1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

3 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, )

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

4 -and- )

FLORIDA SUGAR CANE LEAGUE, INC., UNITED )

5 STATES SUGAR CORPORATION, and NEW HOPE )

SOUTH, INC., )

6 -and- )

FLORIDA FRUIT AND VEGETABLE ASSOCIATION, )

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

INC., and HUNDLEY FARMS, INC., )

8 )

Petitioners, )

9 )

vs. ) DOAH CASE NOS.

10 ) 92-3038

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ) 92-3039

11 ) 92-3040

Respondent, ) (Consolidated)

12 )

and )

13 )

MICCOSUKEE TRIBE OF INDIANS, THE UNITED )

14 STATES OF AMERICA, FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, and FLORIDA )

15 WILDLIFE ASSOCIATION, )

)

16 Intervenors. )

) _____________________________________________

18 HEARING BEFORE: HONORABLE J. STEPHEN MENTON

HEARING OFFICER

DATE: FRIDAY, JANUARY 29, 1993

20 (11:03 A.M. - 1:43 P.M.)

21 LOCATION: HEARING ROOM 2, DESOTO BUILDING

1230 APALACHEE PARKWAY

22 TALLAHASSEE, FLORIDA

23 REPORTED BY: SUE HABERSHAW JOHNSON

CERTIFIED COURT REPORTER

24 REGISTERED PROFESSIONAL REPORTER

NOTARY PUBLIC

1 APPEARANCES:

2 Representing Petitioners, Sugar Cane Growers

Cooperative of Florida, Roth Farms, Inc.,

3 and Wedgworth Farms, Inc.:

4 WILLIAM H. GREEN, ESQUIRE

GARY PERKO, ESQUIRE

5 DONNA STINSON, ESQUIRE

Hopping, Boyd, Green & Sams

6 123 South Calhoun Street

P. O. Box 6526

7 Tallahassee, Florida 32314

(904-222-7500)

Representing Petitioners, Florida Sugar Cane

9 League, Inc., United States Sugar Corporation,

and New Hope South, Inc.:

JUDITH S. KAVANAUGH, ESQUIRE

11 RICK J. BURGESS, ESQUIRE

Peeples, Earl & Blank, P.A.

12 One Biscayne Tower, Suite 3636

Two South Biscayne Boulevard

13 Miami, Florida 33131

(305-358-3000)

14 -and-

WILLIAM L. HYDE, ESQUIRE

15 Peeples, Earl & Blank, P.A.

Suite 350

16 215 South Monroe Street

Tallahassee, Florida 32301

17 (904-681-1900)

18 Representing Respondent, South Florida Water

Management District:

PAUL L. NETTLETON, ESQUIRE

20 Popham, Haik, Schnobrick & Kaufman, Ltd.

400 International Place

21 100 Southeast Second Street

Miami, Florida 33131

22 (305-539-7222)

23 -and-

1 ABNER T. COOPER, ESQUIRE

Assistant District Counsel

2 South Florida Water Management District

P.O. Box 24680

3 3301 Gun Club Road

West Palm Beach, Florida 33416-4680

4 (407-687-6315)

5 Representing Intervenor, United States

of America:

SUZAN HILL PONZOLI, ESQUIRE

7 KATHY STARK, ESQUIRE

Assistant United States Attorneys

8 Southern District of Florida

Suite 627

9 155 South Miami Avenue

Miami, Florida 33130-1693

10 (305-536-4425)

11 Representing Intervenor, Florida Department of

Environmental Regulation:

LEE M. KILLINGER, ESQUIRE

13 KEITH HETRICK, ESQUIRE

Assistant General Counsel

14 Department of Environmental Regulation

Twin Towers Office Building

15 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

16 (904-488-9730)

17 Representing Intervenor, Florida Wildlife

Federation:

DAVID G. GUEST, ESQUIRE

19 KEN WRIGHT, ESQUIRE

STEVEN GRIGAS, ESQUIRE

20 111 South Martin Luther King, Jr., Blvd.

P.O. Box 1329

21 Tallahassee, Florida 32302

(904-681-0031)

1 Representing the United States Department of

Justice:

KEITH A. SAXE, ESQUIRE

3 United States Department of Justice

Environmental & Natural Resources Division

4 General Litigation Section

Room 879, 601 Pennsylvania Avenue (20004)

5 P. O. Box 663

Washington, DC 20044

6 (202-272-4016)

7 * * * * *

8 INDEX

9 ITEM PAGE

10 HEARING COMMENCED . . . . . . . . . . . . . . . . . . 5

11 HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 113

12 CERTIFICATE OF REPORTER . . . . . . . . . . . . . . 114

13 * * * * *

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 11:03 A.M., AT

3 WHICH TIME MR. GRIGAS WAS ABSENT FROM THE HEARING ROOM.)

4 HEARING OFFICER: Did everybody get the news we

5 were starting at 11:00 instead of 2:00? I heard

6 somebody thought that it was starting at 2:00 yesterday.

7 I don't know who it was. I looks like we are here.

8 MR. HYDE: All the major parties are here.

9 HEARING OFFICER: Let's start by taking the

10 attendance, beginning with the Cooperative.

11 MR. GREEN: Mr. Menton, Donna Stinson and I are

12 here on behalf of the Cooperative, and Mr. Perko.

13 HEARING OFFICER: Okay, and for the League?

14 MS. KAVANAUGH: Judith Kavanaugh, Rick Burgess, and

15 Bill Hyde.

16 HEARING OFFICER: Okay, for the, I don't see

17 Mr. Hoffman?

18 MS. KAVANAUGH: I think he is coming. He is aware.

19 HEARING OFFICER: He is aware of the 11 o'clock?

20 MS. KAVANAUGH: Yes.

21 HEARING OFFICER: All right, so no one on behalf of

22 the Fruit & Vegetables. For the District?

23 MR. NETTLETON: Paul Nettleton on behalf of the

24 District, and Abner Cooper, also Assistant District

25 Counsel, for the District.

1 HEARING OFFICER: Okay. New face.

2 MR. COOPER: Yes.

3 HEARING OFFICER: For the U.S.?

4 MS. PONZOLI: Suzan Hill Ponzoli, and I have Keith

5 Saxe with me and Kathy Stark, also.

6 HEARING OFFICER: And DER?

7 MR. KILLINGER: I am Lee Killinger, and Keith

8 Hetrick.

9 HEARING OFFICER: Okay. And for the environmental

10 interests?

11 MR. GUEST: David Guest, and with me is Ken Wright

12 from my office.

13 HEARING OFFICER: Okay. We have a lot of things

14 pending today. I don't know exactly what order is the

15 best to go in.

16 Let me, I guess start out with, I have a lot of

17 motions for enlargement of time for a lot of different

18 things and a lot of different areas, and I guess

19 probably, I haven't done any of these. I have been out

20 of town quite a bit, and I haven't been giving it as

21 much attention as I would have liked.

22 Just a couple of observations. In terms of the

23 motions to enlarge time, sometimes it is difficult to

24 deal with when I am out of town, because a lot of times

25 if there is no agreement I have to wait 12 days until it

1 passes, and a lot of time I am out of town, and it is

2 difficult to deal with.

3 If it is a real problem I think it is probably best

4 to try to set up a conference call, so everybody knows

5 where we stand.

6 In terms of the economic issues it seems to be

7 taking on a life of its own, and I think it is very, a

8 very critical issue, and for that reason I am going to

9 read whatever the parties want to put before me in

10 connection with this, and I will consider whatever you

11 have filed, and hopefully at the end of today we will

12 have reached a resolution of a number of things, and we

13 can put things to rest.

14 I think when the League files a motion, the formal

15 motion for remand, although we discussed it, technically

16 it opens it up for a response period and for everybody's

17 responses, and it would have taken about all morning to

18 catalog exactly what I have received.

19 I have received I think a number of statements from

20 all parties. I think we are getting to the point where

21 it is getting repetitive, and it is time to just sit

22 down and deal with the issues. I think we will try to

23 do that today.

24 The motion to consolidate, I received enlargements,

25 motions to enlarge the time from the U.S. and DER. I

1 think they indicated they wanted until January 19, but I

2 don't think I have received any responses to the motion

3 to consolidate at this point.

4 Again I haven't been through all of my mail since I

5 have been out of town.

6 MR. NETTLETON: Mr. Hearing Officer, there was a

7 joint response filed by the District as well as the

8 intervening parties, DER and the Sierra Club, and

9 essentially we have all agreed to a consolidation, I

10 believe.

11 HEARING OFFICER: Okay. Gosh.

12 MS. KAVANAUGH: We haven't gotten it, either.

13 HEARING OFFICER: Okay. I don't think, I will go

14 back through my list. I am sort of buried under mail

15 from the various things that have come in. I haven't

16 noticed it at this time.

17 That brings up the other issue, I guess, which is

18 the hearing date aspect, which was kind of left open I

19 think at the conclusion of the last hearing. Where are

20 we on that?

21 MS. KAVANAUGH: I think that we were discussing

22 that we have a discovery plan pretty firm now, and I

23 think the dates, I wasn't at the last hearing, but the

24 dates that were set forth then of July 31st and I think

25 September 13th for the hearing, we are generally in

1 agreement at this time.

2 HEARING OFFICER: July for the hearing?

3 MS. KAVANAUGH: No, September 13. July 31st is

4 discovery cutoff.

5 And, as I said, we have not received a response,

6 and as you know we said it might, we might have to

7 assess that, but we will look at that. I don't think we

8 can anticipate that being a major problem, but we would

9 need to see if it would be.

10 HEARING OFFICER: Okay. Let me throw one thing

11 out. This will influence the hearing date scheduling

12 process.

13 This is one of the very few benefits of being a

14 Hearing Officer.

15 My wife is expecting our first baby in the middle

16 of September, so that is going to impact upon how I am

17 going to be disposed.

