1
1 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
2
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 VEGETABLES ASSOCIATION, )
7 LEWIS POPE FARMS, W.E. SCHLECHTER & SONS, )
INC., and HUNDLEY FARMS, INC., )
8 Petitioners, )
)
9 vs. ) DOAH CASE NOS:
) 92-3038
10 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039
Respondent, ) 92-3040
11 and ) (Consolidated)
)
12 MICCOSUKEE TRIBE OF INDIANS, THE UNITED )
STATES OF AMERICA, FLORIDA DEPARTMENT OF )
13 ENVIRONMENTAL REGULATION, AND FLORIDA )
WILDLIFE ASSOCIATION, )
14 Intervenors. )
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ )
15
16
HEARING BEFORE: HONORABLE J. STEPHEN MENTON
17 HEARING OFFICER
18 DATE: FRIDAY, NOVEMBER 20, 1992
19 TIME: COMMENCED: 9:00 A.M.
CONCLUDED: 3:30 P.M.
20
LOCATION: HEARING ROOM 5, DESOTO BUILDING
21 1230 APALACHEE PARKWAY
TALLAHASSEE, FLORIDA
22
REPORTED BY: KIMBERLY ANN ROBERTS,
23 COURT REPORTER, NOTARY PUBLIC,
STATE OF FLORIDA AT LARGE
24
25
2
1 APPEARANCES:
2
Representing the Petitioners,
3 Sugar Cane Growers Cooperative of Florida,
Roth Farms, Inc., and Wedgworth Farms, Inc.:
4
WILLIAM H. GREEN, ESQUIRE
5 -and-
ROBERT P. SMITH, ESQUIRE
6 -and-
GARY PERKO, ESQUIRE
7 -and-
JONATHAN V. FOX, ESQUIRE
8 Hopping, Boyd, Green & Sams
123 South Calhoun Street
9 P.O. Box 6526
Tallahassee, Florida 32314
10
Representing the Petitioners, Florida Sugar
11 Cane League, Inc., United States Sugar
Corporation, and New Hope South, Inc.:
12
JUDITH S. KAVANAUGH, ESQUIRE
13 -and-
WILLIAM L. HYDE, ESQUIRE
14 -and-
RICK BURGESS, ESQUIRE
15 Peeples, Earl & Blank, P.A.
One Biscayne Tower, Suite 3636
16 Two South Biscayne Boulevard
Miami, Florida 33131
17
Representing Petitioners, Florida Fruit and
18 Vegetable Association, Lewis Pope Farms, W.E.
Schlechter & Sons, Inc., and Hundley Farms,
19 Inc.:
20 KENNETH F. HOFFMAN, ESQUIRE
Oertel, Hoffman, Fernandez & Cole, P.A.
21 2700 Blair Stone Road, Suite C
P.O. Box 6507
22 Tallahassee, Florida 32314
23
24
25
3
1
APPEARANCES:
2 Representing Respondent, South Florida Water
Management District:
3
R. BENJAMIN REID, ESQUIRE
4 Popham, Haik, Schnobrich & Kaufman, Ltd.
400 International Place
5 100 Southeast Second Street
Miami, Florida 33131
6
Representing Intervenor, the United States of
7 America:
8 SUSAN HILL PONZOLI, ESQUIRE
-and-
9 THOMAS A. WATTS-FITZGERALD
Assistant United States Attorneys
10 Southern District of Florida
155 South Miami Avenue, Suite 627
11 Miami, Florida 33130-1693
-and-
12 GEOFFREY GARVER, ESQUIRE
U.S. Department of Justice
13 General Litigation Section
P.O. Box 663
14 Washington, D.C. 20044-0663
15 Representing Intervenor, Florida Department of
Environmental Regulation:
16
TIM SMITH, ESQUIRE
17 -and-
LEE KILLINGER, ESQUIRE
18 Department of Environmental Regulation
Twin Towers Office Building
19 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
20
Representing Intervenor, Florida Wildlife
21 Federation:
22 DAVID G. GUEST, ESQUIRE
111 South Martin Luther King, Jr.,
23 Blvd.
P.O. Box 1329
24 Tallahassee, Florida 32302
25 * * * * *
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1
I N D E X
2 ITEM PAGE
3 Hearing Commences . . . . . . . . . . . . . . . . . . . . . . 6
4 WITNESS: DR. DENNIS
Direct Examination by Mr. Burgess . . . . ... . 71
5 Cross Examination by Mr. Fitzgerald . . . . . 95
6 WITNESS: DR. MAFFEI
Direct Examination by Mr. Fitzgerald . . …… . . 108
7 Cross Examination by Mr. Burgess . . . . . . . . . . 120
Redirect Examination by Mr. Fitzgerald . . . . . . . 128
8 Hearing Concludes . . . . . . . . . . . . . . . . . . . . . 217
9 Certificate of Reporter . . . . . . . . . . . . . . . . . . 218
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E X H I B I T S
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ITEM DESCRIPTION PAGE
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Petitioner's Exhibit D Richardson Report 85
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Petitioner's Exhibit A Short Version Video Tape 216
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Petitioner's Exhibit B Full Version Video Tape 216
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1 PROCEEDINGS
2 (WHEREUPON, THE HEARING COMMENCES AT 9:00 A.M. AS
3 FOLLOWS:)
4 HEARING OFFICER MENTON: All right. Let's start
5 with taking roll call again. Beginning with the
6 petitioners, the Co-op.
7 MR. GREEN: Mr. Menton, my partner Bob Smith and I
8 are here on behalf of the Cooperative, Roth Farms and
9 Wedgworth Farms.
10 MR. R. SMITH: And Jonathan Fox, our associate.
11 HEARING OFFICER MENTON: Okay. He's a new one.
12 All right. For the League.
13 MS. KAVANAUGH: Judith Kavanaugh and my partner Bill
14 Hyde was here, and also Rick Burgess will be here.
15 HEARING OFFICER MENTON: All right. For the Fruit
16 and Vegetables.
17 MR. HOFFMAN: Yes. Ken Hoffman without anybody.
18 HEARING OFFICER MENTON: All right. For the
19 District.
20 MR. REID: Ben Reid with Popham Haik.
21 HEARING OFFICER MENTON: All right. For the U.S.
22 Government.
23 MS. PONZOLI: Susan Hill Ponzoli. I have with me Mr.
24 Tom Watts-Fitzgerald and Geoff Garver.
25 HEARING OFFICER MENTON: All right. For DER.
7
1 MR. T. SMITH: Tim Smith, and with me I have Lee
2 Killinger.
3 HEARING OFFICER MENTON: Okay. Mr. Guest.
4 MR. GUEST: David Guest for the conservation
5 interests.
6 HEARING OFFICER MENTON: All right. Anybody else?
7 MR. GREEN: Mr. Menton, Gary Perko also.
8 HEARING OFFICER MENTON: Okay. We have a lot of
9 things to talk about today it looks like. I guess, let's
10 start out with some of the leftovers from last time. On
11 the access matters, I've received the proposed entry order
12 that was submitted by the U.S. Government on November
13 9th.
14 As I gather from reading that proposed order, most of
15 the issues have been resolved except for a couple minor
16 matters regarding the possibility of having to supplement
17 the order and maybe some additional sites; is that
18 correct, Mr. Fitzgerald?
19 MR. FITZGERALD: I think that's essentially correct,
20 Mr. Hearing Officer, although, I don't know if it's
21 accurate to more than double the access as simply saying
22 that's supplementing. In the correspondence between
23 counsel, I think it was agreed that issue would be
24 addressed today in the hearing. Mr. Burgess and I had
25 correspondence and discussions regarding that.
8
1 MS. KAVANAUGH: Mr. Burgess called me last night. I
2 know he's somewhere in Tallahassee. I don't know
3 where he is now. He knew the hearing was to begin. If we
4 could perhaps delay that, I would appreciate that.
5 HEARING OFFICER MENTON: All right. So --
6 MR. FITZGERALD: Just as long as the record is clear
7 that we're postponing the entry at the request of the
8 League.
9 MS. KAVANAUGH: For an hour.
10 MR. FITZGERALD: An hour.
11 HEARING OFFICER MENTON: Let me just make sure I
12 understand. The issues regarding whether or not it can be
13 modified by future order, I mean that's no big deal. I
14 think it's clear it can always be modified by a
15 supplemental order on appropriate motion if necessary.
16 But there is still some problem in terms of
17 sites along certain transects; is that right?
18 MR. FITZGERALD: If you'll recall from our last
19 hearing, and I reviewed the transcripts of what was said
20 by Dr. Davis and by Mr. Burgess, the decision was rendered
21 after all the evidence and interplayed that access would
22 be permitted by air boat and air craft for surveillance
23 overflight of various areas including particular
24 transects.
25 If you recall from the exhibit that was put up during
9
1 the hearing, the transect identified as Transect C, it
2 would run from the canal north from the southern end of
3 the Refuge to go approximately a half mile to a mile
4 beyond the dense cattail stand. It's my understanding
5 that overflight was done then as well as they went in by
6 air boat because they wanted to dip stick the water
7 depth and pick sites.
8 They came back and proposed nine sites along a
9 transect, but when they returned and when it was discussed
10 with me by counsel for the League, the transect they had
11 identified in the hearing was no longer in the transect
12 they wanted. They wanted to move it some distance away
13 but running roughly the same distance and parallel for
14 reasons that were not explained to me.
15 HEARING OFFICER MENTON: Okay. Well, it's not
16 fair to go on if Mr. Burgess is not here to respond, so
17 let's just put it off. I thought we resolved most of
18 those issues and --
19 MR. FITZGERALD: Now they're also asking as part of
20 that same thing in the same correspondence for five more
21 transects with nine more sites per transect for an
22 additional 45 sites.
23 MS. KAVANAUGH: I haven't seen the correspondence. I
24 know nothing --
25 HEARING OFFICER MENTON: Let's wait until Mr. Burgess
10
1 gets here. We need to get that one resolved today. The
2 next one, the U.S. entry into the EAA, I have received a
3 proposed order that was submitted by the petitioners, then
4 I received a proposal from the U.S. Government, and also
5 received a response from DER to the petitioners' proposed
6 order.
7 I've got a little bit of a problem. In my attempt to
8 get organized here, I set up everything for my secretary
9 to try to organize while I was out of town last
10 week. I came back and I have not been able to locate the
11 proposal that was submitted by the petitioners. I
12 apologize for that, and so I've been working in a little
13 bit of a vacuum on that. I need to get another copy.
14 I know it was filed at one point. I think it just
15 got attached to something and I have not been able to
16 locate what it was attached to at this time.
17 MS. KAVANAUGH: I don't know if I have one with me,
18 but if I don't, I'll get one to you. I would say that we
19 appear to be getting very close --
20 HEARING OFFICER MENTON: Okay.
21 MS. KAVANAUGH: -- to closure, I think, on the access
22 into the EAA. As far as I know we don't have, other than
23 the issues that were raised about using the information
24 and the protective order issues, as far as the actual
25 mechanics of it, I think Ms. Ponzoli may be feeling
11
1 differently, but I feel that after this week, we may be
2 close.
3 HEARING OFFICER MENTON: Ms. Ponzoli.
4 MS. PONZOLI: Well, I actually agree. I was offered
5 seven more sites last night by Ms. Kavanaugh's firm; of
6 course, they retracted two of their former
7 sites, and I have been offered prior to this hearing
8 several by Mr. Green, and I just haven't had an
9 opportunity for Mr. Hoffman and me to match his maps and
10 my map.
11 What I would like to ask is that we have a -- counsel
12 have agreed in the last several days to meet on December
13 the 4th to resolve hopefully a global deposition plan and
14 other discovery issues. I would like to finalize, at
15 least, the problems regarding the entry separate and apart
16 from the protective order, which is really in your hands
17 at this point, and have commitment to final resolution by
18 December 18th hearing so we could begin our entry the
19 beginning of January.
20 I think with the Thanksgiving holiday and the
21 Christmas holiday and the Christmas break, the fact that
22 we will be entering multiple land owners' land, it
23 probably will take a month to get all of those little
24 procedures laid in place.
25 MS. KAVANAUGH: We have not discussed this, but we
12
1 would have no problem with that at all. That's fine.
2 HEARING OFFICER MENTON: Okay. So really the only
3 outstanding issue is to deal with this protective order
4 aspect of it and just needs to be done before we begin the
5 entry which would be not until January; is that right?
6 MS. PONZOLI: Yes, sir.
7 MS. KAVANAUGH: I guess I would like to suggest just
8 as we're trying to do Park entry that maybe we can get
9 one omnibus order that covers everything we've discussed
10 and agreed to orally as well as any protective conditions
11 ultimately.
12 MS. PONZOLI: I think that's fine.
13 MS. KAVANAUGH: That we all have it in our hands.
14 HEARING OFFICER MENTON: All right. And --
15 MS. KAVANAUGH: We can do that December 4th outside
16 that process but by December 18th.
17 HEARING OFFICER MENTON: Okay. So you can
18 negotiate that and bring that up and tell me where you are
19 at the next hearing.
20 MS. PONZOLI: That's right. And if there are
21 any remaining issues as to protective order, I would ask
22 you to allow us to argue at that time and to seek
23 an immediate ruling.
24 HEARING OFFICER MENTON: All right. I will try to
25 make sure that I get that order out before the next
13
1 hearing so everyone will know exactly where I stand on
2 that so that will give us opportunity to talk about that
3 before the actual entry begins. All right. Is it the
4 18th or 19th that hearing?
5 MS. PONZOLI: I think it's the 18th.
6 MS. KAVANAUGH: I'll take a look and see.
7 MS. PONZOLI: My calendar says Friday the 18th.
8 MR. FITZGERALD: Christmas is a Friday, so it has to
9 be the 18th.
10 HEARING OFFICER MENTON: Okay. I saw that Mr.
11 Burgess did walk in, so why don't we go back and see if
12 we can resolve this other entry issue.
13 MR. FITZGERALD: Mr. Menton, we also have a witness
14 enroute by air and won't get here approximately until
15 9:30. It would be advantageous to put him off for the
16 hour previously requested.
17 HEARING OFFICER MENTON: Okay.
18 MS. KAVANAUGH: Let the record reflect we weren't
19 requesting an hour.
20 MR. FITZGERALD: The record will, of course,
21 reflect what the record reflects.
22 HEARING OFFICER MENTON: All right. Mr. Burgess,
23 Mr. Fitzgerald indicates that they need to have
24 their witness present before we get into those issues so
25 let's postpone that once again.
14
1 The other remaining issues, the financial
2 information, I promised to do that short order on the
3 financial stuff. The crunch of discovery has put me
4 behind on that. That will go out in the next couple of
5 days.
6 MR. GUEST: A related question, Mr. Hearing Officer,
7 is the due date for the economic memorandum. A pending
8 motion we filed yesterday, a joint motion by the
9 respondent intervenors -- respondents and intervenors
10 seeking extension for a few days because the lawyers have
11 all been caught up in discovery.
12 HEARING OFFICER MENTON: Okay. I have not
13 received that motion. As I recall from the last
14 hearing, what did we say, November 20th today, for the
15 first round then December 4th for the second.
16 MR. GUEST: Here's a copy of that. It's only a half
17 page long.
18 HEARING OFFICER MENTON: Okay.
19 Mr. GUEST: Thank you.
20 HEARING OFFICER MENTON: All right. What's the
21 position of the parties? Do you need additional time?
22 MS. KAVANAUGH: We would do whatever counsel wants to
23 do.
24 MR. GREEN: Mr. Menton, our understanding is that
25 it would be helpful to the respondents to coordinate
15
1 their effort, particularly the federal government, and in
2 light of that, we would not oppose that and grant
3 until next Wednesday.
4 HEARING OFFICER MENTON: Is that what you're looking
5 for until next Wednesday to file the initial one?
6 MR. GUEST: Right, with the reply on the 11th.
7 HEARING OFFICER MENTON: All right. That's fine
8 with me. So why don't we do that?
9 MR. GREEN: Those are joint filing dates.
10 HEARING OFFICER MENTON: Joint, simultaneous filing
11 in both instances for the original brief and the reply.
12 That's what, November --
13 MR. GREEN: 25th.
14 HEARING OFFICER MENTON: The reply December 11th, so
15 that will give me a week before the hearing to review.
16 Okay. I think that resolves the issues that were
17 outstanding from the last hearing; is that right? Any
18 remaining ones except with Mr. Burgess we have to come
19 back to?
20 Okay. The next issue, I guess, is to get into the
21 discovery disputes. Let me make some preliminary
22 comments in this regard. Just from my own experience
23 one of the biggest frustrations I had in private practice
24 was to feel that I was getting jerked around in a
25 discovery dispute and to go through the motions of filing
16
1 an appropriate discovery motion to compel then walk
2 into a hearing and kind of have a judge look at me with a
3 blank stare on his face and not really grasp the essence
4 of what's going on.
5 One of the biggest revelations I've had as a hearing
6 officer is that it is virtually impossible to sit
7 here and listen to everybody go back and forth, he told me
8 this and he told me that and he told me this, and try to
9 figure out who the good guy is and who the bad guy is.
10 It is a lot more difficult than I had expected it to be.
11 So as a result, I have made a couple of determinations.
12 Number One, the amount of paper that is filed on
13 behalf of a party in connection with the discovery dispute
14 and the volume with which he argues his position at a
15 hearing bears no direct relationship at all to the merits
16 of his position. So, you know, I don't want to get into
17 one of these, well, you told me this and he told me that
18 and you told me this. I just don't think that's
19 productive and I don't have the patience to sit here and
20 go through it. There are a couple guiding fundamentals
21 that we're going to have to work within the scope of this
22 hearing, and I think everybody needs to keep those in
23 mind.
24 Number One and one that weights heavily on me, and
25 I'll tell you I think it's important I have to keep in
17
1 mind the statute requires this to be an expedited
2 proceeding, and that I think is going to in and of itself
3 set some of the parameters for discovery in this case.
4 I think everybody needs to have a reasonable opportunity
5 to conduct discovery. I do not think that means that
6 everybody has to depose every witness that's listed
7 or potential witness that's listed.
8 I'm going to do my best to ensure that everybody has
9 a reasonable opportunity, but the fact that you have not
10 deposed every witness on the other party's witness
11 list is not necessarily going to be conclusive to me as to
12 whether or not you've had a reasonable opportunity for
13 discovery. I think given the framework that we've been
14 put in as an expedited proceeding, all parties are
15 obligated to prioritize their discovery needs and to
16 recognize the priorities that the other parties are
17 necessarily going to have.
18 In that regard, you know, there are certain
19 principles that I think are pretty self-evident. If a
20 witness is listed on another party's witness list, that's
21 a priority item. I think those witnesses ought to be,
22 efforts ought to be made to ensure those witnesses are
23 available and that they're available as early on in the
24 process as is practicable.
25 I don't at this point -- I've reviewed the motion
18
1 from the petitioners for relief from the discovery order,
2 I'm going to deny that motion. I do not want to get
3 into a free for all discovery proceeding. If it mandates
4 more active involvement on my part, then I will undertake
5 that role. I think it's more important to keep some order
6 to the process, and if we have to have a hearing
7 every Monday morning to review the discovery schedule,
8 then we will do it. I don't want to do it, and I probably
9 will not be in a very good mood on Monday mornings if we
10 get to that point, but we will do it.
11 I think I heard some reference just a minute ago
12 that there is going to be a meeting over the possibility
13 of setting up a global discovery schedule and maybe you
14 can bring me up to speed as to what's going on.
15 MS. KAVANAUGH: If I may, we were going to offer to
16 defer the motion for relief from the discovery order until
17 after this counsel meeting, which all parties finally
18 agreed to simply because we feel once we sit down with
19 each other and go over how many witnesses there really
20 are, we have some other problems because of our inability
21 to get answers to certain interrogatories, which is
22 subject to another motion before you today, but
23 assuming we can all sit down and figure out how many
24 witnesses there are and with some reasonable
25 considerations like how many depositions can be conducted
19
1 on a given day, the counsel constraints, the staffing
2 constraints from the agency's viewpoint as well as expert
3 witnesses attending, then we can come back hopefully on
4 the 18th with a proposal for a revised discovery
5 schedule.
6 We have no objection to the structure of discovery.
7 Our problem is we are feeling, as indicated in our motion,
8 very thwarted in our ability to get the discovery as
9 petitioners -- that we need at the beginning in order to
10 determine whether we do need all these witnesses or not.
11 We don't know yet. We are trying keep it up front in an
12 expedited process. We're willing to try to work in the
13 expedited process, but it just has been unmanageable for
14 us so far.
15 We had intended to ask you to defer ruling on this
16 motion until we could all meet and try to come up with a
17 joint proposal to you.
18 HEARING OFFICER MENTON: All right. I just think
19 that going back to discovery in a free for all fashion is
20 recipe for disaster.
21 MS. KAVANAUGH: We agree, but we're desperate.
22 HEARING OFFICER MENTON: Okay. So at this point
23 let's try to see if we can reach some agreement on the
24 global and see where we are on that. There were a couple
25 of other issues that came up in reading the various
20
1 motions that the parties filed. One was it seems to be
2 that there is an informal arrangement taking place in some
3 instances where one of the aligned parties is handling,
4 you know, a particular witness, and I know in at least
5 one circumstance where there were cross notices for
6 depositions that were not coordinated between the other
7 parties.
8 It would seem to me the parties should be able to
9 reach an agreement amongst themselves that one of the
10 aligned parties will be primarily responsible for
11 scheduling the deposition of their witnesses with one
12 of the aligned parties on the other side. I think that
13 would help alleviate a lot of the problems. And I
14 don't know to what extent that's being done currently, but
15 I think that's one issue that you really ought to try to
16 reach some consensus on.
17 There was also a reference in some of the pleadings
18 to the circuit court action that's pending and some of the
19 discovery that's going in on there. That raised a
20 question in my mind as to what extent there is or should
21 be coordination between discovery and some of the related
22 proceedings and this proceeding. I have no idea what's
23 going on in those other cases, and maybe someone needs to
24 bring me up to speed on that, and whether it is possible
25 to try to coordinate on that.
21
1 MR. REID: Yes, sir. There are several other
2 proceedings going on. The one, I guess, sort of popped up
3 recently is what we refer to as the Sunshine lawsuit.
4 That was a suit filed by the League against the state
5 parties alleging that settlement negotiations and the
6 consent decree and so forth which results from that
7 should have been done in Sunshine and is a violation of
8 state law.
9 There were other counts which claim that the state
10 parties had violated the rights of the farmers,
11 their constitutional rights to buy and somehow prejudicing
12 this proceeding that we're in now, the administrative
13 process, by reaching the consent decree and the settlement
14 agreement. The first -- the latter part of that, I just
15 mentioned the claim of rights, state rights being
16 violated, that was dismissed, a summary judgment was
17 granted in favor of the state parties.
18 We're left with the violation of the Sunshine. In
19 that case, we have a list of about 25 deponents, I think.
20 I don't remember the exact number. The same -- a lot of
21 the same people. They're going to be deposed in this
22 case, I assume. Tommy Vickers is one that comes to
23 mind. He's the Deputy Administrator of the District.
24 You know two days ago I was in a deposition of the
25 former general counsel where there was, you know, for
22
1 eight hours he was asked about the settlement discussions,
2 the science they talked about, a lot of the same issues,
3 so, in fact, there is a great deal of discovery just in
4 that one case. There is also I might add a series of
5 public records requests going on outside of this
6 proceeding to in large part get some of the same types of
7 materials as there has been going on before this process
8 started.
9 We are strapped and we haven't decided what to do
10 about it yet. It's interesting you raise it today because
11 certainly it makes a difference, and I'm not sure
12 where to go for relief at this point, whether it's
13 here or there or somewhere else, and we're considering
14 that. But, yeah, there is a great deal of what is just
15 clearly got to be -- and when we get into the issue today
16 on the settlement agreement discussion some of this will
17 become relevant because in addition to that Sunshine case
18 there was another case in the state court. There are
19 cases in two or three of the appellate courts around the
20 state all dealing with similar or related issues one
21 way or the other.
22 I'll discuss that more fully when we talk about the
23 settlement issues, that's the subject of our motion today.
24 But you're right, there are a lot of other types of
25 information being sought in other --
23
1 HEARING OFFICER MENTON: Are the parties the same?
2 MR. REID: Generally speaking.
3 MR. R. SMITH: No, sir, and the issues are not the
4 same.
5 MR. REID: Well, the Sugar Cane League --
6 MR. R. SMITH: It's perfectly reckless to make the
7 representation --
8 MR. REID: Well, I can get -- I said generally
9 they're the same. His clients, I have to go and check if
10 he has the same farmers list, the Sugar Cane League is a
11 party. My client is in a lot of the cases, but we're the
12 same party; the Department of Environmental Regulation is
13 in the case, and they're the same party. The claim for --
14 I have to go back and check who made the demand for
15 administrative hearing. I think it's fair to say that the
16 parties are generally the same.
17 Now maybe we don't have the exact farmers and
18 individual parties, but --
19 HEARING OFFICER MENTON: Well, I guess --
20 MR. REID: -- it's the same group of lawyers that you
21 see here. Now maybe they have a different hat on, but
22 the Sugar Cane League is the Sugar Cane League, and Ms.
23 Kavanaugh and I argued the motion for summary judgment in
24 front of Judge Davey --
25 MS. KAVANAUGH: It was a motion to dismiss.
24
1 MR. REID: I'm sorry, I beg your pardon. It was a
2 motion to dismiss. And Mr. Smith and I argued the other
3 ones, so I don't think it's reckless to say that the
4 parties are generally the same, and I'll be happy to get
5 out all the captions and --
6 HEARING OFFICER MENTON: Well, I'm not sure how
7 significant it is, but the issue came up in my mind when I
8 saw references that there were a number of depositions
9 being conducted and to the extent there are witnesses that
10 are common, that there are attorneys that are common, I
11 don't see why you can't cross notice depositions in those
12 cases if a witness has to appear at that time.
13 What I'm suggesting is that there should be some
14 efforts to coordinate the discovery to the extent that
15 there are common witnesses.
16 MS. KAVANAUGH: We're willing to cooperate in that.
17 But one thing I would like to point out is there are
18 two, two -- three errors in what Mr. Reid said.
19 First of all, the other counts in the Sunshine case
20 has not been right because Judge Davey ruled that the
21 series of administrative proceedings which would have
22 addressed the agency decisions embodied in the settlement
23 agreement would to some degree cure some of those claims.
24 However, he left -- he specifically said, if there were
25 problems, come back to him, so let's correct that record.
25
1 The second thing I want to --
2 MR. REID: I didn't say what the basis of --
3 MS. KAVANAUGH: If I can just finish. I did not
4 interrupt you.
5 MR. REID: I apologize.
6 MS. KAVANAUGH: In the public records cases, we
7 attempted, we attempted to coordinate discovery, but we
8 were told that we were only going to be allowed to depose
9 the witnesses on the issues in that specific proceeding.
10 So if the parties, the agency positions have changed,
11 that's great, and I think your suggestion that we try and
12 cross notice where we can, that we do that. The United
13 States was not a party to these proceedings.
14 Then finally on the public records question, sir, I
15 would say that the League is making public records
16 requests and we have set up a procedure with the District
17 that's not working too well, but we're trying, where if
18 they say they can do something, as in public records, all
19 they have to do is tell us that so they don't have to
20 duplicate document production. We don't need all that
21 paper either. We are trying to work with them, but as you
22 can see this atmosphere has gotten somewhat acrimonious.
23 I think the counsel meeting we finally agreed to
24 have, at one point we said we'll lock ourselves in a room
25 for two days, hopefully we can work out a more coordinated
26
1 discovery plan so that no one's resources are stretched
2 unnecessarily and we can't expedite the proceedings.
3 So we would certainly agree to try to coordinate these
4 efforts to -- so that duplicity and redundancy, that's not
5 needed.
6 HEARING OFFICER MENTON: Okay.
7 MS. PONZOLI: May I be heard on this?
8 HEARING OFFICER MENTON: Yes.
9 MS. PONZOLI: In regards to the Sunshine lawsuit,
10 which the United States is not a party to, I want to make
11 it very clear to you that the witness list that the
12 Florida Sugar Cane League has sent to the District
13 includes six federal employees, two of them are my
14 principal scientists, one for the Refuge and one for
15 Everglades National Park, and one for the Park is head of
16 the research center.
17 In addition to those two principal scientists, my
18 deposition is noticed, the Deputy Chief of General
19 Litigation for the Lands Division in Washington is
20 noticed, a former United States Attorney is noticed, and a
21 Deputy Assistant Attorney General for the Lands Division
22 is noticed. In that Sunshine lawsuit, the United States
23 will assert that the people who seek our depositions have
24 to go through the CFR, the regulations for doing a federal
25 deposition and meet those requirements; and if they do
27
1 that and it's appropriate, then depositions can be taken
2 of federal employees for the specific purposes that
3 meet the CFR and are appropriate to that litigation alone.
4 In this litigation, unfortunately -- and I do not
5 have a list exactly here. I think I do have them
6 her, I can refer to them. But my memory serves me that
7 either all four of those attorneys or at least three of
8 those attorneys that I just finished naming have
9 once more been named as witnesses.
10 Now I have to be very candid with you, I'm unfamiliar
11 with taking a litigating attorney's deposition in the
12 middle of current litigation where the parties are facing
13 one another in a courtroom, so I believe it is highly
14 likely that those depositions vis-a-vis this litigation
15 will never take place. So just so you understand what my
16 bottom line position is when I think you -- in a sense of
17 expediting things, let's just put them altogether. From
18 the federal prospective, that's not an appropriate
19 resolution.
20 We do not believe they should be put together. If
21 they have a right to do those depositions in the Sunshine
22 lawsuit, then those depositions will go forward in that
23 lawsuit, but here I do not think that's an appropriate
24 thing to be done, and I would argue against it when that
25 time comes when, in fact, they move forward to do that.
28
1 HEARING OFFICER MENTON: Okay. Well, I'm not sure
2 I'm understanding your position. If we're talking about
3 your expert witnesses; is that what you're saying?
