days runs out I believe on

9 Tuesday or Wednesday and obviously petitions will be

10 filed. You'll be looking at potential changes in the

11 scheduling and everything anyway. And I think at some

12 point, certainly it's our position that we need to sit

13 down and regroup to see what needs to be done as far as

14 the schedule we're currently on, but --

15 HEARING OFFICER MENTON: Well, we may be a little

16 bit premature on that. Maybe nobody will challenge the

17 permits, and I don't know where that stands. Mr.

18 Killinger may be able to fill us in on that better than

19 anybody else.

20 MR. KILLINGER: I have not received any challenges

21 yet. It's likely we will have at least one, but I don't

22 know what those challenges will involve until we see.

23 HEARING OFFICER MENTON: I think as Mr. Hyde pointed

24 out in his brief on the burden of proof, there may be a

25 whole separate set of issues with respect to the permit

1 aspects of this case if it is consolidated with this

2 proceeding, which, you know, I just thing we need to

3 wait and see what happens with the permits.

4 If somebody moves to consolidate it, we'll take it up

5 then and we'll revisit it. But certainly one of the

6 issues Mr. Hyde pointed out was that there may be

7 differences or that the permits has, you know, may be a

8 more clearly defined set of principles that have to

9 govern it and --

10 MR. REID: We'd actually would agree there is a

11 completely different standard for burden of proof in

12 permitting from the SWIM Plan.

13 HEARING OFFICER MENTON: Well, they're certainly

14 more clearly defined. But we'll have to deal with the

15 permit case if and when it comes. And as I indicated at

16 an earlier hearing, you know, I think we need to be

17 careful about just lumping everything into one case and

18 dealing with it.

19 If that seems like that's the only way to approach

20 this, then maybe that's what we'll do. This case has the

21 potential to be overwhelming, and if it isn't already, it

22 certainly has that potential to be. And to really throw

23 all those issues in there, I'm really going to have to

24 think long and hard about whether I'm going to be willing

25 to subject myself to all of that at one time, but --

1 MR. HYDE: Mr. Menton, just in response to those

2 comments, something that we may all want to consider in

3 the course of this proceeding is whether it should be

4 bifurcated into certain of its constituent elements.

5 Just by way of example, we're contesting whether

6 there are violations of state water quality standards in

7 the EPA and whether phosphorus and waters from the EAA is

8 causing those violations. That's a threshold issue that

9 you're going to have to make a determination on.

10 If you decide and agree that we are correct in that

11 instance, then all the other issues about phosphorus

12 limitations and STA's and the like may just go by the

13 board. It may be appropriate to have a hearing just on

14 the violations portion of the case and then move on to the

15 other issues in the case.

16 HEARING OFFICER MENTON: Well --

17 MR. HYDE: I throw that out as a suggestion. I'm not

18 moving for it. That is something that perhaps the parties

19 should consider by way of simplifying the issues. It

20 could simplify the parties presentation of evidence. I

21 mean, are we going to present -- I think the District is

22 saying that it will go forward first with its presentation

23 of evidence. Are they going to put on their entire case,

24 then the petitioners put on our entire case, then they put

25 on their reply and we put on our reply? I mean

1 you're going to have weeks between relevant witnesses

2 or comparable witnesses in that process.

3 HEARING OFFICER MENTON: Well, I have thought about

4 some of these issues. I don't know that we need to

5 deal with them today. I think as we get down the line and

6 figure out whether the permit is part of this case and

7 some of those other things, we're going to have to revisit

8 it, and I'd be interested to hear from all the parties as

9 to what their respective positions on those matters will

10 be.

11 You know, just from a human endurance standpoint, I

12 wonder how much we can go straight through at one time.

13 I mean the longest trial I was ever involved in was

14 three weeks and it took me about six months to recover

15 from it. And people here are talking 10 or 12 weeks.

16 Maybe you guys think you can go 10 or 12 weeks straight

17 without any problem, but those are issues that we'll

18 just have to give some thought to as the day gets a little

19 bit closer.

20 And I guess the problem that I have with -- and I

21 don't want to get into this too far today, but with the

22 suggestion you've just made, what I think you're saying is

23 let's do one hearing, do an order on that aspect, then

24 reconvene a hearing and do an order on that aspect, et

25 cetera, et cetera. That may just string it out even

1 longer ultimately.

2 MR. HYDE: That may be, although, there might

3 be another way of looking at that is to do the water

4 quality violation portion of the case first, and then put

5 on all the witnesses pro and con on that issue, and

6 then move on in the same proceeding, not a separate order,

7 move on to the appropriateness of the phosphorus

8 limitation, and then move on to the STA's. That may be

9 one way of doing it, a more logical presentation of the

10 evidence.

11 HEARING OFFICER MENTON: Yes, I think there may be a

12 lot to that approach. I have done that in other cases

13 where in order to keep the issues clear, we dealt with

14 one aspect, everybody calls all their witnesses on one

15 aspect, then we move on to another aspect. If we can

16 break it out that way, that might be a good way of doing

17 it.

18 MR. REID: Is he talking about the permit

19 application?

20 MR. HYDE: No, I'm talking about SWIM Plan proceeding

21 or --

22 MR. REID: I'm not sure there has to be a violation

23 of anything to have a SWIM Plan -- I mean, we're ordered

24 to do a SWIM Plan by the --

25 MR. HYDE: Well, if there are no problems, let me put

1 it --

2 HEARING OFFICER MENTON: I think he's talking

3 the conclusions --

4 MR. HYDE: Somebody says violations but certainly the

5 allegations of the Plan are that there is a problem, we

6 might be able to persuade you there isn't the problem

7 in which case the solution is unnecessary.

8 MS. KAVANAUGH: At some point, Mr. Hearing Officer,

9 perhaps it would be appropriate. Normally you don't have

10 this gigantic document that you're basically litigating

11 is at some point maybe each party we can define the

12 issues. I know there is going to be a lot of motions

13 in limine and I'm sure there will be motions for legal

14 rulings that will further refine the issues too.

15 HEARING OFFICER MENTON: Okay. I think we're

16 getting ahead of ourselves and we'll just have to deal

17 with this in the future. One thing I guess before we get

18 into the financial issues and the burden of proof, one

19 thing I probably think we need to get a better feel on is

20 in anticipation to the extent that you're going to need

21 me, you know, through the next several months just from a

22 case planning standpoint here.

23 I have voiced to the powers that be here that I'm

24 going to need some relief from my regular case load, which

25 has not been forthcoming at this point, and I guess I need

1 to have a little bit more of a concrete feel on that so I

2 can go in and try to get rid of some of the other cases

3 that I have if it's necessary.

4 MS. KAVANAUGH: I was going to suggest at the end of

5 the hearing, we have the first round of at loggerhead

6 about discovery disputes is ripening rapidly.

7 HEARING OFFICER MENTON: I thought that's what

8 we've been doing.

9 MS. KAVANAUGH: No, more, more. We're about to file

10 a bunch of motions to compel, and frankly, sir, these are

11 the kinds of things I think you won't be able to handle by

12 telephone, in most cases, in some cases. We're trying to

13 make ours discrete so that they are easy ones. I was

14 going to ask you if you had a day sometime next

15 month when we could just bring to a head some rather

16 global discovery disputes that are developing with regard

17 to particularly the deposition scheduling and expert

18 witness disclosure.

19 We have not, because of scheduling constraints, we

20 have not been able to have our counsel meeting as to

21 disclosure of witnesses. I proposed a meeting for

22 Tuesday. Of course, I don't know what everybody's

23 schedule is. Our side anticipates we're going to need to

24 talk to you some time soon about some of this discovery

25 stuff.

1 MS. PONZOLI: We also have some very serious

2 problems. We may be approaching you by phone next

3 week because we have some researchers in North Carolina

4 that if something wonderful doesn't happen fast, we need

5 relief. So I agree with Ms. Kavanaugh. We need you.

6 HEARING OFFICER MENTON: All right. And do you

7 anticipate this is going to be something that we're going

8 to have recurring issues?

9 MS. PONZOLI: We have interrogatory problems, we have

10 document problems, we have deposition problems, we have

11 expert problems.

12 MS. KAVANAUGH: And so do we.

13 MS. PONZOLI: I mean they're pretty monumental. Some

14 of them are very substantial, and I think you're going to

15 be dealing with the global nature of this case and what

16 you're going to have in dispute and what you're not going

17 to have in dispute.

18 MS. KAVANAUGH: We're trying to boil it down to

19 several fundamental concepts so that we don't --

20 MR. GUEST: The federal litigation was a nonstop dog

21 fight on discovery.

22 HEARING OFFICER MENTON: Was what?

23 MR. GUEST: A nonstop dog fight on discovery.

24 MS. KAVANAUGH: We weren't even in that.

25 MS. PONZOLI: I recall your face a few places.

1 HEARING OFFICER MENTON: All right. I guess I'm

2 going to have to see about clearing my situation up.

3 At this point, I have numerous cases that are in the

4 process that I'm responsible for doing orders on, and

5 there is really no way around me doing those.

6 I guess what I need to do is try to look at limiting

7 my hearing schedule in the future and to try to focus a

8 little bit more on this because it's beginning to get to

9 the point where it's hard for me to focus on some of the

10 other cases and do this together. So I'll have to work on

11 that here. They tell me they're going to do it, but I

12 have not seen it yet. But we'll see what I can do on

13 that.

14 MS. PONZOLI: It seems to me that even if, Mr.

15 Hearing Officer, if you were to show them the expert

16 witness list, I think the League has listed plus or minus

17 106 witnesses. We think a number of them are spurious,

18 but --

19 MR. HYDE: I have to object to the constant jibes.

20 HEARING OFFICER MENTON: I think it's coming from

21 both sides. Everybody is doing it and to be honest it

22 sort of, they go right over my head.

23 MR. REID: It's good therapy to --

24 MS. PONZOLI: Well, I'm listed as a witness. I guess

25 that's why I think some of them are spurious, if I

1 may interject that. The Co-op has also listed 60, and

2 take the Federal and South Water Management District, just

3 the scope of it, Mr. Hearing Officer, alone would alert

4 anyone who has dealt with cases that you're going to have

5 a lot to deal with over the next months.

6 MS. KAVANAUGH: A few cases of this magnitude are on

7 the shortened schedule that we're on. I think that has

8 heightened the inability to resolve some of these

9 disputes. We're all in a hurry.

10 HEARING OFFICER MENTION: I'll discuss it and see if

11 I can get it cleared up, so I can be a little bit more

12 attentive to these issues on a timely basis, because it's

13 just building up and building up and I think it's only

14 going to get worse, so let me see what I can do.

15 I can tell you right now that it's probably going to

16 be a couple months before I can really clean out the

17 backlog to really even focus on this completely just

18 because I have 10 or 12 cases that I have to do

19 recommended orders on.

20 MS. PONZOLI: We have a two-week vacation

21 break that we all have agreed to at Christmas and a short

22 period at Thanksgiving, so part of those two months is

23 kind of already off limits for discovery and agreed to by

24 all parties.

25 HEARING OFFICER MENTON: Well, I'll do what I can to

1 keep everything moving from now until December, but it

2 will be around Christmas before I can really clean out

3 some of the stuff I need to clean up. Okay. Let's take a

4 about a five-minute break, and then when we come back

5 we'll deal with the financial issues.

6 (WHEREUPON, A SHORT BREAK WAS HAD AT 10:30 A.M. AND

7 THE HEARING CONTINUES AT 10:45 A.M. AS FOLLOWS:)

8 HEARING OFFICER MENTON: All right. I guess the

9 next issue is the financial; is that right? Dealing

10 with just the discovery aspect of that, I did not -- I saw

11 the motion to amend the proposed order that was filed by

12 the U.S. Government yesterday. I read it. I didn't

13 really have a chance to put it into context and really

14 think through it. Do you want to tell me exactly what

15 that is and what issue that relates to?

16 MR. SAXE: Yes, Mr. Hearing Officer. The Cooperative

17 filed its final witness list after the United States had

18 filed its response to the Co-op's proposed order, and in

19 the filing that the Co-op made it raised, as far as the

20 U.S. is concerned, raised some very serious questions

21 about whether or not the proposal that the Cooperative

22 seemed to be making at the September 28th hearing as the

23 U.S. understood it was, in fact, what the Co-op was

24 intending to do with respect to its economic case.

25 The United States had understood that the Cooperative

1 was basically arguing that recourse only need be had to

2 the published public aggregate economic statistical data

3 base that's out there at the public agencies and readily

4 available in published form for all parties at the time

5 that the SWIM Plan was promulgated as a basis for arguing

6 any regional economic impact issues.

7 Instead, the United States finds in looking at

8 the Co-op's witness list is that the Cooperative has

9 indicated in its proposed expert testimony, it's

10 listed as summary of grounds for opinions that such

11 opinions might be based on unpublished information and

12 including but not limited to nonconfidential information

13 available from public and/or governmental sources through

14 public records requests or similar means.