18 And I think, you know, I don't think it will make

19 that big a difference, but I do not want to schedule it

20 to begin exactly on September 13th. That is about "D"

21 day.

22 So I am thinking more in terms of maybe a month

23 after the due date would probably be best for my

24 schedule, and once again one of the few benefits that I

25 have in this process, so I am going to exercise it.

1 And I know that is a new one on all of you, and I

2 don't know how that impacts your talks, but so there is

3 a general agreement on the discovery schedule, and we

4 have reached a new discovery cutoff, is that right?

5 MS. KAVANAUGH: Yes.

6 MS. PONZOLI: Yes, sir.

7 HEARING OFFICER: We will have to modify the

8 existing order.

9 MS. KAVANAUGH: We were considering submitting a

10 stipulated proposal to you.

11 HEARING OFFICER: Yes, if you have something like

12 that, and everybody is in agreement, is that right?

13 MR. GREEN: Yes, Mr. Menton, I think we are largely

14 in agreement, but I will say in July there are a lot of

15 things piling up, and to the extent that the hearing is

16 moved...

17 HEARING OFFICER: There are a lot of things piling

18 up in January.

19 MR. GREEN: I think that maybe all parties could

20 benefit from maybe one more month of discovery, if the

21 hearing is moved a month. That's my only thought. We

22 haven't talked yet about that.

23 MS. KAVANAUGH: We would concur on that. My

24 thought was the way things are they are getting

25 compressed in July, and we have been operating, we would

1 be coming to you anyway to see if we could get discovery

2 in August, if need be, so another month obviously

3 resolves the problems.

4 MS. PONZOLI: I would like to propose we talk about

5 this separately. If we had gone to trial on September

6 13th, I proposed working from now through September 15th

7 with no summer vacation.

8 I think if the parties could have some opportunity

9 maybe we could take a little time or something where

10 people could take some time off in the summer. I think

11 we would be a lot saner when we finish a vacation.

12 MS. KAVANAUGH: This is like a vacation.

13 MS. PONZOLI: Pardon?

14 MS. KAVANAUGH: I said this is like a vacation.

15 MR. KILLINGER: Let's take a break now then.

16 MS. PONZOLI: Well, I guess what I would tell you

17 is maybe we could come back at the next hearing or have

18 a conference call. I would definitely like to block out

19 if we are going to push it forward a month, then it

20 seems there might be a window of time in there where we

21 could shut down the depositions or something.

22 (WHEREUPON, MR. GRIGAS ENTERED THE HEARING ROOM.)

23 I would like to take, if we are pushing the trial

24 back, I would be pushing depositions all through the

25 summer is what I am proposing. I would like to take out

1 two weeks in August or something. That's just my

2 thought.

3 MS. KAVANAUGH: We would be glad to discuss it.

4 MR. GREEN: We can work on it. Sure.

5 HEARING OFFICER: Okay. Well, why don't you see,

6 discuss it and see if you can reach a stipulation, and

7 if there is an agreement reached, just send me the

8 stipulation, and I will enter it.

9 If it is not, that is something we can wait until

10 the next conference. There is no need to get that

11 finalized now, but from what I am gathering there is

12 pretty much agreement reached in the discovery schedule

13 of good progress made in that regard?

14 MS. PONZOLI: Right. It is in the works.

15 MS. KAVANAUGH: We want to finalize this. We are

16 talking under the current schedule.

17 HEARING OFFICER: Okay. You mean in terms of

18 April?

19 MS. KAVANAUGH: Right.

20 HEARING OFFICER: I don't know. Does anyone want

21 to go to hearing in April?

22 MR. NETTLETON: We could dispose of discovery.

23 HEARING OFFICER: Well, as I indicated at the last

24 hearing, it seems to me although there are some parties

25 who obviously would rather go to hearing sooner, that

1 everybody is kind of conceding in terms of completing

2 discovery and a fair opportunity that the hearing won't

3 go in April as we had originally set, and I will enter a

4 stipulation as soon as you reach it.

5 MS. KAVANAUGH: Thank you.

6 HEARING OFFICER: In this new hearing date again we

7 discussed before the motion to consolidate which was

8 still outstanding at that time. It is still outstanding

9 at this time.

10 But the hearing date is going to include all the

11 cases as consolidated, even though an order has not been

12 ordered at this time. Is that correct?

13 MS. PONZOLI: Yes, that we would go to trial the

14 month beyond whatever September 13th would be on the

15 consolidated, however you set it out, either try it

16 together or bifucate it. That has not been sorted out.

17 Yes, we will go to trial on everything come a month

18 after September 13th.

19 HEARING OFFICER: Without having read all of the

20 documents on the consolidation, is there anybody that is

21 opposing consolidation at this point?

22 MR. GREEN: Your Honor, only the details. We would

23 like to make suggestions on that when the time comes

24 after we have reviewed the response.

25 MS. KAVANAUGH: And talk to the other parties, and

1 we can agree and get a position to you.

2 HEARING OFFICER: But nobody is objecting to

3 consolidating it altogether? At least we can work on

4 the mechanics of it, because I think as someone pointed

5 out there probably will have to be two orders entered,

6 and the thing that will be overlapping is the evidence

7 in the two cases, and to the extent that all the

8 evidence can be considered together we can break out

9 those issues that need to be broken out into separate

10 orders.

11 MR. NETTLETON: Mr. Hearing Officer, have any of

12 the petitioners received our response? It was sent out

13 two weeks ago I think, or a week ago at least.

14 MS. KAVANAUGH: We were at the joint meeting, and I

15 had not gotten it.

16 MR. GREEN: I think we have it. I do believe we

17 got it yesterday.

18 MR. NETTLETON: If anyone doesn't have it, it went

19 out of my office, so let me know, and I will get copies

20 out.

21 MS. KAVANAUGH: Okay.

22 MS. PONZOLI: It went out the 19th of January.

23 HEARING OFFICER: It may be that it is in my mail.

24 I don't recall seeing it. I thought I sort of flipped

25 through everything. Sometimes they get attached to

1 other things when the Clerk's Office gets it. It might

2 be there.

3 MR. NETTLETON: We will check with the Clerk's

4 Office and send another one if necessary.

5 HEARING OFFICER: Okay. Now I think we have a

6 motion for enlargement, another motion regarding the,

7 the League filed a motion to compel, and I am not sure

8 exactly where, which one it is now.

9 I think it was related to the United States' motion

10 to compel that we discussed at the last hearing.

11 MS. KAVANAUGH: On the interrogatories.

12 HEARING OFFICER: There was some talk that those

13 issues may be resolved, and by the blank look on

14 everybody's face I assume they have been resolved.

15 MR. BURGESS: We are moving towards it.

16 MS. PONZOLI: We agreed beforehand there is some

17 dispute as to whether those are separate or not, and we

18 have agreed to put that item off for that.

19 HEARING OFFICER: Okay. Okay. Then I think the

20 three remaining issues that I have noted are the motion

21 for, the Coop's motion for order compelling discovery

22 and for sanctions regarding the deposition of William

23 Boggess, the League's motion to compel, which is

24 regarding the deposition of the U.S. agency

25 representatives. I have received responses from the

1 U.S. in connection with both of those motions. And then

2 there is the amorphous economic issues. Those are the

3 three items I have noticed as outstanding today. Are

4 there any other ones that I am not aware of?

5 MS. KAVANAUGH: Are we including the motion for

6 relinquishing jurisdiction?

7 HEARING OFFICER: Right. That's part of the

8 economics.

9 MS. PONZOLI: Sounds good.

10 MR. BURGESS: Yes, Mr. Hearing Officer, there was a

11 motion for hearing that we did on our request for

12 production of documents to the United States and their

13 objection to that request. We started to talk this

14 morning, and we may be able to talk more at a break, but

15 we did notice that for hearing.

16 HEARING OFFICER: Okay. Is that the second request

17 for production?

18 MR. BURGESS: Yes, sir.

19 HEARING OFFICER: Okay, because I did receive a

20 notice of filing objections to the third request for

21 production, but I didn't see...

22 MR. BURGESS: A notice on that.

23 HEARING OFFICER: Yes. The second request, I do

24 have that. I had overlooked that. That is one you

25 would discuss, and maybe we won't have to deal with it.

1 The three we have to deal with are the depositions

2 of Boggess and the U.S. agency representatives and the

3 economics.

4 Well, let's take up those. There is no clearcut

5 situation.

6 I have read the motions and the responses that were

7 filed.

8 Let me say that I think the thing that is troubling

9 to me about this whole process is that it seems that it

10 was really an avoidable situation.

11 I don't know why it wasn't avoided. I don't, I

12 mean, I understand the U.S. position that if the

13 economic issues, the pertinence of the economic issues

14 are still outstanding, therefore he may not be a

15 testifying witness, but I don't know why we had to go to

16 the extent of having him noticed and everybody going up

17 with a deposition and nothing happening.

18 MR. SAXE: Mr. Hearing Officer, we had expected,

19 the United States had expected that both the League and

20 the Coop would be undertaking to depose Dr. Boggess at

21 the scheduled date.

22 We had made no decision until basically late in the

23 day before the deposition, based on the way things have

24 been going and, as you put it, the amorphous evolution

25 of the economic issue in the case, that we would have to

1 take the position that our potential economics witnesses

2 remain until, I mean, until we have some definition in

3 that area, expert litigation consultants regarding whom

4 we would be of the position that no discovery would be

5 appropriate.