4 MS. PONZOLI: No, I'm not talking about the expert
5 witnesses. I'm speaking particularly of the attorneys.
6 HEARING OFFICER MENTON: Okay. Well, I would not
7 image that they would try to notice you for deposition in
8 this case.
9 MS. PONZOLI: They have listed me as a witness.
10 HEARING OFFICER MENTON: In this case?
11 MS. PONZOLI: The League and the Co-op, yes, sir.
12 MS. KAVANAUGH: Mr. Hearing Officer, if I may, I
13 thought that -- we'll be getting this on a motion to
14 strike, but a fundamental part of our case is that this
15 SWIM Plan is not the result of the statutory process.
16 It's the result of secretly negotiated settlement and
17 those that participate in the committee that secretly
18 negotiated the settlement agreement we want to depose, and
19 obviously at that time you will have to make --
20 HEARING OFFICER MENTON: Well, we're getting ahead
21 of ourselves and --
22 MS. KAVANAUGH: I understand that, exactly. And --
23 HEARING OFFICER MENTON: You're going to have to
24 give me some good case law as to your right to take
25 a deposition --
29
1 MR. R. SMITH: How about if I give you some evidence
2 this morning?
3 HEARING OFFICER MENTON: Well, we'll get to the
4 federal issues in just a little bit, but let's see if we
5 can coordinate on getting some of these discovery issues
6 resolved. I think --
7 MR. R. SMITH: I have not spoken to that, Mr. Hearing
8 Officer, but I agree that at the proper time that we
9 ought to thoroughly investigate whether the federal
10 lawyers who have been running this thing are immune
11 from discovery in this proceeding to which they have
12 invited themselves in which the issue is whether they in
13 another proceeding have coerced the state agencies
14 into taking the positions that they are now trying to firm
15 up.
16 HEARING OFFICER MENTON: Okay. I think we're
17 getting ahead of ourselves. That issue is not before me
18 today, and if it comes before me, then we'll talk about it
19 at that point. Again, I think the issues related to the
20 federal litigation are probably going to be the most hotly
21 argued so I was going to defer that to the last issue of
22 the day and see if we can just make some progress on
23 some of these other issues first before we begin to
24 degenerate here.
25 Let me -- I'm not sure how many of these pending
30
1 discovery motions are still pending. I have made some
2 notes on a couple of them and see if we can resolve some
3 of these on a relatively quick basis. I think with
4 respect to the motion for relief from the stipulated
5 discovery procedure, we have already discussed that. At
6 least at this time, I'm going to deny it. If there comes
7 a point where you want to renew it, then go ahead and do
8 that. But I am going to deny that.
9 There was a -- South Florida Water Management
10 District filed a motion to reschedule the deposition of
11 Waylin on December 9th. I understand that's moot; is that
12 correct? Has there been some agreement reached on that?
13 MR. REID: Correct.
14 HEARING OFFICER MENTON: So that one -- we have
15 two down. That's pretty good. All right. There was a
16 motion to appoint commissioners that was filed by the
17 League with respect to two depositions, one in North
18 Carolina and one in Georgia.
19 I gathered from reading those motions that North
20 Carolina has not adopted the Uniform Form Depositions Act
21 but Georgia has. As I understand it, it has been a while
22 since I looked at it, but as I understand the Uniform Form
23 Depositions Act and the whole need to appoint a
24 commissioner is pertinent with respect to compelling the
25 attendance of the witnesses, not necessarily for whether
31
1 or not whether the deposition is admissible or otherwise
2 proper.
3 I don't know where we are in terms of -- I thought
4 there was an understanding that the parties to the extent
5 that they can control witnesses would arrange for the
6 attendance of the witness without the need to go
7 through subpoenas, and I would assume that also applies
8 for the need to get a commissioner appointed, et cetera.
9 It may be that these witnesses are not employed and that,
10 therefore, we have to go through that, so --
11 MS. KAVANAUGH: Exactly. That's --
12 HEARING OFFICER MENTON: Okay. Well, I have those
13 orders, the order to issue the commission should be typed
14 up and ready to go hopefully by Monday and you can just
15 check with my secretary about picking those up. But I do
16 think that, you know, on this issue to the extent that
17 witnesses are within the control of the parties, then I
18 think that the order that we've entered requires the
19 parties to coordinate their attendance without the need
20 for subpoenas and appointed commissioners, et cetera.
21 MS. PONZOLI: In that vein, the depositions I have
22 taken under subpoena with the North Carolina
23 court reporter, I assume there will be no objection to
24 their admissibility. I did not get a commissioner
25 appointed.
32
1 HEARING OFFICER MENTON: I don't -- again, I think
2 that the need for commissioner is simply for the
3 attendance of the witness. I don't think it has to be --
4 MS. KAVANAUGH: As I say, they showed up.
5 HEARING OFFICER MENTON: I think that's really all
6 that's relevant. All right. Next was -- I'm trying to do
7 these in descending order of ease here.
8 The motion for leave to amended response to the first
9 request for production that was filed by Fruit and
10 Vegetable Growers and the response that was filed by the
11 U.S., this goes back to last month. At this point, I
12 don't think there has been a motion to compel that was
13 filed regarding those responses.
14 I think some of the same objections were raised by
15 the other parties so I think we're going to have to deal
16 with the issues anyway, and if it applies to some of the
17 petitioners it's going to apply to all of them, so I'm
18 going to grant the motion for leave to amended response.
19 And if and when a motion to compel is filed we'll address
20 the validity of the discovery objections that were raised
21 by the Fruit and Vegetable Growers as well as numerous
22 other petitioners.
23 DER has filed a motion for protective order regarding
24 the deposition of one of its witnesses. I don't know what
25 the status of that is. I think it would appear clear that
33
1 the request --
2 MR. HYDE: Which motion are you referring to?
3 HEARING OFFICER MENTON: Regarding a Dow.
4 MR. KILLINGER: I think it's pretty much resolved. I
5 just wanted to make objections for the record on some of
6 the questions that were proposed to be asked and the
7 documents that were sought. I think if we argue about the
8 relevance of the settlement issues that will resolve part
9 of my objection, and I just discussed with Mr. Hyde our
10 agreement to go ahead and produce the documents Ms. Dow
11 does have despite our objections.
12 HEARING OFFICER MENTON: Okay. In a litigation like
13 this there are a lot of forms that are used and a lot of
14 times things are plugged in, I would hope the parties can
15 reach agreement as to when things are not pertinent, that
16 it's not necessarily applicable to that witness, and I
17 think that was the main issue that we raised in connection
18 with that motion. So you have that one resolved, and we
19 don't have to worry about it. All right.
20 Next was a U.S. motion to compel that was filed
21 yesterday. I think it relates to the request for
22 production and also to the interrogatories. Again, I have
23 taken these out of --
24 MR. BURGESS: Your Honor, we --
25 MS. KAVANAUGH: We have not seen that one.
34
1 MS. PONZOLI: It's not timely.
2 HEARING OFFICER MENTON: It's not timely.
3 MS. PONZOLI: It's not ready to be argued.
4 HEARING OFFICER MENTON: All right.
5 MS. PONZOLI: It has only recently been filed.
6 HEARING OFFICER MENTON: All right. There were a
7 couple of issues that I think we can still discuss today
8 and I would like to get a feel for where we are on it
9 even if the particular motion is not timely, hopefully it
10 can be worked out because I'm not sure there were any
11 specific or that there was any specific relief sought; at
12 least, I was not clear as to what the relief sought was.
13 But there are a couple of issues that I thought I wanted
14 to get a feel on.
15 There was a reference to privilege list that the
16 parties have been discussing the possibility of preparing
17 in exchanging privilege list and documents that were
18 withheld from production. What is the status of that?
19 Is there any agreement on that?
20 MS. KAVANAUGH: We have been proposing that
21 for quite some time, and I haven't read the motion. I
22 don't know what --
23 HEARING OFFICER MENTON: Again, reference in
24 this motion, reference in some of the other pleadings,
25 that were, you know, some of the other discovery pleadings
35
1 --
2 MS. KAVANAUGH: Our position is that when any party,
3 and this is one of our standard instructions for the
4 document production request is if you're withholding
5 documents based on a claim of privilege to provide, you
6 know, minimal information so then if it looks like there
7 is a question about it we can come to you. I mean that's
8 our position.
9 HEARING OFFICER MENTON: Well, I guess the reason I
10 brought that up is I think there needs to be a clear
11 understanding everybody is working under the same rules,
12 and I don't know if that's the procedure everybody has
13 been following.
14 I think it is a procedure that should be followed,
15 and if there is a problem with it I would like to know
16 about it and find out why it isn't being done or can't
17 be done.
18 MS. PONZOLI: I think from our perspective, the
19 United States, and I believe actually co-respondents have
20 produced the vast bulk of all of our documents and to one
21 or all of these parties in the room, and we have created,
22 at least, up through certain periods of time rather
23 extensive lists of privilege.
24 We have never received reciprocal lists. And, in
25 fact, in negotiations, it is normally the case that
36
1 their experts have not reached final opinions and have all
2 this work in progress or they have it under umbrella,
3 other entities, other farms, other clients, and it's
4 very difficult to pin them down and to -- will they create
5 a list that, at least, detail all work in progress and
6 give us an opportunity to come to you and say they have
7 done data collection for two to three years. We believe
8 it's appropriate to bring it forward at this time.
9 I really believe that's the crux of the privilege
10 difference. They want to hold whole areas completely
11 away from their privilege list.
12 MS. KAVANAUGH: Can I respond briefly?
13 HEARING OFFICER MENTON: Yes.
14 MS. KAVANAUGH: The discovery scheduling order
15 provided a vehicle whereby expert documents would be
16 produced ten days prior to their deposition which we've
17 been following. Additionally, the United States has filed
18 certain requests for production of expert documents, and
19 we had said, do you want to change the rules? Let's
20 stipulate to that, that we can do document production
21 requests for all witness, expert witness documents,
22 whether they fall within the discoverable documents for
23 testifying expert or not.
24 Thus far they have refused to agree to that process.
25 But setting that aside, it's inconsistent with their
37
1 position on their interrogatories. They will not tell us
2 all of the experts that they apparently have. The
3 District, I guess, is maintaining all of their employees
4 are experts and they will not let us have that
5 information. We want to work this out, Mr. Hearing
6 Officer. We are not intentionally trying to withhold
7 anything, but we feel we have not had a document
8 production request --
9 HEARING OFFICER MENTON: Okay. I think we're
10 getting a little bit ahead of ourselves because some of
11 these issues are raised in some of the other motions
12 that are pending and I have made notes on that to
13 specifically discuss that, so I do want to come back to
14 that issue because it's an important one that we need to
15 resolve.
16 The issue that I was raising now is I just wanted to
17 make sure that everybody was working under the same game
18 rules; that if you're going to pull documents out of the
19 document production on basis of privilege, then you need
20 to prepare a list of the documents that have been pulled
21 out and provide it to the other side. And if there is
22 some question, then we'll do an in camera inspection of
23 them. I simply want to make sure that everybody is
24 working under those same rules.
25 So we have that on the record and I think that was
38
1 one of the issues that was raised. I just simply wanted
2 to get that clear that that's what I expect out of
3 everybody involved in this case.
4 The other issue that was raised in this motion to
5 compel, and again I realize that you have not seen it, I
6 realize it's premature, but one of the things that it did
7 bring to my attention and I think we can address in
8 a generic sense was the notion of general objections.
9 There was a general objection that was raised regarding
10 the limited role of the U.S. in its involvement in this
11 case.
12 And I just wanted to say that I understand the notion
13 of general objections and I don't have any problem with
14 people putting them in there to protect themselves, but if
15 there are specific documents or that there are specific
16 requests to which you think that an objection such as the
17 limited role of the U.S. is applicable, I think you need
18 to make that clear so that we can specifically address it.
19 If you're, you know, withholding documents because you
20 don't think the U.S. role in this case allows them to get
21 into it, then I want them to know so that they can bring
22 it to my attention and we can resolve it. All right.
23 MS. KAVANAUGH: I assume that would hold true for the
24 general objections filed by the other --
25 HEARING OFFICER MENTON: The same for everybody
39
1 concerned. I know everybody has filed general objections
2 and I'm not sure they really mean anything except to
3 kind of CYA. All right.
4 The next issue has to do with the League's petition
5 -- I mean the League's motion to compel response to the
6 first interrogatories. And again this is a general
7 objection type issue from what I understand where at least
8 as I read the motion and the discovery responses, the
9 interrogatories had requested the disclosure of
10 individuals employed by the District having knowledge of
11 various information and descending order of knowledge
12 or something to that effect.
13 The Water Management District has filed a response to
14 the motion to compel. I have read that as well. I think
15 first of all, again, the response and the objections that
16 were filed by the Water Management District was in this
17 general objection category, and the motion to compel seems
18 to assume that there are specific individuals who have not
19 been identified and have been withheld.
20 I'm not clear in reading the interrogatories that
21 that's what they're saying, and it may be. But let me
22 just say as a general matter in reviewing the
23 interrogatories, I do have a problem with the notion of
24 framing an interrogatory in terms of descending order of
25 knowledge or even identifying people having knowledge when
40
1 we're talking about a situation where probably
2 every employee of the Water Management District has
3 knowledge to some degree.
4 If there are specific areas in which you're looking
5 for people who had involvement in making decisions as to
6 what goes into the plan and had involvement in taking
7 samples or running tests or something, I think you need to
8 be more specific in terms of what you're seeking, you
9 know, or who you're seeking to have identified. So from
10 that perspective, I did not think the motion to compel was
11 well taken, and I'll give you an opportunity to
12 specifically address those issues. But at least in the
13 way that the interrogatories were framed and the responses
14 that were received, I didn't see how I could compel
15 any better answers at this point. So, Mr. Burgess, I
16 don't know if that's you or Ms. Kavanaugh.
17 MS. KAVANAUGH: That's me. Mr. Hearing Officer,
18 these interrogatories, however inartfully worded they may
19 have been were intended to get the standard person most
20 knowledgeable. You will recall the very first scheduling
21 hearing we talked about the fact that we need to know who
22 basically did the Plan so that we could then formulate our
23 discovery. And, in fact, we have listed a bunch of
24 District personnel that we believe have knowledge, but we
25 don't know. I mean that's just based on what we're going
41
1 on. And that was our intent, was just simply to get the
2 players.
3 The objection raises a question that the players they
4 have identified in their answers to interrogatories and
5 they have identified some other witnesses now are the only
6 players and whether or not the District is, in fact,
7 withholding the names of persons who participate in the
8 decision making process but disagree with it, that's
9 what the motion to compel was really directed to.
10 As I say, this was intended to be your standard
11 person most knowledgeable interrogatory, and it wasn't
12 until we got the objection back that we became quite
13 concerned that, in fact, they were withholding persons
14 most knowledgeable but who disagree on grounds that
15 their opinions are not relevant, so that was the thrust of
16 the motion to compel and that's really what we
17 want some relief from.
18 It may be there aren't any. We said that, but
19 certainly their objection raises that question.
20 Apparently, there has been some discussion between Mr.
21 Reid and someone else from the petitioners' side about
22 possibly identifying those witnesses, et cetera, but we
23 now need assurance that they aren't excluding people on
24 the basis that they disagree with the Plan. That's what
25 we really would like some relief from.
42
1 HEARING OFFICER MENTON: Okay. I don't think the
2 interrogatories as framed necessarily get to that issue,
3 so I think you either have to explore that through
4 some other discovery mechanism or through interrogatories
5 or something to that effect.
6 MS. KAVANAUGH: Okay. Directed to the issues
7 raised by the objection as to knowledgeable persons who
8 disagree.
9 HEARING OFFICER MENTON: Yes -- well, I mean, I'm
10 not going frame it for you.
11 MS. KAVANAUGH: I understand that. I'm just trying
12 to understand your ruling.
13 HEARING OFFICER MENTON: All right. Mr. Reid, did
14 you have anything you wanted to add?
15 MR. REID: Well, one thing. There is a little
16 bit of a problem in a case such as this and with regard
17 to the idea of experts versus facts.
18 HEARING OFFICER MENTON: That's a good point.
19 MR. REID: And when you say this is usual, give
20 me all the facts, well, this is not the usual give me all
21 the facts. When you ask for somebody who's knowledgeable
22 about a very highly technical issue, you're looking for
23 an expert.
24 Also this is not a private corporation. Everything
25 we do is out there. We've been producing reams of paper
43
1 about this for a long time, so I would think that anybody
2 that has looked at all this paper can figure out who was
3 involved in the process. I mean, don't think we can hide
4 anybody is what I"m saying who works at the District.
5 And we felt this was -- we had some other objections to
6 this, overly broad and burdensome, trying to figure
7 out all the employees of the District who might have
8 knowledge about this. So I assume you're denying the
9 motion, and then we'll deal at the next round when it
10 comes up.
11 HEARING OFFICER MENTON: Yes, I think that's
12 probably the best thing to do. The point that you
13 raise is one that I made notes of too and I think is
14 an important one. I don't think it's ripe to resolve
15 today, but that's the issue of experts versus fact
16 witnesses. It's a very close line to draw in here and
17 a lot of time it's going to depend on the way the
18 questions are phrased at the depositions.
19 I do think that the petitioners are entitled to
20 explore the involvement of individuals who work for the
21 District who are not necessarily listed on the District's
22 witness list, but I don't think that that means that
23 they're going to go in and seek opinion testimony from
24 those witnesses.
25 I think the inquiry should be limited to the factual
44
1 involvement in preparation of the Plan and those sorts of
2 things, but I think we're getting a little ahead of
3 ourselves. If we need to address that issue in the
4 future, we can do so. But as I indicated in just a
5 general sense I don't think petitioners should be
6 limited to those witnesses, those District employees who
7 are identified as witnesses by the District. But on the
8 other hand, I don't think that you're entitled to go in
9 and seek expert testimony per se from them.
10 MS. KAVANAUGH: Mr. Hearing Officer, two issues.
11 First of all, I'm trying to understand the answers they
12 did give us to these interrogatories where they
13 incorporate by reference other witness lists that
14 list persons on various subject matters and so forth
15 and so on. If, in effect, you're saying that these
16 answers, which are really no answers in most cases, in as
17 far as they're interrogatories are not answers, we have a
18 limited number of interrogatories we can pose. And we
19 would like to have the ability to not have these count
20 against the 75 interrogatories.
21 I don't know, I've forgotten how many we have,
22 because they're essentially not answered. And as I
23 understand your ruling, you're saying the interrogatories
24 aren't sufficient for them to answer them so we would like
25 to recast these interrogatories.
45
1 HEARING OFFICER MENTON: Well, I don't know, I didn't
2 feel in reviewing the answers that were submitted that
3 they were necessarily nonresponsive. I thought --
4 MS. KAVANAUGH: Not all of them, some of they did
5 list. For example --
6 HEARING OFFICER MENTON: I don't have them in front
7 of me.
8 MS. KAVANAUGH: There are a lot of references to
9 other lists, but they do list some names. I mean --
10 HEARING OFFICER MENTON: Well, as I recall, what
11 they did was they listed a few specific witnesses in most
12 instances of people who I gather had the most knowledge
13 regarding particular issues that were sought in the
14 interrogatories, and then they also incorporated the
15 witness list to the extent that there was disclosure of
16 other witnesses who were also going to address that issue.
17 MR. REID: That's exactly what we did.
18 MS. KAVANAUGH: And the problem that we have is
19 bearing in mind we are trying in good faith to work out
20 this deposition schedule because we really don't want to
21 depose everybody at the District. We want to depose only
22 those people with knowledge, and that's what we're trying
23 to get identification of the people who participated in
24 the formulation of the Plan regardless of what their
25 opinions might have been, regardless of whether they agree
46
1 or disagree with it, just so we know who we have to
2 depose.
3 And perhaps if we take all of the lists they
4 reference and sit down on the 4th, maybe we can
5 work this out, but maybe we have to come back to you on
6 the 18th.
7 HEARING OFFICER MENTON: All right. Well, see if
8 you can work it out. Again, I don't know, you know, I
9 don't know how much of that information can be
10 gleaned from the SWIM Plan itself and attendances and
11 references in there, but see if you can work it out.
12 If you can't, let's take it up again.
13 All right. I think the next group has to deal with
14 the South Florida Water Management District motion to
15 compel that was filed on October 30th regarding Curtis
16 Richardson. The Co-op filed a response on November
17 5th. The League filed a response on November 16th.
18 I think there were also objections that were filed to the
19 cross notice, joint objections that were filed, I think,
20 by the Co-op on November 5th.
21 MR. BURGESS: Yes, Your Honor. Your Honor, I
22 understand from conversation with Mr. Nettleton last
23 evening, the District intends to defer this motion until
24 they discuss with the United States certain documents that
25 were produced by Duke Wetland Center employees in
47
1 their depositions over the last several weeks.
2 MR. REID: That's true, and also to discuss with Mr.
3 Burgess because these were documents that were produced at
4 depositions and through some error we didn't say make
5 two copies and people who produced them are all put back
6 and can't copy them again. So between these two parties
7 they got all -- they have copies, so I'm hoping each party
8 will make available their part, what they copied to us.
9 MR. BURGESS: Your Honor, my problem --
10 MR. REID: Otherwise we'll have bring them all back.
11 MR. BURGESS: My problem with that fundamental is as
12 you referenced earlier with respect to coordination of
13 discovery, I think that each party on each side of the
14 ledger has a duty to their co-intervenors and
15 co-petitioners with respect to discovery. I would urge
16 the Court to instruct the District to seek these documents
17 from the United States.
18 The United States who subpoenaed these witnesses and
19 took these depositions copied all the documents produced.
20 We did not. So the full set, if you will, will be
21 available from the United States. Secondly, when the
22 District filed this motion and at the same time we filed
23 our formal responses, I sent Mr. Nettleton a letter on
24 November 5th where I explained to him the type and extent
25 of the documents that he's seeking his duces tecum,
48
1 including documents and data collected by Curtis
2 Richardson or those associated with him are now presently
3 being produced by witnesses subpoenaed by the United
4 States.
5 On November 5th, I sent this letter telling Mr.
6 Nettleton I attended a deposition the day before where the
7 District did not attend where the United States
8 subpoenaed one Robert Johnson of the Duke Wetland Center
9 that he produced documents to the United States; that more
10 of the depositions were scheduled for the very day of my
11 letter, Dr. Russ Raider, and more depositions were
12 scheduled in North Carolina for the following two weeks
13 where a majority of the documents that they sought
14 were being produced; and that I informed him on November
15 5th attendance at these depositions by counsel for the
16 District would allow you to obtain copy of these
17 documents. Counsel for the District didn't attend.
18 MR. REID: I saw all these letters, and I thought we
19 were deferring -- I'm mean, I'm not sure why counsel is
20 reading all these letters to me. I just said I'm trying
21 to work out --
22 HEARING OFFICER MENTON: This is the kind of thing
23 that I don't --
24 MR. REID: People have logistical problems, people
25 make copies. I could have said make two, you know. It
49
1 was an oversight.
2 HEARING OFFICER MENTON: Mr. Reid, as I understand
3 Mr. Burgess he said the U.S. copied everything that was
4 available so --
5 MR. REID: I'll find out about that. We'll work it
6 out.
7 MS. PONZOLI: There is a problem. We can try to work
8 it out. The problem that exists is that when we got to
9 North Carolina -- first of all, I never knew I had
10 an obligation to make duplicate copies, making a single
11 copy was an extraordinary task because they were in
12 DOS, they were in Macintosh. I'm not that computer
13 literate, but I have to tell you it was a nightmare. I
14 don't know what it is about Durham, but I guess everybody
15 makes their own disk in Durham.
16 HEARING OFFICER MENTON: Excuse me. I spend
17 a lot of time in Durham.
18 MS. PONZOLI: Well, maybe you had this experience.
19 But let me tell you bringing in a major scientist
20 in trying to get his documents --
21 MR. REID: I would say they should go to Chapel hill
22 to have them copied.
23 MS. PONZOLI: I would be so happy to take on Mr.
24 Burgess' burden to provide Mr. Reid a copy of the
25 documents except in the narrow timeframe that we have to
50
1 get this second round of these very extensive documents
2 produced, I don't think there is time. I would do it for
3 him. He knows that. I don't think I have time.
4 It's going to have to come from Mr. Burgess, and
5 there is no prejudice to Mr. Burgess because those people
6 are already prepared. They don't need those documents to
7 prepare. I need my disks and documents to prepare.
8 MR. BURGESS: This is the first time we ever got
9 these first disks and documents. We need to prepare.
10 It's not as simple as making copies. We're dealing with
11 19 boxes of data, 50 computer disks. It's not my burden.
12 I put the District on notice 15 days before today
13 that they could attend these depositions and get these
14 documents.
15 MS. KAVANAUGH: These are third party depositions.
16 MR. BURGESS: These are not our witnesses. They are
17 third party --
18 MS. PONZOLI: That's not completely true. These are
19 the documents and data of Dr. Curtis Richardson that will
20 underlie. That's why I'm doing this. They're the
21 foundation for the principal witness for everyone on that
22 side of the room.
23 HEARING OFFICER MENTON: Well, it seems to me that
24 we have a couple of problems. Number One, Mr. Burgess
25 said he didn't copy everything that you did, so if he
51
1 gives Mr. Reid what he has, then Mr. Reid doesn't have
2 everything so --
3 MS. PONZOLI: I'll give him the balance.
4 MR. BURGESS: That's a small number compared to the
5 burden you would be placing on us, and it's not our
6 burden.
7 HEARING OFFICER MENTON: I think on this one the
8 aligning parties will have to coordinate amongst
9 themselves and work out some way to do it. As Mr. Reid
10 said there is going to be some ongoing discussions and
11 let's see if we can get that resolved. I think you're
12 going to have to work out some kind of arrangement to take
13 care of them.
14 I think it's too much to go back and ask him to
15 figure out what's been produced and what hasn't been
16 produced and go through all that. This motion did
17 raise the issue of when documents have to be produced, and
18 I think the discovery order says seven days prior to the
19 time of the witness deposition. And as I understood Ms.
20 Kavanaugh earlier there apparently has been some
21 discussion going on as to whether or not that seven-day
22 cut off means that none of the documents have to be
23 produced until seven days beforehand; is that --
24 MS. KAVANAUGH: Well, basically we propose you can
25 just send document production requests, but we wanted
52
1 everyone to stipulate since the only one that sent that
2 kind of document production request so far is the United
3 States is that if we sent similar document production
4 requests we were all agreeing that we would respond in
5 accordance with the Florida Rules, and for some reason we
6 have not been able to get that stipulation.
7 That would be our position, use normal discovery and
8 whatever is discoverable is discoverable. If there are
9 documents someone wants to withhold because they say their
10 nontestifying experts or testifying experts or whatever,
11 then we try to work those out as normal discovery
12 disputes. We're willing to enter into that sort of
13 stipulation.
14 MR. BURGESS: I understand December 4th is the
15 subject matter of expert witness document production.
16 Hopefully we can get that --
17 MR. REID: I guess one of the problems was when
18 depositions were scheduled and then canceled, document
19 production trail when it's rescheduled. I think that's
20 probably the difference.
21 HEARING OFFICER MENTON: All right. Again,
22 hopefully you can resolve this on December 4th when you
23 make an observation. I don't think the seven-day period
24 that's in the discovery order was necessarily meant to
25 mean that you hold off until seven days before the
53
1 deposition in order to produce the documents.
2 And, you know, I think that in the spirit of trying
3 to get all of the information out and enable all of the
4 parties to complete their discovery in a timely manner,
5 it's important that everyone work, try to produce the
6 documents as early on in the process as they can. So I
7 think that's the principle that you should use in
8 approaching the December 4th meeting.
9 MR. FITZGERALD: Mr. Hearing Officer, this is a
10 related issue in scheduling perhaps you can clarify for
11 us. It's not something really that needs to be briefed
12 but very easily discussed in a minute or two, and it comes
13 up before December 4th, which is why we really can't push
14 it off.
15 There are a number of witnesses on the part of the
16 League, for example, who do not have final opinions yet.
17 As you may recall from reading our response to their
18 request to toss out the discovery scheduling order,
19 the League listed 37 expert witnesses in their final
20 designation, only one of 37 is listed as having final
21 opinions at this point, and in the view of the League and
22 in correspondence that has been suggested to me and by
23 other parties that it is improper for the United States to
24 depose any expert of theirs who has not yet had final
25 opinions.
54
1 Because those other 36 stretch from December 15th
2 through, well, firm dates in February, but then some it's
3 just whenever the work is done, we can't very well leave
4 36 witnesses until February or even late in the game. We
5 need to depose them sooner, so we have noticed some of
6 those people for deposition prior to the date suggested in
7 their final opinion, some as little as five to ten days
8 prior and some are going to be longer.
9 The reason being is the discovery scheduling order
10 in our understanding when it said designates on the 26th
11 of October, that opens the door to depositions of anyone
12 thereafter; and should opinions change and what not, it's
13 my understanding from reviewing the transcripts of the
14 various hearings that address that, that you were
15 suggesting it might be necessary to do a second shorter
16 presumably deposition of someone finalizes some
17 piece of work.
18 We can't very well wait until the end of discovery in
19 February or March to conclude that and to review, at
20 least, preliminarily as much of the data and work that has
21 been done. The parties have suggested from the petitioner
22 side that should we proceed to depose experts who would
23 not yet reach final decisions, that they will thereafter
24 depose subsequent deposition.
25 This is something that's either a clarification
55
1 of the October 26th ruling, or if you can just give us
2 guidance just so we know how to proceed immediately
3 because this is an immediate issue, then everyone will
4 know and we won't have to do a flurry of paperwork.
5 MS. KAVANAUGH: Let me just address it briefly. In
6 the October 26th disclosure also we were required to
7 disclose when the anticipated opinions would be ready,
8 and we did.