15 I have to make it very clear that the United States

16 strenuously objects to restrictions on its legitimate

17 discovery interests that underlie this whole line of

18 limitation in the first instance and would urge for the

19 reasons that are set forth in the brief that it's most

20 appropriate to allow this kind of discovery to take place

21 as an initial matter and to deal with relevance and deal

22 with admissibility later when that's appropriate, at

23 an appropriate point in the proceeding.

24 I think those concerns are multiplied in light of the

25 confusion that seem to be at issue today concerning

1 who's in this proceeding, who owns what where, and who

2 does what were in the EAA. That's an essential category

3 of documents that the United States has tendered requests

4 for production on that underlie the United States' motion

5 to compel in the first instance, but the United States'

6 position has been that not withstanding that, if it's the

7 Hearing Officer's intent to place restrictions on the

8 scope of discovery in this proceeding and to do so in a

9 way that ensure some protection for the United States'

10 interests against in avoiding eleventh hour surprise,

11 an inability to prepare its defense by assembling

12 rebuttal evidence and just generally putting the parties

13 on a level playing field with respect to this kind of

14 adjudication, that fairly strict concrete limits have to

15 be placed on the type of information that could be used by

16 any of the petitioners in making any economic case that

17 they might make.

18 The criteria that are identified in the proposed

19 order that we filed initially in response to the Co-op's

20 proposed order, we believe made it clear that it would

21 have to be this published public aggregate data base of

22 economic agricultural statistical information.

23 In light of the Co-op's witness list, we feel that

24 there is some real question as to whether, in fact, there

25 is not a continued posture that would allow eleventh

1 hour surprise, vague unspecified references to unpublished

2 data without enumerating what data sources are being

3 alluded to, and a suggestion that perhaps the Co-op might

4 rely on material that an entity needs to file a public

5 records request to get in challenging the economic impact

6 of the SWIM Plan.

7 The United States just finds that totally inadequate

8 to protect our legitimate interest in either having the

9 discovery we're entitled to or having concrete unequivocal

10 protections against surprise and unfairness.

11 HEARING OFFICER MENTON: Mr. Green.

12 MR. GREEN: Mr. Menton, I sit amazed at what I've

13 just heard for several reasons. Number One, I don't

14 believe that there is -- excuse me, I would like to file,

15 I apologize I didn't do this earlier, a copy of the

16 transcript of the last hearing. We never said that we

17 were going to use only published information.

18 I think if you look in that transcript, I defy you to

19 find that, Mr. Saxe, but I will ask Mr. Menton to consider

20 is we have in an unprecedented way been extremely open and

21 candid with what we're trying to do in economic issues of

22 this case. In fact, we brought Dr. Luke and sort of

23 walked right down that path in response to the requests of

24 the District and the United States. We have laid

25 bare our proposed economic case in our proposed order, the

1 legal theories are clear.

2 It's sort of a strange credibility to claim surprise

3 since we argued about the moderating provisions of the

4 Florida Water Quality Standards over a year ago in our

5 letter to the District, and that's contained in the

6 appendix of the SWIM Plan. It's contained in our

7 petition. It was contained in the discussion before Your

8 Honor on September 28th, and so I frankly don't understand

9 what this is all about.

10 As I understand what the United States is proposing,

11 they would restrict Dr. Luke's use of any data that was

12 not published in March of 1992, Number One. And

13 Number Two, we would have to provide any information that

14 Dr. Luke would utilize within 30 days of the date you

15 enter an order. There is no legal basis for that. I've

16 never heard of any. There was none cited by the

17 petitioners. The Hazen and Sawyer Report did not rely on

18 only on unpublished information. There were reams of

19 information that were not published but were available to

20 the public through interviews, through requests to the

21 agencies.

22 That's the normal way these economic studies

23 are done. So I would urge Your Honor to ignore the United

24 States' request to changes to the proposed order which

25 would memorialize your bench ruling last month. I've got

1 some additional arguments I would like to make about the

2 economic case when you're ready to hear them.

3 HEARING OFFICER MENTON: Okay. As I indicated

4 earlier, I think what I intend to do is to sit down and

5 do an order specifically on this discovery aspect of it

6 and then do a separate order regarding just the general

7 financial information.

8 I think it's important at this point to get down in

9 writing, Number One, just from the standpoint of

10 everyone's expectations during discovery as to what

11 financial information can and should be produced, and I

12 think that as I indicated at prior hearing, I will revisit

13 this issue if and when someone demonstrates to me that

14 it's appropriate to do so. So it may be premature to

15 begin getting into some of these speculations until some

16 of the discovery starts taking place and we find out.

17 I think we can get a better idea as to exactly -- I

18 think the first thing we need to do is pin down exactly

19 what are the economic issues in this case. So I think the

20 discovery order at this standpoint is going to deny

21 the requests for production on the various financial data

22 that we've talked about before.

23 I will revisit that issue within the context of the

24 ongoing discovery as it takes place, if necessary, but the

25 most important thing to do now is to address what are the

1 financial issues we're going to talk about at the final

2 hearing. So that will govern the ongoing discovery.

3 MS. PONZOLI: Mr. Menton, I'm not going to jump

4 in between Mr. Green and Mr. Saxe, but this one time I

5 must say it seems to me if we're going to bifurcate

6 discovery from the general financial information, general

7 financial analysis, I would suggest to you that you really

8 need to make that general financial decision prior to

9 determining what discovery is appropriate because one

10 flows from the other.

11 It seems backwards to say what discovery you can have

12 and then to decide what the true scope of financial

13 information is going to be.

14 HEARING OFFICER MENTON: Well, I think I probably

15 mixed a bunch of different concepts together at one time.

16 I didn't clearly articulate my thought process. But what

17 it seems to me that we need to do is first of all resolve

18 the question that I think was initially raised by the

19 League's response to the requests for financial data as to

20 what financial issues are part of this case.

21 I mean where does Hazen and Sawyer Study fit in

22 within the context of the SWIM plan and the formal hearing

23 that we're going to hold in this case? I think that is

24 the, you know, the crux of the issue. In the mean

25 time, the discovery order that I'm going to enter will

1 grant the protective order regarding the financial data

2 that has been sought with the option of revisiting that if

3 once we resolve these other financial issues and we get a

4 better feel as to whether it's going to be necessary to

5 get into any of that, you can bring that up again and I'll

6 take a look at it and we'll see from there.

7 That's what I was trying to articulate before, and so

8 I think that's probably the best way to go. I'll do that

9 short order denying or granting the motion for protective

10 order, and then I'm going to do a separate order

11 addressing some of these other issues we'll talk about.

12 So let's get to the second phase now. At the outset,

13 since the League's response for the motion for protective

14 order initially raised these issues, some of the questions

15 that have occurred to me in that context, in your brief

16 there is a reference to the fact or to the contention that

17 it's not ripe to address the financial issues as part of

18 this case and that there was a "clear intent" they

19 be addressed at some time in the future.

20 I guess I haven't been able to figure out exactly

21 what that means. Where do these issues come into play in

22 the future, and when will they be ripe for consideration

23 and in what context?

24 MS. KAVANAUGH: We have two separate issues in our

25 mind, economic issues. One is whether or not the actual

1 economic facts, I guess you call them economic because

2 they have dollar signs involved with them, in the Plan as

3 to how much the STA technology, and that's really what

4 we're talking about here, how much is it really going to

5 cost and whether the funding assumptions, all those pie

6 graphs that are, in fact, viable and correct, and we think

7 that those are at issue.

8 They're in the Plan and they're at issue, but the

9 Plan itself states that there has been no impact analysis

10 as to what the economic impact of its implementation will

11 be on the regulated area, on the EAA. And, in fact, it

12 sets out the 11 issues that are to be addressed in future

13 study which apparently is the Hazen and Sawyer Study which

14 is ongoing at this point.

15 I guess our position is that that's a legal defect.

16 I mean, they admit they did not do an economic impact

17 analysis. There is no dispute about that. It wasn't done.

18 Where we part ways perhaps with the Co-op is we feel that

19 you aren't supposed to do the economic impact analysis

20 that you can find that they did not and you can find as a

21 matter of law they should have, but that is not --

22 you don't then go on to actually do the economic impact

23 analysis. So what we would maintain is that that is a

24 legal defect that they did not do that.

25 All that is at issue in this case then is the

1 economic determinations that are set out in the Plan

2 itself and that the question of regional impacts could

3 come into play in three separate future proceedings.

4 One would be when they do this economic impact analysis

5 and make those determinations and the governing

6 board takes some action, when the Hazen and Sawyer Report

7 is done and they look at it and they say, okay, you know,

8 we're going to do this and we're going to do that, then it

9 could be at issue.

10 Secondly, it's obviously under the Marjory Stoneman

11 Douglas Act going to be at issue at the point the District

12 intends to implement the funding assumptions, the funding

13 -- not assumptions, the procedure that the Marjory

14 Stoneman Douglas Act sets out. It says that if the

15 District decides it's going to build, take land and is

16 going to build some sort of facility, that it can through

17 various funding mechanisms pass along those costs to those

18 who are determined to be contributing to the problem in

19 their prorata share based on their contribution to the

20 problem.

21 Obviously at that point you're going to get into some

22 sort of an economic analysis possibly on a regional basis,

23 or certainly the data basis, there is a master sort of

24 bubble concept that a whole basis can be assessed in

25 one assessment. The other place would be the individual

1 EAA permits which were -- but they have just started

2 reviewing those. They had to be filed on, I think, it's

3 October 1st, under the EAA regulatory program which is

4 provided in the Plan and individual permitees could

5 certainly raise economic issues as to the impacts on their

6 particular permitted area in that framework.

7 But since it's not in the Plan, I guess our position

8 is that you don't stand in the shoes of the Water

9 Management District to do something that they didn't do at

10 all. You can review it and we can offer evidence on it,

11 et cetera, et cetera, but the bottom line is they didn't

12 do it. And our position is that's a legal defect in the

13 Plan.

14 We would agree with the Co-op that if there are

15 any economic impacts, they are these raw based regional

16 type impacts that the Co-op is contemplating. We don't

17 intend to present any evidence other than would be

18 necessary to rebut, or if these economic impacts become

19 issue in the case obviously we would have to participate.

20 HEARING OFFICER MENTON: Well, put the Hazen --

21 DR. LUKE: Hazen.

22 HEARING OFFICER MENTON: Hazen.

23 MS. KAVANAUGH: Okay.

24 HEARING OFFICER MENTON: Put that in a little bit

25 better perspective for me because as I understand it,

1 the SWIM Plan does not include it obviously, but it

2 references the fact that it's being undertaken, and it

3 mentions that it will be incorporated into the Plan. And

4 there has been, I believe, I don't know if I have two

5 copies. I have a "final report" that was submitted

6 as an exhibit with some of the protective order pleadings

7 that were filed, and it's dated July 31st.

8 I know there was an earlier draft floating around at

9 one of the earlier hearings we had I believe. But you

10 just indicated that it's ongoing; that this final report

11 isn't final, I guess, and there is still some more studies

12 going on?

13 MS. KAVANAUGH: Well, discovery is going along in

14 sort of fits and starts, and as near as I can tell frankly

15 the District would have to address this because we don't

16 know. As near as we can tell, there is, in fact, an

17 intention in May of 1993 to take what comes out of the

18 ultimate refinement of this Hazen and Sawyer Report and

19 some other ongoing studies, for example, they're studying

20 the viability of the STA's as opposed to other

21 alternatives, and that there is going to be something

22 called an optimal plan submitted at that time to the

23 board, which apparently is going to be different from the

24 Plan we're litigating now, which raises another question

25 of which we do intend to bring to your intention is, in

1 fact, the Plan litigated now the Plan and all those

2 issues.

3 But I'm not raising those now. But clearly, if they

4 intend to alter the Plan in response to the Hazen and

5 Sawyer Report or whatever they're doing with those

6 reports, that may raise another point of entry. I guess

7 if that occurs possibly before, while we're still in this

8 proceeding, particularly at this relatively early of a

9 stage, maybe it could be pursued into this proceeding, but

10 at this point it has not been, at least not to our

11 knowledge. And the District can tell us whether or not

12 it is a final report and whether or not the conclusions

13 are, in fact, incorporated into the plan. We would like

14 to know that.

15 HEARING OFFICER MENTON: Well, you mentioned there

16 are some future stages at which at least some of these

17 economic issues will come up. Do you see a particular

18 point at which time you will have an opportunity to

19 challenge the conclusions of the Hazen and Sawyer Report?

20 Where does that come into play? Will you ever have that

21 opportunity?

22 MS. KAVANAUGH: We believe that we will have that

23 opportunity at the point that they attempt to implement

24 the STA program if, in fact, this proceeding finds that

25 the STA program is practical within the standards as we

1 set out in our brief.