6 But we did expect the next day at the deposition

7 that there would be two parties seeking to depose

8 Dr. Boggess and that there would be at least a day's

9 worth of deposition work to be done in reviewing

10 Dr. Boggess' professional background, reviewing his

11 general expertise, reviewing his general opinions, and

12 the general area of the subject matter for which he

13 would testify if that were to go forward, and in fact in

14 our instructions to the witness concerning the inquiries

15 into this work as a litigation consultant for the United

16 States we indicated clearly to counsel that questions

17 would be permitted, answers would be permitted

18 concerning work, and any work done before he was

19 retained as an expert consultant, any work done

20 afterwards but outside the context of the consultancy,

21 and furthermore any matters at all in the form of

22 hypothetical questions.

23 So we were in a position that we would have had no

24 objection on grounds of relevancy and the matters that

25 are joint in this series of motions.

1 If deposing counsel had sought to present

2 Dr. Boggess with material from the economic impact

3 statement or from the SWIM plan and to ask Dr. Boggess

4 for opinions on that matter, but we were not going to

5 permit any specific inquiry into the work done from

6 documents he produced or prepared as an expert

7 litigation consultant, etcetera.

8 So really what happened at the last minute was

9 counsel for the League was unable to make travel, to get

10 to the deposition, and so there was no, it wasn't the

11 case there was no deposition to take place. In fact

12 several hours of depositions did occur.

13 And if both counsel had showed I believe a full day

14 of deposition would have gone forward, notwithstanding

15 our position on the appropriate scope of that discovery.

16 The trip would have had to have been made in any

17 case to Gainesville to depose Dr. Boggess, and we are

18 working, we are trying to accommodate a wealth of

19 depositions and scheduling individuals where we can to

20 defer economic discovery until later in the discovery

21 process, so hopefully this issue can be resolved, but it

22 just didn't happen in time.

23 MS. PONZOLI: Mr. Hearing Officer, if I may, when

24 this depo was scheduled at the scheduling conference I

25 informed the Cooperative it was a problem, and

1 Ms. Stinson insisted on going forward. Mr. Saxe was not

2 there. She was well aware there was a problem before it

3 was set. I mean, it was just there from the beginning

4 that it was a problem as to what would be available at

5 the deposition.

6 HEARING OFFICER: Okay. A problem in terms of

7 what?

8 MS. PONZOLI: What the economic issues were. I

9 said, "You are the one who wants to put on the economic

10 case. Your witnesses should go first, so we know what

11 we are responding to," and it was insisted that this

12 depo go forward. Since there was no order of discovery

13 in the case, you know, the deposition was set.

14 HEARING OFFICER: Okay.

15 MS. STINSON: May I respond? Ms. Ponzoli is the

16 one we had a discussion with as to how well formulated

17 their opinions would be, given their position that they

18 would be responding to ours.

19 I was aware of that, as everybody is aware of all

20 the experts being deposed in this case, but there was

21 absolutely no mention at any time that I would not be

22 permitted to inquire into what he was working on, what

23 opinions he had or may be formulating, and the day

24 before or two days before, something, I took a

25 deposition of one of the environmentalists' economic

1 experts, and there was an objection on the record that

2 they thought it was irrelevant, but we went ahead.

3 I have subsequently taken depositions of other

4 economic experts of the environmentalists and the

5 District, and the same thing. They say it is

6 irrelevant, but I am permitted to inquire.

7 It is absolutely irrelevant that the United States

8 may have thought there would be a day's worth of

9 questions. The point is clearly without being permitted

10 to inquire into what work he is doing for the United

11 States or what opinions he may have had in connection to

12 that work the entire point of the deposition was

13 frustrated.

14 Let me point out that I was even prohibited from or

15 the witness was instructed not to answer questions on

16 whether he had opinions.

17 I was invited to ask hypothetical, but that is

18 ludicrous, if I don't know what he is doing in

19 connection with his work in this proceeding.

20 So it was in fact, I could have finished my inquiry

21 in the day. I mean, whether Mr. Saxe believes I could

22 have or not, I don't believe that is relevant. His

23 position was not told to me beforehand.

24 I did go to Gainesville and took, found out what I

25 could, but not the basic guts of what I went after.

1 This is critical, too, and I guess brings up the

2 need to decide the whole relevance of the environmental

3 issues that we have depositions going with another U.S.

4 economist on Monday and Tuesday in Washington, and we

5 need to decide what the position is.

6 HEARING OFFICER: Okay. Well, there are two

7 aspects of this, and first is obviously the pertinence

8 of the economic issues, and I hope at the end of the day

9 today a lot of this will be at least if not completely

10 resolved, at least everybody will have a better

11 understanding of my view as to how I will treat it in

12 this case.

13 So I think from that aspect of it, I mean, I can

14 understand that there would be some reluctance to get

15 into those issues during discovery, and that they would

16 not call the witnesses if the ruling on the economic

17 issues is contrary to what you think it should be.

18 What I have a difficult time with is those issues

19 should have been discussed before everyone goes flying

20 up to Gainesville and basically wastes a day.

21 The discovery schedule in this case is too tight

22 and there is too much going on to waste a day if you are

23 not going to allow the witness to answer the questions.

24 You know, I mean, I can understand that you may

25 have an objection, and if you can't work it out then we

1 can take that up, but I don't want people flying up to

2 Gainesville or Washington or somewhere else and then sit

3 there all day and have the witness not answer the

4 questions.

5 I mean, that to me is a real waste of time on

6 everybody's part. That is not the way I want to see the

7 discovery conducted in this case.

8 MR. SAXE: I understand, Mr. Hearing Officer. We

9 had certainly no intention that that take place or any

10 expectation that that was the way it was going to have

11 to happen.

12 There was no, certainly no malice, there was no

13 intent to surprise the Cooperative with his position.

14 It was simply something that as it came up there did not

15 appear beforehand in any adequate, with any adequate

16 amount of lead time to be another way to address it.

17 That's why it happened the way it did. I think if

18 both parties had arrived for the deposition as had been

19 all parties' expectations, as I said, in fact there

20 would have been a day's worth of depositions.

21 HEARING OFFICER: It would have been a day's worth

22 of depositions with no meaningful questions answered,

23 and ultimately if it turns out that his deposition has

24 to be taken again, I mean, it might save some time, but

25 there would be new expenses.

1 MR. SAXE: No, what I meant when I said there would

2 be a day's worth of depositions, I don't mean a day's

3 worth of questions and instructions not to answer. I

4 mean a day's worth of background and preliminary inquiry

5 that we would have permitted that would have been in any

6 case undertaken had this issue never arisen in the first

7 place. That's what I meant to say.

8 MR. BURGESS: I was the one fogged in in Miami.

9 The plane was cancelled. I was unable to get up to

10 Gainesville before the deposition would have been going

11 on for three hours.

12 I don't think there would have been a day's worth

13 of questions. I was going up there to ask some similar

14 questions that Ms. Stinson was, and we never would have

15 even gotten to my inquiry, because she would have

16 adjourned the deposition, and I would have not been able

17 to find out what he was hired to do and what his

18 preliminary or final opinions are.

19 HEARING OFFICER: Okay. Well, you know, I have to

20 bear some of the responsibility for this myself I guess

21 in the sense of leaving all of these economic issues

22 hanging out there and everybody uncertain as to where

23 they fit into the whole scheme of things.

24 But, you know, I understand that everybody is going

25 in a lot of different directions, and it is hard to

1 communicate, but there is no real sense in having an

2 attorney go up and spend the time and expense of going

3 to a deposition and then not having his substantive

4 questions answered. I just, you know, I don't have any

5 tolerance for that.

6 I won't enter an order granting expenses in

7 connection with it if you submit something to that

8 effect, okay?

9 The next is with the League's motion to compel in

10 the deposition of the U.S. agency representative.

11 We have talked about this issue on a number of

12 occasions in the past in terms of the effect of the

13 settlement of the federal lawsuit and its role in this

14 case.

15 I think I have attempted to articulate some of my

16 thoughts along these lines, maybe not very clearly.

17 I tried to give you some of my thoughts. I guess

18 we are right now getting into the real crux of this in

19 terms of how far the discovery has to go.

20 And I at least looking at it preliminarily, without

21 knowing who the individuals are, exactly how it all

22 comes into play, or what happened in the background of

23 it, I must admit that I have some concern that we are

24 beginning to get off the track of what I think the

25 potential focus of, you know, the potential relevance of

1 the federal settlement is, and we start getting into a

2 lot of issues in terms of who negotiated what and who

3 did what where, and so I have some concern in those

4 regards, and I wonder if it is necessary to begin going

5 off on these various avenues. So go ahead.

6 MS. KAVANAUGH: First of all we haven't asked any

7 questions yet, because we haven't even had a chance to,

8 and I think what happened, because the only objection

9 filed in the U.S. response addresses their duces tecum

10 and only addresses one of them, which does say any and

11 all documents relating to development of the settlement

12 agreement entered into, etcetera, etcetera, which is,

13 but the way it was cast and the way that we indicated

14 the designated reps that we wanted, what we wanted to

15 inquire into is how they got from Point A to Point C,

16 not motives, not who shot who, but just in the course of

17 the records, because we have numerous notes with

18 different numbers and different alternatives that were

19 apparently considered by the scientists during these

20 discussions that resulted in the numbers that are now in

21 the SWIM plan.

22 My inquiry is limited solely to those portions of

23 the settlement agreement that have been incorporated

24 into the SWIM plan and the factual cases under which

25 those were developed, not whether, you know, there was

1 coercive influence, etcetera, etcetera, although we do

2 believe that is an issue, but that was not what we were

3 going to with our request.

4 We, for example, and I understand, I was not at the

5 previous deposition, but in one of the depositions of

6 one of the individual scientists who participated in the

7 settlement, development of the settlement agreement, the

8 individual was not even, he was not allowed to identify

9 as a matter of fact whose handwriting it was on the

10 requested proposal of a different phosphorous limitation

11 than what was in the SWIM plan.

12 We are not interested in motives so much as we are

13 how the facts got changed. We have the plan that

14 existed, and now we have the current SWIM plan, and we

15 were not involved in that scientific process, and I

16 think we are entitled to know the scientific basis, the

17 factual basis that they used to get to the numbers.