9 The problem is the United States is scheduling people
10 before that date and the specific way it came up is
11 one witness, one of the opinions we believe until December
12 15th, they deposed them from December 1st or noticed
13 them or something. Our problem is a lot of our expert
14 opinions is bearing in mind we're going to have to
15 discover the basis of the Plan and having we feel some
16 problems with that are dependent on other things going on,
17 So we were giving them our best guess so they wouldn't
18 have to keep redeposing.
19 If we were starting to have to take two depositions
20 of the experts in this case, we will never get done. We
21 thought this was a reasonable way to handle it. There are
22 four experts who are involved in the Refuge testing
23 program and frankly their opinions are going to in some
24 way, at least depend on when they get started and so
25 forth, but that's for another day.
56
1 We said when our experts opinions will be ready and
2 frankly, Mr. Hearing Officer, I don't know why they can't
3 wait. We have our experts on a time frame, et cetera, et
4 cetera. If their expert opinions become ready sooner,
5 we'll tell them.
6 HEARING OFFICER MENTON: Okay. Well, we've got a
7 couple of problems here. Number One, I think that clearly
8 you ought to plan your discovery around those experts
9 whose opinions are formulated to the extent possible. In
10 the meantime, we have to work on an expedited basis. If
11 there are no witnesses, instead of having dead time
12 where no depositions are being taken, I think they ought
13 to be able to --
14 MS. KAVANAUGH: But that's not the case, sir.
15 HEARING OFFICER MENTON: Okay. I mean, I don't
16 think the discovery has to -- I don't want it to be going
17 one sided. I don't know if that's what going on or not.
18 I don't know. I don't have a good enough feel on that
19 at this point.
20 MR. FITZGERALD: Mr. Hearing Officer, as I said, 36
21 of the 37 that are listed is not ready now. I need to do
22 discovery on their experts. There are no experts. When I
23 asked for those people and noticed them, I didn't get back
24 as the discovery order would suggest a list of
25 alternatives who are ready, and this is not exclusive to
57
1 the League. I didn't mean to single them out.
2 I've had more or less the same response from the
3 Co-op on a witness I have set down for our next two
4 week period. This is a universal problem in this case.
5 No one over there is ready, and I don't want to engage
6 in the alternative of filing motions to strike witnesses,
7 which is the proper way to go about this if they're
8 holding back their witnesses.
9 This matter has pended for some of these parties for
10 over three years. These people have to have something
11 done. I need to start the process. They're deposing my
12 experts and I can't wait. There is no one to depose.
13 MS. KAVANAUGH: Mr. Hearing Officer, can I say
14 one thing? This is really troubling, and I understand you
15 don't want to hear who shot John to each and every thing.
16 I don't blame you. I have to tell you the petitioners we
17 thought that we would at least at the beginning have the
18 opportunity to find out the scientific basis and what this
19 Plan is about.
20 Mr. Hearing Officer, you're going to hear arguments
21 and I guess that will determine if you're going to hear
22 evidence. But this Plan was formulated in secret. The
23 documents were withheld. We had to bring three public
24 records actions to get any of this technical stuff
25 they're telling you about.
58
1 We thought that we would have an opportunity to, at
2 least, make that initial discovery, and then our experts
3 would have the information on which to formulate
4 their opinions, but it hasn't worked that way. So we're
5 trying. And when he says 37 witnesses, we gave specific
6 dates as we were supposed to in anticipation we would get
7 certain discovery responses back that our experts would be
8 able to factor into their opinions and be ready.
9 That hasn't happened in each and every case, but we
10 are trying very hard. I don't know how to bring this to
11 you except on these individual motions that we are simply
12 being thwarted in discovery. Now we had a good thing
13 happen. This is the good news. That we had a counsel
14 call. I think everyone is running into some problems and
15 the realization that expedited is a relative term in a
16 case as complicated as this one, and there may have to be
17 some adjustments to the schedule so we are not constantly
18 at a loggerhead over discovery and who gets what first and
19 what not.
20 I'm hopeful on December 4th we can work a lot of this
21 out. I have to say, and you've denied our motions
22 and I understand that, but I want to say on the record
23 that from my client's perspective we are being thwarted
24 and we are not getting reasonable discovery and that is in
25 large part, you know, the tail wagging the dog of a lot of
59
1 experts being able to formulate their final opinions, but
2 we have set dates for most of them as to when we, at
3 least, hope they will have final opinions. But to depose
4 them as Mr. Fitzgerald said to me, I'll depose them on
5 opinions that are final and then we'll depose them again
6 later, then we're going to have twice as many depositions.
7 HEARING OFFICER MENTON: Well, in reading the
8 petition, though, there are very clearly some factual
9 allegations that are made in there, so there has to be
10 someone somewhere who's formulated some opinions.
11 MS. KAVANAUGH: This is true and we don't deny that,
12 but in order to formulate all of the opinions and all of
13 the testimony that will be presented we have to know the
14 basis for that. That may alter things.
15 It may make new opinions, we don't know. But the
16 point is, are all of our experts subject to multiple
17 depositions. If so, are we going to be able to turn
18 around and depose their experts after they hear our
19 experts about any changes in their opinions? All we're
20 asking for is a reasonable period of time. This is
21 an unusual situation, a case as complicated as this.
22 HEARING OFFICER MENTON: Well, and I understand that
23 obviously the District proposed the Plan so their experts
24 were further along in the process in terms of formulating
25 at least their preliminary conclusions that went into the
60
1 Plan. On the other hand, petitioners filed, you know, a
2 petition challenging it alleging certain factual things,
3 and I do believe that those parties that are defending the
4 Plan are entitled to begin exploring the basis for those
5 allegations.
6 Now it would seem to me there are some experts that
7 are further along in the process of formulating
8 their opinions, and you probably have a better feel on
9 that than anybody else does, so --
10 MS. KAVANAUGH: We have listed --
11 HEARING OFFICER MENTON: -- I think you need to be
12 providing some alternative for him so that they can get
13 their discovery process underway. What I don't want to
14 see are these two-week gaps when they're supposed to be
15 conducting discovery and they're not able to do anything.
16 MS. KAVANAUGH: But what I'm telling you is we're
17 faced with the identical problem. We asked to take the
18 depositions of people we believe we have to take and they
19 give us substitute witnesses who don't know anything,
20 and so we're all faced -- we're trying to work with them
21 on this.
22 We have said in good faith when certain of our
23 experts will have opinions ready. We're making those
24 people available. We have produced the witnesses. I
25 mean, I don't think that Mr. Fitzgerald -- this is the
61
1 first time this has come up. We have been producing
2 witnesses they have noticed so far. So we're not looking
3 at gaps in discovery. Well, we are, but they aren't. We
4 have been producing our witnesses.
5 HEARING OFFICER MENTON: Well, maybe I thought I
6 read in one of the pleadings that there was a two-week
7 period there where there were no substitute provided
8 or something.
9 MS. KAVANAUGH: For us there was a problem with the
10 substitute being provided.
11 MS. PONZOLI: Give us December 4th, Mr. Hearing
12 Officer, and all will be revealed and then we'll go
13 forward from there.
14 HEARING OFFICER MENTON: All right.
15 MS. PONZOLI: Try and work it out.
16 HEARING OFFICER MENTON: Yes, I think that's
17 probably a good suggestion. I do want to, you know,
18 make it clear that I think that it's important that there
19 not be gaps and that everybody be given an opportunity to
20 be pursuing the preparation of their case.
21 MS. KAVANAUGH: We agree wholeheartedly.
22 MR. GREEN: Mr. Menton, just for the record I think
23 that's proceeding admirably and despite what you're
24 hearing, I think the 4th might be very helpful.
25 HEARING OFFICER MENTON: Okay. Why don't we take
62
1 about a ten-minute break.
2 (WHEREUPON, A BREAK WAS TAKEN AT 10:15 A.M. AND THE
3 PROCEEDINGS CONTINUE AT 10:35 A.M. AS FOLLOWS:)
4 HEARING OFFICER MENTON: Okay. Is everybody
5 here now to deal with this last access matter that we
6 have?
7 MR. BURGESS: Yes, Your Honor.
8 HEARING OFFICER MENTON: Mr. Burgess, I don't think
9 you were here earlier when we just touched on this
10 briefly. As I understand it, there is an agreement on most
11 issues regarding the access except for the question of
12 revisiting it, if necessary. There is some language, I
13 guess, that you proposed, and as I indicated before you
14 got here, I don't think that's a problem.
15 It's always subject to being revisited on appropriate
16 motion if need be, so I don't think that language is
17 necessary. There is one provision I think that was
18 submitted that I indicated unless the parties
19 agreed between themselves I think that's a different
20 issue. I think we might as well put that in there so you
21 don't have to come back for a hearing if you can reach
22 agreement between yourselves on revisiting the sites.
23 So I will put that portion in, but in terms of coming
24 back, that's not necessary. If you need to do it, file a
25 motion and we'll take it up and deal with it that
63
1 way.
2 MR. BURGESS: Okay.
3 HEARING OFFICER MENTON: All right. The other issue,
4 I guess, is just on the transects.
5 MR. BURGESS: Exactly, Your Honor. Hopefully the
6 last remaining vestige of dispute between us and the
7 United States concerning the entry and access order.
8 To review, we filed our motion to compel back in August
9 and specifically today the only remaining paragraph
10 concerns Paragraph 4 of our access and entry request,
11 which I'll read into the record.
12 It states during the initial seven to ten day
13 initial Refuge sampling program the petitioners request
14 permission to include low level flight along historical
15 transects established and sampled by state and federal
16 scientists with the option to land and collect data
17 at up to nine stations along nine historical transects.
18 We're also here, Your Honor, by leave of some of the
19 rulings you made at the last ruling where you did allow us
20 the second aerial overflight to overfly transects that
21 we were not able to get to during the first overflight,
22 and you asked us to see if we could pick an area down
23 near the C transect where we could establish a transect,
24 and in addition, you said that, on Page 131, if they need
25 to do more and can't agree to it, we'll take it up again.
64
1 That's really why we're here.
2 As a result of that aerial overflight, we do need to
3 do more. We have not been able to agree with the United
4 States. As a result of that overflight we have picked our
5 sites, and we have picked the areas, the historical
6 transects where we would like to sample. Of course, in
7 that initial entry and access we said that we needed those
8 aerial overflights to help us pinpoint the areas we needed
9 to sample not having been allowed into the Refuge
10 previously.
11 The United States wants to turn that, what I would
12 term an orderly process, on its head by arguing somehow
13 because we didn't identify in our initial July request
14 exactly where we wanted to go and what we wanted to do,
15 that somehow we should be prevented from doing that here
16 today.
17 Their SWIM Plan is premised on allegations that
18 nutrient polluted waters leaving our client's lands and
19 the other petitioners' lands has caused changes in the
20 Everglades ecological system. Our amended petition, of
21 course, challenges that, that whether or not those
22 challenges which as their SWIM Plan also alludes to or
23 demonstrated by vegetation species assemblages and
24 diversity different than the former natural Everglades
25 areas.
65
1 We dispute whether those are caused by nutrient
2 laden waters leaving our lands, and we allege that
3 they're caused by the effect of hydro-period, the
4 maintenance of the system, the timing, the distribution
5 and flow of water, the construction of the levies and
6 the pump stations, and the way the water is managed
7 through the Loxahatchee.
8 What we want to do and why we want to do is very
9 simply we're looking to conduct minimally invasive
10 sampling along six different transects in these different
11 vegetation patterns and areas in the Loxahatchee. We need
12 to be able to controvert testimony that we expect to
13 hear from the other side. Ron Jones who was here before
14 Your Honor last month has sampled some 40 stations
15 along two different transects much longer in
16 length than we're seeking to do here today.
17 Simply, we want to get in an air boat, we want to
18 start in a perimeter canal at six different areas
19 around the Loxahachee. The perimeter canal is an area
20 open to the public. Anybody can get in there with a canoe
21 or a jon boat. We want to be able to measure water depth
22 with a ruler. We want to be able to take samples in
23 water bottles like Ron Jones did. We want to inspect
24 vegetation like Ron Jones did, and we want to take some
25 soil samples, many less than Ron Jones did.
66
1 We are not really seeking to establish physical
2 stations. I think stations is a misnomer. They're really
3 stops or locations along in the air boat, and we are
4 able to do this, all of this, all six transects in our
5 initial seven to ten day period of time that you've
6 already granted us leave and entry into the Loxahatchee to
7 do.
8 As I said, some of these areas are in areas now open
9 to the public and accessible to the public, although you
10 can't do scientific sampling and that's what we intend to
11 do. None of these areas are in what you call the natural
12 pristine interior marshes land areas with birds or other
13 things that necessarily should be protected. They're all
14 starting in the publicly accessible perimeter canal, going
15 through some assemblages of vegetation perhaps a mile,
16 mile and a half, and taking different readings along the
17 way. And to help make this clear, I would like to call
18 Dr. Michael Dennis to the stand.
19 HEARING OFFICER MENTON: Before we do that, I'm not
20 sure exactly -- I'm having a little bit of a hard time
21 recalling exactly what we resolved last time and what's in
22 dispute. What are we arguing about here? I thought we
23 basically reached an agreement on most of the areas in
24 which testing was necessary and that we pretty much had
25 resolved most of the issues that you're talking about now.
67
1 MR. FITZGERALD: Last month, Mr. Hearing Officer, as
2 a result of the evidence and witnesses presented, we
3 agreed on pretty much everything. They wanted to go
4 in by air boat and along Transect C --
5 HEARING OFFICER MENTON: Just in that corner --
6 MR. FITZGERALD: Transect C as they identified on
7 the exhibits. In fact, their proposed language to my
8 proposed order talks about Transect C in the exhibits
9 and testimony from last month.
10 HEARING OFFICER MENTON: Right.
11 MR. FITZGERALD: When they got out there what
12 happened, in fact, was they were in Transect C. They did
13 that and didn't like it. They ended up more than
14 four miles into the marsh still in dense cattail
15 stands. That's how bad it is.
16 So instead, they said we want to go somewhere else,
17 and now subsequent to that visit, I was informed they
18 want five more transects that were not discussed last
19 month and for which no scientific justification has been
20 provided, and for which there is no testimony to
21 support last month.
22 MR. BURGESS: Your Honor, that's correct because if
23 you recall at the last hearing Dr. Maffei, the
24 federal observer had to leave in the middle of the
25 afternoon in the first aerial overflight, so we sought
68
1 permission for the second one in order to enable us to go
2 to Transects A, B, and C, and the Ron Jones Transects
3 which we were unable to overfly during the first
4 overflight. That was whole purpose for the second
5 overflight was to be able to go to those areas, to be able
6 to determine observations, visibly observe the vegetative
7 assemblages.
8 And as you said in your order, if there was more that
9 we needed to do, we can revisit it. That's what we're
10 seeking to revisit as a result of --
11 HEARING OFFICER MENTON: Well, I haven't gone back
12 and reviewed that portion of the transcript because I did
13 not know we were going to be dealing with this particular
14 issue today, but I thought at the last hearing that we had
15 pretty much agreed upon all of the areas except for that
16 one area C. And I'm not sure, is that all you're seeking
17 now, or are you seeking to do some access in some
18 additional areas other than C?
19 MR. BURGESS: We're seeking access to areas other
20 than C as a result of the aerial overflight that was
21 permitted after the last hearing, the visual observations
22 that were made and the conclusions that were drawn we're
23 seeking leave to do that additional work. And if we
24 couldn't agree to it, we were to come back before Your
25 Honor. That's why we're here.
69
1 HEARING OFFICER MENTON: All right. Well, I
2 thought we had left open the issue of what was necessary
3 in C but not necessary in the other areas.
4 MR. FITZGERALD: You're correct. What I think
5 you're recalling is the testimony of the discussion --
6 more discussion after the testimony was on the order of
7 picking the sites along C, doing more overflight.
8 We agreed go look wherever you want to go on that extra
9 overflight day.
10 We're talking in terms of about four test stations.
11 Then after the visit, I get the call and we discuss it and
12 I'm informed they want nine sites, test stations along
13 the transect and we want to move the transect. I can live
14 with nine there, and, you know, moving the transect is not
15 necessarily a problem, but I need to see where you're
16 moving it.
17 I just need to see it and consult. Unfortunately,
18 there was a little miscommunication. I didn't get the
19 exhibit which shows where he meant. He just said
20 generally half way between here and there. That may be
21 all they have, although I think probably they have Rand
22 coordinates at this point, but I can go along with that --
23 that was in our conversation.
24 I think it's one north-south transect which I
25 thought four, but I'll live with nine stations running
70
1 from the canal northward through the cattail typhus stands
2 into the saw grass. I was not anticipating we were going
3 to talk about another 45 test sites on transects all over
4 the marsh.
5 HEARING OFFICER MENTON: Mr. Burgess, what are you
6 seeking now? He's agreeing to let you move the transect
7 in C and then have nine stations along. What in addition
8 are you seeking?
9 MR. BURGESS: To do the same type of sampling along
10 six other -- five other transects as a result of the
11 aerial observations. We weren't able to bring these to
12 you at the last hearing because the federal observer could
13 not complete the overflight which took place immediately
14 before the last hearing. That's why we sought permission
15 at that hearing specifically to be able to overfly those
16 sites to see the vegetation patterns and how it fit in
17 with the theory of our case.
18 MS. KAVANAUGH: We're talking about one-time
19 sampling. This has nothing to do with the monthly. This
20 is one time to go into these places that have been in
21 dispute. That's that transect sampling.
22 HEARING OFFICER MENTON: All right. I'll let you
23 put on your testimony. I'll listen to it. Again, I'm
24 going to have to go back and look at -- I thought we had
25 pretty much resolved all these issues last time, but I'll
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1 go back and look at the transcript, and I'll listen to
2 what you have.
3 MR. BURGESS: Okay. Dr. Dennis
4 HEARING OFFICER MENTON: Raise your right hand,
5 please.
6 (WHEREUPON, THE WITNESS WAS SWORN ON OATH.)
7 HEARING OFFICER MENTON: Please state your name and
8 spell your last.
9 THE WITNESS: William Michael Dennis, D-E-N-N-I-S.
10
11 * * * * *
12 Whereupon,
13 DR. DENNIS
14 was called to testify and, having been first duly sworn, was
15 examined and testified as follows:
16 DIRECT EXAMINATION
17 BY MR. BURGESS:
18 Q What's your profession, Dr. Dennis?
19 A I'm an environmental consultant.
20 Q And do you specialize within your profession?
21 A Yes, sir, I do.
22 Q In what areas?
23 A Well, generally the areas of wetland ecology.
24 Q Tell us what colleges and universities you've
25 attended and what degrees you've earned?
72
1 A I attended Emery University, received a Bachelor of
2 Science degree in biology in 1969; University of South
3 Carolina, received a Master of Science in biology in 1973, and
4 a PhD from the University of Tennessee specializing in the area
5 of botany in 1976.
6 Q Are you associated with a firm?
7 A Yes, sir, I am.
8 Q And what firm is that?
9 A Breedlove, Dennis & Associates in Orlando, Florida.
10 Q Are you a principal or shareholder of that firm?
11 A Yes, sir, I am.
12 Q In the course of practicing your profession, Dr.
13 Dennis, have you had occasion to conduct vegetation analysis
14 and wetland ecological assessments?
15 A Yes, sir.
16 Q And how many such projects have you been involved in?
17 A Hundreds and hundreds.
18 Q Have those projects involved samplings along
19 transects or gradients?
20 A Many of them have, yes.
21 Q What does it mean to sample along transects or
22 gradients?
23 A Well, basically what you're doing and why you do it,
24 often times you're looking at an environmental gradient and
25 seeing what factors, physical factors change along that
73
1 gradient and relate that to some type of biological change,
2 vegetation or some type of biological parameter so you can
3 relate those two.
4 Q Okay. What specifically is involved in conducting a
5 vegetation analysis in a wetland ecological assessment?
6 A Well, a lot of things can be involved in that. What
7 we're talking about specifically here is to go along a transect
8 that would go through various vegetation zones and make sure
9 that we have got the full range of vegetation types,
10 conditions, and measure certain parameters to analyze the
11 relationship to those various parameters to the vegetation.
12 Q Okay. Have you read the SWIM Plan?
13 A I've read parts of it, and probably all of it once.
14 Q Okay. Do the parts that you have reviewed address
15 the cause of alleged vegetative changes in the Everglades?
16 A Yes, sir.
17 Q And what do they say about that?
18 A Well, the emphasis of the SWIM Plan appear to be on
19 the effects of the nutrients, principally phosphorus on the WPA
20 or EPA.
21 Q You heard me earlier read into the record Paragraph 4
22 of petitioners entry and access request. What is the purpose
23 of collecting data along historical transects in the water
24 conservation areas? And if you brought any demonstrative
25 exhibits you can use them at this time.
74
1 A Okay. Well, we're attempting to do two things. One
2 is there are data bases apparently that exist, although we have
3 not been able to get all of the data that describe vegetation
4 changes along certain transects in WCA 1 where data has been
5 collected over a long period of time.
6 So one thing we want to do is look at that historical data
7 set when presumably when and if we can get it, and then we want
8 to see what the vegetation assemblages are along those same
9 areas now. In order to not go out and have to do an extensive
10 study on an area that had been studied in the past, we want to
11 rely on the past data, the past information, and limit our
12 analysis to that to the extent that we can.
13 So we want to look at those places where data has been
14 taken for extended period of time. We have got some historical
15 records, look at what is there now and also look at the various
16 physical conditions that may be operative there now and that
17 there were in records in the past.
18 Q Okay.
19 A And I can show you where those areas are.
20 Q Sure.
21 A For orientation purposes, this is a satellite
22 image readily available, readily available satellite image of
23 WCA 1 and the surrounding area. And if you'll notice the
24 perimeter of this area is obviously surrounded by canals,
25 levies, areas that have been altered.
75
1 All of the data that I'm familiar with at this point in
2 time that I have seen indicates that perimeter area is where
3 changes in vegetation have predominantly occurred. There is
4 some changes in vegetation ongoing to a certain extent in the
5 interior principally melaleuca invasion that are occurring
6 throughout.
7 There have been some historic changes perhaps in the
8 interior parts. But the area that seems to be most obvious and
9 subject to most of the concerns at this time is the perimeter
10 area. So there are historic transects, and these are
11 referenced in the John Richardson 1990 synoptic report on the
12 Loxahatchee Refuge and studies that were done there by the
13 Florida Co-op group.
14 And it references a Transect A located in the southeastern
15 portion of WCA 1, a Transect B in the central eastern part, and
16 Transect C in the south central part. And it indicates there
17 have been data taken on those transects, vegetation data, going
18 back 50's, 60's, and perhaps some 70's and maybe some even more
19 recently.
20 Those transects extend for a period of one to two miles
21 according to the report. So what we are seeking is to look at
22 those historic transects that have good baseline information on
23 them so we can assess what historic conditions in terms of
24 vegetation and what changes may have occurred and what
25 vegetation is there now.
76
1 Q In addition to the Ron Jones transects, are you
2 familiar with any other literature or studies that have taken
3 place in the Loxahatchee?
4 A Generally familiar with some -- I believe that there
5 were some samplings studies done by Dr. Reddy of the University
6 of Florida. I have seen generally some of those. There have
7 been several graduate student theses, dissertations and so
8 forth that have been done. I have seen some of those in
9 addition to general literature that exist on the area.
10 Q In addition to those three transects you have up
11 there, are there other transects you're familiar with in the
12 Loxahatchee?
13 A Well, there is the Dr. Jones Transect --
14 Q Okay.
15 A -- which is depicted on this overlay which shows
16 generally an east-west transect beginning at just north or
17 approximately at Pump Station 6 extending across to the east,
18 then transect going in a north, west, south, east direction in
19 the northwestern portion of the WCA 1.
20 Q What distance is depicted by those squares, Dr.
21 Dennis?
22 A Those are one square mile grids.
23 Q And how many stations approximately did Dr. Jones
24 have along his two transects?
25 A Well, along the north-west one this indicates one,
77
1 two, three, four, five, six, seven -- about nine; and there are
2 I believe between 20 and 30 or so on the east-west transects.
3 Q Okay. Do any of the studies, either Richardson or
4 Jones attempt to determine a cause and effect relationship
5 between vegetation and hydro-period?
6 A Yes. The Richardson report, the John Richardson
7 report indicates that they have looked at vegetation patterns
8 and hydro-period information and water quality data and have
9 determined that their studies seemed to indicate that the
10 changes are more closely correlated with water quality,
11 although they do mention that hydro-period is important. That
12 report goes back and forth in terms of what the data says, but
13 then the conclusions they reach seem to say water quality.
14 Q Okay. Are your proposed transects designed to
15 determine the cause and effect relationship?
16 A Yes, they are.
17 Q Did you participate in aerial overflights over the
18 Loxahatchee?
19 A Yes.
20 Q How many?
21 A There were two, one on October 5th and the other one
22 October 27th, I believe.
23 Q Where did you go on those trips?
24 A The October 5th aerial overflight was conducted with
25 Dr. John Davis and Dr. Maffei, and we essentially flew over the
78
1 WCA 1 looking at the 14 or 16 water quality sampling sites. So
2 we flew in a zig zag pattern trying to be as economic with time
3 and distance as we could to visit all of those, and we were not
4 able to go beyond that because of prior commitments that Dr.
5 Maffei had, so we had to finish or stop there.
6 And we came back and completed our overflight on the
7 morning of the 27th, at which time we flew the A, B, C
8 Transects and Jones Transect and some of the other areas along
9 the perimeter canals.
10 Q What did you learn as a result of that overflight?
11 A Well, we learned that the vegetation patterns, the
12 species that are occurring along the perimeter are not
13 homogeneous around the entire perimeter of the canal area.
14 There are various species that are distinct and different
15 in assemblages and how the plant community is put together
16 along the canal and those different from those of north to
17 south and along the western and southern canals also.
18 So there is not the same species, they're not the same
19 vegetation patterns, and also obviously there is not the same
20 hydrologic regime at play or influencing or operative on the
21 vegetative pattern in the part of perimeter canal because of
22 the topography and how the water flows and those sorts of
23 things.
24 Q Did you take any photographs on that trip?
25 A Yes, we took some photos in several places. I've got
79
1 a couple -- several ones to illustrate that point here. Can you
2 see that?
3 HEARING OFFICER MENTON: I can see it.
4 A These are generally taken in three locations. This
5 one right here on the southern part, Photo Number One, is taken
6 generally from the structure looking north. You can see the
7 structure in the southern part, in the southern part of the
8 photo looking north, and on that photo it clearly illustrates
9 there is a lot of open water.
10 The canal actually doesn't extend from the edge of the
11 water here to the edge of the water there. The canal is in a
12 fairly narrow band, but there is a lot of open water going out
13 from that. And also in that location, the C location, you can
14 see that there is open water patches that extend all the way
15 back from the open water area, so in essence what you have
16 along C is the levy and then an area of vegetation, the canal,
17 open water, and then you go into an area of cattail, and then
18 it goes from cattail to cattail-sawgrass mix, and then finally
19 into saw grass slough communities. That's what you see in
20 Photo Number One.
21 In Photo Number Three, which is taken on the northeastern
22 part along the canal, again you have a levy, some vegetation,
23 you can see the width of the canal there, then you've got --
24 you don't see the open water as you see down here. You have a
25 zone of willow, area of shrubs, perhaps some patches of
80
1 cattail, patches of saw grass, a real mix of species that show
2 a change or difference, very dramatic difference in the species
3 that occur in that band which is a real mosaic patchy kind of
4 system until you get out to what would be thought of, I
5 believe, is a more natural plant community with saw grass and
6 wet prairies.
7 And then you see the tree islands beginning in the
8 background of that photo. So from those two you can see the
9 dramatic differences in the vegetation patterns, and we believe
10 in hydrologic conditions existed there. On photo -- that was
11 Photo Three.
12 Photo Two is the approximate location of one that's
13 proposed transect that has been alluded to already, and it's
14 essentially midway between the 6 pump station and Transect C.
15 And you can see from this photo, again, here is sort of
16 background, barely make out the levy. You see the canal, very
17 well pronounced border delineating the canal, then this whole
18 greenish area throughout most of the central part of the photo
19 is pretty much a monoculture of cattail.
20 Then you get to an area where you get into cattail -- I
21 mean saw grass and sloughs and a more again natural kind of
22 Everglades habitat.
23 Q Dr. Dennis, why in your opinion would it be necessary
24 to test that mid-point transect?
25 A Okay. What we are -- what we found, I guess, go to
81
1 the main point, what we found in the overflight was that
2 vegetation does change around the perimeter. It's not the same
3 vegetation, it's not the same pattern, it's not the same
4 donation.
5 We believe that the hydrologic characteristics may change
6 in different areas along the canal. And a minute ago, as
7 alluded to a minute ago that we didn't like Transect C, that's
8 not the case. Transect C is a fine transect. We can work with
9 that. There is no problem with Transect C.
10 In fact, on the afternoon of our aerial overflight, we
11 were measuring water depth along it as we were instructed we
12 could do and we found what we anticipated to find, and that is
13 as you go from the area along the canal and through the open
14 water and then the cattail area, the water is deeper and it's
15 about five or six feet in the canal. It was on that day, and
16 it goes through four feet or so, three feet, and then once you
17 get into the more natural interior area, the water depths are
18 around two feet.
19 We found what we were expected to find was deeper water
20 depths along the perimeter. We picked another site to look at
21 in addition to the historic transects, which, again, we thought
22 since there was data that existed on those historically and
23 they were representative generally of varying conditions and
24 various parts of the perimeter canal system, those would be
25 useful in the analysis this additional mid-point transect with
82
1 one we felt might be diagnostic of what was really happening in
2 terms of cattail growing as a result of hydro-period or water
3 quality because the donation patterns are more distinct.
4 You can see on Transect C to really statistically do a lot
5 of testing on there, if you try to compare and do a lot of
6 statistics on it, you've got a real mosaic as you do up on B,
7 and you have to do a lot of transects across it to catch all
8 that variation. You don't have that variation evident on this
9 mid-point transect, so we felt this was one where we could
10 begin, limit the amount of data we have to collect, but still
11 get at an analysis of the fundamental issue.