2 When they start to actually try to condemn the land

3 for the STA's and impose the financial burden that the

4 Plan contemplates for the construction of the STA's

5 depending, because we don't know yet how they're going to

6 -- what they are going to do with the permit applications

7 that are pending. Certainly there is a possibility that

8 the Hazen and Sawyer Report insofar as it makes certain

9 conclusions about farm impacts, that that could come into

10 play.

11 But at this point, I don't think they're relying on

12 it for any purpose. If they are, then we want to

13 challenge it. But at this point, we don't know what

14 they're using it for or how is it incorporated into this

15 Plan. If it is and they're not going to give us another

16 point of entry, then obviously we would want to challenge

17 it. But at this point, we haven't been told how it is to

18 be used and it has not been used for the basis of this

19 agency action that we're talking about right now.

20 HEARING OFFICER MENTON: All right. So in reviewing

21 the statute in trying to put the Plan in context that that

22 was the first thing that jumped at me, is there a point of

23 entry anywhere set forth in the statute to challenge the

24 economic impact assessment that's --

25 MS. KAVANAUGH: I think normally it would be in this

1 proceeding had they done it, but they didn't. I think

2 had they incorporated the Hazen and Sawyer Report in this

3 plan, this decision right here, and said we've done this

4 report and based on this, you know, this is why we're

5 proposing these strategies and goals and objectives, and

6 we've assessed these economic impacts, that would be the

7 point of entry. They didn't do that.

8 We think it's a legal defect that would

9 require remand. But other than that, our next point of

10 entry will be when they take some kind of action to

11 recognize the Hazen and Sawyer Report as something

12 that they're making a decision on, and we have not

13 seen that to date.

14 We assume they would have to use it, for example, at

15 the point they were assessing to pay for the programs

16 and that sort of thing, but frankly we don't know.

17 MR. HYDE: Mr. Menton, just to make a very brief

18 point here, I would like to put this whole Hazen and

19 Sawyer Report issue in the context of traditional APA type

20 of concerns. There has been no agency action on a Hazen

21 and Sawyer Report. There is nothing yet to challenge in

22 that context. At such time as the governing board

23 approves or disapproves or modifies the Hazen and Sawyer

24 Report and the conclusions and the assumptions and fact

25 findings contained in it, that creates an agency action.

1 I would suggest to you that at such point there would

2 be created a point of entry to challenge that. I don't

3 think the SWIM Plan process ever contemplated that

4 everything was a one-shot deal. I think the SWIM Plan,

5 the Marjory Stoneman Douglas Act states that SWIM

6 Plans are orders and there will be subsequent SWIM Plans.

7 There will be subsequent Everglades SWIM Plans. This is

8 probably not the first shot -- the only shot. I think

9 that at such point you would have a new agency action and

10 new point of entry.

11 HEARING OFFICER MENTON: Okay. Along those lines,

12 I thought that at some of the earlier hearings there had

13 been some mention that the Hazen and Sawyer Report was

14 presented to the Water Management District at some point,

15 and I don't know if that's true or not.

16 MR. GREEN: That's true.

17 MS. KAVANAUGH: It's been physically presented, but I

18 --

19 HEARING OFFICER MENTON: But no adoption of it per

20 se or --

21 MS. KAVANAUGH: Unfortunately Mr. Burgess knows more

22 about it than I do and the District must know more than

23 any of us.

24 MR. HYDE: It certainly hasn't been approved and

25 certainly it's not complete. I think what was

1 presented was probably along the lines of an interim

2 report more than anything else.

3 HEARING OFFICER MENTON: Mr. Green, you're shaking

4 your head in three different directions.

5 MR. GREEN: I don't want to jump in. I'll

6 wait until you're ready to hear me.

7 MS. KAVANAUGH: In conclusion I will say if it has

8 been incorporated and assumed into this and their district

9 board action is saying retroactively, yeah, this is

10 incorporated into this, then obviously we would want to

11 participate in rebutting that.

12 HEARING OFFICER MENTON: Okay. Mr. Green.

13 MR. GREEN: Your Honor, you correctly noticed that it

14 says final report on the copy that you have. We're not

15 aware of any other reports. I would respectfully disagree

16 with counsel for the League on a couple of points, and I

17 think that you've got a live one now before you. This is

18 a fundamental issue in this case. It is going to shape the

19 entire case from now on, and your order is perhaps one of

20 the most important orders that will come out of this case

21 next week or the week after.

22 Let me give you facts and not theory on how this all

23 came about. It's a fact that the settlement agreement

24 that was entered into by the three parties down at the end

25 of that table did not consider moderating provisions under

1 Florida Water Quality Standards or economics. In fact, in

2 the settlement agreement there is a phrase that says that

3 a force de jure provision, on page 28 of the

4 settlement agreement. I'll read it, Force de jure shall

5 not include increased costs of activities covered by this

6 agreement whether or not anticipated at the time such

7 activities were initiated.

8 HEARING OFFICER MENTON: You're reading from the

9 settlement agreement?

10 MR. GREEN: The settlement agreement. Now it's a

11 fact the settlement agreement placed deadlines upon South

12 Florida Water Management District to crank out the SWIM

13 Plan. It's a fact that the Hazen and Sawyer Report was

14 not even well underway when the SWIM Plan was adopted in

15 March. The plan references it and says it will come out

16 at some point.

17 Well, we know that the date of that plan is July

18 31st, 1992. I believe the record reflects it was

19 presented to the board in August 1992. Now it's also a

20 fact that these parties have taken the position in

21 their responses to our proposed order, I'll give you a

22 good example, page five of the South Florida Water

23 Management District memorandum of law in the proposed

24 order regarding economic issues.

25 I quote "The socioeconomic impact of ultimate

1 implementation of strategies and programs in the Plan is

2 irrelevant to the validity of the SWIM Plan" end quote.

3 Your Honor, what we believe you have before you is a Plan

4 that is completely arbitrary and capricious. It reflects

5 the settlement agreement which did allow for

6 consideration of moderating provisions, and now the

7 parties are forced to say that the Legislature when it

8 adopted the Marjory Stoneman Douglas Act didn't mean

9 what it said.

10 HEARING OFFICER MENTON: The Marjory Stoneman

11 Douglas Act, though, does not specifically itself require

12 consideration of economic impacts, but you're saying it

13 comes in the context of water quality mitigation.

14 MR. GREEN: Yes. Your Honor, my reading of that

15 Act is this: It says that the District is to go out and

16 achieve and maintain compliance with water quality

17 standards. It says that the water quality standards that

18 apply to the water conservation areas and the park are not

19 changed by passage of that Act, and we've cited that in

20 our memorandum.

21 The SWIM Act defines water quality standards as those

22 that are adopted under Chapter 403. Okay. Now if you go

23 over to Chapter 403 and the regulations adopted

24 thereunder, by definition water quality standards include

25 not only the numerical and narrative criteria but as you

1 know the moderating provisions. We have urged for over a

2 year on behalf of our clients that this Plan has to

3 consider those moderating provisions, and it doesn't. So

4 now those parties have no alternative but to say economics

5 are irrelevant because if they don't and you agree with

6 them, then we've missed the whole opportunity to properly

7 implement these standards.

8 I gave citations of the intent section of the water

9 quality standards language which says it's clear that you

10 have to take the practicality, the economics, the cost

11 benefits of applying these standards in a given case to be

12 sure they're attainable. The commission that adopted the

13 standards went out of its way to put that in the rules,

14 and it's in there and we have cited it.

15 Now where I disagree with Ms. Kavanaugh is this:

16 It's not so much will we have a point of entry on the

17 Hazen and Sawyer Report; it's when will we have a point of

18 entry to determine whether the limits put in the SWIM Plan

19 which are parroted out of the settlement agreement and

20 which are now parroted in the DER permit that we're going

21 to challenge next week, where are those provisions going

22 to take into account economics? Well, they're not, unless

23 you force it, because this is where they're applying water

24 quality standards.

25 Now one reason this issue got confused is there are

1 cases going on, all the parties are aware of them, where

2 certain sugar interests have taken the position that the

3 numbers in the settlement agreement and the Plan are

4 " standards", and if they're standards, then they have to

5 be adopted by ERC. I think that's a reasonable argument.

6 But the Department has determined, no, they're not

7 standards by Secretary Browner's order, we're implementing

8 standards as we're allowed to do. Okay.

9 Well, if they're implementing standards in these

10 proceedings in this SWIM Plan, then they have to take into

11 account economics, and they haven't. Now if they

12 continue they're irrelevant and they're not going to put

13 on economics and they're going to go with these numbers,

14 then we ask you to summarily remand the SWIM Plan back to

15 the District.

16 It's arbitrary and capricious. They failed to

17 consider appropriate factors, they abused their

18 discretion, and they have done it because of the coercive

19 influence of the Federal Government in the settlement

20 agreement.

21 HEARING OFFICER MENTON: Mr. Oertel.

22 MR. OERTEL: I don't have any argument on this point.

23 HEARING OFFICER MENTON: Okay.

24 MR. REID: Can I ask one question? I don't really

25 want to argue the point. Is counsel's position then that

1 the day after the SWIM Plan is adopted there is some

2 standard that they're going to have to comply with or

3 they're going to lose their permit, for instance, the day

4 after the SWIM Plan without any other permitting or rule?

5 MR. GREEN: Is that the rest of your question?

6 MR. REID: That's my question.

7 MR. GREEN: Mr. Reid, the Marjory Stoneman

8 Douglas Act say that the DER permits must be consistent

9 with the SWIM Plan unless the SWIM Plan applies a

10 moderating provision, then the permit can't. And it

11 hasn't and it doesn't, the draft permits from DER

12 doesn't. So, yes, this SWIM Plan, unless it's changed,

13 casts in concrete the numbers that our clients have to

14 comply with henceforth, and if we don't have that

15 opportunity now, we won't have it.

16 HEARING OFFICER MENTON: Okay.

17 MR. SAXE: Mr. Hearing Officer, I hear a closure

18 in positions between the League and the Co-op today for

19 the first time on one essential point, and that is the

20 League has taken the position today that so far as I know

21 for the first time that the absence of an economic impact

22 assessment in the SWIM Plan promulgated on March 13th,

23 1992 is a legal defect in the SWIM Plan that's going to

24 require remand.

25 That certainly is consistent with the position that

1 Mr. Green is articulating right now for the Co-op. I

2 think the essential point is, the issue before this

3 Court on the respective motions to compel and protect

4 discovery was not the underlying basis for economic

5 allegations. It was the scope of discovery which depends

6 on the scope of the allegations, and that was the matter

7 that should properly have been addressed in the proposed

8 order that the Co-op filed.

9 The respondent, all the intervenors except for the

10 environmental intervenor, Florida Audubon Society, in

11 their responses to the Co-op's proposed order have

12 indicated that issue is not properly before this

13 Hearing Officer at this time. And if it is, the Hearing

14 Officer's position that this threshold issue must be

15 addressed first before we discuss the appropriate

16 restrictions or the scope of discovery, then we need a

17 briefing schedule to address it for several reasons.

18 Number One, it hasn't been briefed. We've taken a

19 position as Mr. Green notes that the arguments the

20 Cooperative made in the proposed order are legally

21 unfounded. We have not addressed the question, the

22 broader questions of the scope of economic issues in this

23 case, the legal theories of the case that the Co-op is

24 putting forth, whether this is a legal defect in the SWIM

25 Plan or not, and that does need to be addressed.

1 HEARING OFFICER MENTON: Okay. I think that's a

2 good point. I think I injected these issues into the case

3 when we first started discussing the discovery issues

4 regarding the financial matters. I think I threw out at

5 that time, you know, where does the Hazen and Sawyer

6 Report fit in and what is its role in this proceeding?

7 As Mr. Green has pointed out, that is a critical

8 issue in this case, and it probably hasn't been fully

9 briefed especially from the respondent's standpoint.

10 But I think Mr. Green has made a proposal without fully

11 articulating his legal arguments either. So maybe what we

12 need to do is set up a briefing schedule to specifically

13 address it because I think everybody needs to have a

14 full opportunity to address these issues.

15 And I guess, Mr. Guest, that puts you off the hook

16 for next week. But it does seem to me that I probably

17 injected that issue in there thinking we could resolve it

18 today, but I think it's probably premature to do that.

19 We need to give everybody an opportunity to really lay

20 this out. I don't think that from a standpoint of the

21 ongoing discovery process and getting prepared for

22 hearing that we're unduly delaying the process by

23 allowing a briefing schedule and addressing this at a

24 later date.

25 As I indicated before, the discovery on the financial

1 matters I'm going to limit it this time until it's proven

2 that we need to do it, and I think that will help

3 crystallize those issues. I think there is a lot of

4 discovery that can go on in other areas in the meantime.

5 MR. GREEN: Mr. Menton, that sounds like a very good

6 approach from our point of view. I would ask you if you

7 would consider having the parties who did not take the

8 opportunity to address the issues that were raised in the

9 proposed order head on, file something within a certain

10 time, then give us a chance to respond because I've laid

11 out candidly our position, and I think that would be

12 appropriate. I would ask you to consider that.