18 That is what our inquiry was directed to. And the

19 U.S. response I was told this morning before I came here

20 appears to be saying we are trying to ask for privileged

21 documents.

22 That's all, we've got a 300-page document on a

23 Vaughn Index from the federal court. We are not after

24 that. That is a whole separate issue.

25 We want information related to the facts that were

1 discussed that resulted in the numbers that were taken,

2 lifted verbatim from the settlement agreement to the

3 SWIM plan, and that's our area, and I think how else,

4 since as we didn't participate in the development, are

5 we going to find out how they reached that?

6 HEARING OFFICER: Ms. Ponzoli?

7 MS. PONZOLI: I think that if you read the

8 designated rep request, Mr. Menton, and if you read our

9 objections, it isn't a narrow issue. It is the whole

10 negotiation of the settlement agreement that they are

11 going towards.

12 The first request which she thinks is the only one

13 that we are objecting to, any and all documents relating

14 to the development of the settlement agreement entered

15 into as a consent decree in this case, and that is the

16 federal case, and every request goes to the settlement

17 agreement, any and all documents, including

18 correspondence, related to the development, any and all

19 documents related to the witness' participation in

20 settlement negotiations among the parties in the federal

21 lawsuit.

22 I have already among the 167 depositions that we

23 have presently scheduled, I have given and made

24 available those people who will testify as to the

25 appropriateness of the STAs that were included in the

1 SWIM plan, and if the League and/or the Cooperative

2 wants me to say, "This is the person with the most

3 knowledge from this agency regarding the appropriateness

4 of an STA or the appropriateness of the limitation into

5 the refuge or into the park," I will do that

6 designation.

7 What Ms. Kavanaugh has told me is she wants two

8 bites of the apple. She wants to take my person as a

9 designated rep on the appropriateness of the limitation

10 and the appropriateness of the STAs as a designated rep,

11 and she also wants to take them as one of my expert

12 witnesses. That's not right. That is cumulative, and

13 it isn't appropriate.

14 I think that what she is saying, she wants to know

15 what our thought processes were in deciding that these

16 are appropriate numbers. I believe that all goes in

17 privileged matters.

18 I think that the documents that she requested, she

19 has every document except what exists on this federal

20 privilege list, and this federal privilege list has been

21 in existence for five full months.

22 Were they to compel these documents you would be

23 compelled to begin ruling on the appropriateness of the

24 federal privileges asserted in a federal lawsuit between

25 federal attorneys and their agents, and, I mean, that's

1 just all, it is improper in the context of the SWIM

2 challenge. It is wrong. It is a collateral attack.

3 MS. KAVANAUGH: I'm not going to do that.

4 HEARING OFFICER: Okay. I understand your concern

5 that the request seems broad and could be read to

6 include those things, but she is stating right now, she

7 is saying that's not what she is seeking to do.

8 What problems do you have with what she has just

9 stated?

10 MS. PONZOLI: If she narrows it down to what she

11 has stated, I have two problems. I do not believe that

12 she is entitled to the internal debates within the

13 federal government as to what number is appropriate.

14 Those are privileged communications among the federal

15 agencies. She is not entitled to communications between

16 attorneys and clients as to the appropriateness of

17 various things. She is entitled to, "Why is this number

18 right or wrong? Why do you think, what do you have that

19 backs up this number?"

20 HEARING OFFICER: Well, let me break those two out.

21 I agree with you on the attorney-client aspect of it,

22 but on the earlier one in terms of the development of

23 the numbers, as I understand it, you know, and I don't

24 know the complete context in which it was developed, but

25 isn't that process pertinent in terms of if they have a

1 number here but they might have another one before, any

2 information or exchange of information that led from one

3 number to the other? Isn't that pertinent? Isn't that

4 part of the whole process of whether the ultimate number

5 is reasonable or not?

6 MS. PONZOLI: For the SWIM plan itself I think it

7 is appropriate. You said you would accept what the

8 thought process was that the state went through.

9 If you go into the federal process you are going

10 into our privileged internal debates. I think we have

11 to substantiate the final number. What our internal

12 debates are I believe are privileged communications.

13 They are part of our attorney-client, they are part

14 of our work product, and the whole case is on appeal to

15 the 11th Circuit. We may be back in federal court on

16 that if someone overturns some portion of it.

17 So I believe as to the settlement and all of those

18 portions that the federal government participated

19 internally, no, I think those are privileged

20 communications. I think we have to substantiate what is

21 there at the end.

22 I mean, I don't think, I don't think that they are

23 going to let me go into their experts, every thought

24 process they ever had in their development of their

25 position for this case. I think those will be

1 privileged areas of their work product. I think these

2 are privileged areas in the federal litigation.

3 I also think you are allowing two bites of the

4 apple if you let the designated reps come and the

5 experts.

6 I think as to factual matters there ought to be a

7 single deposition and a single attorney, not two

8 attorneys, as she tells me she is going to send two

9 attorneys, one as a designated rep and one as the

10 expert. I want one attorney questioning my person one

11 time on the numbers.

12 HEARING OFFICER: Well, if I understood what you

13 were saying earlier, if you designate someone from the

14 agencies, it is already somebody you have listed as a

15 witness.

16 MS. PONZOLI: That's right.

17 HEARING OFFICER: And if that is the case, then I

18 don't...

19 MS. KAVANAUGH: I have already made the offer that

20 the only distinction is that I am asking, I am the one

21 most familiar with the public records we have, and they

22 say 10,000 acres here, and then a month later it is

23 16,000 acres, things like that that I will be conducting

24 questions to the person who is the designated rep, as

25 opposed to the attorney from the office deposing him as

1 the expert witness, and I would tack that onto the same

2 deposition. That's all I've said.

3 I am not suggesting two depositions. I am

4 suggesting we do it in the same time frame, and I will

5 be asking questions. It is a matter of internal

6 assignment.

7 If we have a person called as an expert, then I

8 will depose him as a designated rep, or vice versa. It

9 doesn't matter.

10 It is just a matter of two hats, two hats the

11 individual might be wearing.

12 MS. PONZOLI: I can wear two hats to a deposition,

13 too, Mr. Hearing Officer. It is not hard to do.

14 MS. KAVANAUGH: It will not add more than a day or

15 even half a day to these depositions. But to try and

16 take, Mr. Hearing Officer, I will give you an example.

17 A prime example is where you have on April 4th, pick any

18 date, you have an auto parts pavilion appearing as a

19 standard they are discussing, and the next day they get

20 another one, and the next month another one.

21 All I want to know is the facts surrounding from

22 that agency's perspective surrounding the change in the

23 number.

24 The United States is a party to this proceeding. I

25 am not going to discuss between Ms. Ponzoli and her

1 client. I am asking about the facts and the discussions

2 between the state and the federal agencies that evolved

3 into the numbers in the SWIM plan. That is the sole

4 crux of my questioning.

5 MS. PONZOLI: That's the whole settlement

6 negotiation that you are asking for. You are asking

7 that we reveal virtually everything that we said and

8 everything that was done in all the settlement

9 negotiations. That is what she has asked for, and from

10 the beginning of this whole process, Mr. Menton, you

11 have said we are looking at the appropriateness of the

12 numbers that sit in the SWIM plan. They stand or they

13 fall on their face. They are appropriate, or they are

14 not.

15 And we have 167 depositions, and we don't need to

16 go through a whole settlement negotiation, and I can

17 tell you the way these depositions are evolving the

18 League obtained some 8,000 pages of settlement documents

19 from the federal government alone, and they are hauling

20 out every page and asking, "This was underlined. Who

21 underlined it? Who wrote this notation?"

22 I mean, it is ridiculous. We are not, we will not

23 further the cause of this hearing. We will invade

24 privileges. We can drag this out as long as we want.

25 She told me she set one or two days to do a

1 designated rep on top of my expert witness, when the

2 second lawyer walks in.

3 MS. KAVANAUGH: That's not the case. I guess the

4 bottom line is if they are privileged questions,

5 attorney-client privilege, work product doesn't really

6 apply, because Judge Hoeveler has already ruled they

7 were adversarial, so if there is attorney-client

8 privilege items we can assert the privilege, and I think

9 it is reasonable to come back to this.

10 HEARING OFFICER: It is hard for me in the

11 abstract, because I have not been through the

12 depositions, and I don't know who the individuals are,

13 and I am trying to understand how it is coming down, but

14 I think the first step in this process is to deal with

15 making sure that if there are designated agency

16 representatives that they are identical to witnesses who

17 have already been identified. Once that has been done,

18 then the depositions will be taken, and I am not sure

19 where the problem is.

20 If there are two witnesses, one whose area of

21 expertise may be different than another, given the

22 complexity of this case, I don't necessarily find a

23 problem with that.

24 Now I do want to, you know, emphasize again I don't

25 want I guess to turn this into a relitigation of the

1 federal settlement. I have said that before. I mean

2 that.

3 On the other hand I think that the numbers that are

4 in the SWIM plan to the extent they came from the

5 federal witnesses, the process by which those federal

6 witnesses arrived at it is relevant, and if they had a

7 different opinion at one time I think that can be

8 inquired into.

9 Now in terms of the negotiations of the settlement

10 of the federal lawsuit versus the Water Management

11 District, no. It is not. If they have a different

12 opinion, then I think you are entitled as to why they

13 did and why they changed. It goes to the reasonableness

14 of the numbers.

15 MS. PONZOLI: I will designate as to the different

16 agencies the different witnesses I already have, who

17 they are. This is from the Corps, from the Park, from

18 the Refuge. This is going to be the person with the

19 most knowledge on whatever portion of this that person

20 is.

21 I do want though the protection of a single lawyer

22 doing that deposition. I think it is entirely

23 inappropriate that two lawyers are doing a single

24 deposition.