12 HEARING OFFICER MENTON: Well, are you saying then
13 that you don't need the extent of testing that you
14 previously thought you needed along C? I mean can we
15 substitute this mid transect for C?
16 THE WITNESS: That -- we can't do that totally for
17 two reasons, I believe. One is that we don't have the
18 historic data along that transect that exists apparently
19 along A, B and C, detailed photo records and vegetation
20 records and sampling records that go back to the 50's that
21 occurred on those other transects. And so we believe that
22 that data is going to be used in this case, and we have to
23 be prepared to look at that data and what it says and how
24 it might be today.
25 So if we just substituted the mid-point transect we
83
1 would be foreclosing our ability to use that existing
2 data.
3 HEARING OFFICER MENTON: In none of the other
4 transects that were previously identified at the last
5 hearing, are you saying that there is not the monoculture
6 you're talking about exists on the mid-point here?
7 THE WITNESS: There is a monoculture in Transect
8 C. It's just that as you can see in that photo, Your
9 Honor, it's dissected, it's broken up. It's not, it's
10 more of a mosaic. It's monoculture for certain bands,
11 but you've got then patches of open water and some
12 variation in it. Whereas the mid-point transect is pretty
13 much solid through the bands of cattail.
14 HEARING OFFICER MENTON: Okay. But none of the other
15 transects, do you have a similar --
16 THE WITNESS: No.
17 HEARING OFFICER MENTON: I thought we set up some
18 higher along the Ron Jones Transects.
19 THE WITNESS: The -- you do not have a similar
20 pattern along the northern Ron Jones Transect. There is
21 the one here the S6 begins to be a little closer to this
22 mid-point transect but still has more variation.
23 It's still in the crook of there, and it's actually
24 north of where the water from S6 comes in or right about
25 where it comes in. So we're concerned there might be some
84
1 compound influence of what water you're really measuring
2 as water coming from 5A or water coming from 6 or both,
3 and we can alleviate that problem by picking a transect
4 between S6 and C.
5
6 BY MR. BURGESS: (Continuing)
7 Q Dr. Dennis, do you have an opinion as to whether if
8 you were just able to sample along one transect out of these
9 six you would get representative data for the other transects?
10 A I believe -- or with the information that we have
11 right now, we believe that we're going to have the same
12 phenomena occurring, but that phenomena of relationship between
13 vegetation and hydro-period is going to manifest itself in
14 different ways in the different transects, so I think generally
15 we're going to find that cattails are growing in deeper areas.
16 But it's going to be, it's going to be somewhat different in
17 each one and not only deeper but really the duration of the
18 hydro-period we believe is going to be very important.
19 Q Okay.
20 A And if I could add just one --
21 Q Yes.
22 A From some of the preliminary look at some of the
23 water quality data that exists, we're looking at differences
24 along the canal where the water quality made it differ also.
25 So to get at a real analysis of not only correlation but
85
1 hopefully a cause and effect between vegetation changes and
2 either hydro-period or water quality we need varying conditions
3 of water quality and hydro-period to get at that.
4 There are several examples that I can cite to you in the
5 John Richardson report that might illustrate.
6 Q This has already been marked for the record, but
7 we'll mark it again for today. It's marked as Exhibit D from
8 the previous hearing.
9 A I will not go through this entire document at length,
10 but I would call your attention to three areas. Well, one is
11 on Page 93. There is a contour map of the Loxahatchee NWR.
12 This map was generated, as we understand it, by taking water
13 depths relating that to stage depths and coming up with a whole
14 scattering of points --
15 HEARING OFFICER MENTON: Relating to --
16 A Water stage depths at two interior stage stations and
17 at several perimeter canal staging stations, and then going
18 through a mathematical and computer analysis that would draw
19 these contours, and take that data and best fit and make a
20 contour map.
21 The problem with this that we believe will come out and
22 why we need to look at several sites in detail along the
23 perimeter is that, and again we believe this was confirmed,
24 although at this scale and at this level of information it's
25 hard to be sure, that when we took the depths along C, water
86
1 depths along C, we believe that this scale and representation
2 of the topography doesn't accurately reflect what happens in
3 the close proximity to the canal.
4 In other words, our data showed that instead of having
5 contours that generally went in circles like that, there is an
6 area along the canal where the contours are deeper, then go
7 shallower and that this does not probably because of the scale
8 it was done at accurately reflect that, and we believe that
9 could be very important in this entire analysis.
10 Q Dr. Dennis, let me ask you what do you intend to do
11 at each of those six transects?
12 A We intend to go along the transect, take -- measure
13 water depths with a staff gauge or ruler in essence, record the
14 vegetation that grows there, what plants are growing there and
15 some indication of how dense they're growing or how tall and
16 that sort of thing; take some water quality parameter
17 measurements with a probe, conductivity, PH, those kind of
18 things where you put a probe down in the water to get a reading
19 and you take it out, and perhaps some water quality samples in
20 bottles along -- then some sediment samples, three to five --
21 mainly what we want to do is get a sediment sample in whatever
22 vegetation type we find.
23 Q So you would not be taking a sample at each of the
24 nine stops along the transects?
25 A No.
87
1 Q How long will that effort take?
2 A We believe that we can accomplish that as long as
3 there are no logistic problems with weather or whatever, we can
4 establish that within the agreed upon seven to ten day sampling
5 period.
6 MR. BURGESS: Okay. I don't have anything further.
7 HEARING OFFICER MENTON: Let me just make sure I am
8 understanding. You're proposing just one additional
9 transect there, the mid-point one; is that what
10 you're talking about?
11 THE WITNESS: In addition, Your Honor, to the
12 historic transect.
13 HEARING OFFICER MENTON: The one that we talked
14 about last time.
15 MR. BURGESS: Right. For the record, A, B, and C,
16 and the two Ron Jones Transects.
17 HEARING OFFICER MENTON: Which we agreed to last time
18 and there is no problem on those, right?
19 MR. FITZGERALD: Wait. Those are not the ones we
20 agreed on.
21 HEARING OFFICER MENTON: All right.
22 MR. FITZGERALD: The only one we agreed on is the C
23 Transect.
24 MR. BURGESS: And left open and I'll refer you to
25 pages 130 and 131 of the last month's transcript for our
88
1 discussion on our additional aerial overflights, the fact
2 that we would be back to present evidence and why it's
3 necessary to test at those sites.
4 HEARING OFFICER MENTON: All right. I need some
5 refreshing then. I don't remember exactly what we have
6 agreed to last time. Again, I have not gone back and
7 reviewed the transcript. But based upon the evidence that
8 was presented I thought there was agreement as to which of
9 the historical transects we needed to go back into.
10 MR. BURGESS: Your Honor, at the end of the last
11 hearing, you granted us leave, and I don't think the
12 United States objected to our performing the additional
13 aerial overflight, which for purposes of overflying
14 transects, we were unable to get, so we were unable to
15 present this type of information at the last hearing.
16 In addition --
17 MR. FITZGERALD: I'm sorry, if I may intrude for a
18 minute. Is counsel done with the witness?
19 HEARING OFFICER MENTON: Yes.
20 MR. FITZGERALD: If we are going to make argument, I
21 would like to question him first before --
22 HEARING OFFICER MENTON: You will. I'm just trying
23 to remember, again, I have not read the transcript. I
24 didn't think we were getting back into this today.
25 I'm trying to remember exactly what was agreed to last
89
1 time, so I can put it all in perspective.
2 MR. FITZGERALD: I think we're agreed, Mr. Hearing
3 Officer, that the proposal as submitted by the United
4 States with the variation suggested by petitioners'
5 pleading on Paragraph I of Page 4, which is the transect
6 evaluation and transect sampling, which they also labeled
7 as Paragraph I for Loxahatchee, which will be a new
8 I, was agreed with the exception of those two things; that
9 they would go in and look at C, the historical transect
10 identified C in our hearing on the 16th.
11 They would be permitted to land as necessary or
12 access the transects to go to a point half a mile
13 north to the dense cattail stands, et cetera; and that
14 we would try to reach agreement on the number of sampling
15 sites along C for the various parameters, and failing
16 agreements we would bring that back to you.
17 Then additionally, they have suggested in their
18 pleading, which was dated the 18th, transect sampling on
19 the third page of their pleading, the moving of that
20 transect and then they just in their proposal went on to
21 say any requests for additional -- including additional
22 transects they would bring up today.
23 We did not agree at any time at the prior hearings,
24 the United States, that the five additional transects
25 would be established. What we agreed to was they could
90
1 overfly and look wherever they wanted because they
2 originally asked for two additional days of overflights,
3 one day was possible, fine, go back, and another day we
4 don't care. They can overfly to their heart's content in
5 the seven to ten days. They don't have to touch down if
6 they don't want to.
7 HEARING OFFICER MENTON: All right. What I'm trying
8 to remember is exactly what was agreed to in terms of the
9 testing on the historical transects.
10 MR. BURGESS: May I read into the record, and I think
11 this will clear up this question.
12 HEARING OFFICER MENTON: Okay.
13 MR. BURGESS: Page 130 and 131 of the October 16th
14 hearing. Mr. Burgess: We'll get our elevation
15 measurements which will certainly enhance the evidence we
16 intend to put on at trial. We would like permission, Your
17 Honor, if you're going to limit us to C, we would like to
18 be able to fly over during our reconnaissance on the other
19 areas so we can come back and present evidence as to why
20 it would be necessary -- Mr. Fitzgerald interrupts and
21 says, I hate to put any of the issues off even further,
22 but it has got to be with their entry, so I have no
23 objection to leaving that issue in abeyance for the time
24 being until the additional overflights.
25 Mr. Menton: Why don't we do this? There needs
91
1 to be another overflight, right? Mr. Fitzgerald: Yes.
2 Mr. Menton: When they go out to do the other overflight,
3 let them go over those areas and get some ideas. See if
4 they can pick a site down in the area of C where
5 everybody can go to and do their water quality tests,
6 and see if you can reach consensus on that one area
7 where they can do some of the additional testing.
8 I think they're entitled to go down to, at least,
9 one area which is the canal area around C where they can
10 take some samples and test their theories there. If they
11 need to do more and can't agree to it, we'll take it up
12 again. But let's put it down where they have and
13 opportunity to go out at least and establish one
14 site down by the canal area.
15 MR. FITZGERALD: Well, there are other historical
16 transects that they are already sampling on under the
17 existing agreement.
18 HEARING OFFICER MENTON: Right. I thought there was
19 --
20 MR. FITZGERALD: There are eight stations on an
21 east-west transect. There are ten stations on a
22 north-south transect under Paragraphs 1 and 2 of the entry
23 to Loxahatchee, then there are the 20 recurrent sites
24 spread throughout the Refuge, and then we had reached
25 agreement and Mr. Burgess indicated from the transcript on
92
1 one transect roughly around C because that's what they
2 kept talking about last month, which they now want to move
3 and call mid-point transect and have nine sites on it with
4 up to two --
5 HEARING OFFICER MENTON: Well, I think he's talking
6 in addition to moving the one along C, he wants one --
7 MR. FITZGERALD: He wants five more beyond that.
8 HEARING OFFICER MENTON: Well, that's what I'm
9 trying to figure out. You're saying the one we talked
10 about is C. You don't want to be directly on C. You
11 want to move, but that's not the mid-point there
12 you're talking about.
13 MR. BURGESS: Right. We would like to do A, B, and
14 C, and establish the mid-point transect, in addition, the
15 areas western reaches of the Ron Jones Transect, do the
16 same, get in an air boat start at the perimeter canal, go
17 in a mile, and take the four readings at those six
18 different areas.
19 There are not other historical transects. The north
20 west and east south transects we're establishing, we're
21 just connecting dots of the 14 stations -- the 16
22 stations of the Loxahatchee, adding some of our own in
23 the interior. The historical transects have always been
24 A, B, and C, and Ron Jones are the only ones we know about
25 and the only ones that we sought to test at.
93
1 HEARING OFFICER MENTON: But wasn't there some --
2 didn't we agree on some of those historical transects last
3 time?
4 MR. BURGESS: Yes, just on C you said we could go
5 in an air boat which we did during the overflight
6 and take some water depths. We didn't do any sampling.
7 We just went down there to see what was at C, which we
8 did.
9 We took some of the water depth measurements which
10 Dr. Dennis said confirmed some theories with respect to
11 grading. But, in addition, we overflew the other areas --
12 HEARING OFFICER MENTON: Right.
13 MR. BURGESS: -- which we asked permission to do and
14 then you gave us permission to do, and we said if we
15 couldn't agree on it, we would be back before you
16 as to why we need to sample the historical transects.
17 HEARING OFFICER MENTON: But I thought that, for
18 example, wasn't the east-west transect, wasn't that,
19 I thought the east-west transect was either in the
20 vicinity of B or the Ron Jones --
21 MR. BURGESS: Well, to the extent that it goes north,
22 south, east and west it is going to come in the vicinity
23 of some of those transects. But those stations are miles
24 apart. They're single stations, one-time stations,
25 the entire Refuge. These are just one mile, one of those
94
1 little squares to one and a half of those squares
2 start at the canal and go in.
3 We're not seeking to do what Ron Jones did on there
4 on historical transect and crisscross. This is only a
5 mile to a mile and a half, one of those grids. The other
6 one are transects, entire area, north, south, east to
7 west.
8 HEARING OFFICER MENTON: I understand that. But
9 what I'm trying to get a feel for is those are already
10 agreed to at the last hearing, and I thought that the B
11 area and the Ron Jones area were fairly duplicative of
12 what was already being established on the east-west
13 transect. Isn't that what we established last time?
14 MR. BURGESS: They're really not, Your Honor, because
15 from the standpoint of just looking at the map we want to
16 go right to B for a mile to a mile and a half compared to
17 a transect that's in the middle of the Loxahatchee and
18 crisscrosses and goes all the way across, the station is
19 miles apart.
20 We're just looking for stations literally, you know,
21 50, 100 yards apart, nine of them as you go across.
22 These are much more concentrated areas and concentrated
23 studies than the larger transects that we talked about
24 last month. The historical transects have always
25 been separate and apart from the east, west, north,
95
1 south transects, which I don't think they objected to
2 initially.
3 MR. FITZGERALD: I'm ready to question the witness.
4 HEARING OFFICER MENTON: All right. Go ahead.
5
6
7 CROSS-EXAMINATION
8 BY MR. FITZGERALD:
9 Q Dr. Dennis, who else was along on two surveillance
10 flights that you participated in?
11 A Dr. John Davis, and the helicopter pilot.
12 Q And Dr. Maffei?
13 A Yes, sir.
14 Q And when you made your overflight the first time, I
15 think you said October 5th. I think it was actually October
16 6th, wasn't it, 5th, 6th?
17 A Whenever it was is whenever it was. It was in the
18 first of October.
19 Q Okay. And on that date you flew various portions of
20 the Refuge?
21 A Yes, sir.
22 Q Okay. And did you fly any of the perimeter canal at
23 that time?
24 A We flew over portions of the perimeter canal at that
25 time, yes.
96
1 Q Did you fly over the portions of L7 and vicinity of
2 S10 structures, four S10 structures?
3 A As we were going from and to some of the water
4 quality stations, yes, we crisscrossed the whole Refuge pretty
5 well.
6 Q On that first day. And how much time had you devoted
7 prior to going out on that date to study the Loxahatchee and
8 the existing data?
9 A I had, as I indicated, I had reviewed the John
10 Richardson data and report as it is contained in that November
11 1990. I have reviewed other technical reports that have been
12 published on the Loxahatchee either have been referenced in a
13 lot of these, and I have flown at prescribed approved higher
14 altitudes in helicopters and aircrafts to some extent over the
15 Refuge to gain general familiarity with it.
16 Q Have you had a chance to review some of the aerial
17 and satellite imagery that's available?
18 A To this extent, yes, and there is also photo imagery
19 in the Richardson report.
20 Q So what you saw on the ground in the Loxahatchee
21 there were no great surprises in what you encountered in low
22 level flights, was there?
23 A In terms of believing that there were different
24 vegetation patterns and different parts we expected that that
25 was going to be the case. What we did not have any information
97
1 on and still don't have any information on is some of the
2 physical parameters such as water depth or topography that
3 occur along those.
4 Q Now is it fair to say then that the aerial
5 surveillance have nothing to do with your theory about depth
6 contours, that that's derived from data as opposed to your
7 overflights?
8 A No, that's not exactly correct. It's on our aerial
9 overflight we were able to fly at much lower altitudes
10 obviously and concentrate on seeing what was there, and also we
11 did touch down on that first overflight and did take water
12 depths at those 14 or 16 stations which data we did not have
13 previously.
14 Q Are those 14, 16 stations spread throughout the
15 Refuge?
16 A Generally spread throughout, yes, sir.
17 Q And are they in your view generally representative of
18 the various eco-subsystems within the Refuge?
19 A They are representative primarily of the interior
20 areas in the Refuge. They are not representative generally of
21 the conditions along the perimeter canal. And the reason that
22 we need to have data there is that that's the area that there's
23 been most obvious change to, and so whereas there is general
24 data available that properly seem to characterize the overall
25 vegetation patterns throughout the Refuge in general, it really
98
1 doesn't get at the real question of why is there a change in
2 this narrow band right along the perimeter canal.
3 So it's as if there has been studies done which collect
4 data in random fashion throughout, but often doing scientific
5 study you can collect very good random data but it may not be
6 as at a scale of a specificity and location to really get at
7 the specific question you're looking at.
8 So where there is good data to characterize it, I'm not
9 sure from what I know now, and again I don't have all the data,
10 that it addresses the real issue in this controversy.
11 HEARING OFFICER MENTON: Let me interrupt you for a
12 second. I think last time, you know, we talked about a
13 lot of these same issues, and again I'm trying to remember
14 exactly what happened. But as I recall, there was no
15 problem with the notion that there had to be some
16 testing along the perimeter area, or at least in my
17 mind I was convinced that there needed to be an
18 opportunity to go in and do some testing in that perimeter
19 area.
20 The question was, how often or in how many different
21 areas you really needed to do in order to get, you know, a
22 true sample of the perimeter conditions? And there was
23 also some discussion on these historical transects that
24 there was some data that may be available for a comparison
25 purposes, but as I recall, that data wasn't available
99
1 or hasn't been discovered and wasn't clear whether, in
2 fact, it was going to be discovered or anybody was going
3 to obtain it.
4 THE WITNESS: That's my understanding, Your Honor.
5 HEARING OFFICER MENTON: Okay. So if that data
6 doesn't come up, why is there a need to test along east of
7 the historical transects if there is nothing to compare
8 it to? I mean, isn't that just a waste of time?
9 THE WITNESS: I don't believe so. There is certain
10 information in this report at certain scale and at a
11 certain resolution, and we can certainly begin our
12 analysis at that scale and that resolution with more
13 refined data that we might take now.
14 We are hopeful that we'll be able to get the
15 more refined data so we can actually look at that in more
16 detail and compare apples to apples and oranges to
17 oranges.
18 MR. BURGESS: At some point, I would like to address
19 your question.
20 HEARING OFFICER MENTON: Okay. I'll give you
21 an opportunity.
22 Putting aside the need to compare new data
23 with what may have been set forth in that Richardson
24 report, what sites do you think are necessary in order to
25 get a representative sampling of the perimeter conditions?
100
1 THE WITNESS: We believe what we're requesting will
2 give us that, those -- we think it's prudent to sample at
3 the A, B, C Transects because they're representative of
4 varying conditions. If we get the more detailed data,
5 then we'll have it and compare it.
6 If we don't, those are still representative of those
7 types of conditions. Richardson notes on page 88 of this
8 report that the extent of cattail canals influence into
9 the center of the Refuge maybe overextended due to the
10 spacing of the sampling sites. So in his own records he
11 indicates the spacing of his sampling sites may have
12 overemphasized or not taken into account the effect of the
13 canal, and we believe that he's right. We just want
14 an opportunity to be able to test that.
15
16 BY MR. FITZGERALD: (Continuing)
17 Q Did I understand your testimony earlier that one of
18 the main purposes of collecting the data along the six
19 transects now is in order to update the historical data that's
20 available through Dr. Richardson's reports and other sources
21 you cited?
22 A We would like to be able to make that analysis and do
23 those comparisons.
24 Q But, in fact, the mid-point transect that you're now
25 proposing, just that one between C and the pump station 6,
101
1 there is no historical data along that transect at that point
2 because there has never been a transect there, to your
3 knowledge?
4 A To my knowledge there has not, and as I explained
5 there is another reason for wanting to take the data along
6 there, and that's because of the clear zonation patterns.
7 Q When you were sampling along C or going along C in
8 your last visit by air boat, did you take water depths as you
9 went in or went north along that transect?
10 A Yes, we did.
11 Q How far in did you take water depths?
12 A I'd have had to refer to notes that I don't have with
13 me now, but I believe we ended up going a mile and a half to
14 two and a half miles to interior before we turned around.
15 We were taking GPS readings as we went along and looking
16 at the vegetation, and at that time we were not exactly sure
17 how far we were. We were just going and stopping and taking
18 water depth and making notes on vegetation and then go and
19 extent further, and when we were clearly outside of any area,
20 and we discussed this with Dr. Maffei, that clearly outside of
21 any area that had cattail in them we stopped in the transect
22 and turned.
23 Q When you cleared the area of mixed typhus and saw
24 grass, did you take water depths right on into the slough area?
25 A I don't understand your question.
102
1 Q You said that you were taking, staffing the depth of
2 the water as you went north along the transects, did you take
3 water depths in the slough area after you cleared the cattail
4 stands?
5 A I think my problem is in I'm not sure exactly what
6 you're defining as slough area. We took water depths in areas
7 that had cattail in them. We go over to a stand of cattail and
8 put the ruler down and measure the depth there, then we go a
9 little bit further and if there was saw grass there or cattail
10 there we measure the depth there. We were going up through an
11 air boat trail or slough areas which are more open in part to
12 facilitate --
13 Q I think I can clarify for you. When you were in the
14 open water slough, did you take the water depth in the open
15 water?
16 A We took some depths in some areas of open water I
17 believe.
18 Q And at the time you were doing this was the structure
19 at the gates at C open or closed?
20 A I believe we asked Dr. Maffei that. I believe it was
21 closed at that time. I maybe am not absolutely sure, but I can
22 check my notes. I believe it was closed.
23 Q The water depth readings you recited earlier and your
24 conclusions based on that, how would they be affected by
25 whether you had a flat pool or sloping pool of water at the
103
1 time?
2 A If there was a flat pool of water, then I would
3 expect the measurements to be more accurate, if you will, than
4 if you had a sloping pool of water.
5 Q Which did you have?
6 A I believe the gates were closed, so I believe that
7 there was in all likelihood a flat pool, although I don't know
8 that. We were looking at the relative measurements.
9 Q The projects that you've described that you've done,
10 you responded to counsel you have done hundreds. Have you ever
11 worked in Loxahatchee before?
12 A No.
13 Q How about the WCA 2A?
14 A I've done some work in 2A.
15 Q Rather than go area by area, can you quantify for us
16 in some way the amount of your professional work that's been
17 devoted to the Everglades area?
18 A I have worked in the Everglades principally over the
19 last two to three years.
20 Q Just basically since the federal lawsuit then?
21 A Basically.
22 Q Were you retained as an expert as a part of that as a
23 consultant?
24 A Yes.
25 Q All right. You indicated that you wanted to know
104
1 what the -- or you were concerned about tests that would not
2 differentiate the source of the water that was affecting the
3 area testing; is that correct?
4 A Yes. We're concerned about where the water would be
5 coming from.
6 Q Whether 5A or 6?
7 A 5A, 6, where along the canal it might be.
8 Q But it's your understanding, is it not, that the
9 water reaches the Loxahatchee exclusive of the rainfall whether
10 from 5A or 6 is EAA runoff passes through the EAA?
11 A It's my understanding that water comes either from
12 rainfall or through those two, principally from rainfall or
13 through those two control structures, 5A and 6, and that 5A and
14 6 comes principally from EAA.
15 Q Now when you were out there on the most recent
16 occasion checking C there came a time when Dr. Davis had a
17 conversation with Dr. Maffei and yourself present regarding his
18 desire to go to a mid-point transect; do you recall that?
19 A Which visit?
20 Q On the most recent visit after you conducted your
21 water depth measurements, do you recall a conversation in the
22 helicopter with Dr. Maffei and Dr. Davis, between the two of
23 them, regarding moving the proposed testing transect from just
24 north of structure S10 C to become the mid-point transect
25 that's now being proposed?
105
1 A I recall some conversation about a mid-point
2 transect.
3 Q Do you recall the reason Dr. Davis gave for moving
4 that particular test transect?
5 A No, I don't. There were general discussions about it
6 and some of the factors that I discussed when I described them,
7 but I don't remember specifically what Dr. Davis indicated.
8 Q Do you recall him asking Dr. Maffei if he would agree
9 to moving them and allowing you to conduct depth measurements
10 along the mid-point transect?
11 A He may have, very well may have, but I just don't
12 recall specifically. There was discussion, the helicopter was
13 going, we were going through earphones, and there was
14 discussion. If Dr. Maffei says that there was, I'm sure there
15 was. I don't have any problem with that.
16 Q You concede the credibility of Dr. Maffei then?
17 A On that issue.
18 MR. FITZGERALD: Thank you. No further questions.
19 MR. BURGESS: Your Honor, if I may address
20 your earlier question. They're going to rely on this
21 data, we're going to be here in hearing and I'm going to
22 be presented with data from the John Richardson --
23 HEARING OFFICER MENTON: Richardson data, is that
24 what you're saying?
25 MR. BURGESS: Yes, right, the Richardson study,
106
1 Exhibit D, we're going to hear that in this hearing.
2 We're going to hear from Ron Jones with respect to his
3 transects crisscrossing Loxahatchee east, west, north
4 and south.
5 We want the ability to go to those areas to test
6 because we're going to be confronted with this. They're
7 relying on it for their evidence that our water causes
8 damage in those areas. It's that simple. We filed today
9 a notice of filing attaching the Fish and Wildlife Co-op
10 Research Unit to respond to our request for that
11 John Richardson data.
12 It's filed here today, and they have denied us access
13 to that raw data. We have now subpoenaed it. The
14 deposition is setup in Gainesville for November 25th. We
15 think ultimately we're going to be successful in getting
16 it. Even if we're not, even at this point to deny us the
17 ability to go to not only Ron Jones but A, B, and C,
18 because it's not only for comparison purposes that we're
19 attempting to get that data.
20 There is some data in that report. There are
21 conclusions in that report. Dr. Dennis just read one with
22 respect to Dr. Richardson feeling that maybe his sampling
23 points are too far apart to be able to reach firm
24 conclusions with respect with the cause of vegetative
25 changes relative to hydro-period. That's why we want to
107
1 sample the little areas for a mile and a half because our
2 theories we think are going to confirm that.
3 So there are other reasons other than the fact that
4 we don't now have the data to compare it to. Let's get
5 out there and get the data so when we are successful we
6 can compare raw data to raw data. But even if we're not,
7 we're going to be able to compare raw data with raw
8 conclusions that are contained in that report which we
9 think we're going to see before this case is over.
10 MR. FITZGERALD: I would like to put on a witness
11 before we bother arguing it, but I think there are
12 two points that need to be made now.
13 First, we have not been served, you know, with this
14 filing apparently sitting here today, but I would
15 point out that inadequate notice under the discovery and
16 scheduling order has been given for the deposition
17 or subpoena or anybody up at the University of Florida,
18 down at the University of Florida.
19 Secondly, we do not control that data, and we
20 ourselves have seen similar arguments raised by Duke
21 University on behalf of its scientists at the Wetland
22 Center regarding their data. This apparently is
23 quite common in universities. They don't want outsiders
24 poaching their data or publishing it or releasing it
25 before its finalized and get the opportunity to publish
108
1 it.
2 It's an intellectual property issue from their
3 perspective, but we will sort out the issue of the
4 subpoena, but we do not control that data. That's the
5 University of Florida data that's been discussed last
6 month as well.
7 HEARING OFFICER MENTON: Okay. Thank you,
8 Dr. Dennis.
9 MR. FITZGERALD: We would call Dr. Mark Maffei.
10 (WHEREUPON, THE WITNESS WAS SWORN ON OATH.)
11 HEARING OFFICER MENTON: Please state your name and
12 spell your last.
13 THE WITNESS: My name is Mark Douglas Maffei,
14 M-A-F-F-E-I.
15
16
17 * * * * *
18 Whereupon,
19 DR. MAFFEI
20 was called to testify and, having been first duly sworn, was
21 examined and testified as follows:
22 DIRECT EXAMINATION
23 BY MR. FITZGERALD:
24 Q Dr. Maffei, can you describe for the hearing officer
25 your current duties with the U.S. Fish and Wildlife Service?
109
1 A I'm the Wildlife biologist for the Loxahatchee
2 Wildlife Refuge.
3 Q And can you account for us your educational
4 experience for that position?
5 A I received a Doctors of Zoology from South Illinois
6 University from 1986 -- excuse me, 1985. I received a Masters
7 of Science degree in biology from Western Illinois University
8 in 1980 and a Bachelor of Arts degree in biology from the
9 University of Illinois from 1977.
10 Q And what field experience have you had in your chosen
11 field of endeavor?
12 A I have been biologist at the Refuge for nearly six
13 years and I've spent hundreds of hours in the marsh of the
14 Refuge during that period of time.
15 Q As biologist for the Refuge what duties do you have
16 with regard to the monitoring and oversight of the ecological
17 conditions of Loxahatchee?
18 A Well, in general I'm responsible for dealing with all
19 researchers who conduct research on the Refuge, whether it's
20 simply issuing a permit to allow the researchers to come in and
21 do the research needed to do or participate in the research
22 projects where we actually get involved in determining the
23 research, et cetera.
24 Q Are you familiar with the Everglades SWIM Plan
25 adopted by the South Florida Water Management District?
110
1 A Yes, I am.
2 Q And are you familiar with the portions and appendices
3 of that Plan that deal with the impacts that the degradation of
4 water flowing into the Loxahatchee has had on the marsh?