13 HEARING OFFICER MENTON: Well, I think we should

14 give everybody an opportunity to fully respond to both

15 parties' positions, so what I would propose to do is to do

16 like we did with the burden of proof issue to the extent

17 we can -- well, I guess we can't do joint --

18 MS. KAVANAUGH: Let us try. Maybe we can find a

19 way.

20 HEARING OFFICER MENTON: If you can do it and if the

21 respondents can do a joint then that certainly makes my

22 reading a little bit easier. But how long do you think

23 you need to do an initial stab, and then we'll do a reply

24 I think is probably the best way to do it?

25 MR. GREEN: Ten days.

1 HEARING OFFICER MENTON: Simultaneous submission of

2 both the --

3 MR. GUEST: Three weeks for the first one.

4 MS. KAVANAUGH: Three weeks?

5 MR. GUEST: We've got a lot of research to do. Let

6 me say why we have a lot of research to do. When I was a

7 writer in the legislation when this act was passed, it was

8 wall to wall lobbyists from the sugar industry. I think

9 it's inconceivable the legislative history will not

10 contain a huge amount --

11 HEARING OFFICER MENTON: I don't think three weeks is

12 unreasonable. I don't think, it won't string out the

13 process too long because I think these issues can be

14 pulled out and isolated. It is a critical issue so three

15 weeks is -- one week for the reply after that.

16 MR. GREEN: Friday three weeks hence, and then the

17 week after that --

18 MS. PONZOLI: Mr. Hearing Officer, I would just once

19 more ask you to please keep an open mind on discovery

20 until that process has run its course because that to me

21 will really nail down what discovery would be appropriate.

22 HEARING OFFICER MENTON: Certainly, and I meant to

23 convey that earlier. And I'll revisit that if needed, but

24 I think at this point we'll stand where we are.

25 MR. SAXE: Mr. Hearing Officer, in consulting the

1 calendar, it appears that the Friday we abstractly

2 describe as the day right after Thanksgiving might I

3 suggest that that be pushed to the following Tuesday

4 after the holiday.

5 HEARING OFFICER MENTON: Yes. Is that okay with

6 everybody?

7 MR. HYDE: Yes.

8 MR. REID: Three weeks from next Tuesday in other

9 words.

10 HEARING OFFICER MENTON: Three weeks from next

11 Tuesday. The initial one would be due the 20th; is that

12 right?

13 MR. GUEST: It should be.

14 HEARING OFFICER MENTON: That's before Thanksgiving.

15 And the reply, rather than have it due on that Friday,

16 have it due on the following Tuesday.

17 MR. HYDE: Which is the 2nd.

18 MR. REID: The 1st. The first brief is due on the

19 20th of November which is the Friday before Thanksgiving,

20 and the reply is due on the 1st --

21 MR. GREEN: Of December, right.

22 HEARING OFFICER MENTON: All right. And I don't

23 have my calendar in front of me. I don't know when we

24 have the next hearing scheduled to maybe address that, and

25 I think we maybe need to set up a separate one for this.

1 MR. GARVER: The next hearing is the 20th.

2 HEARING OFFICER MENTON: November.

3 MR. REID: Then the next one is the 18th of December.

4 MR. GREEN: Maybe the 11th, would that be an

5 acceptable time?

6 MR. REID: Friday, the 11th.

7 HEARING OFFICER MENTON: Let me pull my calendar at

8 the next break and we can finalize the date. You don't

9 think -- you think we need a separate one? Rather than

10 the 18th, you want to set this up separately?

11 MR. GREEN: Maybe not.

12 MR. GUEST: Maybe more discovery balance by then.

13 MS. KAVANAUGH: Do you think we need --

14 HEARING OFFICER MENTON: Yeah, I think I probably

15 need to limit, we can argue things forever in all of these

16 instances. I think it's more important that everyone have

17 an opportunity to lay out these issues.

18 MR. REID: How about the 18th, that regular one?

19 HEARING OFFICER MENTON: Do it the 18th? That would

20 give me an opportunity -- we'll just do it the 18th.

21 MS. KAVANAUGH: The regular conference, yes.

22 HEARING OFFICER MENTON: If we're going to stay with

23 the 18th, do you want to push back the reply date?

24 MS. KAVANAUGH: You're going to have to read them

25 all.

1 HEARING OFFICER MENTON: Yes, as long as I have a

2 week or so beforehand.

3 MS. KAVANAUGH: Yes, I think the Tuesday, from our

4 point of view, we would just like to get it out of the

5 way because there are other things we're going to be

6 preparing for.

7 MR. GUEST: It would save everybody working over

8 Thanksgiving.

9 HEARING OFFICER MENTON: Yes, how about the

10 4th, that Friday.

11 MS. KAVANAUGH: Yes, the 4th.

12 MR. SAXE: That's fine, the reply.

13 HEARING OFFICER MENTON: Okay. So that takes care

14 of that issue. All right. The last thing we have to do

15 is the burden of proof, right, the last issue for today.

16 Okay. I have read everybody's submittals and hold

17 the pertinent cases, at least what I grasp to be the

18 pertinent cases, I won't say I read every case that was

19 cited, and, you know, there is no need to go back and

20 rehash all those arguments. I understand the positions

21 that everybody has set forth.

22 I think probably the best way to approach this is for

23 me to try to articulate some of my thought processes as I

24 was reading some of these documents. Let me see if I can

25 eliminate some of the issues right off the bat. I'll give

1 everyone and opportunity to respond to this. At least, as

2 I read the documents and tried to figure out, and read the

3 pleadings and tried to figure out how all this comes

4 together, right off the bat, I don't agree with the

5 position expressed by the respondents on the fairly

6 debatable standard.

7 I think that the two areas that were cited, the

8 zoning law and the growth management law, I don't think

9 are controlling within this context and for a couple of

10 reasons. I don't want to spend a lot of time on it.

11 First of all, in the growth management context, I think

12 the fairly debatable standard does not apply uniformly in

13 the growth management context. It applies in compliance

14 cases when it's challenged by somebody other than DCA.

15 But in the context of a noncompliance case where DCA is

16 the challenger, then the fairly debatable standard is

17 very specifically limited by statute to the issue of

18 internal consistency.

19 And if nothing else, I think that that articulation

20 in the statute where the Legislature clearly saw fit that

21 in certain contexts it would require only fairly debatable

22 indicates that's what the Legislature intends to be the

23 standard it's going to set that out.

24 Likewise, the zoning cases that are cited on the

25 fairly debatable standard are not really pertinent

1 because I think you're dealing with some very different

2 situations involving constitutional separation between the

3 executive and judiciary review on some of those executive

4 decisions. So I don't find the arguments on the fairly

5 debatable standard to be convincing. But to put the whole

6 thing into context, I have tried to figure out exactly

7 what the Legislature intended by putting in a provision to

8 challenge or a provision for 120.57 hearing on the

9 SWIM Plan.

10 To be perfectly honest, I'm not sure exactly what

11 they intended. I don't think it's very clearly set forth.

12 We're dealing with a real hybrid situation without a

13 doubt. I have not in my own independent research been

14 able to find any directly analogous situations and nor did

15 I see in any of the cases that were cited to me any

16 directly analogous situations.

17 In that context, I think what needs to be done and

18 what I have to do is try to put the SWIM Plan Act, the

19 Marjory Stoneman Douglas Act and the SWIM Plan itself

20 all in the context of Chapter 120 and what my role is.

21 And it seems to me that in that context, that what was

22 intended by the Legislature by creating this point of

23 entry and for everybody to be here was to have a

24 neutral forum where everyone would have an opportunity to

25 present their side on disputed issues of fact. And in

1 that regard, I think it's consistent with what my role as

2 a hearing officer is in all types of 120 proceedings; and

3 that is, I'm essentially a fact finder.

4 I'm not here to sit in an appellate capacity to

5 review the SWIM Plan. I'm not here to render legal

6 opinions as to statute. Now some of those may come

7 into play, but in order to put it all in context of a

8 recommended order, but my essential role is to serve as a

9 fact finder. And in that regard, it seems to me that the

10 Marjory Stoneman Douglas Act has directed the South

11 Florida Water Management District to adopt the SWIM Plan.

12 It did not direct the Water Management District to

13 come to the Division of Administrative Hearings and prove

14 why the SWIM Plan is necessary or anything else. It

15 directed them to adopt a SWIM Plan. I think that, at

16 least, I think it could be an impossible burden to

17 require the Water Management District to come in and prove

18 every aspect of the SWIM Plan. I think Mr. Hyde in

19 your brief you have phrased it in terms of whether we

20 prove SWIM Plan or prove not SWIM Plan.

21 I'm not sure it has to be quite that black and white.

22 I don't think they have to come in and prove every comma

23 and period, et cetera, that's set forth in the SWIM Plan.

24 I think that given the context of this whole proceeding

25 and the directions provided in the Marjory Stoneman

1 Douglas Act that what the -- probably the easiest

2 way to do it is for me to get a grasp on what we're really

3 talking about is for the Water Management District

4 to come in and put it in context to demonstrate what they

5 did and why they did it in order to comply with

6 their legislative directive.

7 And I think that was suggested in at least in the

8 reply brief that was filed on behalf of the respondent.

9 I then think that -- and I think this approach

10 is somewhat touched on in the Estuary Property case, for

11 example, where the burden sort of shifts back and

12 forth. I think the Water Management District to come

13 in and lay a prima facie case by saying this is what we

14 did in response to the legislative directive to adopt a

15 SWIM Plan and put that in context, and then the burden

16 then shifts to the petitioners to demonstrate why the

17 assumptions, conclusions, recommendations of that SWIM

18 Plan are not appropriate.

19 And I think absent a specific directive in the

20 statute is my role as a fact finder to weigh the evidence

21 presented, and, of course, the respondents would have

22 an opportunity to respond to the case presented by the

23 petitioners challenging specific aspects. It's then my

24 role to weigh the evidence in accordance with the

25 general preponderance of the evidence standard that's

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1 applicable under 120.57 proceeding.

2 Anyway, that's the thought process I went through in

3 trying to pull all this together. I'll give each of you

4 an opportunity to comment on it and tell me why I'm crazy

5 or whatever. I'll be happy to try to further explain my

6 theory to any of you or to reconsider it in light of what

7 you might point out.

8 But without having to get into all the specific

9 arguments that the various parties have raised, I think

10 what the bottom line is that it's not clear what exactly

11 was intended by trying to put it in context of the overall

12 statutory scheme as well as Chapter 120. That's what I

13 review my role to be. Mr. Hyde.

14 MR. HYDE: I think that I agree with your thought

15 process in every respect save one, that is, in

16 your observation that you don't know what the Legislature

17 intended. I think that we can deduce what the Legislature

18 intended in this context.

19 I think it comes from a variety of different sources

20 both in the SWIM Act and in the panacea of administrative

21 case law. I think that what you have to do is to look

22 at that Chapter 373 really in its entirety, and you have

23 to look at cases such as Anheuser-Busch, and I think you

24 can derive from that a legislative intent.

25 Now did the Legislature say the burden of proof shall

101

1 be on the District, or it shall be on the challengers?

2 No, it did not. But it did an awful lot else or there is

3 an awful lot else in the case law and in the statute which

4 really does drive that point home.

5 I would like to highlight some of those points. But

6 before I really get into them, I think that you need to

7 focus on the confusion in the respondent's case, and I

8 think that the confusion is very pervasive. Continually

9 they make inappropriate reference and comparison to

10 local government comprehensive planning and federal

11 planning actions and appellate standards of review, and I

12 think you noted in effect you were not to sit as an

13 appellate court so to speak.

14 I think you have already rejected the comparison of

15 government comprehensive planning. They have postulated

16 that the Plan is akin to a rule when the Marjory

17 Stoneman Douglas Act expressly says it's an order.

18 They like to refer to the Plan as being quasi legislative

19 when the Florida APA has long rejected those kind of quasi

20 legislative versus quasi judicial fact findings or

21 processes in the modern contemporary Florida

22 administrative procedure.

23 They really have no way to explain two important

24 things, that's the Anheuser-Busch line of cases and

25 the provisions of Section 373.171(3) Florida Statutes; and

102

1 if you can find an intent anywhere in this entire process,

2 you can certainly find it in Section 373.171(3). I just

3 wanted to reflect on that for a moment because I really

4 think it's really the heart of this whole case, that is

5 an express provision in the District's enabling statute

6 which states, and I quote, No rule, regulation or order,

7 and we are clearly by legislative fiat dealing with an

8 order, shall require any modification of existing use

9 for disposition of water in the District; here, the South

10 Florida Water Management District, unless it is shown that

11 the use or disposition proposed to be modified is

12 detrimental to other water uses or to the water resources

13 of the State.