25 I will say he is a designated person and what he is

1 designated as to within the interim ambient phosphorous

2 concentrations or whatever or the STAs, and let's take

3 that, and let us bring back to you some framed issues

4 from the questions that I believe have gone too far into

5 the privilege. Is that acceptable?

6 HEARING OFFICER: Well, I think what will happen is

7 you will have two lawyers sitting there, one of them

8 passing notes to the other.

9 MS. PONZOLI: That's okay. That's okay. I can

10 live with that. That's going on in the depositions now

11 all the time. Experts are passing questions, and

12 lawyers are passing questions, but at least we have some

13 framework of a single lawyer asking questions.

14 MS. KAVANAUGH: I would like to know one thing.

15 How will we know when the expert is giving his opinion

16 as an expert and when he is telling me basically the

17 fact of the agency's position? That was the only reason

18 I wanted to segregate the questions.

19 MS. PONZOLI: Ask the question.

20 MS. KAVANAUGH: As you say, what will end up is we

21 will have after every question, "Well, is that your

22 position as an expert, or is that the opinion of the

23 Corps of Engineers?"

24 HEARING OFFICER: Well, I think it is reasonable if

25 you are going to double team a witness that you can

1 extend your endurance. By having two witnesses ask

2 questions, that's not fair to the witness. This way

3 both people get exhausted at the same time.

4 MS. KAVANAUGH: But isn't it true that normally we

5 are actually deposing the agency, not just the witness?

6 I guess that's my concern, how we will separate those

7 out.

8 MS. PONZOLI: How do you do facts of an agency?

9 She said she wanted the facts of the development of the

10 numbers of the agency. You know...

11 MS. KAVANAUGH: She's here representing specific

12 agencies at the first hearing. Those are the only ones.

13 HEARING OFFICER: There's no sense of getting into

14 this. I think it is reasonable to limit it to one

15 attorney, and we will deal with it that way.

16 I assume that from the discussion that has gone on

17 that all of the agency designees are identified as those

18 people who are now identified?

19 MS. KAVANAUGH: Well, there is some question there.

20 Apparently they are working to identify some for the

21 Refuge, the Park, and the Corps, but at the initial

22 hearing I believe Ms. Ponzoli indicated EPA was also one

23 of the party agencies, and it, of course, is a signatory

24 to the agreement, as is the Department of Agriculture.

25 So I would like to talk to Ms. Ponzoli. Maybe

1 those agencies actually didn't participate in the

2 development of the numbers. I don't know.

3 HEARING OFFICER: Okay. That is a non-issue at

4 this point. In terms of the people who have been

5 noticed for deposition or the agencies that have been

6 noticed, they already coincide with witnesses that have

7 already been listed, so we don't have a problem in that

8 regard?

9 MS. PONZOLI: If there is anyone else I will make

10 them available and tell them what they do.

11 I guess we do need to resolve the documents. I

12 mean, you are not asking me to produce privileged

13 documents, is that right? I have those.

14 MS. KAVANAUGH: No, I would not be. I would not

15 get them anyway. I'm not.

16 MS. PONZOLI: All right. They already have the

17 settlement documents. We don't need to produce them a

18 second time. There are no more, other than what exists

19 on the federal privilege list. That's what is to be

20 had.

21 MR. NETTLETON: Again it is not ours, but it has

22 been as we have tried to exclude settlement

23 negotiations, because we don't think it is relevant to

24 the SWIM plan.

25 Ms. Kavanaugh has indicated that, and I think she

1 has given the impression here that there is some, that

2 there is some dramatic change in the SWIM plan

3 pre-settlement and post-settlement.

4 Mr. Whalen's deposition was taken over five days.

5 He is the coordinator or the organizer of the

6 information that was put into the final SWIM plan. We

7 spent literally days going through the settlement

8 discussions and things.

9 This is one of the problems we are having here if

10 we are talking about expediting discovery, because I

11 don't think it is as crucial as any of this.

12 If she wants to ask questions, what she says she

13 wants to ask questions about is the information from the

14 settlement agreement that's in the SWIM plan. I don't

15 understand why they can't simply ask a question about

16 how this information and the SWIM plan developed.

17 If it developed pursuant to the settlement

18 discussions, that's going to come out naturally through

19 the testimony anyway. There is no reason to be going

20 into who said what to who and who drafted this over

21 here.

22 We are getting discovery now from the League asking

23 us about pleadings filed in the federal litigation, who

24 prepared this answer to the complaint, these responses

25 to requests for admissions.

1 We spent literally a day during Mr. Whalen's

2 deposition going through internal documents concerning

3 the request for admissions in the federal litigation.

4 HEARING OFFICER: Well, I mean, that's the kind of

5 stuff I have tried to express before that I don't think

6 we need to get into, and again I am not privy to all of

7 the discovery, but that's, you know, that's the kind of

8 thing we don't need to waste time on.

9 MS. KAVANAUGH: Just so I understand, because the

10 admissions I will actually, I think what they are going

11 to were in the answers that said the number should be

12 the technical facts of A, B, and C, and all of a sudden

13 it is different now.

14 But that is really what we are entitled to ask

15 about, is it not? If something changed, if something

16 substantive changed, how, what the basis of the change

17 was for changing it, the factual basis, as opposed to

18 why you did it.

19 MR. NETTLETON: Well, first of all, Mr. Hearing

20 Officer, Mr. Whalen was a fact witness, not an expert

21 witness, and that's another thing.

22 With the six designations she wants to make a

23 distinction between the position of an entity versus the

24 facts, I don't know that there is any distinction.

25 I don't know that six depositions can be taken to

1 obtain opinions from an entity. My understanding is it

2 is for factual testimony.

3 MS. KAVANAUGH: We are not going to ask opinion

4 questions. As you go from one part per billion to 50

5 parts per billion we want to inquire as to the factual

6 basis, what evidence was relied upon for the opinions.

7 That's the focus of the inquiry, and I will represent to

8 you that's the focus at least of our inquiry.

9 I know other parties have raised coerciveness, not

10 the United States, but that's what we said.

11 MR. NETTLETON: Maybe it would be helpful, and I

12 know you have ruled on this in the sense of the rulings

13 of hearings, that you don't want to retry the federal

14 lawsuit, but there hasn't been a ruling entered

15 delineating the areas, so maybe it would be helpful,

16 because the parties obviously disagree on how far they

17 can go and what the rulings mean.

18 It is coming up during essentially every

19 deposition. Maybe if there was something in an order,

20 it would help expedite the proceedings.

21 At this point as far as I know we had not, I have

22 not instructed any witnesses not to answer with regard

23 to those items, unless I thought there was a serious

24 privilege question involved, but so far as the relevancy

25 of the settlement and all of that I have allowed them to

1 go on.

2 I think it has taken too much time, that we should

3 devote it to the actual basis of the SWIM plan

4 documents. I don't think they have changed as much as

5 the petitioners would have you believe between 1990 and

6 1992. I think there is a gross overstatement.

7 HEARING OFFICER: Well, Mr. Nettleton, I think the

8 problem I have with this suggestion is I don't know how

9 doing an order in the abstract and what you are saying,

10 I mean, if you want to propose something and let them

11 take a look at it, I will take a look at it, and we can

12 take it up at the next hearing, but not having sat

13 through the depositions and not knowing what the

14 questions are I don't know, maybe the only way to frame

15 it would be to object to some of the questions and then

16 bring them in, and I will look at them and deal with

17 them from there.

18 In the abstract I don't know how I can give you any

19 further guidance than what I have tried to say through

20 several of the hearings in the past.

21 MR. NETTLETON: I understand, Your Honor,

22 Mr. Hearing Officer, and rather than trying to propose

23 an order, which will undoubtedly create another round of

24 briefs back and further, we will continue on as we have

25 been doing.

1 HEARING OFFICER: But if there are any areas that

2 you think are, represent the abuse that you are

3 concerned with, make your objection, and we will take it

4 up. I don't have any problem doing that.

5 It is just in terms of dealing with it in the

6 abstract I don't know how to do it.

7 MR. NETTLETON: I understand.

8 HEARING OFFICER: Okay. We are now down to the

9 last one then, I guess.

10 MR. BURGESS: I think it would be appropriate

11 perhaps to bring up the objections to the request for

12 production today, and maybe we can get some guidance.

13 If you don't rule, maybe you could order us to

14 discuss it and try to resolve it. It is something not

15 abstract. It is published reports, existing data,

16 discovery solely related to the SWIM plan challenge that

17 we could hopefully dispose of fairly quickly.

18 HEARING OFFICER: Okay. These are the ones, the

19 second request for production?

20 MR. BURGESS: The second request for production

21 that the League sent the United States, and it was

22 objected to.

23 That second request for production, Your Honor,

24 concerns published reports and the raw data used,

25 reviewed, or relied upon in preparing those of

1 Dr. William Walker and Dr. Robert Kadlee and Dr. Sue

2 Newman. Dr. Walker and Dr. Kadlee were one of the

3 experts of the United States. Dr. Newman was one of the

4 experts of the District and was the co-author of the one

5 published report with Dr. Kadlee.

6 As explained or as cited in the request, they are

7 reports with published dates of June and July and

8 August, 1992, and they were all presented at the SAGE

9 meeting in October and November last year, Scientific

10 Advisory Group for the Everglades, at the District, and

11 an expert listed by the League and the Coop, Dr. Curtis

12 Richardson, was also there, and Doctors Walker, Kadlee,

13 and Richardson all made presentations to the SAGE on the

14 topic of stormwater treatment, and basically these

15 experts got up and said what was wrong or what was right

16 in their opinion with the stormwater treatment areas

17 that are proposed for the SWIM plan, and now the reason

18 I bring it up is I don't want it to be a case of good

19 guys finish last.