5 A Yes, I am.
6 Q Generally what does the SWIM Plan recite as being the
7 impacts on the Loxahatchee?
8 A Well, in general, the impacts result from nutrient
9 accumulations in the marsh as a result from nutrient pumped
10 inflows. The Everglades was historically a very low nutrient
11 referred to as eutrophic, and as a result of the agricultural
12 drainage high quantities of nutrients, primarily phosphorus,
13 are being introduced into these ecosystems, particularly around
14 the canals are changing, changes in vegetative community.
15 Q Are the changes in the vegetative community limited
16 to the canal areas?
17 A With respect to nutrient inputs they are basically
18 limited to the areas of canals. There are some areas where
19 there have been shifts in vegetative community structure as a
20 result of changing the hydrology of the system, and then there
21 is natural changes that occur from other factors.
22 Q Are you familiar with the reports and sources of data
23 on testing done in Loxahatchee that have been described during
24 this hearing?
25 A I believe I am, yes.
111
1 Q And are you familiar with the areas that are depicted
2 in the charts and photos that have been used by petitioners?
3 A Yes.
4 Q With regard to Photo One, in the lower right-hand
5 corner there, can you describe the process that this procedure
6 and the visit for testing of water depths along Transect C by
7 Dr. Dennis and Dr. Davis?
8 A Sure. This is the S10 C structure. The canal is
9 actually in this area here. Dr. Dennis indicated it's open
10 water here. It's not. This is the Hillsborough canal proper.
11 HEARING OFFICER MENTON: I'm not sure where you're
12 talking. You're saying in the land area there?
13 THE WITNESS: Here's the structure, the area just
14 up here. This is the canal, and these are floating
15 aquatic weeds on the canal, and then there is a small
16 wave barrier and then open water area here we call the
17 flats.
18 Q What's the open water area called?
19 A The flats. It's the name the fishermen basically
20 have given that area. What we did, originally we went up into
21 this area where they took the water depth right along the edge
22 of the cattail stand, and then we made our way through this
23 cattail to this trail, and then ran up the trail and every so
24 often they would stop, move into the cattail or saw grass, take
25 a water depth reading, then we would move up through the
112
1 sloughs and continued up about two, two and-a-half miles.
2 Q Did you hear Dr. Dennis describe the water depths
3 that he found in the order of seven to eight feet, something
4 like that in the cattail stands?
5 MR. HYDE: Objection. That's a mischaracterization
6 of his testimony given by Dr. Dennis.
7 MR. FITZGERALD: Who's objecting?
8 MR. BURGESS: For the record, the record will speak
9 for itself.
10 THE WITNESS: I don't recall him saying seven to
11 eight feet.
12 MR. FITZGERALD: Okay. We'll springboard in a
13 different way.
14
15 BY MR. FITZGERALD: (Continuing)
16 Q What sort of depths were they recording, if you
17 recall, in the areas of the saw grass?
18 A In the areas of the saw grass I believe it ran about
19 three and-a-half feet down to, perhaps, a foot and a half or
20 two. I don't remember exactly what those depths were.
21 Q And did they staff gauge for depth in any of the
22 areas of open slough?
23 A To my recollection we never stopped where there was
24 open water. We always went into either solid typha or either
25 saw grass stands which may be mixed with typha, but we never
113
1 stopped in one of the areas as I recall.
2 Q And after running that particular transect and taking
3 these depths, did there come a time when there was a discussion
4 of whether there was an area they desired to use as part of the
5 testing program proposed by the League?
6 A I don't recall that discussion while we're on the
7 ground. That discussion occurred while we were in the air
8 prior to be landing and doing that sampling.
9 Q So it was before you did that run in the air boat?
10 A That's right.
11 Q And what was the nature of that discussion?
12 A Well, we had looked at the area along the Jones
13 Transect that's in the northern part of the Refuge, and as we
14 were coming south to go on land at the boat ramp as I recall,
15 Dr. Davis indicated that he didn't want to do the transect
16 north of S10 C that we had looked at earlier in the morning;
17 that he wanted to move that transect to a point midway along
18 the L39 canal. And he said the reason that he wanted to do
19 that was because of this clear demarcation between the cattail
20 infestation and where the slough began to break up the saw
21 grass and prairies and cattail intermix.
22 Q How wide is the infestation at the mid-point?
23 A At the mid-point I recall it was in the neighborhood
24 of three quarters of a mile.
25 Q How wide was the monotypical cattail stand at C?
114
1 A At C, I believe -- it's a little harder to do
2 determine there. When we had overflown it earlier, we had a
3 agreed that the end of that transect would be about 1.4 miles
4 north of S10 C, and since we had agreed the transect would
5 extend about a half mile beyond where the cattail denomination,
6 and from my recollection, I guess, we had agreed about nine
7 tenths of a mile north of the canal is where the cattail
8 denomination ends.
9 Q And when you actually attempted to run that transect,
10 how far in did you go?
11 A Well, when we were in the air, I think we went four
12 and a half miles or so before they agreed they'd go along the
13 transects we had some discussion about whether it was really
14 appropriate to go that far in. When we were on the ground, I
15 guess we went two, two and-a-half miles. Again, I don't recall
16 the date any better than Dr. Dennis does.
17 Q Would Dr. Davis raise the issue of moving the
18 transect that he wanted to run on the ground to the mid-point,
19 did you agree with that?
20 A No. I told him that I didn't think that was
21 appropriate based on my conversations with Mr. Burgess and
22 yourself prior to this overflight maybe the previous week. My
23 recollection was that the transects that had been agreed to was
24 one north of S10 C and running north into the marsh because
25 basically that was near to where we had historic transects and
115
1 much of their request was based on doing work, there had been
2 work done.
3 Q When you were doing the overflight or the work on the
4 ground that day, did Dr. Davis ever give you his scientific
5 rationale for doing six transects?
6 A No. What he said to me after I told him that I
7 couldn't agree to move that transect, he said, well, we'll have
8 to go back and ask for some more transects; and I responded
9 that that was always his right to do that, but my instructions
10 were to allow the one transect to be run on that particular
11 day, and that's what we did.
12 Q His statement that if you refuse to agree to move it
13 then they go back and ask for more transects, did he specify
14 how many more transects he was going to ask for?
15 A I think on that date he said two or three more.
16 Q If I can invite your attention to the next layer
17 down, the grid Loxahatchee Reserve, are you familiar with the
18 14 stations that under the SWIM Plan would be used for
19 monitoring purposes to maintain a long-term evaluation of the
20 state of health of the Refuge?
21 A I'm generally familiar with them.
22 Q Do you know generally how those are selected, what
23 criteria were used?
24 A I don't know what criteria the District used
25 originally other than perhaps to space them somewhat uniformly
116
1 throughout the water conservation area.
2 Q In your opinion based on your experience in
3 Loxahatchee, do those 14 stations, in fact, reasonably reflect
4 the condition and environment of the entire Refuge?
5 A Yes.
6 Q Is there any type of community within the Refuge that
7 is not represented in those stations?
8 A Other than the fact none of the stations are on tree
9 islands and there is not a station in the canal, I think all
10 communities are represented. There is a station down in the
11 vicinity S10 C which is within the area infested by cattail,
12 although the day that we flew we could not land right in the
13 cattail, so we landed in an open area surrounded by typhus I
14 recall.
15 Q And typhus is?
16 A Cattail.
17 Q Do you recall if the gates at C were open that day?
18 A On the second sampling trip, I believe they were
19 closed.
20 Q What affect does a flat pool or sloping pool have on
21 water depth calculations?
22 A Well, if you have a flat pool throughout the Refuge,
23 then the water depth varies with the slope of the land; and if
24 you have a sloping pool, that doesn't necessarily do that. The
25 water depth might be more reflective of the water flowing along
117
1 the gradient of the land.
2 Q Can you flip up and go to the satellite. Using the
3 satellite imagery, can you describe for us the composition of
4 Loxahatchee, the various environments and subsystems of it?
5 A All right. The majority of Loxahatchee is what's
6 known as Everglades habitat. The community is primarily what
7 we call wet prairie, which is short emergent vegetation such as
8 short rush that grows up in the water and a few inches or so
9 above the surface of the water.
10 There are sloughs which have virtually no emergent
11 vegetation, just floating plants such as white water lily, and
12 that type of community makes up the majority of the Refuge.
13 The western and southern part of the Refuge are saw grass
14 stands in which sloughs and wet prairies are interspersed.
15 Along the western and southwestern fringe, we have solid stands
16 of cattail.
17 Q Are cattail native to the Everglades?
18 A Cattail are native to the Everglades.
19 Q To what extent is there or has there been in your
20 experience based both on your personal observation and review
21 of the data expansion of cattail into Loxahatchee?
22 MR. GREEN: Objection. Your Honor, I would like to
23 ask if this witness is rebutting the testimony of
24 Dr. Dennis, or are we having a trial on the merits? Is
25 this related to why we're here today?
118
1 HEARING OFFICER MENTON: Yes, I was going to --
2 let's try to deal with this --
3 MR. FITZGERALD: I'm going to tie it to the
4 transects in a second, Your Honor. I'll show the
5 relevance of it.
6 A From my experience and looking at historic
7 photographs and data that were collected years ago, the large
8 stands of typha that are along primarily the L7 and L39 canal
9 do not exist historically. Around the canal in general there
10 has been a change of vegetative community typically as Dr.
11 Dennis indicated on the eastern side and northern portions of
12 the Refuge up here and around like this. Those changes don't
13 extend very far into the marsh, only in the southwestern part
14 of the Refuge do they extent very far.
15 Q Is there data existing and available that has been
16 developed, vegetative, soil, water quality for the area along
17 the L7 where the S10 structures are located where you've
18 indicated that cattails have expanded?
19 A There has been some data collected along here. Dr.
20 Dennis referred to John Richard did -- the University of
21 Florida collected data to put together that study. Dr. Ron
22 Jones also collected soil in the vicinity of the S6 pump
23 station.
24 Q Is that testing in the area influenced by the S6
25 inflow?
119
1 A In my opinion it was.
2 Q In your opinion are the six transects described in
3 the testimony you've heard and the requests that's pending
4 necessary to adequately evaluate the cause and effect of the
5 typhus incursions in Loxahatchee?
6 A Well, I'm not sure what -- how they plan on getting a
7 cause and effect from going out and measuring water depths one
8 time.
9 Q In your opinion is it possible to develop a sound
10 evaluation of water depth or hydrology, hydro-period as the
11 cause as opposed to a water quality issue with single samples
12 and tests as described along transects through that area?
13 A In my opinion that's not possible from sampling
14 efforts that I've seen out there.
15 Q In your opinion what scientific value of one-time
16 transects of that nature and that number have?
17 A It might have some value in providing evidence to
18 refute a particular theory, for example, regarding impacts of
19 hydro-period, but --
20 Q In order to have value, would it have to be available
21 for comparison against earlier data?
22 MR. BURGESS: I object to the form of the question
23 with respect to value.
24 HEARING OFFICER MENTON: Overruled. If you can
25 answer it.
120
1 A I don't think there has to be earlier data for it to
2 have value.
3 MR. FITZGERALD: Nothing further. Thank you.
4 HEARING OFFICER MENTON: Cross, Mr. Burgess.
5 MR. BURGESS: Yes, thank you. We'll stipulated if
6 they want to give us the same six transects on a monthly
7 basis for the remaining period of discovery. We would
8 prefer that for the one-time sampling. I don't know if
9 that was the offer being made.
10 MR. FITZGERALD: I think counsel should keep his day
11 job and not go into stand-up comedy.
12
13 CROSS-EXAMINATION
14 BY MR. BURGESS:
15 Q Dr. Maffei, the areas in your opinion that have been
16 damaged by waters leaving the EAA, those are areas limited to
17 canals, perimeter canals in Loxahatchee; is that correct?
18 A Yes.
19 Q Okay. And how far in off the perimeter canal into
20 the interior of the Refuge do the areas of impact go as far as
21 distance is concerned?
22 A It varies depending on where you are in the system
23 because the water in the canal does not always have the
24 opportunity to outflow the banks. The farther south you go
25 into the Refuge the more opportunities the water from the
121
1 canals has to move into the marsh. I don't have a good grasp
2 of exactly how far into the Refuge throughout the system the
3 soil phosphorus counts has been elevated as a result of this,
4 you know, this water sitting over the marsh.
5 Clearly, at least as far as typha exists, you have cattail
6 impacts, and in many areas it seems obvious to me anyway that
7 impacts extend farther than that. So it varies from a quarter
8 to a half mile to a couple of miles depending on where you are
9 in the Refuge.
10 MR. FITZGERALD: Excuse me, I'm sorry. I can see the
11 court reporter having a little bit of a hard time hearing
12 you. Could you speak up a little bit.
13 Q And these are areas in your opinion that are
14 impacted; is that correct?
15 A That's correct.
16 Q And do they represent in your opinion good quality
17 habitat?
18 A With respect to what?
19 Q With respect to the natural species indigenous to
20 the Everglades, do they represent quality habitat, the area of
21 cattail that you've described?
22 A No, I don't believe that the areas infested with
23 cattail represent good quality habitat for species indigenous
24 to the Everglades.
25 Q Do the areas that you've heard testified today with
122
1 respect to the six transects, are there cattails surrounding
2 all of those six areas near the perimeter canal?
3 A Surrounding transects?
4 Q Yes, the location of the six transects you've heard
5 testified today, are there cattail located at or near where
6 those six transects are sought to be sampled?
7 A Where those transects initiate at the canals, I
8 believe that there are cattail with perhaps the exception of
9 the transects up in the northwest boundary of the Refuge, I
10 don't recall exactly if the cattail was in there at the present
11 time or just willow infestation or some other species.
12 Q So there is with respect to the sampling that
13 petitioners seek to do here is there any harm in your opinion
14 that would come to these areas that you have already testified
15 that are impacted and don't represent good quality habitat?
16 A If they stay in the canal and sample the canal, no, I
17 don't see harm that comes to the habitat.
18 Q What harm are we going to or petitioners cause to the
19 cattails if they travel from the canal interior for a mile or
20 two miles through the impacted areas?
21 A I don't see that they would cause harm in the cattail
22 -- the only way to look at the environmental factors which are
23 causing these problems is to look at unimpacted areas as well,
24 so the harm is something that is more difficult to define
25 depending on exactly what it is you plan on doing.
123
1 Q Okay. With respect to your testimony on the 14 or 16
2 interior stations, how close together are the closest together
3 of those 14 stations?
4 A I don't know.
5 Q Is it safe to say that none of those stations are as
6 close together as nine different points along a one mile
7 transect?
8 A That's safe to say.
9 HEARING OFFICER MENTON: What 14 points are you
10 talking about?
11 MR. BURGESS: 14 interior stations in the
12 Loxahatchee --
13 HEARING OFFICER MENTON: The recurring
14 sites?
15 MR. BURGESS: -- that will be the recurring sites.
16 Mr. Fitzgerald had the witness answer questions and
17 testify those were somehow representative of the same
18 areas that we're seeking here.
19 MR. FITZGERALD: I can --
20 THE WITNESS: There were 16 sites that were marked.
21 MR. FITZGERALD: In response to counsel's statement,
22 in fact, there were 20 recurrent sites not 14. There are
23 20 spread around in there.
24 HEARING OFFICER MENTON: I understand the question
25 is to what extent do those recurring sites, which are
124
1 basically, well, there's one in the canal and mainly in
2 the interior, to what extent do they give a representative
3 sampling to the perimeter conditions?
4 THE WITNESS: There is a site way up here at the
5 north end which is representative in my opinion of the
6 type of vegetative community that occurs along the canal
7 of the northern half of the Refuge.
8
9 BY MR. BURGESS: (Continuing)
10 Q Right. So none of the six transects you heard
11 testified today are located up in that area, are they?
12 A Not up in the very northern tip, no, but there is a
13 transect along here that I believe the vegetative community in
14 that vicinity is similar to what's here, this sampling point.
15 Q How many miles is it between S5A and the point you're
16 indicating on the western end?
17 A About five miles I would think, four or five miles.
18 I'm not exactly sure.
19 MR. BURGESS: I don't have anything else.
20 HEARING OFFICER MENTON: Anything else?
21 MR. FITZGERALD: No.
22 HEARING OFFICER MENTON: Let me just ask a couple of
23 questions, Dr. Maffei. Do the 20 recurrent sites that
24 have already been established, do they provide an adequate
25 sampling of the perimeter conditions in your opinion?
125
1 THE WITNESS: To date we have only identified 16
2 locations for those sites, I think. I don't believe we
3 landed at those -- no, the helicopter pilot the second day
4 did not have the appropriate clearance to land on the
5 Refuge, so we didn't identify the location of the other
6 four sites yet.
7 There are two sites that are within communities that
8 have been heavily impacted by the water. There is, at
9 least, one other site that's within a half mile of the
10 canal, I believe. So I think depending on the questions
11 being asked, and again I don't know exactly what questions
12 they're trying to research, yes, you could have an
13 adequate representation of those communities.
14 HEARING OFFICER MENTON: Is there in your opinion
15 any benefit to testing along those mid-point transects
16 that Dr. Dennis identified a minute ago with the
17 monoculture of cattails described, is that a different
18 condition that exists anywhere else?
19 THE WITNESS: Well, that's a condition that occurs
20 over a fairly large length of the Refuge. This would
21 benefit depending on what you're trying to determine.
22 Whether there's benefit for them doing it given the
23 questions they're trying to ask or answer, I don't know.
24 HEARING OFFICER MENTON: Okay. Mr. Fitzgerald,
25 let me ask you a question. What at this point do you
126
1 anticipate doing with the Richardson Study? I mean,
2 you've indicated at the last hearing you don't have
3 underlying data. There has been some representation
4 here today that they expect to get hit with it during the
5 final hearing.
6 MR. FITZGERALD: Those are two different things
7 actually. The Richardson study and all the data attached
8 to it as far as I know has been available since 1990. The
9 data is the University of Florida. I didn't think
10 that was the same one. In my mind I thought those
11 were distinct. They're trying to get it.
12 And are we going to hit them with the Richardson
13 study? I guess indirectly, if that's the right
14 phraseology to use, they're confronting it because it's
15 referenced in the bibliography of relevant material to the
16 SWIM Plan, and in some fashion was regaining -- so the
17 District is certainly charged with having used it in some
18 fashion.
19 I've heard nothing to suggest that the data in there
20 is not accurate. There are conclusions reached. Some of
21 the people listed there I've seen show up on subpoenas or
22 notices already, so the extent to which it would be useful
23 in defending the SWIM Plan in a large measure depends on
24 what the assault on the SWIM Plan truly turns out to be,
25 not this scattered one that we're currently confronting.
127
1 Since I don't know what their science is, I don't
2 know what their opinions are, I don't know if we need it
3 or not, not specifically. I can't say this portion
4 or that portion. Certainly it reflects, I believe,
5 accurately the condition of certain parameters within
6 Loxahatchee National Wildlife Refuge.
7 HEARING OFFICER MENTON: All right. Doesn't that
8 study include, at least, the references to the conclusions
9 from the University of Florida along the historical
10 transects; isn't that right?
11 MR. FITZGERALD: There is some incorporation, but
12 that data is not laid out specifically. That's what
13 nobody has right now. We don't have it.
14 THE WITNESS: If I may, there might be some
15 confusion here. Those historical transects were not run
16 by the University of Florida. They're mentioned in
17 Dr. Richardson's report and he may have visited those
18 sites; on those transects run by the Fish and Wildlife
19 Service and the reports that resulted from those studies
20 were turned over to counsel for petitioners at least as
21 far back as the first production in the federal case.
22 MR. BURGESS: The report not the data.
23 THE WITNESS: The data -- the data is in the report.
24
25
128
1 REDIRECT EXAMINATION
2 BY MR. FITZGERALD:
3 Q Was Dr. Jones' data turned over on his two transects?
4 A I don't know other than the fact Dr. Jones said they
5 got it at the depositions.
6 MR. FITZGERALD: I'll represent for the record that
7 Dr. Jones' data and reports were turned over. He's
8 certainly a witness in this case. He has testified here.
9 I don't think anybody will suggest that he hasn't.
10 Q With regard to the other data as I recall from last
11 month according to the testimony of Dr. Davis was that it was
12 the vegetative, some of the vegetative analysis that was done
13 by University of Florida that is not available, what is the
14 nature of the data not available, if you can tell us?
15 A I really don't know to tell you the truth.
16 MR. BURGESS: All the raw data, all the field notes,
17 all the laboratory data, all GIS data --
18 THE WITNESS: All the GIS data --
19 MR. BURGESS: -- the letter that has been filed.
20 THE WITNESS: All this GIS data as far as I know has
21 been turned over. I turned it over twice personally. If
22 Dr. Richardson has done more with that work, that's not
23 published. I'm not aware of it, so in addition to the
24 final reports in the work order was turned over twice this
25 year -- excuse me, just once it was turned over, two
129
1 different petitioners.
2 Much of the raw number crunching was turned over
3 probably at least three times. We have got stacks of
4 computer lists that is all this data that was generated
5 that was turned over in the first production of the
6 federal case. It was turned over early this year
7 as a result of the Freedom of Information Act request,
8 and it was turned over again this year as a result of
9 discovery in this hearing process.
10 HEARING OFFICER MENTON: Dr. Maffei, let me ask you,
11 did I understand your testimony correctly when you said
12 that in terms of actually going out and testing in the
13 areas of cattail that there was really no habitat damage
14 that is going to occur in that situation?
15 THE WITNESS: Within the cattail stands, the habitat
16 in my opinion, its value as Everglades has been totally
17 destroyed, so barring fires in those areas, somebody going
18 in and setting fires which can happen when you run
19 air boats in there, I don't see that can create a lot of
20 damage in by testing --
21 HEARING OFFICER MENTON: So, at least, in that
22 mid-point section there then there is really no damage
23 that's going to occur?
24 THE WITNESS: Well, this strip along here is solid
25 cattail and the exact width of it varies, but I think
130
1 typically it's between a half of a mile and three-quarters
2 of a mile into the marsh.
3 Beyond where that solid band ends up, you have saw
4 grass stands, sloughs and wet prairies and cattail
5 invading. So in this area, we still have area of impact,
6 but the habitat has not been totally destroyed as it has
7 been over here yet.
8 Within this solid cattail, the habitat is pretty
9 useful as Everglades habitat. Once you get beyond that
10 band, then there are still areas that provide benefit to
11 the species that utilize the Everglades.
12 HEARING OFFICER MENTON: All right. Dr. Dennis,
13 what do you propose to do? Do you want to go beyond the
14 slough into the mixed area, or do you just want to go
15 into the cattail areas?
16 DR. DENNIS: Your Honor, we would like to start
17 in the canal and as best as we can go through the cattail
18 area, and then only go as far as we need to do, as
19 Dr. Maffei indicates, we need to make a comparison a
20 little bit into the natural kind of areas just so we know
21 we're into that and compare that area to what's along in
22 the cattail area.
23 So we don't intend to go far into it, just out of the
24 area of the cattail into the "natural area" just a little
25 bit.
131
1 HEARING OFFICER MENTON: All right. I'm going to
2 let them do that. Okay. I'm going to give him that
3 mid-point transect and go out there and do that one-time
4 sampling in that area.
5 If there is a problem with him going beyond the
6 cattail area into some other areas, I hope that you can
7 work that out while you're in the field and go in into
8 some areas that are not a problem.
9 MR. FITZGERALD: Mr. Menton, we had agreed on the C
10 site, that they can go enough beyond -- we understand
11 that unless you get into relatively pristine, whatever
12 they do in the cattail has no scientific value whatsoever.
13 You have to get the baseline of beyond the
14 impacted area as Dr. Maffei says then it's useless. We
15 have agreed to that in a limited way for C. If you're
16 going to give them that up in the mid-point instead,
17 that's okay, but repetitive incursions which is what
18 they're asking for six transects, nine stations each, they
19 say that's 45 test sites, although the initial five. It's
20 actually 54, but it isn't. It's 54 times two because
21 their request says we want to double everything, then we
22 have to take one so we can duplicate or cross check.
23 HEARING OFFICER MENTON: I understand that and we'll
24 deal with them one at a time. You know, I'm not saying
25 they can have all six. What I think the evidence
132
1 indicates especially the C area is a very critical area
2 for purposes of analysis as to what's actually happening
3 out there.
4 I think they're actually entitled to access there. I
5 think the conditions as I understand them around C
6 may vary to some degree and in the comparison between
7 the two areas may provide some useful information, so I
8 think they can work out some area in the general vicinity
9 of the C Transect, you know, with the mid-point.
10 Some of these other ones I'm having a more difficult
11 time understanding why we need to get into some of those
12 other conditions. If we have a recurring site up in the
13 northwest section, why do we need to -- and we don't know
14 whether we're going to be able to get the historical
15 information to compare it to, why do we necessarily have
16 to test in some of these other canal areas?
17 Isn't there one other historical -- I mean, a
18 recurrent sites over in the general vicinity of either
19 the Ron Jones area or close to the canal as I recall?
20 MR. FITZGERALD: Yes. They still have several more
21 or four or they can relocate some of the six that are not
22 on the SWIM Plan annex listing, actually eight -- no,
23 six.
24 HEARING OFFICER MENTON: Where it's kind of free
25 location --
133
1 MR. FITZGERALD: They can put them wherever they
2 want. They chose where to put their recurrent sites.
3 MR. BURGESS: But those are individual stations.
4 That's one area. Right there you take your samples
5 and that's it and you move on. This is a
6 concentrated --
7 HEARING OFFICER MENTON: I understand.
8 MR. BURGESS: Nine stops along a mile. They are not
9 54 stations, there are no physical structures, there is
10 no nothing. You ride in the air boat, you stop, take
11 some water samples, a soil sample maybe, and take water
12 depth readings, and you move on.
13 All this is done in a series of a couple of
14 days and it's finished. It's not recurring stations.
15 MR. FITZGERALD: They have 18 one-time stations now
16 along two transects that they have already picked. They
17 can still run them through those areas.
18 HEARING OFFICER MENTON: I want to make sure they
19 have a representative sampling, and I'm going to give
20 that opportunity. I'm just not sure that they need to
21 have, you know, the six different ones that they're
22 talking about now.
23 MR. BURGESS: And I'll let Dr. Dennis respond to your
24 question. If they want to stipulate to the areas
25 where they're limiting their allegations of water quality
134
1 damage, we'll limit our areas of testing to go ahead and
2 establish transects of those specific areas.
3 But if they're going to testify as we heard
4 Dr. Maffei say the damage occurs along the entire
5 perimeter canal around the Refuge, we would like the
6 opportunity to go into the different vegetative areas that
7 surround the Refuge and take the tests to bear out our
8 theories.
9 MS. KAVANAUGH: If I can add to that briefly, Mr.
10 Hearing Officer. Remember that the SWIM Plan is designed,
11 this one in particular because of the Marjory Stoneman
12 Douglas Act has to cure water quality violations. The
13 allegations of water quality violations don't specify
14 areas.
15 It appears they just say there is vegetative
16 imbalance. It's a narrative standard. So if they're
17 willing to narrow the areas that are really at issue,
18 fine. But at this point, we're faced with everywhere
19 they say there is vegetative imbalance, we have no choice
20 but to try and get at least representative access.
21 HEARING OFFICER MENTON: Well, maybe I didn't fully
22 understand the testimony from Dr. Dennis and I'll give him
23 an opportunity to explain it. But I didn't see while
24 there is some variation in the canal and some vegetative
25 differences, of course, at every site along the area, I
135
1 don't know why testing at A, B, and along the Ron Jones
2 Transect, and in the northwest section up there
3 were all necessary when I didn't sense that there was that
4 great variation in the vegetative species that are
5 existing out there.
6 DR. DENNIS: If I may, Your Honor, there are pretty
7 definite differences in the vegetation along the southern
8 -- if I can refer to the --
9 HEARING OFFICER MENTON: Yes.
10 DR. DENNIS: As this satellite image suggests, this
11 area in here is an area that we've talked about and
12 certain conditions that are going on in there. That's
13 also an area that I think there has been pretty general
14 agreement that it's being flooded.
15 This, the canals and levies act as a dam, so you have
16 a definite flooding influence along there. That flooding
17 influence is different from effects out from the canal
18 where you don't have the general flow of water coming out.
19 HEARING OFFICER MENTON: I see.
20 DR. DENNIS: So you have some different conditions
21 on the side.
22 HEARING OFFICER MENTON: Well, I understand that, but
23 why do you need A, Ron Jones, B, and the northwest?
24 DR. DENNIS: There is one other factor which we have
25 not mentioned, and that is if you look at historic
136
1 alterations and you see how, you know, how the historic
2 Everglades were physically affected by the construction
3 activities with the canals and levies, there is a definite
4 line up and down this north-south area that you can see in
5 the field.
6 We discussed it when we were out there. That makes
7 this area different from this area over here. This
8 area in the north that Dr. Maffei indicated, this is
9 an area of almost total willow or predominantly willow
10 where that station is different.
11 We think that actually this limited number of
12 sampling stations is at the lower limits of what we need
13 to be able to illustrate the range of flooding
14 hydro-period, physical alteration, historic vegetation
15 patterns. If you look at the Richardson report, they have
16 a historic map of the vegetation in 1952, another
17 map of '68 I believe.
18 And you see the patterns of vegetation had changed in
19 those two historic maps. We believe it has changed
20 again, and there are differences all around. So we
21 believe we need a number of stations, a number of spots to
22 look at, if you will, around the perimeter to capture all
23 of that different variability to come up with what the
24 real answer is. We're not --
25 HEARING OFFICER MENTON: Dr. Maffei, why do you
137
1 disagree with what he's saying in terms of what he's
2 saying?
3 DR. MAFFEI: Well, a couple of things. He's talking
4 about the lines that you can see along the canals. I
5 think you might be able to see it on one of his
6 photographs. No, you can't actually. But when the canals
7 were dug, after they were dug the right way was scraped,
8 which is a matter of a hundred yards or so, it's not --
9 it's part of the canal, and so the community there is
10 different.