14 Now let's just take that statutory provision apart a

15 bit. The farmers, my clients and the other agricultural

16 interests here, are quite content with their current

17 existing use and disposition of water in the District.

18 They don't believe their use or disposition is harmful.

19 They don't want to change anything. Who wants to change?

20 The District does, and the Federal Government and the

21 other intervening parties.

22 Why they're for or even how can the farmer be

23 required to demonstrate that an existing use is

24 detrimental? They don't want to do that. They say it's

25 fine. The statute says for those that want to change the

103

1 use they have to prove that it's detrimental. I think

2 that that statute really clearly imposes on the District

3 or anyone proposing a change in use, and this SWIM Plan

4 clearly proposes radical changes in use, the burden of

5 establishing that point in a proceeding.

6 HEARING OFFICER MENTON: But didn't the Legislature

7 in adopting the Marjory Stoneman Douglas Act recognize

8 that the District had to take some steps and grant that

9 discretion to the District to reach whatever conclusions

10 it needed to reach? Doesn't that supersede the statutory

11 provision that you're relying on?

12 MR. HYDE: No, I don't think it does. There is no

13 indication in the Marjory Stoneman Douglas Act that

14 you disregard the general SWIM Plan statute or the

15 provisions generally of Section 373. In fact, as I note

16 in my initial memorandum, the District itself in the

17 Marjory Stoneman Douglas Act or in its own SWIM Plan

18 has admitted that the Act is to be integrated with its

19 other statutory functions, the provisions of Section

20 373.4592(7) speak of the Marjory Stoneman Douglas

21 Act being construed in the light of all of the provisions

22 of Chapter 373.

23 The Legislature did not intend or I don't think it

24 can reasonably be argued that the Legislature in adopting

25 the Marjory Stoneman Douglas Act intended to be, I

104

1 don't know, repealing or by implication say that Section

2 373.171 doesn't apply anymore. If it intended to do that,

3 I think it would have done so. It did not. It didn't

4 disturb that statute. In fact, it gave us a contrary

5 signal by saying that all the other provisions apply, the

6 other provisions of the SWIM Act apply.

7 This Marjory Stoneman Douglas Act is, in effect,

8 supplemental to the SWIM Act and the Chapter 373, but

9 it's not inconsistent with it. It's not intended to

10 govern or to create totally different standards. It's not

11 intended to disturb what other remedies may exist at

12 law. One can easily infer from that argument that

13 Chapter 120 doesn't apply either, if that's what

14 you're saying.

15 The Marjory Stoneman Douglas Act is a relatively

16 narrow -- but if the Legislature intended by the adoption

17 of the Act to be repealing by necessary implication

18 of provisions of 373.171, how can -- you could easily

19 extend that to Chapter 120 processes as well.

20 HEARING OFFICER MENTON: Well, carrying

21 your argument out, what is the end result? What is it

22 that you say the Water Management District has to do in

23 this case? I mean, in going beyond that, what is the

24 order that I have to enter as a conclusion of this case?

25 Are you saying that my recommended order essentially has

105

1 to make specific finding regarding every line in the SWIM

2 Plan?

3 MR. HYDE: Heavens no, and I want to make that very

4 clear. We're not challenging entirety of the SWIM

5 Plan. I think that the issues we have raised are

6 obviously limited by, in our case, our second amended

7 petition and in the other petitioner's cases by

8 their petitions. It's only the issues that of the matters

9 that are placed in issue by petitioners that need to be

10 resolved in this context.

11 That can come up in a variety of different ways and a

12 lot of different administrative hearings. You may take

13 issue with a condition in a permit, and that may be the

14 only thing on which you take issue, but other matters

15 still, they sort of just go by the wayside, and

16 you're litigating the one discrete matter.

17 Now this case, we have a lot of matters that we're

18 litigating and I think they fall into several broad

19 categories. The existence of water quality violations,

20 that is violations of the applicable water quality

21 standards, the cause of those violations, the

22 appropriateness of the proposed interim and long-term

23 of concentration limits for phosphorus, and finally the

24 appropriateness of the remedies which includes among other

25 things the storm water treatment areas.

106

1 Those are the four broad categories on which

2 you're going to be required to make findings of fact.

3 You're going to have to conclude one way or the other

4 whether the narrative nutrient rule is being violated in

5 the water conservation areas. You're going to have to

6 conclude whether the fertilizer -- excuse me, phosphorus

7 in the water from the EAA is causing that violation, or

8 perhaps that it is being caused, those problems are being

9 caused by hydro-period mismanagement which is the central

10 theme of our case.

11 Once you go past those two threshold issues, you

12 have to decide whether the appropriate -- that there are

13 appropriate remedies. Is 50 parts per billion appropriate

14 concentration level for phosphorus in waters that are

15 introduced into the WCA's? If that isn't the case, will

16 the storm water treatment area, the approximately 35,000

17 acres of them, will they be sufficient to generate

18 or to purify agricultural waters down to that level?

19 Those are the four broad categories of findings of fact

20 you're going to have to make in this case.

21 There may be others too, but those are the broad

22 categories. And I think that's what your recommended

23 order is essentially going to say at some point.

24 HEARING OFFICER MENTON: Well, I guess what I'm not

25 clear on, though, is what is it that you're telling me

107

1 that -- what process should we be following then in order

2 to put your approach into practice?

3 MR. HYDE: I think the approach you should be

4 following here is that prescribed in cases such as I

5 guess beginning with the McDonald versus Department of

6 Banking and Finance case, but really in the Anheuser-Busch

7 line of cases. We're dealing here with nonrule policies

8 and, in fact, with a reversal of prior established policy.

9 HEARING OFFICER MENTON: Well, I know you

10 cited this whole line of nonrule policy cases, but I just

11 have a hard time understanding how those cases -- it seems

12 to me that we've been placed in a different arena

13 here when the Legislature has specifically directed the

14 Water Management District to adopt the SWIM Plan.

15 Most of those nonrule policy cases, developmental

16 agency cases involve, you know, situation where there is

17 an attempt to require the agency to articulate its

18 reasoning in writing and rules, and if the agency chooses

19 not to do it, then it places the burden on them to come

20 forward and demonstrate the basis for that policy.

21 That is really a whole different situation than we

22 have got here where the Legislature has directed the Water

23 Management District to adopt this Plan even if it's not

24 called a rule. I mean it's --

25 MR. HYDE: It's not just not calling it a rule, the

108

1 Legislature calls it an order. It's a 120.57(1)

2 proceeding. The Legislature was surely aware of all of

3 the antecedent administrative case law which talks about

4 the development of nonrule policy. This is clearly

5 development of nonrule policy.

6 I don't see how anyone can seriously contend

7 otherwise. If it's not nonrule policy, then it's a rule,

8 in which case they have erred by not undertaking ruling

9 making. So we're clearly in the order format; and because

10 we're in the order format, it imposes upon the agency that

11 proceeds in that manner, and here the Legislature has

12 imposed on the agency that duty to prove up the

13 fundamental foundations and premises of that policy.

14 HEARING OFFICER MENTON: Well, from a practical

15 standpoint, though, if that's the approach we're to use,

16 then I don't understand how I can avoid having to make

17 specific findings of facts on every aspect of the whole

18 SWIM Plan. I mean on every line of it.

19 MR. HYDE: No, I don't think that's called for at

20 all. You will receive at the conclusion of this case

21 proposed findings of fact and conclusions of the law

22 from the parties. I think that certainly will narrow the

23 issues of which you need to make findings of fact.

24 We're not challenging the entirety of the SWIM Plan.

25 There is a lot of stuff in there that we don't take issue

109

1 with or take serious issue with or really doesn't impact

2 upon our interests and wouldn't really have standing to

3 challenge it anyway. I mean, this is a lengthy document.

4 The planning document itself is lengthy. It contains

5 loads of various, I don't know, observations,

6 determinations, facts findings, call them what you will.

7 Then there is the supplementary documents to it.

8 We're not challenging everything in that. That's

9 perhaps the intent of some other parties in proceedings

10 like this, but that is certainly not our intent.

11 Our issues are those expressed in the petition that we

12 filed, and to the extent we have not raised any other

13 issues, then they're waived.

14 I mean, if there is some portion of the Plan that

15 bears upon some totally different issue, then we're not

16 going to be -- I mean, we have no right to bring that up

17 anyway at this point.

18 HEARING OFFICER MENTON: Well, as the bottom line,

19 what is the difference between the approach that you would

20 have me take and the one that I tried to outline a little

21 bit earlier?

22 MR. HYDE: Well, I think it's not significantly

23 different. There is a slight difference in degree, not

24 kind, that is, I would assign specifically to the Water

25 Management District because it is the Water Management

110

1 District's Plan, the responsibility, the burden of

2 proving up its Plan.

3 The District has already essentially admitted as

4 much. They admit it is appropriate for them to come in

5 in the first instance and prove up the premises of

6 their Plan. I think that's logical. I wouldn't have

7 thought this proceeding could proceed in any other

8 way. But I think that that fact alone --

9 HEARING OFFICER MENTON: When you say the premises

10 of the Plan, I mean how do we draw the line there, and

11 what premises are in dispute and what premises are not in

12 dispute, and when do I have to make findings of fact and

13 when do I not have to make findings of fact?

14 MR. HYDE: I presume that you'll be issuing what is

15 a customary prehearing order which would require us to

16 develop a stipulation among parties which expressly

17 identifies what the issues are. Certainly by that time,

18 some of the issues that are expressed in our petitions for

19 administrative hearing may have gone by the wayside.

20 But I think that that pleading itself will show you what

21 issues are in dispute, what issues are no longer in

22 dispute.

23 And I think another thing here to is from what I

24 understand in from discussions among and between the

25 parties, we're clearly contemplating here, I think all of

111

1 the parties, the consolidation of this proceeding. To the

2 best of my knowledge, no one other than yourself wants to

3 do contrary.

4 HEARING OFFICER MENTON: I think as it's a practical

5 matter --

6 MR. REID: I haven't agreed to that just so it's

7 clear.

8 HEARING OFFICER MENTON: Well, there are some

9 advantages to being in this position.

10 MR. HYDE: But let's assume that we do have --

11 HEARING OFFICER MENTON: Not many but --

12 MR. HYDE: Let's assume for a moment that we do have

13 consolidation. That certainly is the legislative

14 preference here. Once we have that consolidation, what

15 are you going to do in that proceeding? Clearly in the

16 permit proceeding, on the District permit from DER, the

17 District will have the burden of proof. I don't think

18 there is any debate about that.

19 Are you going to issue two sets of findings of fact?

20 Are you going to have two separate areas where you rule on

21 the parties' proposed findings of fact where you apply

22 one burden of proof test to the evidence and another

23 burden of proof to the same evidence depending on the

24 context on which its raised? I mean, how can you do

25 that? That's illogical.

112

1 Will some evidence be sufficient for one purpose but

2 not for another? I just, to me that's just a horrible

3 result that would occur in that context.

4 HEARING OFFICER MENTON: I agree that the permitting

5 aspect of the case causes some confusion as to how it's

6 all going to come together. You know, at this point I

7 don't know how you reconcile that. But I guess the bottom

8 line is I'm still not quite sure that you and I aren't

9 kind of saying the same thing really, and I'm trying

10 to figure out where we differ.

11 MR. HYDE: I would like to certainly think that we

12 are.

13 HEARING OFFICER MENTON: I guess it seems to me

14 that if we approach this case, and again I think the most

15 illustrative example, closest one I could come to is

16 Graham versus Estuary Property where the Court talked

17 about the burden shifting back and forth.

18 It seems that given the directive grant or that

19 mandates from the Legislature to the Water Management

20 District to adopt a plan, that once the Water Management

21 District comes in and says, here's the plan we've adopted

22 and given me some background as to how they went about it

23 and why they went about it in a general sense, then

24 they've established their prima facie case.

25 Then it's up to the parties that are challenging that

113

1 Plan to put at issue the assumptions, conclusions, and

2 recommendations that are set forth in that SWIM Plan, and

3 Water Management District and the various parties

4 defending the plan have an opportunity to respond to that

5 evidence, then it's up to me to weigh the positions of

6 the various parties, make findings of fact on the

7 disputed issues that are put into play and make my

8 ultimate recommendations to the Water Management District

9 as to how those disputed issues of fact fit within the

10 statutory scheme.

11 And I'm not quite sure we're saying the same thing,

12 but I'm not clear as to where we're differing.

13 MR. HYDE: I think it's a difference of emphasis, and

14 let me explain myself this way. The SWIM Plan certainly

15 has some extraordinary severe consequences for the

16 agricultural industry. We're talking about taking at

17 least 35,000 acres of productive farm land out of

18 production to create STA's.

19 The process could cost somewhere in the neighborhood

20 of 400 to 500 million dollars and perhaps even more. It

21 seems to me that in circumstances like that where an

22 agency is proceeding on the basis of a written document

23 such as this that does not find direct expression in rules

24 that have been adopted pursuant to Chapter 120, that there

25 is -- they have an affirmative responsibility if not

114

1 burden to prove that, they have to establish the problems

2 that they alleged to exist are, in fact, exist.