20 Ms. Ponzoli when the deposition started insisted on

21 taking Dr. Richardson early in the process. I made him

22 available two weeks ago for a week in North Carolina,

23 and it was right at the time we started discussing the

24 production of expert documents and when they would be

25 produced.

1 In addition to my producing his expert documents

2 she issued a subpoena to Duke University, and they

3 turned it over boxes upon boxes of documents, including

4 documents that went into Dr. Richardson's presentation

5 at SAGE, which was a public presentation.

6 But when we started negotiating the deposition

7 schedule I wanted to take Doctors Walker and Kadlee

8 early, early February and early March, because I wanted

9 their documents.

10 As the deposition process ensued we were informed

11 they are very busy, and I know they are, and they have

12 teaching schedules, etcetera, and now the way it has

13 fallen out Dr. Kadlee is deposed the last week of March,

14 and Dr. Walker the last week of April, and they are

15 saying I don't get the documents until three weeks

16 before.

17 Right now this request for production is asking for

18 all their expert witness documents. The presentations

19 were made in October and November. They concern my area

20 of the case. They are published reports. They are data

21 that has been reviewed. This is a discrete request for

22 production.

23 They end up saying he is not going to rely on it at

24 hearing, and so I am not entitled to get it three weeks

25 before the hearing, before the deposition, so I am never

1 going to get it. They may say that something came up in

2 Dr. Walker's schedule, and he has to be deposed now in

3 May, and then I am delayed again.

4 We are frustrating the discovery schedule if we put

5 this off to the three weeks before.

6 Ms. Ponzoli knows how many documents she got from

7 Dr. Richardson, boxes upon boxes. I also made available

8 or agreed that Dr. Richardson's co-investigators would

9 be deposed for a single day to identify their documents,

10 and then she could come back a couple of weeks later and

11 take their depositions on those documents, and so she

12 has Dr. Richardson's documents, and she has the

13 investigators' documents, but by pushing this off to

14 three weeks in advance of the experts' depositions we

15 are going to delay discovery, because these are

16 documents we would like to get to our people.

17 Now we are not talking about the totality of the

18 expert witness documents. When you review these, these

19 are published reports and the data supporting the

20 published reports that were presented at the SAGE

21 meeting.

22 So I have tried to get, for instance, I have tried

23 through Dr. Newman to get the data supporting that

24 report. The District told me, "We don't have it. You

25 have to get it from Dr. Kadlee."

1 I asked for it from Dr. Kadlee, and now I am told I

2 will get it three weeks before deposition, if I get it

3 then.

4 So this is not a situation that involves the

5 totality of expert witness production. This is a

6 discrete document request that she wants to say, "Well,

7 it is part of his expert documents, so we are not going

8 to produce it." I think we need some directions from

9 Your Honor, because I think that will frustrate and

10 lengthen the discovery process.

11 MR. NETTLETON: Mr. Hearing Officer, I want to

12 correct Mr. Burgess on one thing. He indicated that Sue

13 Newman was a designated expert, not fact. I just wanted

14 to clarify that.

15 MR. BURGESS: Okay. She is on our list, and we

16 will take her deposition.

17 MR. NETTLETON: That's true.

18 MS. PONZOLI: Mr. Hearing Officer, I have always

19 respected Mr. Burgess, and I have to tell you that is

20 one of the finest pieces of lawyering I have heard in a

21 long time. That is a genuine distortion of what has

22 gone on with expert witness document production.

23 We have a discovery and scheduling order in this

24 case that we all agreed that we would produce documents

25 one week ahead of depositions. The United States took

1 the position that that did not foreclose asking for

2 documents immediately.

3 Mr. Burgess and the League said, "No, no, no. You

4 get them one week ahead."

5 I can show you objections to our request for

6 productions last summer where they said exactly that.

7 "You get them one week ahead."

8 The parties have agreed and decided that it was,

9 they have for the most part my experts' documents,

10 because they got them in the federal litigation, so it

11 is only what happened since then that they are missing,

12 things such as this discrete portion.

13 But in any event the parties decided that three

14 weeks was more reasonable than one week.

15 I can't tell you the circles they ran me in to get

16 Dr. Richardson, three and a half months of bickering,

17 subpoenas. They made me subpoena virtually every one of

18 his researchers. They say, "These researchers are not

19 Dr. Richardson's. We have no control over them.

20 Ms. Ponzoli, you go to North Carolina, you subpoena

21 these people, and you get the documents this way," so I

22 did. I went to North Carolina, I subpoenaed them, and I

23 got the documents,

24 I got Dr. Richardson's. They did not give me

25 Dr. Richardson's documents that they say existed within

1 the Duke Wetlands Center. I had to subpoena the Duke

2 Wetlands Center, so I subpoenaed the Duke Wetland

3 Center.

4 I got Dr. Richardson's documents about three and a

5 half months ago, back and forth, three weeks.

6 Now they were not really three weeks, like a few

7 days before, a few days before the depo, because it was

8 over the Christmas break.

9 I have made an offer of resolution which I thought

10 we would discuss on the break that we have a

11 simultaneous document exchange of the expert witness'

12 documents, just choose a date where everyone says,

13 "Okay, here." This offer has been made in the past, and

14 I said no. I have made it to them, and they have said

15 no. So we are all making it again, and I guess they

16 will say no or whoever.

17 I propose we have a single day to exchange exhibits

18 for all expert witnesses. They give me theirs, I give

19 them mine, and then there will be an even playing field.

20 But if you compel me to turn over expert witness

21 documents, the underlying data, such as they have

22 requested here, you have created an unequal playing

23 field, because they will be getting months in advance my

24 expert documents, and I would say I should get

25 Dr. Davis', who is being deposed way down on the

1 schedule, too. He has made presentations to SAGE.

2 Mr. Barber has made prentations to SAGE. He was

3 someone else's witness. Mr. Larson has made

4 presentations to SAGE. This just won't stop with this

5 one.

6 So we either need to go by three weeks ahead or

7 have a single date that we exchange, but some even

8 playing field needs to exist, and I can live with it

9 either way.

10 HEARING OFFICER: This issue has come up before, as

11 I recall, and I am trying to research my brain to

12 remember what we did with it the last time, and I don't

13 remember, to be honest with you.

14 MR. NETTLETON: Mr. Hearing Officer, I think it

15 came up through our motion specifically with regard to

16 Richardson.

17 It was the United States' request for production

18 that was served back in August. We did not file a

19 separate request. We just filed a notice and joinder

20 type thing.

21 At some point Richardson's deposition was

22 scheduled, and it was rescheduled.

23 We wanted the documents. We filed a motion to

24 compel on that. And at some point we agreed with the

25 League to put it off based upon productions that were

1 occurring slowly over time, and that essentially was

2 never resolved, but this issue was addressed in our

3 papers at that time, and I don't think you have ever

4 actually addressed it, because we have continually put

5 it off.

6 I think that is what you are remembering.

7 HEARING OFFICER: Well, go ahead.

8 MR. BURGESS: It was the Duke University counsel

9 that insisted on the subpoena process, not us. We were

10 always willing to make the documents that Dr. Richardson

11 was going to review, rely upon, and consider in

12 formulating his opinions three weeks in advance.

13 It was reasonable, three weeks in advance of

14 deposition, to say, "Yes, he has come to the conclusion

15 these are his expert witness documents," but when you

16 start dealing with these other things, presentations

17 made in October and November, 1992, why can't we have

18 them now to give them to our experts to consider? Why

19 should we wait until three weeks before? And I may be

20 frustrated when these are not part of the expert witness

21 documents.

22 So one week and three weeks concerned I think a

23 narrower field of what constitutes expert witness

24 documents. We are talking about here documents

25 technically in the public domain since last October.

1 HEARING OFFICER: Okay. Well, I think I have

2 indicated before, and the way I want to approach these

3 issues is to fulfill a date for discovery as much as

4 possible. Okay? I think that the important thing is

5 that it has to be consistent for all parties involved.

6 Everybody follows the same rules, and I think that,

7 I thought I had expressed it, maybe I haven't,

8 Mr. Nettleton, but I think if there are documents out

9 there, the fact that an expert may be relying on them

10 doesn't mean you can withhold the documents until one

11 week before deposition. That is not the way I want it.

12 If there are documents available, everybody should

13 be able to discover the documents through the normal

14 process.

15 The expert document designation simply is to make

16 sure before the expert's deposition is taken that all

17 the documents on which he is relying have already been

18 produced, so that there is a proper opportunity to

19 prepare for the deposition.

20 So that's the procedure that I want followed, and I

21 think it should be consistent across the board for

22 everybody.

23 MS. PONZOLI: Can we choose a date? I have an

24 outstanding request from last summer for all of these

25 documents that have been sitting there all this time.

1 So is it possible that the parties can confer

2 outside and come back to you with a date where we

3 propose to respond to all of these?

4 MR. BURGESS: How about a week or a month?

5 MS. KAVANAUGH: They asked for all the expert

6 documents. It asked for all categories. I think that's

7 where perhaps this confusion became a problem.

8 That's where this got started. So it's the

9 denomination of expert documents that is causing the

10 problem here, and I think what you said before is we

11 have asked for documents in a specific relevant

12 category, relevant or not, discoverable category, then

13 we need to get them or give them.

14 HEARING OFFICER: Right.

15 MS. PONZOLI: You have not said anything different

16 than what I said. You said I am entitled to all of

17 Dr. Davis' documents, all of Dr. Larson's documents, and

18 all of those other documents that existed specifically

19 right now that I can't get my hands on.

20 MS. KAVANAUGH: When you say expert documents...

21 MS. PONZOLI: You know what your experts are listed

22 for. You know what their documents are. Those things,

23 this is just talking in circles. We know that these are

24 expert documents that you are asking for.

25 We all know that the underlying data are expert

1 documents, so all I am asking for is an even playing

2 field. He said the even playing field exists, and we

3 want to move off that. That's the problem.