11 With respect to whether or not this is a
12 hydro-period problem, the Everglades obviously always
13 experience the complete range of hydro-period it
14 experiences today. There -- this area has on it that
15 were lakes historically, still have sloughs, wet prairies,
16 where the hydro-period is different than what it is in the
17 saw grass areas.
18 Dr. Richardson's report looked at this question of
19 impact of hydro-period on the resources of the Refuge,
20 and basically we see the communities in a typical
21 Everglades that result from the various hydro-periods that
22 occur in the Everglades. So I have based on my training
23 what I know about ecology responds to the water as well as
24 nutrients.
25 Fashioning a research program to show that the
138
1 nutrification problem is the result of hydro-period,
2 doesn't make sense to me from --
3 HEARING OFFICER MENTON: You might disagree with the
4 theory --
5 DR. MAFFEI: Right.
6 HEARING OFFICER MENTON: -- but in order for him to
7 test his theory --
8 DR. MAFFEI: If he wants to test his theory
9 that it's hydro-period, then I don't know why the transect
10 at C doesn't provide him the information that he wants
11 other than they didn't like the look of it from the
12 air. And, you know, that's --
13 HEARING OFFICER MENTON: I think what he's saying is
14 that they're seeing different conditions in different
15 situations and want to better understand why there are
16 different conditions are taking place, and so in order to
17 do that they're saying they need to take some sampling
18 data at the different sites where the different conditions
19 exist in order to compare them and draw conclusions.
20 MR. BURGESS: That's right.
21 HEARING OFFICER MENTON: That makes a little bit of
22 sense to me.
23 DR. MAFFEI: And I thought that's what they're
24 allowed to have with the transects Jones and transect
25 above C they're in different community types.
139
1 HEARING OFFICER MENTON: The Jones, what are you
2 saying now?
3 DR. MAFFEI: Well, my understanding is they can run
4 a transect up here.
5 MR. BURGESS: No, that's what we're asking to do.
6 DR. MAFFEI: Well, if --
7 HEARING OFFICER MENTON: You started to say
8 something, Mr. Fitzgerald.
9 Mr. FITZGERALD: I find it very instructive that at
10 the time Dr. Davis doesn't like it, he tells Dr. Maffei
11 that essentially an extortionist statement either agree to
12 move it over and let me look there or I'm going to
13 look --
14 MR. BURGESS: That's totally uncalled for. Were you
15 there?
16 HEARING OFFICER MENTON: I --
17 MR. FITZGERALD: Based on the witness' statement I
18 think it's a fair characterization, but more
19 importantly he said at the time that they go back and ask
20 for two or three. They are asking for six. I don't know
21 if this is allowing you the opportunity to be Solomon
22 and split it in half and give them what they feel they
23 really need, but every time we come back and I can take
24 you back right from the first, is to ask for more and
25 becoming more intrusive if you follow Dr. Dennis'
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1 rationale, and you have to test every square mile out
2 there.
3 HEARING OFFICER MENTON: I'm not going to get into
4 that, but at this point I have not heard any testimony
5 that indicates that the type of one-time testing
6 that they're looking for out there is going to cause any
7 major damage. In fact, as I heard his testimony
8 especially in the area of the mid-point transect there is
9 really no problem from an environmental standpoint.
10 So what is the difficulty if their expert say it's
11 going to give them information that's going to help
12 them test their theory, then I think they're entitled to
13 do that. Now --
14 MR. FITZGERALD: We have not said they're not
15 entitled to reasonable testing program. What we have said
16 before and what we say now is the level of program
17 in which they're currently proposing gets to the
18 point of harassing and vexatious. We have to send
19 somebody with them and we have to do all that
20 testing to verify --
21 HEARING OFFICER MENTON: But they're saying it can
22 all be done within the scheduled period as it is.
23 MS. KAVANAUGH: One time.
24 MR. FITZGERALD: The seven to ten days was the
25 outside limit on how long whatever program is approved is
141
1 supposed to be completed. We always argued that it was
2 excessive for what was proposed.
3 HEARING OFFICER MENTON: All right. Well, you know,
4 I have not have seen where you have shown me that it's
5 unreasonable for them to go in and test in the varying
6 condition sites.
7 I have not heard his testimony to say that it's going
8 to cause on a one-time basis that it's going to cause
9 any significant damage.
10 MR. FITZGERALD: Everywhere around that perimeter of
11 that Refuge the conditions vary, and that's where you get,
12 the argument goes to the absurd extreme. You basically
13 have along the entire L7 the same functional environment.
14 The mid-point may be nicer because it has a harder
15 break. It's a denser stand. It doesn't get into the
16 mosaic that the doctor was speaking about, but the
17 fundamental environment is the same.
18 The water that it's subjected to is the same. The
19 water is from the same source, that is south and east of
20 the only inflow, so the only variation would be if you
21 have special variation in rainfall and that can be
22 accounted for.
23 What they essentially are doing is saying -- well, by
24 their argument, we have to test every place that looks a
25 little bit different. That's all they're doing by asking
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1 for the six. They have the capacity and what has already
2 been approved to put their test sites and to put their
3 two one-time transects more or less wherever they want,
4 and we never objected to that.
5 They could utilize those for that purpose. We get to
6 the point where the number of flights in, the use of
7 the Refuge personnel time, which it's not infinite. It's
8 a very finite resource.
9 HEARING OFFICER MENTON: Dr. Dennis, how many --
10 what are you talking about going in and doing your
11 recurrent testing on the sites that what you want to do?
12 DR. DENNIS: The one-time sampling, Your Honor?
13 HEARING OFFICER MENTON: Yes.
14 DR. DENNIS: Talking about going in with preferably
15 an air boat, a helicopter if that's what the water
16 levels are like, and go start at the canal, start at the
17 levy, go through the canal, go through the flats or the
18 areas where the vegetation changes have occurred,
19 minimally into a natural area, take a water depth, take
20 some probes that we put in the water to test water quality
21 kind of conditions, take a few water bottle samples,
22 and describe the vegetation.
23 Make notes on the vegetation. If there is a species
24 we have a question about, the identity, we might want to
25 take a specimen of that species, and take -- we're not
143
1 interested in recreating a lot of sediment data, but I
2 think we probably need -- we do need to take a sediment
3 sample in the particular vegetation community like on the
4 mid-point when we want a sediment sample in the middle of
5 the cattail area, and, you know, maybe one outside in the
6 natural area.
7 We're not looking to take nine sediment samples along
8 there. We're talking about a very simple straight forward
9 process. There is no hidden agenda here. There is
10 nothing mystic about what we're proposing.
11 HEARING OFFICER MENTON: All right. Can you
12 flip that chart back down for me. How long are you
13 talking about in order to do each of your testing along
14 transects? To go in a transect, can you do one a day
15 or can you do three a day?
16 DR. DENNIS: I anticipate we can do two or three a
17 day depending on the conditions.
18 HEARING OFFICER MENTON: Now the six that you're
19 looking at, you're looking at A, B, C, and you're looking
20 at Ron Jones Transect in the northwest, and you're talking
21 about over on the east on the Ron Jones transect, and
22 then the mid-point; is that right?
23 DR. DENNIS: The A Transect, B Transect, C Transect,
24 the mid-point transect, just this part of -- the same kind
25 of length on the Jones Transect here, and just minimally
144
1 the same kind of width we're talking about on the others
2 to get through the zonation on this part of the Jones
3 Transect. That's all we're asking for.
4 HEARING OFFICER MENTON: Have you already completed
5 what you need to do in C on that last run?
6 DR. DENNIS: We were able to go through it and
7 made general notes on the vegetation and the water depths.
8 We were not allowed to take any probe, water chemistry,
9 water quality kind of data nor any sediment data. So we
10 basically need to go on it.
11 HEARING OFFICER MENTON: What's the difference
12 between the A and the B locations there?
13 DR. DENNIS: They're different, slightly
14 different. There is not a lot of difference frankly, but
15 there is, you know, some difference, and this gives us
16 some refutability. If the U.S. will stipulate that by
17 limiting the number of samples we take, that that's
18 representative data, we don't have to take any more, then
19 we can take less. But I'm concerned about being --
20 HEARING OFFICER MENTON: I'm not sure I follow you
21 here.
22 MR. FITZGERALD: I've never heard a witness ask for a
23 stipulation in a legal context, so I'm kind of interested
24 in his answer, too.
25 DR. DENNIS: I'm concerned about being -- and
145
1 probably appropriately criticized for not having enough
2 samples, enough stations to support whatever the
3 hypothesis may turn out to be.
4 MR. BURGESS: Don't worry about that. They say
5 nine is too much, so that's on the record so --
6 DR. DENNIS: So that's why we would like to have some
7 stations that to some extent repeat or have, you know, a
8 little bit different conditions. But these are
9 representative of this side, so we don't think two per
10 side when we're talking about an area that is a 141,000
11 acres or whatever it is certainly it's not -- we're not
12 asking to look at every square inch of it.
13 HEARING OFFICER MENTON: What about the two
14 differences on the Ron Jones Transects?
15 DR. DENNIS: This area as you can see just looking at
16 the colors --
17 HEARING OFFICER MENTON: Just north of the pump
18 station.
19 DR. DENNIS: The colors that you see along
20 here not discussing what they mean, just assuming
21 that those represent some differences you can see that
22 that's a different kind of pattern that occurs up
23 here in this kind of area, so that there is different
24 forcing functions, different vegetation patterns going on
25 in those two areas. So two on that side, two on this
146
1 side, and two down here in the bottom.
2 HEARING OFFICER MENTON: Okay. Anybody have
3 anything? Mr. Fitzgerald, do you have anything you
4 wanted to add?
5 MR. FITZGERALD: (Shakes his head.)
6 HEARING OFFICER MENTON: All right. I think based
7 upon the evidence I have heard today, I haven't heard
8 there is any significant environmental threat to the area
9 that they're seeking the one-time testing access to, and I
10 think that Dr. Dennis has explained that he feels it's
11 essential for him to be able to support his conclusions.
12 So I'm going to grant them the access they're seeking.
13 MR. BURGESS: Your Honor, I would like to draft the
14 language for the transects sampling of the proposed order
15 Paragraph I, submit that Monday or Tuesday of next
16 week. First show it to counsel, and then we'll have that
17 order before you now ready to be signed.
18 HEARING OFFICER MENTON: Okay.
19 MR. GREEN: Can I make a statement for the record,
20 Your Honor. We concur with your ruling, and just for
21 clarification, I would think it should be stated that the
22 Marjory Stoneman Douglas Act requires the SWIM Plan that
23 develops strategies to restore hydro-period because
24 the legislature recognized that hydro-period is one
25 of the major perturbing influences in that area.
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1 In the spirit of the earlier discovery testimony that
2 you have heard in earlier hearings, we have not assumed
3 that this is a trial on the merits. We absolutely
4 disagree with Dr. Maffei's characterization of the
5 causation --
6 HEARING OFFICER MENTON: I understand.
7 MR. GREEN: -- and we'll bring in testimony to that
8 effect. And it's relevant to notice that the settlement
9 agreement which has dictated the parameters of the SWIM
10 Plan ignores hydro-period completely, and I think that the
11 federal position is that water quality is all that
12 counts. We concur with your ruling.
13 HEARING OFFICER MENTON: Well, I understand that
14 everybody has got different positions --
15 MR. FITZGERALD: I'll reserve my statement for the
16 record. You can imagine what it would be.
17 MS. PONZOLI: Well, I would just say that the
18 settlement agreement speaks for itself, and it does
19 address hydro-period.
20 MR. FITZGERALD: As does the SWIM Plan.
21 MS. PONZOLI: I would be happy to point that out to
22 Mr. Green if he has a copy of it.
23 HEARING OFFICER MENTON: All right. Let's take
24 another five to ten minute break before we start --
25 MR. REID: I thought a lunch break before we started
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1 the next --
2 HEARING OFFICER MENTON: We can do that if you want
3 to. I know that a lot of you people from out of town want
4 to --
5 MR. REID: Change flights, can't go back until 5:00
6 anyway.
7 HEARING OFFICER MENTON: Do you want to take a lunch
8 break? Okay. See if we can do it in 45 minutes.
9 (WHEREUPON, A LUNCHEON BREAK WAS TAKEN AND THE
10 HEARING RESUMES AS FOLLOWS:)
11 HEARING OFFICER MENTON: Okay. I think the only
12 other issue that we have remaining is the motion to
13 strike the allegations regarding the federal litigation;
14 is that correct?
15 MR. REID: Yes, sir.
16 HEARING OFFICER MENTON: Okay. There is one other
17 matter that did come up. The petitions challenging the
18 permit have been filed over here at this point.
19 I had the unfortunate experience of walking into my
20 office and finding them on my desk this morning.
21 MS. KAVANAUGH: And it hasn't closed yet. Today is
22 the last day of the notice.
23 HEARING OFFICER MENTON: And I don't know if
24 anybody, and I'm sure it's not ripe at this time to give
25 it any thought as to how it's going to affect this
149
1 proceeding, but I did want to throw that out that they are
2 here, and it maybe and issue that we want to take up at
3 our next hearing as to what we intend to do about that and
4 whether it might be better to get it to another hearing
5 officer.
6 But anyway, they are here, and I would welcome the
7 comments of all parties at the next hearing as to what
8 they think is the best way to proceed.
9 MR. R. SMITH: I think they obviously should be
10 consolidated.
11 HEARING OFFICER SMITH: Okay. I know the statute has
12 that provision and we have talked about it in passing
13 several times, and I will just be curious to hear what
14 everybody has to say and I'll evaluate it.
15 On this federal issue, before we get into
16 major arguments on this, let me see if I can give you some
17 of my thoughts on these matters and maybe frame some
18 of the issues, at least, as to how I would like to have
19 them addressed.
20 Obviously I'm not involved in this case on the
21 day-to-day basis with the same history that all of you are
22 involved in it, so my knowledge about what transpired in
23 the federal case and, you know, who sued who and who did
24 what to who and when and all that is limited to what I
25 read in the pleadings that are filed before me as part of
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1 this proceeding.
2 I think that's probably good and bad in some ways. I
3 think I come to this case with a clean slate, you know,
4 without any preconceived notions as to who's right
5 or who's wrong or who's doing what to whom. So in that
6 regard, let me make it clear in terms of the settlement
7 itself that took place between the federal government I
8 feel no coercive effect at all as to how it's going to
9 influence me or impact my assessment of the evidence that
10 I will hear as part of the final hearing in this case.
11 I don't intend to concern myself with, you know, a
12 lot of the nuances of what may have taken place
13 beforehand because I think my role, as ill-defined as it
14 may be in the statute, is still relatively clear that
15 I'm here to serve as we discussed last time in the burden
16 of proof proceeding that I'm here to serve as fact finder
17 to resolve disputed issues of fact and to prepared a
18 recommended order to go back to the Water Management
19 District on the various issues the parties have placed
20 before me.
21 So having said that, let me give you some general
22 notions that I think have hit me as I read all of the
23 pleadings that you have filed. As I understand the
24 process, the United States Government sued the South
25 Florida Management District which denied that it was
151
1 failing to protect the Park and Refuge and that at some
2 point in time after a great deal of litigation the South
3 Florida Water Management District agreed to settle that
4 case.
5 At this point don't know exactly what took
6 place to prompt that settlement. I have some general
7 notions again from the pleadings that have been filed.
8 But there are a whole range of positions that have been
9 voiced in the pleadings that I have seen. I think on the
10 one hand there has been a suggestion that maybe the Water
11 Management District determined that the science that was
12 proposed by the federal government may have been better
13 and they decided to go along that course. Or maybe it was
14 because South Florida Water Management District experts
15 were doing their own study and reached the same
16 conclusions and decided to go along.
17 On the other hand, you know, it may be because
18 the Cuban government came in and bought out the South
19 Florida Water Management District to put all the Sugar
20 Cane people out of business so the Sugar Cane crop, you
21 know, sells for more. I don't really know what prompted
22 the settlement, and I'm not at this point clear as to how
23 that all interplays within the context of this proceeding.
24 I do think that the petitioners have the right
25 and the opportunity in this case to prove that the science
152
1 that underlies the premises in the SWIM Plan and in the
2 settlement agreement or whatever science that the federal
3 government had to initiate the initial federal lawsuit was
4 brought. I think that's one of the main issues in this
5 case. I think they have the opportunity to do that.
6 I think they also are entitled to explore the reasons
7 why South Florida Water Management District decided to
8 change its mind. It's clear there was a very abrupt
9 change in course and that resulted in the SWIM Plan that's
10 before us here today. I think that those issues are a
11 pertinent factor for inquiry in this case.
12 Now having said that, I don't -- well, I recognize
13 that there are some very very difficult issues that come
14 into play in terms of attorney-client privilege, in
15 terms of discovery regarding settlement negotiations, et
16 cetera. I have some concerns that the relief that is
17 sought by the Water Management District in terms of a
18 blanket prohibition on any inquiry into the settlement
19 process or discussions is simply not tenable given the
20 history of this case and everything that has transpired.
21 As I indicated, I think that the process by which the
22 final SWIM Plan was adopted and the conclusions
23 were adopted as the conclusions of the Water Management
24 District is a pertinent area of inquiry. I do think --
25 well, I guess those state some of my general issues
153
1 and I'll give each of you an opportunity to respond to
2 them.
3 I think that we are in a fairly unprecedented area.
4 I've read a lot of the cases that a lot of the parties
5 have cited, and I don't find that I get any clear
6 direction from any of them, so we're sort of in an area to
7 a certain degree and I don't know how else to address it
8 except perhaps on piece meal basis if there are particular
9 instances where there is harassing of witnesses or inquiry
10 into areas that clearly are within attorney-client
11 privilege, then we may just have to deal with those on
12 a piece-by-piece basis.
13 But I have a serious doubt that we can really deal
14 with it in terms of blanket prohibition on any inquiry as
15 to how the South Florida Water Management District came to
16 the conclusions that it came to. So having stated that,
17 and again I want to reiterate again some of the
18 comments that I made in the first hearing that we had in
19 this case, that I do not view this case as a hearing on
20 the federal jurisdictional issues that were involved in
21 that initial lawsuit. I, you know, I don't know, I don't
22 know how that all comes into play.
23 I mean I think you can make those arguments, those
24 legal arguments wherever you feel is appropriate, but I'm
25 not here to decide whether the federal court has
154
1 jurisdiction. I also have a hard time understanding how
2 the politics of the whole settlement process are
3 necessarily pertinent to what I have to decide.
4 And, you know, again I'm not going to tell anybody
5 how to try their case, but I think it's important for
6 everyone to keep in mind some of the factors we talked
7 about earlier that this is an expedited proceeding.
8 Everybody needs a reasonable opportunity to put together
9 their position and present it at the 120.57 hearing.
10 This proceeding is going to end, discovery is going
11 to cut off. It's not going to be an unlimited --
12 MS. PONZOLI: You promise.
13 HEARING OFFICER MENTON: I hope. It's not going to
14 be -- you know, you may continue to fight this, you know,
15 forever and ever in some other form, but it's not going to
16 be before me forever and I'm going to make sure that it's
17 not because I'm going to move it within the speed that I
18 think is appropriate.
19 I think that everybody needs to recognize this is
20 a very important opportunity to present their position
21 and present why the SWIM Plan is correct or why it's not
22 correct, and everybody is going to have to make
23 their own decisions as to how they focus their discovery
24 efforts.
25 And just in thinking about this last night, in
155
1 terms of all these federal litigation issues, I have a
2 hard time sitting here today how if I found out the
3 evidence is persuasive regarding the underlying
4 conclusions in the SWIM Plan, I find it hard to understand
5 how the process by which they came to those conclusions
6 is necessarily going to be pertinent in the overall scheme
7 of things.
8 Again, I'm not trying to prejudge anything, but it
9 seems to me that, you know, everyone needs to take a
10 pretty clear -- well, take their best shot because this is
11 their opportunity to take their best shot at the SWIM
12 Plan, and I'm going to give you that shot. And I'll sit
13 here and listen to all the pertinent evidence, but I would
14 ask that we not spend a whole lot of time on extraneous
15 issues and that we don't -- you know, I think it's going
16 to run up the cost on everybody and make this whole
17 process even more unmanageable than it probably already
18 is.
19 All right. Having said those thoughts, let me give
20 each of you an opportunity to respond. And, Mr. Reid, it
21 was your motion.
22 MR. REID: Yes, sir. Well, first of all, I
23 appreciate your comments because it does limit or focus a
24 little bit on what I would like to say. And I really
25 would like to begin by taking issue with one thing that
156
1 you said, and I think this sort of, this defines what
2 we're talking about here.
3 You said that you felt that the petitioners have the
4 right to prove the science is bad or wrong, and you said,
5 I thought, that the science underlying the SWIM Plan
6 or the settlement agreement is bad. And I would agree
7 with part A and disagree with part B. And I think that's
8 our difference.
9 And I want to steal an analogy that one of my
10 colleagues here used earlier somewhere, and we have argued
11 this same point a lot of times before. If somebody came
12 into -- a crazed gunman came into the Water Management
13 District one day and put the gun to the director's
14 head and said, I want a SWIM Plan. It's got to have this
15 criteria and so forth. This has got to be what -- it's
16 got to have these standards and limits and so forth,
17 then I'll be back in a week and you better have it.
18 So the director goes and pulls together scientists
19 and they look at it, and they suddenly about Thursday say,
20 you know, he's right. This is really something we ought
21 to do and this science looks solid, and this is what it
22 ought to look like. And that became the agency action.
23 Then we end up in front of you hearing that.
24 It doesn't matter that they started because some
25 crazed gunman came in with a bullet, putting his gun to
157
1 the head of the director. What matters and what you have
2 to decide is whether the science is right, whether our
3 conclusion support. And that's been our position
4 throughout. And this issue of the settlement agreement,
5 this overall issue, has become sort of symbolic of that
6 disagreement.
7 We started with these massive across the board
8 attacks on the SWIM Plan which are contained in the
9 petitions. Now there have been some limitations, you know,
10 as things got hot in the kitchen sometimes, you know, like
11 the M word suddenly got dropped from the petitions. So
12 we're sort of going through a process of focusing and
13 narrowing. We're sort of -- and we raised this initially,
14 this motion to dismiss or strike or I forget what we
15 called it in the beginning in reference to the settlement.
16 And you're feeling that you didn't know enough about
17 the case yet to really rule on those motions, and we
18 agreed with that. Now we're at the point where it's going
19 to start becoming important because they're going to
20 start taking depositions of witnesses who had two roles.
21 One role is they were involved in some of the meetings
22 that lead ultimately to the resolution of the federal
23 case, these are employees of the District by and large.
24 The other role is that they're scientists who worked
25 for the District a long time and who actually have been
158
1 involved in the SWIM process before the litigation
2 and after the litigation. They're people upon
3 whose judgment the District relied and board relied on in
4 reaching its result. So we're getting to the point
5 where it's going to become important how we deal with this
6 generic group of issues known as the settlement agreement
7 or the consent decree or the federal litigation.
8 Our feeling is that the science is clearly at issue
9 here and it's going to be judged by you and going to be
10 litigated by the parties, and the scientists are going to
11 be deposed, the people who made the conclusion, and
12 experts are going to be deposed, and we have hundreds of
13 witnesses listed; and the whole process, all the public
14 meetings that went on in the SWIM planning process over
15 the years, all of that is going to be here, because it
16 should be.
17 But what -- and it's interesting because if you go
18 back and I think from combining our briefs, I think you
19 probably have a pretty good idea of the procedural
20 process. There was a settlement that was reached by the
21 litigants after three years of litigation, and it was
22 presented to the federal judge. He had a hearing and
23 ultimately I guess two days we were down maybe three,
24 and he ultimately was concerned about the question of does
25 my ruling have an impact on third parties?
159
1 And the way he resolved that was to make it very
2 clear in his order, and that's been quoted to you, that
3 the administrative process is to go ahead on its own
4 without any effect felt by what I do. And, in fact, the
5 language, he added two paragraphs to the settlement
6 agreement to make sure that was clear and that language,
7 if you went back and read, you find out that that language
8 came from papers that the settling parties filed
9 encouraging him to include that language because nobody
10 intended that the settlement agreement would bind third
11 parties.
12 The interesting thing is the farm interest in that
13 hearing, their primary concern was that the settlement
14 process would somehow affect their rights in the
15 administrative action. But now they're the ones that
16 want to get into the settlement process -- bring the
17 settlement process into the administrative action. There
18 has been a switch.
19 Now essentially they claim that the settlement
20 agreement is relevant because it's evident that the SWIM
21 process, the SWIM Plan, is not supported by valid
22 scientific evidence, and therefore, they're entitled to
23 look into the settlement process. And they've told you in
24 their papers that they want to look into such things as
25 part of this and they think this is relevant and this is
160
1 their reason for wanting to go into the settlement
2 process.
3 They want to establish the economic burden of the
4 federal litigation on the State of Florida. They want to
5 litigate and have discovery on the federal presence
6 physically at the South Florida Water Management
7 District and otherwise. They want to go into the federal
8 common law nuisance claim. They want to go into whether
9 there was any evidence, whether the District had any
10 evidence to defend claims that a 1984 memorandum of
11 agreement regarding the National Park of whether there was
12 any evidence to defend that claim.
13 They want to go into things such as the dynamics
14 and stages of the federal decision to seek adjudication of
15 numeric limits. They want to go into the question of
16 whether or not, whether we should have contested the case
17 or controversy jurisdiction of the federal court. They
18 want to, in this proceeding, they want to go into the
19 settlement agreement to talk about whether the technical
20 oversight committee, how that came about and the
21 drafts and so forth and what it looked like in the various
22 drafts.
23 They have got 11 or 12 things listed in their papers.
24 That's what they want to do. They want to open this up
25 because in effect -- now I said in my papers that it's not
161
1 proper to have a collateral attack on the settlement
2 agreement in this proceeding, and their response was we're
3 not asking the hearing officer to declare the settlement
4 agreement as void. But in effect they want to go into
5 this whole process. And in effect it is a collateral
6 attack of the settlement process.
7 Now I just want to keep reiterating there is nothing
8 to stop them from going into the science, but how the
9 District got there to that point, and they can certainly
10 question any scientist at the District and say, you know,
11 on his opinions and why is this in the SWIM Plan and
12 things such as that, and they determine if the science is
13 good or not.
14 You said, for instance, they can deal with why they
15 changed their mind. I guess I would say they can deal
16 with why we did what we did; whether it's change of mind
17 or not, doesn't really matter. What we did, we adopted a
18 SWIM Plan. Now the fact that it differed from earlier
19 SWIM Plans they can certainly question why, if there is a
20 scientific basis and what is the scientific basis. And
21 all through their papers you see and their relevance
22 arguments, they are trying to use the federal litigation
23 matters.
24 For instance, they quote extensively from the 11th
25 Circuit opinion which said that the federal action was in
162
1 effect SWIM planning, and that they were allowed to
2 intervene because the federal judge was going to set water
3 criteria -- water quality criteria. Well, what they
4 don't tell you is all that was done before the settlement.
5 When the settlement agreement came down, the purpose
6 of the settlement agreement was so that the federal court
7 would not do any of that and you would be doing that, the
8 state administrative process. So my point is, all
9 throughout their papers they keep going back and saying
10 because of the way the 11th Circuit characterized the
11 federal litigation that makes it relevant in this case,
12 because the 11th Circuit said the federal litigation was
13 nothing more than state ruling making or state regulatory
14 action being carried on in federal court improperly;
15 and therefore, if you're going to do that, you have to let
16 them in.
17 Well, that's what the 11th Circuit said. But the
18 point is the settlement agreement, Judge Hoeveler, the
19 one that was entered says the opposite. It says I'm not
20 going to do all this. I'm going to make sure that it goes
21 back to the state. Now this same argument, it's a drastic
22 thing perhaps to make a ruling like this about discovery,
23 but unfortunately that's what judging is all about
24 sometimes because we're at a point where this is a
25 significant issue in this case; whether or not they should
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1 be permitted to go into this settlement.
2 I think one of the things you should consider is
3 whether any of this is being litigated anywhere else.
4 They're not without a remedy. The rule changes on the
5 BMP'S in DOAH, that issue was raised, the issue of whether
6 the federal settlement was appropriately done. That's on
7 appeal as we speak.
8 There was a demand made and DER, and a demand
9 made at my client, the District, for an administrative
10 process a point of entry at the time of the approval
11 of the settlement agreement. It was denied. The First
12 District has as I understand with regard to DER has
13 said that's proper. It's been argued in the 4th District
14 regarding the District and there is no ruling yet.
15 There is a Sunshine case that we talked about this
16 morning, and I can tell you from sitting through
17 deposition last week of general counsel about the
18 settlement agreement. And if I brought the documents in
19 and showed you what they were asking, they want to know
20 who was on this committee, and who was on that committee,
21 and what science are you talking about, and was that an
22 alternative considered, and why didn't you consider it.
23 That deposition is exactly the abyss they're trying
24 to get us into in this case with every witness that had
25 anything to with the settlement agreement, so I'm
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1 suggesting you have to draw a line. It's being litigated
2 in the Sunshine case. It was litigated in front of
3 Judge Davey, a specific claim that raised the federal
4 constitutional problems claiming that the District had
5 violated the rights and so forth by settling. That was
6 dismissed by Judge Davey, and that's on appeal now.
7 It was presented in this case at the very beginning,
8 that was dismissed. And there was an attempt to have a
9 stay, and as I understand it that's been denied by -- I
10 lose track of the district. I think that was in the 4th
11 District. Certainly the jurisdictional issue and the
12 fairness of the settlement agreement and how the
13 settlement agreement came about, that is on appeal in the
14 case of the settlement agreement, Judge Hoeveler.
15 It's not -- the 11th Circuit there is not just
16 considering the jurisdiction. It's considering
17 fairness and all the other things. In other words,
18 the whole settlement process is being litigated. That's
19 about eight or nine, eight or nine situations where all of
20 this is being discussed, is the settlement agreement
21 valid or not, and maybe they'll get some judge someday to
22 say it was, and then we'll have to deal with what
23 effect that will have.