3 We don't have to prove the contrary. They have to

4 prove they exist. Now if they come up with prima

5 facie case, we're certainly going to put on our counter

6 case. But I think --

7 HEARING OFFICER MENTON: Isn't the prima facie case

8 set forth in the SWIM Plan already, though?

9 MR. HYDE: No, it's not, no. The way I interpret

10 the demonstration of a prima facie case is one

11 doesn't simply put this into evidence and rest. At least,

12 I hope that's not what a prima facie case is. I mean that

13 would be contrary to any notion I ever had about the

14 establishment of a prima facie case in administrative

15 proceeding whether it's a permit proceeding or otherwise.

16 You have to prove it up. You have to -- and

17 McDonald and Anheuser-Busch tell or advise us that it has

18 to be proved up by evidence appropriate to the nature of

19 the issues involved. Sometimes that's relatively easy to

20 do, and sometimes it's very difficult. And I would

21 suggest to you that this case is going to be rather

22 difficult because we're dealing with some rather broadly

23 worded standards, water quality standards, that can be

24 interpreted in different ways.

25 You're going to hear a lot of different scientists in

115

1 some very rarefied disciplines telling you what their

2 results or their opinions are in the context of those

3 water quality standards. So it's not just a matter of

4 putting this in and saying that's the prima

5 facie case.

6 They have to establish that there are violations.

7 They have to establish that we caused the violations.

8 They have to establish that the 50 parts per billion

9 concentrations, if that's what appropriate, and they have

10 to establish STA's to be appropriate remedies.

11 HEARING OFFICER MENTON: I guess what I'm saying,

12 though, how do I know given your approach what they have

13 to prove and don't have to prove, and how do I know

14 whether they have done it? I mean it seems to me the

15 cleaner way of handling this is to say this proceeding is

16 your opportunity to demonstrate where the SWIM Plan is

17 wrong.

18 I mean the whole nature of a 120.57 proceeding is

19 to help an agency formulate, you know, its policy

20 decision, and this is your opportunity to come in and

21 present evidence to show why what's in that SWIM Plan

22 shouldn't be adopted and something else should be.

23 MR. HYDE: I think you just articulated what is

24 perhaps the difference between the two of us. You

25 suggested that this proceeding is our opportunity to prove

116

1 where the SWIM Plan is wrong. I would suggest to you that

2 the purpose of this proceeding is for the District to

3 prove that it's right.

4 HEARING OFFICER MENTON: Well, see that gets back to

5 the point I made earlier. I don't think I'm here to sit

6 in appellate capacity over the policy decisions that the

7 District has made. What I'm here to do is to sit as a

8 fact finder to resolve disputed issues of fact. And until

9 there are disputed issues of fact, there is nothing for me

10 to resolve.

11 MR. HYDE: That's correct.

12 MR. OERTEL: I have a somewhat different perspective

13 on this than Mr. Hyde does, and perhaps it might be

14 helpful if we all expressed our thoughts.

15 HEARING OFFICER MENTON: Yes, I just think we're

16 getting into a little --

17 MR. OERTEL: I don't disagree with Mr. Hyde, but I

18 do have a different point of view that I approach this

19 under, and I would say, certainly agree with him and

20 disagree with your possible question that all anybody

21 would have to do is come put this on the table and say I

22 presented a prima facie case.

23 The reason I strongly disagree with that is to do

24 that gives this a presumption of correctness and that

25 would be a fundamental error in this proceeding.

117

1 HEARING OFFICER MENTON: But I don't necessarily

2 think that's true. I think what I'm saying is that I'm

3 here to resolve disputed issues of fact, and until

4 disputed issues of fact are presented to me, I don't have

5 anything to resolve once those issues are put there, and

6 I think as I tried to explain earlier, I think my role

7 will be to weigh the various positions by the parties on

8 a preponderance of the evidence basis.

9 I'll weigh what your experts say, and I'll weigh what

10 your experts say, and then I'll draw whatever factual

11 conclusions are necessary based upon that standard.

12 MR. OERTEL: Yes, and I think your earlier question

13 was, I tried to take it down, something to the effect,

14 what is the recommended order you're supposed to enter

15 in this case? I think that's a very pregnant question in

16 this case because perhaps by training, we all hope to see

17 things in cases we have seen before.

18 This case doesn't really match our previous

19 experiences where we can put it in a convenient place.

20 However, I think once we figure out what we're doing

21 here, and it's not a silly a question as it sounds to me,

22 then we can answer this question with a high degree of

23 confidence. To figure out what we're doing here, you have

24 to got to understand what the SWIM Plan is, and I think

25 we've beaten around that bush.

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1 We have to figure out just what does the SWIM

2 Plan do and what's the significance of the SWIM Plan when

3 presumably if their side prevails it becomes adopted as a

4 final order? What does that mean? That's really why

5 we're here. Because unless we understand the significance

6 of that, we're going to be dancing in the dark to a large

7 degree and guessing as to whether we're doing things

8 correctly. So that's what I have tried to do in my own

9 personal analysis of the standard of proof, burden of

10 proof.

11 I've asked myself what is the SWIM Plan and what is

12 its significance assuming it's adopted? I see the SWIM

13 Plan, as thick as it is, to be part of a whole. Here's

14 what the SWIM Plan does. It contains a factual predicate,

15 states there is a problem of overnutrification, that the,

16 the overnutrification is factual predicate as to the cause

17 of the problem, and then it has a proposed cure, these

18 STA's, and an inherent statement in it that other modest

19 approaches are inadequate.

20 That's how -- and other people, of course, may

21 disagree. That's how I see the SWIM Plan. It's

22 a document that contains very fundamental factual

23 predicates that lead you to a proposition as to a

24 conclusion.

25 Now to give you an advance of where we end up on this

119

1 I cite you to the J.W.C. decision. I think that clearly

2 is one hundred percent applicable to the question of

3 burden of proof. I'm not too enthralled with the

4 Anheuser-Busch type case analysis because as we go forward

5 in this case, if any governmental agency seeks to put in

6 recipient agency policy as part of the rationale, while

7 other case law gives them that burden of proof anyway,

8 you can't rely on nonrule policy unless they explicitly

9 prove it up in this case or any other case. So we don't

10 know in this case if they really wish to present nonrule

11 policy as part of the entire rationale. But if they do,

12 we all know they have that burden of proof by evidence to

13 show its rationale and its applicability.

14 That I see, and that's where I sort of part from Mr.

15 Hyde. Then I see the side issue given anyway. There is

16 no dispute of who carries the burden of proof on recipient

17 policy, but the litmus test to me on the question of

18 burden of proof really is the question what happens if the

19 SWIM Plan is adopted?

20 And here's the way I look at that. Let's suppose

21 there was no SWIM Plan, but let's suppose also the Water

22 Management District and the other governmental agencies

23 still saw a problem and still wanted to cure it in the

24 way the SWIM Plan proposes. Well, they would have to do

25 what they're doing now, that's apply for a permit to

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1 build the STA's.

2 Now this whole SWIM Plan in its largest context is

3 the rationale for this public works project, the storm

4 water areas are a large public works project designed to

5 cure a problem. That problem is hypothesized and alleged

6 to be as is described in the SWIM Plan. If they had come

7 in for that permit, they would clearly have the burden of

8 proof on that permit under the J.W.C. and all its project.

9 That burden of proof may not be a whole lot different

10 than what you're talking about here because in

11 your initial statement here, because having sat in

12 your chair, I've often wondered sometimes the question

13 the burden of proof is more argued about than meaning to,

14 but that depends on how you approach your work.

15 I've been in both situations where I have won and

16 lost permitting cases where the hearing officer had said

17 the applicant didn't carry the burden of proof and permit

18 denied. In other cases, the hearing officer just ruled on

19 findings of facts and never addressed whether burden of

20 proof was carried or not and had come to the conclusions,

21 well, permit granted or denied, permit granted with

22 modifications, so it's not inherently necessary that you

23 even determine who has carried the burden of proof.

24 But J.W.C. does say that the applicant in this case,

25 let's put it a little different way, the agency statement

121

1 of intent to grant the permit, and the Water Management

2 District is really applying to itself also and DER for

3 surface water permits and discharge permits. The

4 statement of intent carries no presumption of correctness.

5 Clearly this document, no matter how many facts it

6 alleges, has no presumption of correctness in this

7 proceeding.

8 It must be proven up. So what the consequence,

9 assuming it is adopted intact, well, if they have applied

10 for this permit without the Plan, they will have to prove

11 the rationale for the public works project. They would

12 have to prove it is the most reasonable of other possible

13 alternatives and that it was not contrary to the public

14 interests among other things.

15 These are all predicates and hypotheses in the SWIM

16 Plan. So they would have to carry the burden of proof on

17 those. I see the SWIM Plan here, as thick as it is, as

18 being part of the permit application. Because let's

19 suppose the permit is not consolidated with this

20 proceeding and let's suppose permit applications

21 were to occur after the SWIM Plan is hypothetically

22 adopted, but all the affected parties would have another

23 point of entry, and I doubt that any party would be

24 allowed to relitigate on the permit application the issue

25 as to whether the factual predicates in the SWIM Plan, if

122

1 it's adopted, are subject to relitigation in the permit

2 application.

3 I'm not conceding that this will be res judicata for

4 the permit application. But if I was a hearing officer, I

5 would presume that it would be because that's the only

6 prudent way to proceed in this case. It would be my

7 personal opinion not necessarily my clients, but in

8 my personal opinion ridiculous to go through this

9 hearing on the SWIM Plan and not have it be given some

10 persuasive power in any subsequent cases that arise

11 down the road.

12 Again, I'm really not conceding res judicata, but I

13 would say it sure sounds like it would be res judicata to

14 me. That would also take us to the eminent domain cases.

15 They can't really begin until the permit has been issued

16 because the core of eminent domain as I understand it will

17 have to have some assurance that the permits to do the

18 work for the land being condemned has been issued or will

19 be issued.

20 Now under eminent domain law the condemning agency

21 has to prove the public purpose for the taking, and in

22 Florida Law that's one of the only places we still retain

23 a 12 person jury except for capital cases, and it's

24 considered the most egregious of government actions. And

25 I can't see, we can't guarantee ourselves that eminent

123

1 domain courts will allow that question to be relitigated

2 if litigated in this case here.

3 There is eminent domain in administrative law

4 and unless the plan would have substantially changed, my

5 guess is the court that would consider for the taking is

6 going to adopt the findings made assuming they are

7 favorable to the District and support to take them and not

8 allow anybody challenging the taking to relitigate that

9 question.

10 So my litmus test really comes down to is this going

11 to be res judicata? I don't know the answer to that,

12 though I think it probably will be. But if I was a

13 hearing officer, I would conduct the proceeding as if it

14 was. Because to impose a lesser standard of proof in this

15 proceeding that may be res judicata would jeopardize all

16 the work you would do here. The court might find it

17 to be inadequate later on and decide it has to be redone

18 under what the court feels the right standard of proof to

19 be.

20 HEARING OFFICER MENTON: Those are very good points,

21 Mr. Oertel. I guess the question that I have though is,

22 what are you saying that they have to prove and how do I

23 sort of draw that line as to what they have to prove and

24 what they don't have to prove?

25 MR. OERTEL: I thought Mr. Hyde's answer to

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1 your question was exactly how I would have answered it,

2 and it was exactly the thought I had in my mind when he

3 referred you to what I think we all presume will have to

4 do is enter into prehearing stipulation. And again to

5 refer back to the J.W.C. decision, if this was a clear

6 and simple permit application, and we've all had

7 experience and feel comfortable with, unless the party

8 challenging the agency's action, say grant the permit for

9 the applicant's application, refuse to delineate the real

10 issues they were litigating, then conceivably, and I've

11 been in this situation, challenge to the permit

12 application can require the applicant to go through each

13 and every one of the statutory rule criteria.

14 And we've all done that in CON cases where there is

15 no concessions on the slightest point, and the applicant

16 has to prove every point whether it's really significant

17 or not. I know that won't happen in this case. But to

18 the extent that the petitioners have raised issues in

19 contention to what is stated in the SWIM Plan, everybody

20 will know what the issues are in the case by that

21 prehearing stipulation, which, I hope we can refine in the

22 petitions so you will know what the factual disputes are

23 before the hearing begins, and those are the ones

24 where there is no presumption of correctness in the SWIM

25 Plan and Water Management District will have to by

125

1 showing of prima facie case prove the correctness of all

2 those factual statements.

3 I don't see the SWIM Plan as a policy statement. I

4 see it as a factual predicate that leads you to a policy

5 conclusion. But the policy conclusion without the

6 correctness of those facts just meets the definition of

7 what arbitrary action is. So policy in this case is a

8 policy decision as to how we'll cure this alleged problem.