4 MS. KAVANAUGH: Do we have to produce, he has done

5 a lot of work in the Everglades for a lot of other

6 people outside this. Do we have to produce every single

7 document in an expert's hands?

8 Maybe we can work it out if we can work out this.

9 MS. PONZOLI: His expert documents for this case,

10 Mr. Menton. I am not talking about what he is doing for

11 every client that he is doing work for, that is just

12 every client that he is doing work for associated with

13 this case.

14 I ran into this Chinese wall problem in the federal

15 court. He has little walls in his mind. "I did this

16 for Belle Glade, I did this for the sugar industry town,

17 I did this for Clewiston, I did this for the League, I

18 did this for the Cooperative."

19 He has all of these little Chinese walls. I want

20 everything that has been done for the industry that are

21 expert documents on the Everglades.

22 If it is for some aquifer storage and recovery

23 unit, I don't care about them.

24 HEARING OFFICER: When you say for the industry, I

25 am not sure...

1 MS. PONZOLI: Any entity that is here. Any entity

2 that is in this room, any entity that is in this room,

3 any member of the sugar industry represented in this

4 room that he will rely upon at the time he comes to

5 trial, then those are the ones I want.

6 If there are other entities that he will not rely

7 upon as documents at the time he comes to trial, I don't

8 want them. I am not asking for them.

9 MS. KAVANAUGH: Okay.

10 MR. BURGESS: The documents he has relied upon.

11 MS. KAVANAUGH: We understand. I think we can work

12 this out.

13 HEARING OFFICER: Okay. Let's try to work it out.

14 Before we jump into the economics, let's take a

15 five-minute break.

16 (WHEREUPON, THE HEARING WAS RECESSED FROM

17 12:10 P.M. TO 12:25 P.M., AT WHICH TIME MR. BURGESS WAS

18 ABSENT FROM THE HEARING ROOM.)

19 HEARING OFFICER: Okay. I guess this is a main

20 issue why we are all here today.

21 I wish I could say I had all the answers on this

22 one, but I am not sure that I do.

23 I have spent a lot of time thinking about these

24 issues and reviewing all the various pleadings that the

25 parties have filed, and while I think everybody has

1 raised a number of very good and pertinent and important

2 points, I am not convinced that I see any of you have

3 given me the total answer at this point.

4 I know, I think probably all of you think you have,

5 but I am not totally convinced on anybody's position

6 completely at this point.

7 Let me just start by saying that I am not going to

8 remand the case, as much as I would like to. I think in

9 view of a lot of considerations I just don't think

10 that's appropriate. This is a de novo proceeding, and

11 we will deal with the issues, and I will deal with them

12 in my order, and we will take it from there.

13 Likewise I am not going to attempt to sever out any

14 portion of it. I weigh that very seriously, and I just

15 don't think it's a workable resolution in any way.

16 I think, I recognize the issues that Mr. Guest has

17 raised in his pleadings regarding the clear direction in

18 a legislative enactment of the Marjory Stoneman Douglas

19 Act that some action or drastic action in fact be taken

20 in connection with the cleanup of the Everglades, and I

21 also recognize there was a conscious decision not to put

22 a cost limitation on that implementation.

23 But having said that I don't view the deletion of

24 the not contrary to public interest language to mean

25 that the otherwise applicable provisions of the water

1 quality standards, the moderating provisions don't

2 apply.

3 I think if the Legislature had intended that, there

4 would have been a more clear direction in the Marjory

5 Stoneman Douglas Act telling me that.

6 Having said that, I don't know quite how they

7 apply, and I don't know at this time that I can.

8 You know, I know Mr. Green has argued this

9 extensively. I am not sure that I completely agree with

10 the way he argues it should apply. I think it is too

11 premature to say that, anyway.

12 I have seen references from the District and from

13 DER that some of the moderating provisions have already

14 been included within the plan, and certainly I think

15 those issues can and should be bought up in the context

16 of this hearing, but I think the petitioners are also

17 entitled to argue their interpretation as to how those

18 provisions apply, and I will give them leeway to do

19 that.

20 Now having said that, I am afraid I am opening up

21 Pandora's Box, and I don't know exactly where that goes.

22 I think the only way to deal with it is to try to

23 set some direction now and see how that leads during the

24 discovery process. If we run into problems and need to

25 get a little bit more specific, we can do it.

1 Anyway, that's the bottom line I guess as to what I

2 have come down to. Having said that, I know there are

3 probably a lot of questions and further explanations

4 that all the parties might want, so I will give you all

5 an opportunity.

6 MS. STINSON: It affects Monday and Tuesday of next

7 week. In your opinion it does not make the economic

8 impact of the SWIM plan a relevance issue?

9 HEARING OFFICER: Well, again I am not going to

10 pre-decide it. I don't think that there, I think very

11 clearly, as Mr. Guest and others have pointed out, there

12 was a decision that the SWIM plan be adopted under

13 120.57, subject to challenge under that, as opposed to

14 120.54. There is no economic impact study per se

15 required as a result of that decision.

16 So I don't think that the absence of that, the

17 economic impact statement, renders the whole plan moot

18 by any means.

19 On the other hand I guess as I see it there is not

20 an affirmative duty on the part of the District for

21 those who are supporting the plan to justify the

22 economic impact within the scope of the plan, except as

23 it may relate to the moderating provisions, and I guess

24 in that regard I would anticipate that any evidence that

25 would be coming from the District or those supporting

1 the plan would be in response to the challenges the

2 various petitioners are making to what they alleged to

3 be deficiencies in the establishment of the standards or

4 the criteria to the extent they are established within

5 the context of the plan.

6 I don't know if I have answered your question. I

7 would be happy to, but let's talk about it a little

8 further.

9 MR. HYDE: Let me ask you this. One of the

10 fundamental premises is there has to be an agency

11 action, and we have taken the position there has not

12 been an agency action, and it is pretty well established

13 that they haven't done anything, and that these economic

14 impact analyses that the District is by their own

15 admission contending will not be finished for some point

16 yet, so I am a little surprised as to how the issue

17 becomes ripe for adjudication in this proceeding and

18 what are the issues that we are contesting.

19 MR. NETTLETON: Well, Mr. Hearing Officer, could I

20 respond? This has been stated I think I have counted 30

21 or 40 times in the admissions and concessions we have

22 made. We have never admitted any such thing. We have

23 never proceeded under any such thing.

24 The only thing we have every conceded is the fact

25 that the Hazen and Sawyer report, which is a single

1 piece of evidence, was not completed by the time the

2 SWIM plan was approved.

3 We have never suggested, and we say the exact

4 opposite, that economic considerations were never

5 considered in the approval of the SWIM plan. They were

6 considered. There were public hearings for years under

7 this thing, and to suggest that economic considerations,

8 factors, impacts were not argued or presented to the

9 Board is just not the fact.

10 MR. HYDE: That's not what I said.

11 MR. NETTLETON: There is a factual dispute on that.

12 MR. HYDE: I said there has been no agency action.

13 HEARING OFFICER: Well, hold on a second. I think

14 there has been agency action to the extent that they

15 have adopted the SWIM plan. As I understand it, the

16 provision of the various proponents of this, they say

17 that the SWIM plan in itself incorporates the necessary

18 considerations of the moderating provisions of the

19 Florida water quality standards as well as what the

20 directives of the Marjory Stoneman Douglas Act are.

21 Now if that, you know, if you disagree with that,

22 then that is why we have a 120.57 proceeding, and, you

23 know, as to the second point I think there is a good

24 deal of controversy. I mean, I recognize the Upjohn

25 decision, and you obviously participated in it, so I

1 know you are familiar with it, and I think you were on

2 the other side.

3 MS. STINSON: I won.

4 HEARING OFFICER: Rub that in.

5 MR. HYDE: I represented the agency only on appeal.

6 HEARING OFFICER: I have read that decision several

7 times. I am not sure I understand the background of it,

8 and I am not sure I understand the import of it, and I

9 am not sure how you totally reconcile it within the

10 context of McDonald and the other cases.

11 I think that that's, and I know that there are some

12 also in the resolution of the particulate disputes which

13 can be discussed, I think the Upjohn case also be

14 limited to its facts because of some unique situation

15 involving the legislative direction for HRS to adopt the

16 CON rules, etcetera.

17 I have to say that, you know, knowing that that

18 case is out there and knowing that there is an argument

19 that I have no jurisdiction to resolve, issues that have

20 not at first bite been considered by the agency, I think

21 under the scheme of the APA generally this being a de

22 novo proceeding and also in view of the fact that the

23 agency in this case take the position even if you

24 disagree with it that they have considered those factors

25 and have taken the appropriate steps to apply Florida

1 water quality standards, then I do have jurisdiction, in

2 that the case should remain here subject to the de novo

3 120.57 proceeding.

4 MR. HYDE: Well, let me harken briefly back to our

5 previous hearing in December, and I believe at the

6 beginning of the discussion of this issue you canvassed

7 each of the respondents' attorneys and the intervenors'

8 attorneys and asked whether this kind of an impact

9 analysis had been done. We all said no.

10 HEARING OFFICER: I said, specifically my question

11 I think was whether this Hazen and Sawyer study was

12 intended to be part of the SWIM plan. I think that's

13 the way I tried to phrase my questions, because I knew

14 the study was out there, and somebody had filed it, and

15 I had seen the references in the SWIM plan that it was

16 going to be incorporated into the SWIM plan.

17 I didn't know whether there was any formal agency

18 action specifically taking that step or whether there

19 was an intent for that step to be taken, and that was

20 the clarification that I was seeking.

21 MS. KAVANAUGH: I wasn't here. My question is more

22 of nuts and bolts, trying to figure out what it is we

23 will be litigating, what it is that's at issue, because

24 the SWIM plan, while the agencies have represented they

25 applied the socioeconomic moderating provisions and took

1 it into account, it is not reflected in the document or

2 the appendices.