24 But the point is, that's not something that ought to
25 be done in this case under the guise of saying because the
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1 settlement agreement looks like the SWIM Plan. Well,
2 there's a reason for that. And if you read the Marjory
3 Stoneman Douglas Act you'll find out. The reason is the
4 settlement agreement came about after the legislature
5 unanimously passed the Douglas Act in effect giving a
6 blueprint for how this case needed to be settled. And it
7 was settled along the lines of the Douglas Act. So, of
8 course, it looks like that.
9 Now as you go along, you get more flesh on the bones,
10 as you go through the Douglas Act to the ultimate SWIM
11 Plan they say it looks the same, so therefore, this case,
12 we need to go back and do that. I guess my final
13 point just is that while I agree with virtually everything
14 that you said when you went through the general
15 principles, that they can attack the signs, and we're all
16 going to litigate about that. They can -- you know, there
17 is no dispute about any of that.
18 The dispute here is having something called the
19 settlement agreement consent decree or the federal
20 litigation, and it opens the door. And it's not just the
21 attorney-client, there is some attorney-client problem.
22 And it's not just the settlement, the cases that
23 prohibit settlement. There is some of that there, too.
24 I'm not saying everything is -- by saying everything would
25 fall under the settlement rule.
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1 What I'm saying is all of this falls under the
2 general idea of looking at how we got to the point
3 where we started, and that's not the point. As long as
4 they get an opportunity to fully and fairly litigate the
5 science that's in the SWIM Plan, and the SWIM Plan has
6 pages of bibliography, all of the supporting
7 documentation, all of the people that are involved in the
8 SWIM Plan are written down right there, and they're going
9 to get a chance to go after them, and they were following
10 the process all along with public records request and all
11 that.
12 Now they come in and say they want to get into all
13 these collateral issues, and they should be allowed to
14 litigate about the settlement agreement. I'm saying the
15 only way to cure this problem is to say, to make a blanket
16 ruling. Now I understand that's a heavy burden to come
17 into a court and say you need to have -- we need to have a
18 ruling right now in discovery because I mean judges always
19 say, well, it's discovery.
20 But the difference here is that the settlement
21 negotiations that went on, that's going to require a whole
22 new area of discovery in this case that this case doesn't
23 need because we're going to be doing it about the science
24 anyway.
25 HEARING OFFICER MENTON: Well, don't you agree
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1 though with what I said earlier that the petitioners have
2 a right to examine or explore how the conclusions
3 were reached and how the decision was made to incorporate
4 maybe certain scientific studies and maybe disregard
5 or ignore others?
6 MR. REID: They can ask witnesses that.
7 HEARING OFFICER MENTON: And isn't that -- or
8 couldn't that very likely be tied into the settlement
9 process to some degree? And how can I do a blanket order
10 like you say that wouldn't preclude inquiry into those
11 areas?
12 MR. REID: Because you see if you have a blanket
13 order -- what they're really looking for is not just that
14 question. It's who's on the settlement committee, who
15 gave you the authority do it.
16 HEARING OFFICER MENTON: But why isn't that
17 relevant? I mean don't they have a right to know, I mean,
18 how those decisions were ultimately made, who made the
19 policy decisions to go one way instead of another?
20 MR. REID: They have the right to look at the SWIM
21 Plan that they've challenged and talk about that; and if
22 the answer is I made that decision because someone stuck
23 the gun to my head, then they're probably going to win.
24 There probably is no science to support it. But if they
25 made the decision because I went out on my own and read
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1 all these articles and did all this testing, then that's
2 another thing.
3 See, I draw that example of the gun because that's a
4 very, I think clearly draws the bright line here. It
5 doesn't matter why. If it's because they were being sued
6 by the federal government, because they didn't want to go
7 to any more depositions, any of that doesn't -- none of
8 that matters. Because if that's our only basis, there is
9 going to be no science. But if there's science, even if
10 we adopted, if we adopted the right science for the wrong
11 reason, that doesn't matter. That doesn't vitiate the
12 SWIM Plan, and that's the --
13 HEARING OFFICER MENTON: Well, I understand what
14 you're saying. But I guess the point is that they're
15 entitled to inquire as to who made those decisions and,
16 you know, how they ended up where they did.
17 MR. REID: If they say 50 parts per billion, how did
18 you decide that? Well, somebody on the federal government
19 said they thought that was a good number. Okay. We're
20 not going to win. There has got to be science. Well, if
21 they say I've decided 50 parts per billion because of
22 this study or that study or my experience or my reading
23 or whatever, they can ask about that.
24 But my point is you see, if you rule against us on
25 this, if you say I'm going to let you go into this, then
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1 what happens is it's not limited just to what science did
2 you base it on. It's, you know, what coercion
3 were you under? Why didn't you raise jurisdictional?
4 Why were you negotiating in secret? See, they're
5 claiming they have a whole lawsuit claiming should have
6 been done in public.
7 HEARING OFFICER MENTON: I don't disagree with you
8 that some of the areas that you cited on that list, I
9 don't know what you were reading from, but some of those
10 seem to be beyond what I think is within the scope of this
11 proceeding. But I don't know how I can on a sort of
12 blanket level like you're asking me at this point say, no,
13 you can't inquire into the process by which the
14 determination was made to shift from one position which
15 was advanced in the federal litigation to another position
16 which is set forth in the SWIM Plan.
17 MR. REID: You can certainly ask that question and
18 the witness will give that answer.
19 HEARING OFFICER MENTON: Right. And that's why I say
20 I think they're entitled to inquire into that.
21 MR. REID: But to go into the settlement process as
22 you heard this morning, they're listing the lawyers as
23 witnesses in this proceeding because that's what they want
24 to do. So I would submit that the way to handle it would
25 be rule that nothing about the settlement agreement is
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1 going to be relevant, and then if things come and we take
2 the position that this question is covered under that
3 ruling, then you have a chance to decide if that's right
4 or not.
5 In other words, take a hypothetical, if you made that
6 ruling, and then they come in and they said did anybody
7 from the federal government tell you to do this, or we'd
8 say that's excluded, they can come in and say that it's
9 not, and they can get a chance. But if the witness -- the
10 question is, you know, give me the reason you adopted
11 this science, and he says because of this study and this
12 study and this study, it doesn't matter who told him to
13 start with.
14 See, I'm trying to get past any of this thing because
15 it's all inter-related this argument they're making that
16 there was some coercion; that the federal government is
17 somehow holding, you know, they have a knife to our backs
18 or something right now. That's what they want to get
19 into. That's why they list all the lawyers. That's why
20 they are doing all of this.
21 I'm saying that I would submit, make the ruling and
22 then if things get opted out, they get opted out. But if
23 you don't make the ruling, then it's a field day, and
24 there is nothing to suggest from past behavior and what
25 they claim in all these papers here -- I mean, the fact
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1 that they're using the 11th Circuit opinion which is
2 clearly different from what we were -- what Judge Hoeveler
3 ultimately said is evidence that they want to get in the
4 politics issue as you call it of the settlement agreement;
5 why did you do it, what committees did it and so forth?
6 The SWIM Plan is all there, and it was -- the ultimate
7 SWIM Plan was all done in the public.
8 HEARING OFFICER MENTON: Okay. Well, let me give
9 them an opportunity.
10 MR. REID: Okay.
11 HEARING OFFICER MENTON: Mr. Smith.
12 MR. T. SMITH: I'm going to throw out most of my
13 argument and zero in on what I think answers your question
14 your concern was directed. I would distinguish between
15 subject and motive and objective and reason. We can adopt
16 bad laws with perfectly good motives, and by the flip of
17 the coin we can have perfectly bad motives and still
18 end up with good law or good rule. Not that I'm
19 suggesting that it's bad in this case, but I'm suggesting
20 it's totally irrelevant.
21 I cited to you and quoted to you from the cases the
22 last time. I'm prepared to do it again, but I would
23 just like to explore that a little bit more. Everybody
24 here is assuming that the science either is all in favor
25 of the SWIM Plan or is all against it. I guess if we
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1 start questioning that we wouldn't say that, but that's
2 what this discussion seems to presume.
3 The science very likely could support any
4 number of regulatory positions as is usually the case when
5 doing a permit, doing a plan, doing a rule. The agency is
6 acting here, is exercising its discretion in making a
7 choice and has a number of choices to make. It can look
8 at any number of possibilities. It chooses one that is
9 supported by evidence.
10 If it is supported by evidence and if the proper
11 procedures have been followed, which are spelled out
12 here in Chapter 373 and now in 120, this is where we are
13 in these procedures, then the plan is valid. Or if we
14 were doing a rule, it would be valid. As Hearing Officer
15 Kendrick ruled, at least on the constitutionality issues,
16 I've got to look at the issues before me and what I have
17 jurisdiction to cover, and he dismissed the constitutional
18 claims that were challenging the BMP rule.
19 And then they voluntarily dismissed the only claim
20 that really only reached the merits, so we never had a
21 chance to get the hearing officer, to allow the hearing
22 officer to write a final agency order and so forth. But
23 here there has been a big claim made that, you know, there
24 is a coercive effect to the settlement agreement in the
25 federal litigation because you don't write the final order
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1 in this matter.
2 But there is a well-settled principle of law as it's
3 stated in Chapter 120 that your findings of facts will be
4 binding on us and on the District unless we can review the
5 entire record and find no substantial competent evidence
6 whatsoever to support it. Going back to my motive versus
7 reason distinction, if the evidence could support a
8 number of decisions it doesn't matter that we chose only
9 one of them.
10 Our burden isn't prove that this is the only right
11 SWIM Plan here that could haven been chosen. It isn't
12 even to show it's the best SWIM Plan that could be chosen.
13 It's to show that each of the required elements of
14 Chapter 373 that apply to this SWIM Plan were, in fact,
15 met, that they are there, and that a rational basis
16 exists for each one of them.
17 We may have the preponderance of the evidence burden
18 to show that, but that's all we have to show. We don't
19 have to show that it's the very plan and that if there is
20 some science that's against it here and some science over
21 here that's in favor of it, that, wow, it goes out the
22 window at that point; nor do we have to show whether these
23 guys, whether there was a meeting in a room in Miami to
24 settle the lawsuit or not, or whether they're out on a
25 cruise ship in violation of Chapter 112, whatever.
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1 We don't have to show that those things -- it would
2 be irrelevant, those violations if they ever existed. If
3 they had motives, if they ever existed, would be
4 irrelevant, even if we were to assume they did exist, they
5 just don't matter. What is before you is a Plan under
6 Chapter 373, a set of items that have to be there, and
7 then inquiry into the science to support those items. And
8 I completely agree that the reasons have to be dealt with
9 and they should be able to ask all the questions about our
10 reasons.
11 Why did we change our mind? That's a little bit,
12 for me, that's a little slippery a phrase for me. To me,
13 if you're talking about motive, it's irrelevant. They
14 don't have the right to ask whether they changed their
15 mind because of bad motive, but they do have the right to
16 ask about all the studies done or any other reasons that
17 they had for adopting this particular policy. Of course,
18 they have the right to ask who made this decision. Of
19 course, they have the right to ask him or her why did you
20 make that decision. But to get into where you were when
21 you made that decision, who else was sitting with you at
22 that time, were you talking about settlement, did you feel
23 coerced, all that sort of thing asking into the subjective
24 motive seems to me totally immaterial to this proceeding.
25 The League has said that the reason it's raising this
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1 issue is to show that the SWIM Plan is not supported by
2 valid scientific evidence, but rather represents the
3 end result of secret negotiations between the District, et
4 cetera. I noticed one of the attorneys over there at
5 least shaking his or her head when Mr. Reid brought that
6 up before so I thought I'd mention it again. We can
7 quote it if they would like.
8 I would submit that the first part of that is right
9 on point. If they want to show that it's not supported by
10 valid scientific evidence, ask away. That's what we're
11 supposed to be doing right now. But when they say, but
12 rather represent the end result of secret negotiations,
13 where in Chapter 373 is that? Where is there anything
14 that says that we have to look at whether there were
15 secret negotiations or not, or whether there was a federal
16 litigation, some collateral litigation before this
17 occurred?
18 It's like rule making. Every day almost I see
19 something coming across my desk about a proposal for rule
20 making. As a deputy in charge of all the water programs,
21 I see the rule making concepts and proposals constantly.
22 Do all of those make the subsequently rule making invalid
23 because there is some sort of initial decision, or because
24 a decision is made in the rule review committee, which
25 you probably never heard of, internal committee, and
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1 reviews all this and decides we're not going to have a
2 rule today but opt for rules that make some sense and are
3 needed to actually to do some good for the environment?
4 Are they all in some way tainting the process on down
5 the line? Are they violating the Sunshine law because
6 they're secret and not publicly noticed at that time?
7 Turning to a permit decision, is every permit decision
8 that's made, every set of negotiations between a permit
9 applicant and the agency, are all of those subject to
10 the Sunshine law? Do we have to look into those and look
11 into the motive of the regulatory decision when we go to a
12 permit proceeding? I submit that's not the case.
13 We don't want to get into such a nightmare of
14 an overlayer kind of regulation that says everything must
15 be, you know, out in the public and every motive,
16 everything has to be looked at. There are cases that we
17 have cited in our prior briefs and brought before you in
18 June at least which say that motive is irrelevant to
19 legislative decisions. In two decisions where zoning
20 decisions would be made, in one case DRI decision was
21 being made, it's even arguably quasi judicial because it's
22 particular people, particular applicants whose rights are
23 being affected as opposed to a more blanket, more umbrella
24 kind of decision such as the SWIM Plan is which affects a
25 large number of people, thousands of farmers.
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1 And I realize that there is an argument on the other
2 side that the SWIM Plan is said by the act to be an order,
3 but that doesn't automatically make it quasi judicial just
4 because it's said to be an order. But what that did was
5 make it subject to 120.57 as opposed to 120.54. It
6 doesn't get you to necessarily quasi judicial proceeding
7 in a sense that motive suddenly because relative.
8 Motive is not in 373. Motive is subjective, motive
9 is slippery, and motive isn't going to get us anywhere in
10 this proceeding. The need for a decision from you is to
11 try to cut down on all the wasteful proceedings that we're
12 facing, some 300 depositions. If you tell me that you're
13 going to put some sort of pressure on us to prune those
14 down to 200, I say good. But I remember when I was a
15 little kid I was buried under 25 boys and I noticed that
16 after about eight I couldn't even feel the difference.
17 I'm so far under the big pile of paper at this point
18 and the plague of depositions, a few more won't make
19 any difference. I'm still as incompetent and ill-prepared
20 to handle them I can't do it. But when I'm in a
21 deposition defending my own deponent and he or she is
22 being asked these improper questions, I have to raise
23 these objections.
24 I have to put myself on the line in a way I really
25 never had to before in any proceeding. I know I'm
178
1 facing this in countless depositions again and again.
2 It's going to happen where I'm going to face the decision,
3 do I instruct this person not to answer or not. That's
4 why we need some sort of guidance from you to say that the
5 settlement agreement per se is not relevant or material in
6 these proceedings; the science is.
7 If that science was discussed during settlement
8 negotiations, fine, ask about the science, don't ask about
9 the secrecy. Don't ask about the settlement per se.
10 Don't ask about the federal litigation per se. With that
11 kind of guidance, I can make my objections and I don't
12 think it will lead to a lot of arguments. It will just
13 be, okay, I'll phrase my question in a different way.
14 They can still get every bit of information they need
15 to verify whether this SWIM Plan is valid or not. That's
16 all they have the right to, I would submit.
17 HEARING OFFICER MENTON: Okay.
18 MR. T. SMITH: Thank you.
19 HEARING OFFICER: Ms. Ponzoli or Mr. Fitzgerald, do
20 you have anything?
21 MS. PONZOLI: I think I'm going to defer to the
22 petitioners to get off of their chest what they have to
23 get off of their chests.
24 HEARING OFFICER MENTON: I think they're getting
25 anxious over here.
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1 MS. PONZOLI: I would like to reserve one minute if I
2 may.
3 HEARING OFFICER MENTON: Okay. Mr. Smith.
4 MR. R. SMITH: Mr. Hearing Officer, you're going to
5 be under the law of Florida, under the APA law on two
6 tracks. One tract you're going to be concentrating as
7 to show great purpose in doing upon finding out what the
8 facts are, what to be handled as a matter of fact, what
9 can be handled as matter of critique of proposed agency
10 policy, what can be handled as a matter of interpretation
11 of law, the traditional honorable role of the Division of
12 Administrative Hearings in a conventional agency action
13 case.
14 And if this were that kind of case alone,
15 your introductory remarks, which they did not offer
16 any reason to vary, would hold we would be entitled to ask
17 why did you change your mind. Give us a good reason. We
18 want to prove to the hearing officer, if we can, that you
19 didn't have a good reason. That's the difference between
20 us and a county commissioner voting on a zoning.
21 In the Division of Administrative Hearings under
22 McDonald and the whole progeny their reasons are
23 fair game, their reasons are what we're here for. Did you
24 have good reasons? Good reasons in facts, good reasons in
25 policy, good reasons in interpretation, good reasons in
180
1 strategy, good reasons in law; all those good reasons, bad
2 reasons, indifferent reasons are up for grabs. If there
3 were no constitutional overlay here, we would ask all the
4 questions about their reasons.
5 And so Mr. Smith's dichotomy is a good one for you to
6 hold in mind, and that's what I mean by two tracks. He
7 says, let's have them ask your reasons on the science, but
8 let's don't have reasons, let's don't have you ask about
9 the elements of coercion by the federal litigation,
10 or the elements of collaboration by the agencies in giving
11 away their sovereign state functions. That's what I mean
12 by two tracks.
13 I want to say to you, sir, that this idea of yeah,
14 yeah, yeah, and who shot John is not my style, and I think
15 it would be deadly if you tried to get in to figure it
16 out, why the 11th Circuit refused to let us raise the
17 jurisdictional points, why Judge Hoeveler refused to, and
18 why these people succeeded before Judge Davey saying, you
19 ought not to decide this. They've got an administrative
20 remedy before the Division of Administrative Hearings.
21 We have that on appeal. And why they said to
22 your colleague in the BMP rule this is not an
23 appropriate thing for final order, a final order by
24 the Division of Administrative Hearing Officer; therefore,
25 it ought to be dismissed. And we've got that on appeal.
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1 We came to you last, sir. We asked Judge Hoeveler to
2 let us argue the constitutional points. He said, go away.
3 Why do I want to listen to you when I've got these people
4 agreeing that I've got power to influence this thing.
5 We've asked Judge Davey and he says exhaust your
6 administrative remedies. Go to Mr. Menton. Go to the 4th
7 District Court of Appeals on a record that Mr. Menton is
8 obliged to let you prepare to support that constitutional
9 argument. We came to you last, sir. We know what you
10 want to do with this case.
11 We asked you to stay this whole thing while we sorted
12 it out, didn't we. We said, stay this and that will give
13 us a chance to get some Article Five court in the
14 state system or some Article Three court in the federal
15 system to decide this thing and the coast will be clear
16 for DOAH to do its thing. You denied the stay saying you
17 didn't think you had that power, and we took it up to the
18 4th DCA saying as a matter of law hear us now, hear us,
19 decide this, clear this away. Either we're right and the
20 only question is what's now to be done with this SWIM
21 Plan. Or we're wrong and Mr. Menton has the coast clear
22 to do the conventional thing.
23 And they said, without argument they said, come back
24 and see us when you have a final order. They didn't say,
25 there is nothing to your argument. They didn't say the
182
1 state courts can't do this, the federal court proposition.
2 It said, brief little line said, it's cited to a case
3 we're not persuaded you won't have a remedy with us, the
4 4th DCA on appeal from the final order.
5 That's a clear signal to the Division of
6 Administrative Hearings that what kicks in here are the
7 cases that I've cited in my brief that it's your
8 obligation, sir, to give us latitude to develop on this
9 record whether we can persuade you later or not to make
10 findings of fact upon those unfamiliar issues, to let us
11 make a record on which to carry this constitutional
12 case. So I accept the burden of Mr. Smith's dichotomy who
13 I think absolutely refuted what my friend Mr. Reid said.
14 Besides, this is two different things. It really is.
15 I recognize the logistical problems of you doing two
16 different things at the same time. I want to tell you
17 that I am in complete sympathy with it. I wish we weren't
18 here having to do this. I wish they hadn't persuaded
19 these courts that this was the place to do it, and I can
20 tell you that temperamentally that I'm so unsuited, and
21 this is my baby. This business of this constitutional
22 thing is my baby and I'll be running it, and I am unsuited
23 to harassing haranguing depositions.
24 I'm unsuited to it and I can't do it well, and I
25 won't do it at all. And if I get some forthright
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1 production of documents and answers to requests for
2 admissions, if I take six depositions I'll be surprised.
3 I'm going to try to show on this record and persuade you
4 later to make findings in respect to it about two things
5 which form the necessary basis for my constitutional
6 argument.
7 One, the coercive effect of the federal courts
8 exercising or purporting to exercise jurisdiction that
9 under McCulloch against Maryland, Pennhurst against United
10 States, Will against the Michigan Police, Atascadero
11 against Scanlon, Sugarman against Dougall, Gregory
12 against Ashcroft, and New York against United States, it
13 doesn't have. The settlement agreement is got to be based
14 upon litigation of which the federal court had
15 jurisdiction.
16 HEARING OFFICER MENTON: Well, Mr. Smith, let me
17 just interrupt you for a minute. What happens if, even
18 assuming all your arguments and jurisdictional issues are
19 correct and going back to Mr. Reid's analogy that the
20 Water Management District adopted a plan where the science
21 was right for whatever wrong reasons it was, because
22 someone had a gun to their head, or because they were
23 coerced by the federal government, what difference does
24 it make?
25 MR. R. SMITH: This. Let's take the crazed gunman,
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1 let's take the person to whom the county commissioner did
2 a political favor in the rezoning as to which the
3 judicial branch says that's none of our business. You
4 have a political remedy for that. As to the crazed
5 gunman says, well, we're sorry but we're going to presume
6 he acted for the reasons that science supports. The
7 dramatic difference between the crazed gunman and this
8 case is the constitution doesn't protect us against the
9 crazed gunman. The constitution does protect us against
10 the deprivations of the United States attorney.
11 HEARING OFFICER MENTON: But now, I mean, this
12 gets into the issue of the collateral attack of the
13 federal court decision, and that's what I don't want to
14 get into.
15 MR. R. SMITH: Well, nobody is going to ask you to
16 rule that the federal court didn't have jurisdiction. You
17 already said that that's not for you. We recognize we
18 have to take that to the District Court of Appeals.
19 That's the issue we ask you to rule on now. What we can
20 and must demonstrate is the effect of the coercion,
21 because the constitution prohibits the federal government
22 from exercising coercion in litigation of which it has no
23 jurisdiction upon a sovereign state function.
24 We are going to show simply these factors of the
25 coercive influence that makes this different from the
185
1 crazed gunman. We're going to show you that the coercion
2 is going on right now. We're going to introduce, offer to
3 introduce at the conclusion of my argument some evidence
4 that is just one-week old of the coercive effect of the
5 United States upon this agency.
6 All this is necessary to permit the District
7 Court of Appeals to make the decision upon our collateral
8 attack. And how do we get a collateral attack? Because
9 we were denied a full and fair hearing on this issue by
10 the federal courts which deprives it of any collateral
11 effect which obligates under the law of the United States
12 a state court to review the question of the federal
13 court's jurisdiction.
14 All of that is only background for you, sir. It is
15 only information that you take into consideration in
16 judging the potential relevance of the areas of our
17 inquiry because this is, as Mr. Smith says, the
18 science is not going to come in here like Mr. Reid
19 says, either support this or not support this. The
20 science is going to support any number of SWIM Plans, and
21 somebody has exercised discretion, he says. I say, they
22 have had a gun at their head and somebody will exercise
23 discretion and I say they'll have it at their head again
24 when they enter the final order.
25 And so already this proceeding has been markedly
186
1 influenced by what he calls exercise of discretion and
2 what I call the effects of coercion. Consider your
3 own function in this to be as pure as in any ordinary
4 case. When you're making your findings upon the
5 principle issues, of course, you'll make findings of fact.
6 But just think a moment. Can you imagine that
7 your finding is going to be so precise that you can say,
8 well, it ought to be 240 parts per billion phosphorus at
9 the gates of Everglades National Park. Oh, no, it ought
10 to be 50 parts per billion at the gates of Everglades
11 National Park, it ought to be 30 parts per billion at
12 the gates of Everglades National Park, or it ought to be
13 8 parts per billion.
14 Do you imagine that the scientific evidence is going
15 to be so precise as to enable you, sir, to fix upon that?
16 I believe not. I believe you see yourself as looking at
17 this SWIM Plan and what it finds and saying is that out of
18 the ballpark. Your factual findings can only be within
19 ballpark I predict, and the ballpark is the ballpark
20 that's defined the effects of the federal coercion. You
21 can't be responsible for that. I don't know how in the
22 world you can change your factual findings in response to
23 that. But I can certainly object to this proceeding
24 having started out under such an imprudence and proceeding
25 upon an unstated assumption or the irregularity of it
187
1 and ending up with a final order by the people who are
2 here saying we can't prove the undue influence upon them
3 from a 4th Court having no jurisdiction.
4 They're going to have, as Mr. Smith said, a realm --
5 this will be after you've gotten rid of the case and
6 you've gone on to other things, you know there is going
7 to be a final order. The court's great regularity to what
8 the District is going to do, we have to have the
9 means on whatever grounds are available to us to attack
10 that in the District Court of Appeals, unless you should
11 suddenly find here today that this proceeding cannot
12 bear that kind of thing, and you just decide to revisit
13 the question of the stay, hold it all in abeyance
14 until we sort out those collateral influences some
15 place else.
16 So the District Court of Appeals, 4th District, has
17 in effect said what has happened now is that these
18 authorities I cited on pages 12 and 13 kick in the
19 means to present -- obtain and present evidence at
20 administrative proceeding pertinent to relevant
21 constitutional issues that hearing officer cannot decide.
22 The whole business usually has come up under the choice
23 of forum exhaustion of remedies question, do I go to
24 circuit court or do I go to DOAH?
25 You don't have to decide that. All you have to say
188
1 is in consequence of this being permitted to go forward in
2 DOAH and no court having taken it upon itself to decide
3 the issues, you've got to act in response to these
4 authorities and permit the development of that factual
5 record. It's both coercion on the one hand, and
6 it's collaboration and collusion on the other. I think
7 we're going to find that this collusion and collaboration
8 goes back a whole lot further then February of 1991.
9 I think it goes back probably to about November of
10 1989. I don't know. We're going to find out if we can.
11 We're going to try to find out in the most economical
12 least burdensome way possible just for the reasons I've
13 stated, and we're going to try to do it in a way that
14 burdens this proceeding as little as possible.
15 Now what privilege do they have that would prevent
16 us from doing this? The attorney-client privilege
17 is going to be difficult because as you'll see in a
18 moment we've got people who are acting both as attorneys
19 and as agents for the United States. And in these case
20 decisions they have attached to their motion, there is
21 recognition in those class actions in the federal courts
22 that were settled, actions that were clearly within the
23 subject matter jurisdiction of those courts incidentally.
24 No question as to that.
25 The attorneys tend to become the class, the
189
1 plaintiffs. We're going to do our best to decide and
2 identify who aside from these attorneys is the United
3 States who made these decisions, and who is the District
4 who made these decisions. And that's why in our
5 statement of the factual issues concerned with the
6 identification of fact witnesses that we have filed as we
7 said we would in the latter part of October.
8 We said these attorneys who we're listing were second
9 tier people. We want to concentrate on the identification
10 of these top tier people as to whom there is no privilege,
11 and we can find out that they had any knowledge, made the
12 decision, we'll never get below it. But if we don't, if
13 we find the attorneys are acting as the party, as I'm
14 offering to evidence you in just a moment, we're going to
15 have to deal with the attorneys.
16 I think your instinct is right. We're going to have
17 to take that up on a piece-by-piece basis. But in order
18 to sustain their general claim of privilege in which they
19 say to my astonishment that for some unstated time they
20 were aligned together adversary to the farmers at the very
21 same time they were representing to the Court of Appeals
22 that they were align with us adversary to them, and so
23 we're entitled to bind us by waiving the jurisdictional
24 point is the significance of that. Well, you're just
25 going to have to reject that as a matter of law.
190
1 The thing that rejects it is the fact that we have a
2 showing, more than a claim, a showing of a grave
3 constitutional intrusion upon the sovereign state
4 functions of the State of Florida. That's what makes it
5 different. That's why the claim of privilege that they
6 rely upon has a shared common interest not only is
7 defeated by this claim, it actually serves to enhance our
8 claim.
9 We're going to have to find out at what point they
10 identified their shared common interest. I would like to
11 introduce in evidence, sir, I have shown this at the
12 break earlier this morning a fragment of the -- two
13 fragments actually joined together on the same subject of
14 the governing board meeting of the South Water Management
15 District on Thursday, November 12, 1992. This is --
16 MS. PONZOLI: Mr. Hearing Officer, I think it's more
17 appropriate that we watch the whole tape and not some
18 edited version he's going to present.
19 HEARING OFFICER MENTON: I think that's an
20 appropriate request. How long is the tape?
21 MR. R. SMITH: This is one minute. The whole tape is
22 the whole day.
23 MS. PONZOLI: Well, how about the whole speech by Mr.
24 Fitzgerald as opposed to just one minute.
25 MR. R. SMITH: I'll be glad for him to play any part
191
1 of it. The part that I'm interested in and which bears
2 upon this issue. The invitation you're asking now, you
3 see I'm trying to limit this to relevant elements of
4 coercion. They want to go off into the merits of Mr. --
5 HEARING OFFICER MENTON: Okay. I'm going to let you
6 present your part. If there are additional parts you want
7 me to consider, then I'll give you an opportunity to do
8 that.
9 MR. R. SMITH: Do you want to mark this now or after
10 I've done it?
11 HEARING OFFICER MENTON: I'll go ahead and mark it
12 now.