9 The problem, though, is what underlies all the

10 proposed action. This is really part of a permit

11 application. This will require not only permits but

12 eminent domain. This here is the central hub, that

13 once, if it's proven, can be taken to each one of these

14 proceedings. So I don't usually give the Legislature a

15 whole lot of credit for being smart.

16 If they intended it this way, I think that was smart

17 because this only has to be proven up once and not

18 every time. Now if they thought about that, I think they

19 were pretty clever, but I think we have to -- that's why I

20 have a different approach to Mr. Hyde, but I agree with

21 his conclusion. My answer to the question is J.W.C.

22 decision is the one that's the guidelight for this

23 question.

24 HEARING OFFICER MENTON: Okay. Let's hear from the

25 respondents. I think we've been -- I'm curious as to hear

126

1 as to what their approach is.

2 MR. REID: I guess I'll start. We think the Estuary

3 approach is probably the right approach, and I think Mr.

4 Oertel took care of the comments I was going to make

5 about the Anheuser-Busch cases, why those really don't

6 have any application here.

7 I think they are being used because of sort of a

8 magic word approach. It's called order, so it must be

9 like that. In all of those cases you're talking about

10 where the government is trying do something to somebody

11 that day after the fact; whereas here you're talking

12 about a long process of public hearings that went into the

13 original adoption of the SWIM Plan and then going forward.

14 Those cases I think don't deal with what we're

15 dealing with here. Our basic thought was, and I think

16 this is similar to what you said, this is a new animal

17 that the Legislature did here. They, you know, typically

18 you've got to go all the way back to the McDonald case,

19 and they say the agency's acting by either rules or

20 orders, and then you have sort of general incipient policy

21 done by adjudication of individual cases and all that.

22 This isn't any of those things. This is really a

23 new creature. It's -- they call it an order. I

24 personally think they called it an order because they

25 didn't want to tie us up with the strict requirements of

127

1 rule making. They start out -- not reviewable as a rule

2 pursuant to .54 and .56. I think that's probably why they

3 called it an order. They had to call it something and

4 I think that's probably why.

5 But what they called it, you have to look beyond

6 that, and I think there are a lot of cases that talk about

7 it. You have to look at what is really happening. This

8 seems to have some, it seems to be similar to several

9 different things. Just as an aside, the reason we came

10 down with the comprehensive plan cases is that looking

11 through the cases that seemed to be the closest animal to

12 what we have here because the similarities, you have

13 reviewed by sister agencies, you have adopted through this

14 public process, just like we have here.

15 We had numerous public hearings that all the people

16 here in this room came and participated in. They were

17 going to be applied -- what was decided was going to be

18 applied later by specific rule making; in other words,

19 when it was applied to other individuals. It was going to

20 be done through processes that already exist and clearly

21 defined, and they both lead to a 120.57. So that's the

22 reason for that analogy there.

23 But really if you look it, there are things similar

24 to rules here. When they make a distinction between

25 orders and rules, they always talk about rules where you

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1 have public input, you're talking about something in the

2 future and so forth, which is what we have here, as

3 opposed to this nonrule incipient policy situation where

4 it is always done after the fact and you're applying it to

5 somebody. So I don't think that the Anheuser-Busch cases

6 apply.

7 I don't think the reference to the statute of 171

8 that says any time you change that means we have the

9 burden. Well, we don't have burden in rule challenges

10 and clearly that's going to -- if there was a rule that --

11 in fact, we've got one, and we had one in this situation.

12 I don't think that means that that creates a burden. That

13 statutes says what it says. It doesn't -- it's not

14 designed to creates burdens; because if it were, then we

15 have burdens and rules that we don't have burdens and

16 rules. I mean, that's clearly on the challenger.

17 Going to the next step is I think what Mr. Oertel is

18 complaining about is that he's telling you that this SWIM

19 Plan does something more than the SWIM Plan says it does.

20 He's saying I don't like being in this process because I

21 feel something bad is going to happen to me later. But

22 you have got to deal with what it says.

23 On the very first page it says implementation of all

24 programs and projects identified in the Plan will

25 require specific actions through public processes such as

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1 governing board approval, permits, rule making and

2 inter-agency agreements. This is a planning document.

3 There is not a history of people challenging SWIM Plans.

4 That's one of the things we're dealing with here.

5 HEARING OFFICER MENTON: But Mr. Oertel's point as I

6 understand it and I was assuming that he's probably right

7 in saying that he's going to say his client's property is

8 being condemned, and then he walks in the condemnation

9 suit, and they look for the authority on which the

10 condemnation has taken place, and someone is going to pull

11 out the SWIM Plan and say we're condemning it based on the

12 Marjory Stoneman Douglas Act for --

13 MR. REID: Or they might go back to the Act and say

14 we're doing it because the Legislature said this is how,

15 this is one of the approaches you can use. You're right.

16 I mean, someone can make that argument. But the problem

17 we have is that you can't -- you have to deal with what

18 we have. They didn't have to challenge the SWIM Plan.

19 If that was the concern that an adjudication about the

20 SWIM Plan would be res judicata, they didn't have to

21 challenge it. They could have waited and challenged it

22 the first time on the permit, or challenge --

23 HEARING OFFICER MENTON: Then you can argue you

24 didn't exhaust your administrative remedies. I mean --

25 MR. REID: Right -- well, you know, we may or we may

130

1 not. I didn't write all this. We're stuck. You know,

2 that's the problem.

3 HEARING OFFICER MENTON: I guess the bottom line is

4 where, I mean, where do we go? I mean how --

5 MR. REID: I think Estuary because I think that's

6 pretty much -- that makes sense. We have to come in and

7 demonstrate something and you've given us some ideas,

8 and what we demonstrate you'll evaluate when we do it.

9 I mean if you go back to the Legislature, what they said,

10 we didn't just suddenly one day sit down and dream up the

11 idea of STA's or dream up the idea that nutrification

12 might be something we care about.

13 When you look at all that in the context of

14 the Legislature and the Plan is out here, and it makes

15 common sense to say that if somebody doesn't like it they

16 have an opportunity to challenge, which is what they have

17 done; but they have the burden at that point to say what

18 they don't like about it, and then we get to rebut it.

19 I think the Estuary is the approach. I can't jump

20 ahead to J.W.C. is within adoption by you of the view that

21 this is, in fact, a permit process because that's what

22 J.W.C. is, and we know what the burden is in permitting

23 and that's what they applied in that case.

24 HEARING OFFICER MENTON: What happens if the DER

25 permit does come into this case? How is that going to --

131

1 MR. REID: Oh, that's why we don't think you ought

2 to combine them because it's going to be more difficult to

3 apply two different standards. I mean, that's the basis

4 for this.

5 HEARING OFFICER MENTON: But if the permit case is

6 handled separately, isn't that res judicata argument going

7 to come up again in terms of --

8 MR. REID: I don't know.

9 MS. KAVANAUGH: If we stipulate --

10 MR. REID: Is she stipulating that it's res judicata?

11 MS. KAVANAUGH: We're stipulating it's not --

12 MR. HYDE: I mean, it would be such a pointless

13 proceeding --

14 MR. REID: That's why I think it shouldn't have been

15 filed in the first place because it's a planning document.

16 I mean that goes back to the -- because it says it doesn't

17 adopt any of the -- it doesn't set any standards. This

18 morning they tried to say through some tortured logic that

19 it sets standards. It doesn't set standards. It's a

20 planning document.

21 It provides guidelines and you go out and apply it to

22 individuals where they have all of their constitutional

23 rights all to attack it and do all that. You know,

24 that's the problem is they chose to attack it. It's a

25 planning document, and that's why the standard -- to

132

1 suddenly say they want you to say -- well, Mr. Oertel

2 wants you to say, I don't know Mr. Hyde's view on this, he

3 wants you to carry it all the way and say it's a permit

4 and we're going to apply the permit standard of proof,

5 and that clearly is not right.

6 There is nothing to suggest that you ought to apply

7 the standards in permit situations to this situation, so I

8 think the Estuary approach is the right approach. By the

9 way, let me just say, this is really inside, by suggesting

10 the order of proof in our papers we weren't admitting that

11 creates the burden. We were talking about logic of

12 presentation only, so Mr. Hyde keeps saying that and he

13 said in his papers. I just want to make it clear.

14 HEARING OFFICER MENTON: I guess the bottom line is

15 sort of Mr. Oertel has mentioned a while ago that we can

16 spend a lot of time arguing burden of proof and we can

17 spend a lot of time arguing some esoteric theories as to

18 who has the burden to do what; but I think as a practical

19 matter, it comes back to what my role is, you know, in

20 this whole proceeding, which is to be a fact finder. And

21 if there are disputing issues of fact, I'm going to

22 hear both sides position anyway, and I'm going to

23 weigh the evidence, and I'm going to make a finding of

24 fact based upon the evidence that's presented, so we may

25 not really have that big of a dispute going on here is

133

1 what it seems to me and that sort of ties into this idea

2 that the issues will be isolated as a result of

3 stipulation.

4 We're going to get to the final hearing and

5 everyone is going to tell me what they think, so I don't

6 know that it's as a practical matter all that significant

7 in argument that we need to be wasting a whole lot of

8 time.

9 MR. REID: I think by pointing to the Estuary case

10 you've given us at least something in writing, sort of

11 guidelines, so we understand how to act and we proceed.

12 HEARING OFFICER MENTON: Yes, I didn't mean to cut

13 off some of the other parties over here if they have a

14 position they wanted to voice.

15 MR. GARVER: Mr. Hearing Officer, I guess if I hear

16 you saying that ultimately it will be upon the petitioners

17 to show that the District's reliance on certain facts was

18 arbitrary and capricious or inappropriate or not

19 consistent with what the Legislature says is confined

20 the District to which actually is quite a wide

21 range of discretion, then I don't --

22 HEARING OFFICER MENTON: That's not what I'm saying.

23 I think what I'm saying is, is that if there are specific

24 areas that are in dispute, for example, the question as to

25 whether or not there is nutrification going on, and I'm

134

1 going to listen to whatever evidence they have that it's

2 not going on and listen to your evidence that it is going

3 on, and then I'll make a determination as to what I think

4 the evidence demonstrates, and that I think that's what

5 this whole 120 process is about.

6 MR. OERTEL: Your Honor, that's correct assuming

7 there's evidence presented on every pointed issue.

8 Now if there are points that are in the Plan that are at

9 issue that no evidence is presented upon, then the

10 question of the burden of proof does become important

11 because it's easy when everyone has evidence on

12 every point and then you just decide who's right, but the

13 question of burden of proof becomes more than academic

14 when there are points in dispute that there is a failure

15 of evidence.

16 HEARING OFFICER MENTON: Well, that's a good point.

17 I think that gets back to the issues that I'm trying to

18 get all is how do I know what issues have to be resolved

19 unless it's put at issue unless somebody --

20 MR. OERTEL: You just impose it upon the parties to

21 refine every issue in a stipulation.

22 MS. PONZOLI: But we need that now. We need to know

23 what they're challenging, that was my pinning jello on the

24 wall this morning. We don't quite understand from

25 their position.

135

1 MR. REID: They listed 200 things wrong with the SWIM

2 Plan or more.

3 MS. PONZOLI: And some of them are global and

4 generic. They are not specific as to is phosphorus

5 cause of nutrification? Is it coming from the EAA? Are

6 STA's an appropriate remedy? Is 50 parts per billion the

7 appropriate interim standard? We got those four issues.

8 If we could know what this was about, we'd be in

9 great shape.

10 MS. KAVANAUGH: Can I offer something just quickly?

11 I have taken trying, like the rest of us, trying to fit

12 this into some 120 proceeding that could be remotely

13 analogous, and I concur with Mr. Hyde and obviously with

14 Mr. Oertel. But it seems to me that we have a fashion

15 that sets out what they had to do, what they had to

16 consider, and so they're going to have to -- they can't

17 just lay it on the table.

18 They're going to have to say, okay, we -- it says

19 here, they shall consider violations of water quality

20 standards. It's an easy one. It says they have to do

21 that. They're going to say they did consider it. They

22 did. I mean one of the fundamental premises of this

23 Plan is the finding of this four water quality violations.

24 We considered it. These are the violations we found.

25 This is what we relied upon, then we have to come back and

136

1 say, no, no, no, no, no.

2 HEARING OFFICER MENTON: That's exactly what -- I

3 think that's what I'm talking about is sort of this

4 initial prima facie case where you take the Plan, you put

5 it next to the statute and say this is what we're supposed

6 to consider. This is what we found. We stuck it in the

7 Plan. That doesn't mean they have to at that point

8 come in and, you know, go through every iota of proof

9 or justification for what they found. But if you dispute

10 those findings, then you --

11 MS. KAVANAUGH: We would cross examine, we would

12 present our evidence. I do concur that we need

13 stipulation as to more specific --

14 MR. HYDE: A couple of really brief observations. I

15 think my difficulty with your analogy to Estuary Property

16 is that I think Estuary Property really deals more with

17 the appropriate presentation of evidence rather than the

18 burden of proof. And I think that Mr. Oertel raised a

19 very very important issue, what happens if there is no

20 competent substantial evidence on issue? Is it our duty

21 to prove the contrary?