13 (WHEREUPON, THE VIDEO TAPE IS MARKED AND THE
14 PROCEEDINGS CONTINUE AS FOLLOWS:)
15 MR. R. SMITH: At the point where I will indicate the
16 mechanics that were available to us yesterday, we're
17 unable to put in a line indicating the omission of some
18 intervening conversation on some other subjects not by Mr.
19 Fitzpatrick (sic) but by the board people. I'm going
20 to indicate where that was and it will be plain to you
21 after you've seen it once.
22 What I'm interested in is how Mr. Fitzpatrick was
23 characterized showing the consciousness of the board, this
24 was a verbal act, a verbal act, and Mr. Fitzpatrick's
25 response, again a verbal act, which is of high relevance
192
1 here. I'll indicate where the break would be if we had the
2 capacity to show it. Please proceed.
3 MR. FOX: For the record, Mr. Hearing Officer,
4 there will be a marked difference in the quality of the
5 tape where the segment is cut which will become apparent
6 when we play it.
7 (WHEREUPON, A VIDEO PRESENTATION IS HAD IN WHICH THE
8 COURT REPORTER DID NOT TAKE DOWN. FOLLOWING THE VIDEO
9 PRESENTATION, THE PROCEEDINGS CONTINUE AS
10 FOLLOWS:)
11 MR. R. SMITH: That's it. And one of the key
12 elements of my factual showing will be that on May
13 the 20th, 1991 before this settlement agreement came about
14 these state lawyers were begging Judge Hoeveler to give
15 them a respite from about 75 depositions that have been
16 scheduled, five a day, by the federal lawyers. This
17 madness, said Mr. Bob Goff of DER, we have to have relief
18 from this madness, and the U.S. attorney stood up and
19 said, when you decide that instead of condemning 17,300
20 acres of farm land, you're going to condemn 35,000,
21 well, then we'll have something.
22 And when you get to the right number on the
23 concentrations of phosphorus going into the Park and
24 Refuge, then we'll have something. Until then, let's go.
25 And that's when Governor Chiles stood up and says I'm
193
1 surrendering my sword and what do you want us to do.
2 And it was plain and evident what they wanted him to do
3 and that's what they did.
4 I think we can present this evidence in a very clean
5 way as I trust we've done it here, and a way it
6 doesn't burden the hearing officer, in a way that doesn't
7 unduly interfere with the normal course of this hearing,
8 but in a way that preserves our constitutional objection
9 if we have to carry it through this process entirely.
10 Thanks.
11 HEARING OFFICER MENTON: Okay. Ms. Kavanaugh. Let
12 me just say I'm glad to see that Mr. Burgess is not the
13 only lawyer comedian in the group here.
14 MS. KAVANAUGH: If Mr. Fitzgerald here wants his
15 whole speech, then they're going to have to play my whole
16 speech which is right after his, so I think we are all
17 able to avoid that.
18 HEARING OFFICER MENTON: I just thought it was
19 ironic that you would accuse him of that after you
20 made the same attempt last week.
21 MS. KAVANAUGH: Mr. Hearing Officer, first of all, I
22 would like to say what your remarks at the beginning of
23 this session framed essentially our position, and that is
24 we're not trying to collaterally attack the settlement
25 agreement. The jurisdictional question we agree with the
194
1 Co-op's position, but as I think as we indicated to you
2 earlier, we don't feel that that is something you should
3 rule upon.
4 We agree with Mr. -- with the Co-op's position,
5 however, there should be the ability to develop the record
6 for that because I think the case law supports that those
7 issues the hearing officer doesn't rule on, at least, the
8 factual record can develop. But we have yet another
9 reason that why we disagree with Mr. Smith. We think that
10 the questions, and there may be certain questions that are
11 not appropriate, and we think you're going to may have to
12 deal with those on a case-by-case basis.
13 It may be witnesses who need protection, but we don't
14 know that. We think motive is important, or at least
15 what's being characterized as the motive issue. I would
16 prefer to characterize it as determining the basis for the
17 agency decision that we're indicating here. Our position,
18 one of our positions, in addition to the fact that we
19 believe that the science is unsound, is that the --
20 there was no exercise of independent judgment in this
21 decision because of the settlement negotiations and the
22 frame work in which those negotiations occurred.
23 The SWIM Plan was developed in the settlement
24 negotiations. Now the District apparently is maintaining
25 that gun to their head or not, they subsequently and
195
1 independently determined that that was a good idea, that
2 the proposal put forth by the federal government that was
3 embodied in the settlement agreement. They are now saying
4 they have been persuaded by evidence.
5 Well, they may say that, but certainly we're entitled
6 to inquire of those who are at the table, and to give you
7 a good example at one of the very first sessions, Mr.
8 McVicker put on the table a 102 parts per billion as the
9 standard for the Refuge. Mr. Maafi (phonetic) said, no,
10 50 parts per billion. And we have only found this out
11 this summer when we finally got the public records which
12 reflected the notes and some of the give and take that
13 occurred at this technical meeting.
14 We don't know why Mr. McVicker ultimately changed
15 his mind. All we know is that we ended up with 50 parts
16 per billion that Mr. Maafi insisted on in the beginning.
17 I think we're entitled to as part of the agency decision
18 to determine whether we had a decision that was forced
19 upon them and now they are basically back pedaling to
20 justify it, or whether, in fact, there was an exercise of
21 independent expertise and judgment based on applying the
22 state laws that apply to this decision to develop the
23 SWIM Plan. And that's basically as far as we would
24 intend to get into motive.
25 I mean, I would agree that the remedy, in fact,
196
1 we are proceeding before Judge Davey on the Sunshine case
2 which goes through the process and whether it was legal
3 and that sort of thing, and that remedy is there and we're
4 pursuing that. But we have now been told by various
5 courts that this is the forum we are to get our relief,
6 and that's why we're here.
7 HEARING OFFICER MENTON: Well, let me ask just
8 ask both you and Mr. Smith, some of the requests that Mr.
9 Reid had read off earlier, I have a difficult time seeing
10 how some of those issues can really be brought to bear
11 within the scope of these proceedings.
12 MR. R. SMITH: May I respond?
13 HEARING OFFICER MENTON: Yes.
14 MR. R. SMITH: There are three aspects to this
15 non-jurisdiction. The non-jurisdiction of the federal
16 court is the issue of law, okay, that we want a
17 court to decide on this factual record. The
18 non-jurisdiction of the federal court asks this question
19 first: Was it ever a case in controversy with the
20 constitutional limitations of recognizing the reserve of
21 sovereignties of states? We say it was never.
22 Secondly, if it was, did it stay that way, because
23 federal law requires not only that it had been that
24 way in the beginning in case of controversy having all the
25 attributes or something that can be decided by a
197
1 judge, but that it stay that way. And we want the Florida
2 court to say, at a certain point in time, namely in the
3 fall of 1989 when the SWIM Plan process was, at least, a
4 year underway that case was moot by federal constitutional
5 standards.
6 Why didn't the District try to get it dismissed as
7 moot? Why didn't the District try to get it dismissed as
8 moot a year later in the fall of 1990 when they had the
9 second draft of the SWIM Plan? What conceivable business
10 did the federal court have riding herd in effect doing
11 a collateral monitoring and coercive effect? I mean, they
12 had -- they propounded interrogatories in the federal
13 litigation. Why did you change your mind between the
14 first and the second? Go tell a federal magistrate why
15 you should not in the midst of your SWIM Plan justify in a
16 federal court why you changed your mind on the amount of
17 acreage that you thought was necessary to be condemned?
18 At that point you see in federal law, constitutional
19 law, which we're going to urge on the Florida court,
20 because we have not gotten any federal court to listen to
21 us. The case was moot. Why didn't they get it dismissed
22 as moot? I believe it's because they began to see the
23 possibility of extending their own regulatory powers
24 through cooperation and as they say settlement.
25 I believe that sometime between 1989 and 1990 it will
198
1 appear that the District and DER felt it was in
2 their interest to be in federal court; that they have a
3 powerful ally in the United States government. There
4 wasn't their ox being gored anyway. The farmers were
5 going to pay the price. And when you finally got down to
6 it, at the last moment in 1991 when the settlement
7 agreement finally came together the big issue was, shall
8 we agree to the continuing jurisdiction of the federal
9 court. And they believe the evidence is going to show
10 that Mr. Smith's client, Ms. Browner decided this is a
11 way to buy in the future of Florida administrations.
12 The U.S. government insists upon it. It's not to our
13 disadvantage to do it. It makes us look good, it makes
14 us feel good, this is in a good cause, so we will sign
15 a settlement agreement that says that after Browner
16 is gone, Chiles is gone, all the rest of us are gone,
17 Hoeveler will still be there and the decisional apparatus
18 set up in the settlement agreement which is hidden,
19 nowhere mentioned in the SWIM Plan, will still be calling
20 the shots.
21 It's no longer the District and DER doing this under
22 Florida law with the District, DER with approval and veto
23 power of the U.S. government and ultimate appeal to the
24 U.S. district court judge. They agreed to that. Why did
25 they agree to that? So you see the range of our inquiry
199
1 goes through three points: Was it ever a case of
2 controversy? Wasn't it moot? And if it was, why did you
3 not try to get it dismissed as moot? And third, was this
4 really ever, did it ever really have the adversary
5 character that is required of any justiciable controversy
6 in an Article Three court? Or was in always
7 you're having more interest in doing your regulatory
8 job than protecting the sovereign functions of the state?
9 Because after all, it was the farmers who were going to
10 pay.
11 Either one of those three propositions gets sustained
12 in an Article Five court, the case is out and the only
13 question is what can we do about the SWIM Plan. So that
14 accounts for the breadth. I'm going to try to hone them
15 down as much as I can. I don't want this think
16 thing to be the subject of harangues between the lawyers,
17 and I hope I never have to take a deposition of a lawyer,
18 and I hope they'll quit acting like anything but
19 lawyers who give advice to their client, so I don't have
20 to continue the evidence the coercive effects of
21 their intervention. But we'll do our best to carve it
22 down, Mr. Hearing Officer.
23 HEARING OFFICER MENTON: Well, Mr. Smith, what you
24 just said raises some concern in my mind as to you
25 kind of left the question open. Even assuming you
200
1 establish all that, what is the end results with the SWIM
2 Plan? Isn't that what my role is, is to sit--
3 MR. R. SMITH: No, it has to be a court. You've got
4 to go ahead with your thing as though your job were to do
5 the conventional job on the SWIM Plan and to give us
6 leave, room to exercise the discovery and lay on the
7 record such proof as we can.
8 HEARING OFFICER MENTON: Well, it seems to me that,
9 as I indicated earlier, that the petitioners are entitled
10 to inquire how the Water Management District came to the
11 ultimate decisions that it did as embodied in the SWIM
12 Plan. I think they're entitled to inquire along those
13 lines. I think from what I hear from those defending
14 the Plan, to a certain degree you start at point A,
15 you get to point C and all that they can inquire into is
16 point C, but I think there are stops along the way and
17 that they're entitled to inquire into.
18 So I think you're entitled to find out, you know,
19 when and why the Water Management District decided
20 that whatever science it was originally using as the
21 basis for fighting the federal lawsuit it decided it was
22 no good. To me, I think that's a pertinent realm of
23 inquiry, and I'm going to allow some leeway on that.
24 On the other hand though, I think we're dealing in a very
25 difficult area of attorney-client privilege of settlement
201
1 negotiations and a lot of issues that are really
2 extraneous to the fundamental matters that are before me.
3 I don't see any other way to deal with it at this
4 time except on piece meal basis as I indicated before.
5 I understand that it's going to be burdensome and a
6 difficult task, but I think, you know, I would hope that
7 all the attorneys can govern themselves in a manner that
8 would avoid that situation. If we find witnesses going on
9 for two or three days over minute points, you know, then
10 I mean that's grounds for relief. File a motion and we'll
11 take it up and we'll deal with it.
12 But I just don't see how I can frame a blanket order
13 at this time prohibiting inquiry into that matter given
14 the way that this whole case came down and the fact that
15 there were very obviously a change in direction for
16 whatever reason. I don't know what that reason is, and
17 I think it's an area that is proper inquiry. So
18 I don't know how much more guidance I can give you than
19 that.
20 Again, I would caution all the parties that, you
21 know, you have to make your decisions and prioritize
22 the areas of discovery that you think are most important.
23 We're dealing on a short time fuse here because of the
24 mandate in the legislature that this case be expedited.
25 I think everyone is entitled to reasonable discovery. I
202
1 don't think that reasonable discovery means you depose
2 everybody. You're going to have to make some of those
3 choices yourself. I don't think that means you depose
4 every witness for four days.
5 MS. KAVANAUGH: Could I raise just one point.
6 There are some things happening outside of the proceedings
7 and frankly we have not figured out the proper vehicle to
8 bring them to you or even if you want to hear about them
9 in any formal sense. But as the tape reflected, there is
10 mediation about to begin, all of us, and the -- we have
11 sought for sort of a stay in the battle pending mediation
12 at this point. They're not agreeable to that. That's one
13 of the things we'll be talking about.
14 The other aspect is, is certain things have changed
15 as far as the facts surrounding the SWIM Plan that we're
16 all, we all think we're litigating. You've got just a
17 taste of it, and that is how they're going to pay for it.
18 For example, now there is very serious questions whether
19 the STA's in the Plan have been abandoned by the
20 District. The point is at some point I feel like we're
21 all going on this railroad track down this expedited
22 hearing to litigate a Plan that may be moot in part
23 or may be abandoned in part or may be withdrawn in part,
24 and I don't know how to get that to you.
25 And I tried to talk to counsel a little bit about it.
203
1 I guess they want us to keep litigating the Plan we have
2 got. But do you have any suggestions as to an appropriate
3 motion and how much evidence you want on something like
4 that? Or is that something you don't care about and
5 you're willing to keep litigating the Plan we have got?
6 HEARING OFFICER MENTON: Well, again, the
7 constraint that I'm under I think is the requirement that
8 I try to expedite this proceeding.
9 MS. KAVANAUGH: Right.
10 HEARING OFFICER MENTON: And so I think my
11 inclination is that I have to keep it on track from my
12 end irrespective of what other development may be going.
13 Now when it comes to a point where everyone is in
14 agreement, you know, that it's worth calling time out,
15 or one side feel's that it's worth, I'll listen to
16 your position on it. But I do think that, you know, in a
17 normal case without the requirement that I expedite it,
18 I'd be a lot more willing, more than willing to just put
19 it in abeyance and await developments that might occur.
20 But I don't feel that I have that leeway in connection
21 with an expedited case.
22 So I'd be interested in being kept abreast as to
23 what's going on and hopeful, hopefully abreast. Unless
24 there are particular developments that you think need to
25 be brought to my attention, just bring them up at the next
204
1 hearing if you feel it's appropriate or by motion, and
2 I'll take a look at it. But I think, again I have to stay
3 true to what the directions are to me in the statute and
4 I'm going to be inclined to do that.
5 MS. PONZOLI: I would like to just say few words.
6 There have been some fairly extraordinary things said and
7 written, and I think I would like to file at least
8 federal government's version since you just stated that
9 your understanding of the case is limited to what you've
10 read in the pleadings, and certainly my client's version
11 should at least been read. And I apologize I didn't file
12 it sooner, but I think it should be done.
13 I think it's very apparent from the arguments that
14 were made that the emotions in this case are very high,
15 and I think you're going to have to maintain some serious
16 guidelines as we go incrementally down each road, and
17 as long as you are assuring us, which you did multiple
18 times that you're going to do that, I think that I am, on
19 behalf of my clients, fairly comfortable that this can, we
20 can march along this comfortably and get through the
21 information they're entitled to have and not step over
22 those lines that go into areas that every client is
23 entitled to be protected from inquiry.
24 And I guess that's really where I stand at this
25 point. I think Mr. Smith has indicated that he is of
205
1 gentle heart, and he has certainly been candid on
2 several occasions, and today being one of them. He has
3 said in the past that you cannot put intense agricultural
4 activity cheek by jowl to a natural area without serious
5 consequences. We agree with that. He has said today the
6 science will be very varied, and we probably can sustain a
7 SWIM Plan based upon the science that's presented. That's
8 really true.
9 I think he's looking for a way to protect his
10 client. I guess I would maintain in inappropriate manner
11 he's doing discovery here for another action where he will
12 attack elsewhere. I guess that's what I'll have to bring
13 to you each time I think he's doing that.
14 MR. T. SMITH: I would just like to follow up because
15 we have had two depositions this week where we did
16 raise our objections and at least one of them, which I did
17 not handle, I believe may be a motion to compel to follow
18 up on that because the inquiry didn't proceed as far as
19 perhaps should have or might have wanted take it.
20 I would just like to point out what we have
21 here is a question of law on the one hand, whether there
22 was coercion, lack of federal jurisdiction, something was
23 improper as a matter of law; and question of fact on the
24 other hand. And what that issue today really is a
25 question of fact, should we be allowed to go ahead with
206
1 discovery? They already have proceedings right now before
2 the First DCA on the question of law. They have already
3 raised those issues, both collusion and coercion.
4 But what different does it make in this proceeding
5 whether they prove collusion or coercion? I don't think
6 they can do either. But if they were given the chance and
7 able to do it, what difference does it make? You would
8 still have to rule on the law as you see it, apply the
9 standards of 373 to the SWIM Plan and to the science as
10 what we heard today or not.
11 The remedy that Judge Davey referred to, as I
12 understood it, was if you have an administrative remedy
13 where the agencies will present their evidence and you
14 present your evidence, and if there were coercion, I think
15 it would be inferred from a lack of science. If there is
16 science there to support the Plan, it's just not going to
17 matter.
18 HEARING OFFICER MENTON: But, Mr. Smith, it seems to
19 me you're getting to exactly the point that I'm talking
20 about, you're getting to point C. What I'm saying is
21 that it's obvious in getting to that final SWIM Plan, the
22 Plan that was there, there were some steps taken along the
23 way. It's part of the discovery process. This is
24 discovery now. This is not the final hearing. In term of
25 whether, you know, all those issues are relevant, or in
207
1 terms of how significant they are, and the bottom line
2 issue, you know, I very well might agree with you.
3 As I indicated earlier, if it comes down to it and I
4 find that the evidence is persuasive, that the science
5 that the federal government relied upon in bringing the
6 initial suit was adopted by the Water Management District,
7 you know, hook, line, and sinker, and that that's the good
8 science, then agree that most of this other stuff is going
9 to be extraneous. But we're in the discovery process
10 right know, and I think what the petitioners is seeking to
11 do, they started out, and I don't know what was in the
12 earlier versions of the SWIM Plan. I gather there was a
13 good, a very different approach or whatever in the initial
14 version, but we started out with the Water Management
15 District that fought very strenuously against the
16 allegations that they now have adopted.
17 Now I don't now why. Maybe it was because
18 their witnesses or their experts or whatever were
19 convinced of the science. I don't know. But in the
20 discovery process leading up to this conclusion, I think
21 they're able to, well, I think, they're able to inquire
22 into those areas. And if it gets to be harassment
23 or gets to be inquiry into privileged areas, then
24 certainly I'll address that, and, you know, I'm not
25 looking forward to that prospect. And in that regard, I
208
1 would -- you're flashing me signs. I know you're waiting
2 for an opportunity.
3 MR. T. SMITH: We're right back I think to the heart
4 of the matter. I think that the line of reasons, I think
5 that the science, all the steps of the science are proper
6 subjects of inquiry. I think that extraneous matters,
7 whether they're labeled motive or whatever are not proper
8 subjects of inquiry. I think that --
9 HEARING OFFICER MENTON: But the science didn't
10 follow --
11 MR. T. SMITH: -- where you draw the line is, why did
12 somebody, whether it's a scientist or somebody else, why
13 did somebody suggest this to you or whatever? If you have
14 a reason for going to this science, it doesn't matter if
15 there were other science, too.
16 HEARING OFFICER MENTON: But the science didn't
17 follow a straight line in this case because they started
18 out over here and ended up over here, and I think
19 they're entitled to inquire how they made those --
20 MR. T. SMITH: Science may not have followed a line,
21 it usually doesn't anyway. There were many scientists
22 and lots of decisions being made.
23 HEARING OFFICER MENTON: I understand.
24 MR. T. SMITH: And there were various policy
25 decisions and regulatory decisions being made at the same
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1 time, and we were caught up in litigation where there were
2 competing interests and counterbalancing considerations
3 being made and not simply fed versus state or anything
4 like that. It was a lot more complicated than that.
5 The resources was a consideration at all times.
6 There was never any question about that. If you had a
7 transfer of power at the state government level also, and
8 that's a factor. But is that a proper subject of inquiry
9 also because someone else comes in and perhaps is more
10 supportive of the resource --
11 MR. R. SMITH: By resource, do you mean money?
12 MR. T. SMITH: -- all of that sort of thing? All of
13 their questions can be asked somewhere, but it seems to me
14 it's not permitted in this proceeding. And what is
15 permitted is the science. And the remedy that
16 Judge Davey was talking about was to be able to ask about
17 the science and see if there is a reason to support the
18 SWIM Plan each element, et cetera, not to ask about
19 what was coerciveness and all that.
20 He said at one point in Sunshine suit even if there
21 was a technical violation in the Sunshine law, so what.
22 If you have the remedies and the inquiries are being made,
23 the indication was, there is no damage and there is no
24 harm if there was science for it. And it doesn't matter
25 whether someone suggested this or somebody else suggested
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1 that and different choices made. That's all I'm saying.
2 It's immaterial.
3 HEARING OFFICER MENTON: I see what you're saying.
4 That, you know, that may well be point C. And what I'm
5 saying is as part of the discovery process, they're
6 entitled to find out how the Water Management District got
7 to that conclusion. Now, you know, I don't know how
8 else to say it.
9 MS. KAVANAUGH: This is another thing I would add.
10 This is discovery. This may all be subject to motions
11 in limine, or you may make preliminary evidentiary
12 rulings that would keep a lot of it out. I don't know.
13 I think we're entitled to find out why they changed
14 their mind, and certainly it goes to the credibility of
15 those state agency witnesses who are, in fact, involved in
16 settlement negotiations whether they're simply stating
17 their scientific opinions because that's what was
18 negotiated in the settlement agreement, or whether they,
19 in fact, had independent scientific basis. It's
20 discovery.
21 HEARING OFFICER MENTON: Let me just say also the --
22 you know, I don't need 50 page pleadings on every
23 discovery issue as it comes up. If there are particular
24 discovery matters that we need to resolve, get them to me
25 and bring them in a very concise form, and I'll listen to
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1 argument, and we'll resolve because --
2 MS. KAVANAUGH: Five-page limit would that be
3 helpful, three-page limit?
4 HEARING OFFICER MENTON: Well, I'm not going to
5 handcuff anybody to that limit, but I'm just -- consumed a
6 great bit of my time trying to figure out what was going
7 on last time, and I don't necessarily feel that's
8 productive especially the bit about, you know, he told me
9 this and he was going to send me this, that sort of thing.
10 As I indicated at the beginning of today, I have
11 found it's impossible to really resolve those issues of
12 who was jerking who around. But you can get to the bottom
13 line of what's reasonable pretty quickly if you lay what
14 you want out and why you didn't get it, and let's get to
15 the bottom line. Okay. But if --
16 MS. PONZOLI: Mr. Menton, may we have Mr. Fitzgerald
17 summarize his comments here?
18 HEARING OFFICER MENTON: Are you setting a precedent
19 here by calling another witness?
20 MS. PONZOLI: No, but I think he feels he should
21 have an opportunity to explain his full comments because
22 they were somewhat misrepresented by the single minute.
23 MR. R. SMITH: Swear him in. He's not acting as a
24 lawyer here if he's going to testify. I want to get him
25 sworn. I want to cross-examine him.
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1 MR. FITZGERALD: I'm not -- unlike Mr. Jones, I don't
2 plan to testify. I simply want to bring something to
3 your attention and reserve my right to submit the entire
4 tape.
5 MS. KAVANAUGH: Are you relying on his testimony, Mr.
6 Menton?
7 HEARING OFFICER MENTON: Well --
8 MR. FITZGERALD: I expect him to rely on the tape
9 when we supplement because you had an artfully edited
10 piece of tape that cut off and there was additional bits
11 of material right after that.
12 MR. R. SMITH: I offer the rest of it --
13 MR. FITZGERALD: If I can finish and receive the same
14 courtesy that counsel has been provided, you have been
15 repeatedly bombarded by pleadings in this case that
16 threaten you with appeal if you should rule certain ways.
17 HEARING OFFICER MENTON: It doesn't scare me.
18 MR. FITZGERALD: Good. I'm not suggesting that it
19 had. You've also now been presented with a piece of tape,
20 highly abbreviated, that appears to suggest that a public
21 statement was made on behalf of the United States
22 Attorney's Office at the Department of Justice at South
23 Florida Water Management District board meeting that was a
24 threat to support a claim of coercion.
25 That edited piece of tape leaves off the very next
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1 sentence which was words to the effect nobody wants out
2 and we don't want that, and it was in the context of the
3 discussion as counsel indicated I think part of the tape
4 indicated on funding issues.
5 HEARING OFFICER MENTON: Okay. I understand that
6 the settlement agreement that Judge Hoeveler has put in
7 there a provision that, you know, ultimately the whole
8 thing may end up back in his court anyway.
9 MR. R. SMITH: If that's the consequence of
10 disagreeing with the settlement agreement, if Mr.
11 Fitzgerald decides if that is the consequence.
12 HEARING OFFICER MENTON: Well, again, let me -- as
13 far as I'm concerned I don't really care about any of that
14 aspect of that because that is not what my role is.
15 I'm here to sit as an independent neutral fact finder.
16 I come with a clean slate and that's the way I'm going to
17 approach the case, and those other issues you can argue
18 before Judge Hoeveler.
19 Okay. Is there anything else we need to talk about
20 today?
21 MR. KILLINGER: I think there is. It's not on this
22 case of permitting cases that you've sent over. I think
23 all the counsel are here, I think all those cases have
24 been assigned to you. I've gotten the initial orders
25 back with your name on them.
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1 The initial orders are the standard form order that
2 would provide for a response within ten days of any
3 related cases and suggested times and dates for hearings
4 on that, so between 30 and 120 days from now. I think we
5 ought to somehow make some agreement or adjust that date.
6 I think the window for filing petitions is still open, so
7 I'm not sure --
8 MS. KAVANAUGH: Yes --
9 MR. KILLINGER: So I would like to extend that window
10 a little bit so we could --
11 HEARING OFFICER MENTON: I think, Mr. Killinger,
12 you might have been out when we started. I brought
13 that up earlier, and what I suggested was that the parties
14 give that some thought and we'll take that up at the next
15 hearing. I'm well aware of the cases that have been
16 assigned to me, and I think there has been some discussion
17 as to whether we consolidate them or don't consolidate
18 them.
19 I think you can discuss it at the December
20 4th meeting and then also bring it up to me at the next
21 meeting. I'm not going to set them down for a hearing
22 at the end of the month.
23 MR. REID: There is no reason for us, what is it,
24 how many days --
25 HEARING OFFICER MENTON: Don't worry about filing
215
1 a response. I'm not going to do anything with the cases
2 until at least the next hearing. I'll wait to hear
3 what everybody's position is.
4 MR. R. SMITH: Could you state for the record how
5 you've marked those two exhibits please, sir?
6 HEARING OFFICER MENTON: Okay. This one I did not
7 mark. I don't know -- if you want me to --
8 MR. R. SMITH: Marked for identification.
9 HEARING OFFICER MENTON: Put the entire tape --
10 MS. PONZOLI: Really I think it should have his
11 complete comment, and if you want us to take it back and
12 edit it or we can obtain a separate tape and submit
13 it to you with Mr. Fitzgerald's full comments.
14 MS. KAVANAUGH: You may be getting a full tape
15 in some other fashion anyway.
16 HEARING OFFICER MENTON: I mean, If you want to put
17 it --
18 MS. PONZOLI: Why don't we leave the full tape in,
19 and I'll tell you what, we'll send you a pleading that
20 indicates to you the minutes that would reflect where on
21 the tape.
22 HEARING OFFICER MENTON: I don't feel really it's my
23 function to sit down and listen to this whole tape.
24 MR. R. SMITH: All I'm asking for you to do is mark
25 it for identification so its in the record and
216
1 distinguishing what you have marked in evidence.
2 HEARING OFFICER MENTON: What I have done with the
3 exhibits that have been offered in the past is I have
4 marked them as A, B or C and with the date of hearing.
5 Today the short abbreviated version I've marked as
6 Petitioner's Exhibit A for the hearing this day which is
7 November 20th. And I'll mark the full version as
8 Petitioner's Exhibit B and I will keep it in the record.
9 Again, I do not intend to sit down and listen to this
10 whole tape. If there is a particular portion that you
11 want me to review, then edit it out and give it to me
12 or give it to me in writing and I'll look at it.
13 Okay. The next hearing is the 19th --
14 MS. KAVANAUGH: 18th.
15 HEARING OFFICER MENTON: Okay. 18th. And at that
16 time, we have the financial matters, the briefs will be in
17 on that and also discuss the permitting case and --
18 MS. PONZOLI: And finalize my order for entry into
19 the EAA.
20 HEARING OFFICER MENTON: Right.
21 MS. PONZOLI: There will be a final order at that
22 hearing.
23 MS. KAVANAUGH: Yes, I hope --
24 MS. PONZOLI: We will have a final order at that
25 time, so we can go in at the beginning of January.
217
1 HEARING OFFICER MENTON: Okay. Thank you.
2 (WHEREUPON, THE HEARING CONCLUDES AT 3:30 P.M.)
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1 CERTIFICATE OF REPORTER _______________________
2
3 STATE OF FLORIDA )
SS
4 COUNTY OF LEON )
5
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 217, 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 24th
18 DAY OF November, A.D. 1992, IN THE CITY OF TALLAHASSEE, COUNTY
19 OF LEON, STATE OF FLORIDA.
20
21
22 _______________________________
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