22 What if the District doesn't present anything to

23 establish there that is any competent substantial

24 evidence that there is a violation of the biological

25 integrity standard? Do we have to put on evidence to

137

1 prove that there is not violation of the standard?

2 What about --

3 HEARING OFFICER MENTON: If you dispute it, if you

4 dispute the conclusion, how do I know that that conclusion

5 is in dispute until somebody tells me that it is?

6 MR. HYDE: Well, it is in dispute, and I think it's

7 clear from our petition as well. In addition to that kind

8 of situation you have the situation of the evidence being

9 at, an old word, equipoise? What happens if you're

10 equally persuaded by either both parties? You really

11 don't know which one is right and which one is wrong.

12 That issue, then the burden of proof becomes very

13 important. Was it the District's burden to prove that

14 there are violations of water quality standards? Or is it

15 our burden to prove that there are not?

16 HEARING OFFICER MENTON: Well, I understand

17 your point, but in my experience as a hearing officer I

18 would say that the only time that the burden of proof

19 issues have really come into play for me have been in the

20 context of a licensed disciplinary proceeding where there

21 is a clear and convincing standard, where there is a

22 standard of proof that is applied to one party as opposed

23 to the other.

24 When you're talking about the preponderance of the

25 evidence standard, I think that's a little bit different.

138

1 I think it, you know, becomes a judgment call to a certain

2 degree, but I have never had difficulty in making a

3 judgment call in those situations where I for whatever

4 reason find one side's evidence more persuasive than the

5 other.

6 MR. HYDE: But the District's own rules say that the

7 burden of proof in all proceedings shall be on the party

8 asserting the affirmative of the issue. That provision is

9 obviously borrowed from cases like J.W.C. which discusses

10 it, and also the Balino case which states the general rule

11 is that as in court proceedings burden of proof is upon

12 the party --

13 HEARING OFFICER MENTON: But that's really a

14 question of schematics. Where is the affirmative?

15 MR. HYDE: Okay. Who is asserting that water

16 quality violations occur?

17 MR. REID: The Legislature.

18 MR. HYDE: The District is. Who is asserting that

19 they are not occurring? We are. We are asserting the

20 negative of that issue. Who is asserting --

21 HEARING OFFICER MENTON: You're asserting the

22 affirmative that the conclusions of the SWIM Plan -- I

23 mean, it's all a matter of the way you phrase it.

24 MR. HYDE: Mr. Menton, you're using a double negative

25 there, I mean, when you put it in that schematic light.

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1 Who's asserting that? They are. We're asserting that

2 we're not. Or if you want to flip it around you could say

3 we're asserting the affirmative that we're not causing the

4 problem, and that's, that's illogical. I mean that's

5 just making a double negative to create an affirmative.

6 HEARING OFFICER MENTON: Well --

7 MR. REID: It's like in a rule challenge. There's a

8 person challenging. The affirmative there is you could

9 say is a negative really, and he's saying I do not want

10 the rule to take effect, but clearly has the burden.

11 HEARING OFFICER MENTON: Yes, I think, you know, we

12 can argue this for a long time, and I think that the

13 difficulty that we have is we are dealing in uncharted

14 territory. Nobody knows exactly what was intended

15 or how it, you know, how you cram this SWIM Plan into

16 120.57 proceeding.

17 And in view of that uncertainty, I think that

18 probably the best approach and the best guidance I can

19 give at this point is that what I tried to articulate

20 earlier is that it seems to me the most logical way to

21 approach this is to have the District come forward, give

22 me the background on the Plan, what they think it does,

23 why they did what they did, and offer the Plan into

24 evidence, and then have the petitioners come forward and

25 point out, you know, this is their "day in court" where

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1 they can come in and say, well, the Water Management

2 District didn't consider this or their conclusions

3 here are false or this premise or this approach won't work

4 for this reason or whatever. Then have the Water

5 Management District come back in and say we think it will

6 work and their experts are wrong because of that, and then

7 I'll sit there and weigh the evidence and write my order

8 based upon that. And I think --

9 MR. HYDE: One final comment, and I'm not trying

10 to be argumentative here. I think this entire analysis

11 will be based on one fundamental issue. That's the

12 provisions in Section 373.171(3). I would just ask you to

13 look closely in that statute and try to apply it in a

14 logical context.

15 I think that if you do, you have to impose the burden

16 on the District in this case because they are proposing a

17 change in water use, and that is clear. I don't think

18 anybody can seriously take issue with that. And if that's

19 the case, then that statute provides you with all the

20 guidance you need.

21 It's a special statute. It doesn't exist in

22 Chapter 403. It doesn't exist elsewhere in my knowledge

23 of Florida Law. What we're dealing with here is a very

24 important issue, and that's water and the use of water.

25 Water is so crucial to so many different things. It's

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1 crucial to our agricultural interests. It's crucial as

2 a water supply. It's crucial to industrial supply. And

3 when you dealing with something so fundamental as that,

4 I think the Legislature enacting a statute like that

5 intended that there had to be some special or affirmative

6 responsibility on somebody who is proposing a change

7 of established water rights to demonstrate that that

8 change is detrimental.

9 HEARING OFFICER MENTON: Well, the problem that I

10 have though with that approach is as the respondents

11 have pointed out in their pleadings is that there are

12 clearly going to be points of entry down the line for

13 those parties who are directly affected by a change in

14 their water use. And isn't that the appropriate point

15 where that statute may come into play rather than

16 here in the context of this SWIM Plan that is --

17 MR. HYDE: But I argue back to something Mr. Oertel

18 alluded to earlier and I think you need to remember

19 here too is that Section 373.4592(6) requires all

20 subsequent permits, both the District's permits from DER

21 and our client's permits from the District and DER, to be

22 consistent with the adopted plan.

23 This plan is not merely a "planning document". It is

24 a regulatory document. It is creating a standard, and

25 among the standards is creating a 50 parts per billion

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1 interim phosphorus concentration limits. We're going to

2 have to be consistent with that. We're not going to get

3 to relitigate that later down the line.

4 I have to say I think Mr. Oertel's analysis is

5 probably correct in that regard. If that's the case, then

6 we ought to have that opportunity now; and not only have

7 that opportunity now, they should have the burden of

8 proving it.

9 HEARING OFFICER MENTON: Well, I guess whether I say

10 that they have the burden or you have the burden, that

11 clearly is going to be a disputed issue and both parties

12 are going to present their evidence on it, so that I don't

13 know that really makes a whole hill of beans of

14 difference, you know, at this point when you're talking

15 about, you know, a specific aspect of the Plan and where

16 there is clearly a difference of opinion.

17 Each side is going to have their experts and, you

18 know, I'm going to listen to both of them. And in that

19 context, aren't we really just maybe arguing some

20 technical legal points that in the overall scheme of

21 things aren't going to matter?

22 MR. HYDE: It may well be. You may find their

23 evidence so unconvincing you don't even have to look at

24 this one issue. Maybe you may find the opposite. You

25 may find it so overwhelming that there's really no point

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1 in engaging in a spirited intellectual exercise of

2 figuring out whether something has become or crossed

3 the threshold of being the preponderance of the evidence.

4 HEARING OFFICER MENTON: I guess the bottom

5 line is though from my standpoint is I don't know what

6 issues I have to make findings of facts on until someone

7 presents evidence to me on those issues, and once

8 they're presented and both sides have presented evidence,

9 I make my findings of fact. So I don't really know how

10 else we can approach this other than to have the Plan put

11 into evidence, have it put into context, and let's find

12 out what the disputed issues are and that I have to make

13 findings of fact in.

14 MS. KAVANAUGH: I just would like some clarification.

15 When you say put it into context, that at a bare minimum,

16 concurring, you know, with the other evidence presented,

17 they're going to have to show they comply with the

18 applicable criteria under the statute. I mean, they're

19 going to have to make a showing.

20 HEARING OFFICER MENTON: Well, let me say this: If

21 I was representing the Water Management District, I would

22 certainly want to have the opportunity to have the first

23 stab at this because, you know, to lay out my theory of

24 the case --

25 MS. KAVANAUGH: Sure.

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1 HEARING OFFICER MENTON: -- and why we did what we

2 did. If they choose not to do that, I don't know what the

3 remedy would be. Would you move to dismiss --

4 MR. REID: Move for directed verdict.

5 HEARING OFFICER MENTON: But I assume they're going

6 to welcome that opportunity to have the first shot to do

7 that, and I don't think that we're going to have a problem

8 in that regard.

9 MR. GREEN: I would like to add one thing, one

10 minute and I'll be done on this issue. Our perspective,

11 page 19 of the settlement agreement requires the District

12 to develop a plan consistent with appendices A through E

13 of that agreement, and they must take action on that on

14 March 31, 1992.

15 Where we see this as a disagreement should be proven

16 up; that they have the burden of proving it because it's

17 translated also into the DER permit through the SWIM Plan

18 and into the permit, and I believe that confusion in this

19 Plan is really caused by the fact that the Plan contains

20 all of these restrictions that are in there that shouldn't

21 be in there in the first place.

22 They're not goals, they're not strategies; they're

23 limits, and then the permit has to be consistent with it

24 because of the Douglas Act. So unless the District is

25 going to get a free ride on this proceeding, they ought to

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1 prove up those permit conditions because they have to

2 provide reasonable assurance to DER in order to get that

3 permits like any ordinary permit applicant. So I ask you

4 to consider that.

5 HEARING OFFICER MENTON: But ultimately if we file a

6 procedure that I just outlined and you come in and you put

7 those things at issue, I mean don't they have to do that

8 anyway?

9 MR. GREEN: That's correct. I agree. The only

10 question is whether there is a presumption of correctness.

11 That's the only difference, I mean, between what we're

12 talking about, J.W.C., as I understand it, is there is no

13 presumption of correctness, and even Judge Hoover's order

14 says there should be no presumption of correctness with

15 regard to that settlement agreement.

16 MR. OERTEL: I feel that we were exactly on the right

17 track on this in your discussion, as long as I can do

18 that, just because it's in the SWIM Plan doesn't give it

19 any presumption of correctness. I think what a

20 presumption does is shift the burden of proof from the

21 party who ordinarily has it to the person who doesn't get

22 the benefit of presumption, and there should be no

23 presumption of the correctness of any of the facts stated

24 in here, but only --

25 HEARING OFFICER MENTON: But if there is no evidence

146

1 presented to me that it's in dispute, then --

2 MS. KAVANAUGH: Right.

3 MR. OERTEL: It has to be placed at issue first.

4 Once the issue is so put before you, without that, as Mr.

5 Hyde put it, I think you --

6 HEARING OFFICER MENTON: I think we're on the right

7 wave length. Ultimately what we'll have to do is put

8 together a prehearing stipulation or a prehearing order

9 requiring a stipulation, and I don't recall whether the

10 discovery order that we did before addresses that or not.

11 I thought it did have some provisions on that, but I'll

12 have to go back and take a look at it.

13 I have one I use standardly in other cases. It's

14 a very general type approach, and I'm not -- I may have to

15 tailor it a little bit more to this.

16 MR. REID: We also have, you know, motions that we

17 file in the beginning that we put off, and I think it will

18 help the process as we bring those up as we proceed --

19 HEARING OFFICER MENTON: Right.

20 MR. REID: -- to take different things out of the

21 case.

22 HEARING OFFICER MENTON: Yes, and I think that

23 hopefully those issues, some of them will be eliminated.

24 As we get closer and closer, we can eliminate more

25 and more and cultivate it down a little bit.

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1 Okay. Is there anything else we need to do today?

2 Okay. Thank you.

3 (WHEREUPON, THE HEARING CONCLUDES AT 12:45 P.M.)

148

1 CERTIFICATE OF REPORTER

3 STATE OF FLORIDA )

4 COUNTY OF LEON )

6 I, KIMBERLY A. ROBERTS, Court Reporter and Notary

7 Public in and for the State of Florida at Large:

8 DO HEREBY CERTIFY that the foregoing hearing was taken

9 before me at the time and place therein designated;

10 that my shorthand notes were thereafter reduced to typewriting

11 under my supervision; and the foregoing pages, numbered 1

12 through 147 are a true and correct record of the foresaid

13 proceedings.

14 I FURTHER CERTIFY that I am not a relative, employee,

15 attorney, or counsel of any of the parties, nor relative or

16 employee of such attorney or counsel.

17 WITNESS MY HAND AND OFFICIAL SEAL THIS 2nd DAY OF

18 November, A.D. 1992, IN THE CITY OF TALLAHASSEE, COUNTY OF

19 LEON, STATE OF FLORIDA.

22 _______________________________

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