3 The SWIM plan so far as funding sources

4 specifically says they have only determined the

5 potential funding sources, and it is an unresolved

6 delineation of revenue sources.

7 Mr. Hearing Officer, I will proffer into the

8 record, and I know you prefer it be done by notice, the

9 transcript of the proceedings that are ongoing and Mr.

10 Rhodes' affidavit and his response, which I think gives

11 you a clue, although we don't necessarily agree with the

12 characterization of the proceedings, but there are

13 proceedings. There is a time line to develop what they

14 are now calling a recommended plan or an alternative

15 plan, so from our perspective, trying to get ready for a

16 hearing, recognizing it is a de novo proceeding, and we

17 have already said if they were going to come into the

18 hearing and place this at issue that it would be a place

19 where there could be rulings, but at this point there is

20 nothing for us to dispute, because they haven't been

21 made.

22 So I am trying to understand, or if they have been

23 made, we can't find them.

24 I am trying to understand what it is that we are

25 supposed to do.

1 HEARING OFFICER: I am trying to understand it,

2 too.

3 MS. KAVANAUGH: I mean, I don't think, and we will

4 proffer this, but this is an example of what was

5 presented to the Board a month ago from the Funding

6 Council, scenarios about the unresolved delineation of

7 revenue sources, and the conclusion was even if they

8 committed all of their ad valorem tax funds and assessed

9 the farmers that there would not be enough money.

10 So my question to you is maybe to them, to this

11 time line that is before the District, perhaps we should

12 present it with a motion, I don't know, but the optimal

13 plan situation, maybe it's a question of the

14 jurisdiction, but they are going forward now to do

15 things that are not in the plan, and I guess what we

16 want to know is should we be spending our resources out

17 there, rather than doing all of these things to come up

18 with alternative scenarios, or here litigating a plan

19 that may or may not have been abandoned.

20 MR. GUEST: Well, let me answer that briefly. I

21 realize the District wants to speak.

22 What this raises is the original question the

23 Hearing Officer raised, which is if we are going to have

24 moderating provisions presented to the Hearing Officer,

25 we need to have discovery about everything relating to

1 that, and that goes directly to what Judy was saying,

2 which is the financial statements of the various

3 parties.

4 This is an industry where 80 per cent of it is in

5 two entities that are here before the Hearing Officer.

6 If we can get discovery of those financial records,

7 subject to of course an appropriate protective order, we

8 can go a long way to answer the question about how do we

9 deal with it.

10 HEARING OFFICER: Well, I think, you know, I think

11 if we are going to get into the actual assessments that

12 are going to be made, if this hearing was about that,

13 then your point might be well taken.

14 That's not what this hearing is about, and I think,

15 you know, I think sometimes you seem to be arguing that

16 is what it is about, and sometimes you argue that is

17 what it is about, and it's...

18 MS. KAVANAUGH: I don't know what it is about

19 actually. That's really our question. What is the

20 scope of the economic issues?

21 (WHEREUPON, MR. BURGESS ENTERED THE HEARING ROOM.)

22 HEARING OFFICER: I think the Marjory Stoneman

23 Douglas Act and the SWIM Act directed at the SWIM plan

24 challenge include an estimate of the cost.

25 MS. KAVANAUGH: Right. That's in dispute.

1 HEARING OFFICER: Obviously that is in dispute.

2 That is at issue in this case. It has to be included in

3 the plan, and I think it is in dispute. Okay.

4 The District has also established the strategy that

5 it thinks will bring the waters into compliance with the

6 Florida water quality standards.

7 Now if you disagree that that is going to

8 appropriately accomplish that result in terms of your

9 interpretation of what the Florida water quality

10 standards are, then you need to bring in your evidence

11 to support that contention, and then I will weigh that

12 against what the District submits.

13 MS. STINSON: Mr. Menton, again on the nuts and

14 bolts issue, I guess if we, in the District's response

15 to the League's motion for remand they state that in a

16 footnote the balance between economic impacts and

17 environmental benefits is a fundamental policy issue of

18 the highest order which permeates every question and

19 area of the environmental regulation.

20 Given that understanding by the District, I mean,

21 that basically reiterates what we have been trying to

22 say more specifically in terms of the moderating

23 provisions, but that if you've got a plan that costs a

24 billion dollars and does, you know, a halfway job,

25 wouldn't it be better to have a plan that costs half

1 that and did quite as good a job, a balancing of those?

2 Does that not sort of globally throw the issue of

3 whether the benefits outweigh the impacts on this?

4 And again I am asking, because I am still confused

5 as to, given the United States' position on their

6 economics witnesses, that we would be entitled to

7 inquire as to their opinions for this proceeding as to

8 the economic impacts of the SWIM plan.

9 HEARING OFFICER: Well, you know, I am trying to

10 think my way through all of these things, too, and I am

11 not sure that I clearly understand what the District or

12 the proponents of the plan, what their position is going

13 to be.

14 It may be that, and I'm talking totally

15 hypothetically, it may be they made the calculation or

16 they made the decision that the benefits to be obtained

17 from accomplishing cleanup of the Everglades outweigh

18 any costs that might occur, and therefore that's why

19 they adopted the plan, or it may be that they feel that

20 they have incorporated the moderating provisions through

21 the use of mixing zones, etcetera. I don't know exactly

22 how all of that will come down.

23 But in terms of the specific witnesses that they

24 have designated, I gather that to a large extent from

25 what we have talked about before those witnesses are

1 going to be responding to what they anticipate your

2 witnesses are going to be saying. It will be largely

3 rebuttal witnesses if nothing else.

4 MS. STINSON: Let me...

5 HEARING OFFICER: At least, and I may be wrong, but

6 from what I am gathering a lot of these economic

7 witnesses that they designated are not going to be in a

8 position to say, "I contributed to the preparation of

9 the SWIM plan."

10 MS. STINSON: No, but let me suggest that if it is

11 an issue as to whether the economic impact versus the

12 environmental benefits should be considered, whether

13 whose burden of proof or who goes forward on the issue

14 is really irrelevant as to whether or not it is

15 relevant, and I guess, I mean, we could probably say we

16 feel it is relevant, and therefore we would intend to

17 have evidence on that, and in the process outside of

18 this 120.57 process issue that we have been hearing it

19 has been considered by the Board we know that not only

20 people from within the District but also the federal

21 economists have been actively involved in that in

22 reviewing the Hazen and Sawyer information and

23 participating in meetings, and I presume they therefore

24 have some opinions as to the economic effect of this

25 plan.

1 And that, my question is may I be permitted to

2 inquire into that?

3 HEARING OFFICER: Well, I mean, it goes back to the

4 issues Ms. Kavanaugh raised before, is that, I am not

5 familiar with what's going on by the District in terms

6 of the development of the optimal plan. I've seen

7 reference to it. I don't know exactly where that is.

8 But for purposes of this proceeding I have to deal

9 with the plan that has been adopted, and that is what

10 the focus of this 120.57 is, is the plan that has been

11 adopted.

12 So I think it all has to be put in the context of

13 that plan.

14 MS. STINSON: But whether that plan is

15 demonstrating the appropriate balancing between the

16 economic impacts and the environmental benefits, I think

17 the District by the footnote is acknowledging...

18 HEARING OFFICER: Acknowledging? I am not sure I

19 am following you.

20 MS. STINSON: ...that there is an issue, thee

21 should be an issue as to a public policy decision of

22 this plan as to whether the environmental benefits

23 outweigh the economic impacts.

24 They say that is a fundamental policy issue of the

25 highest order.

1 Clearly...

2 HEARING OFFICER: So I guess they are saying they

3 think the plan as adopted has already addressed those

4 issues and incorporates them.

5 MS. STINSON: Well, and that's in a de novo

6 proceeding substantiating that claim, whether by an

7 after-the-fact report or something.

8 HEARING OFFICER: Well, I don't think you can, you

9 know, and this comes back to the idea of an economic

10 impact statement, I don't think that you can force the

11 District or say that the District had to adopt it in the

12 form you wanted them to, and the fact that they didn't

13 therefore invalidates the plan.

14 MS. STINSON: No, no. I am not arguing the remand

15 at all right now. I am simply, if that issue is

16 relevant to these proceedings, may I not be, am I not

17 entitled to inquire as to the various experts' opinions

18 on the issue, including those of the United States

19 witnesses?

20 Now no other party has prohibited that inquiry.

21 The District has not prohibited, and the environmental

22 folks have not prohibited it, but the U.S. did, you

23 know, as Dr. Boggess, and I have scheduled for

24 deposition an additional U.S. expert for Monday and

25 Tuesday, and really I need clarification on the issue of

1 whether I should be permitted to inquire as to his

2 opinions on that, as for the existing SWIM plan.

3 HEARING OFFICER: If his opinions were used in

4 formulating the plan or are going to be offered to

5 justify the conclusions reached in the plan, you know,

6 at the hearing, then, yes, but if he's going to be

7 testifying in response to challenges to the plan, then I

8 think it is really, it is premature at this time.

9 MR. HYDE: That's the point that I am very

10 perplexed about, and I don't understand why there has

11 been a subtle shift of the burden of proof to the

12 petitioners on these issues.

13 It seems to me it's their plan. They have to

14 justify their plan.

15 HEARING OFFICER: Well, they have to, I mean, we

16 have been through the burden of proof issue before, and

17 I think we have agreed that they are going to come in,

18 and they are going to put on the initial part of the

19 case, much like a permitting case, come in and explain

20 what they did and why they think it complies with

21 statute and provides an explanation as to the contents

22 of it.

23 We have had that before, and that's what I

24 anticipate they will do.

25 Now after they have done that, it will be up to the

1 petitioners to come forward and demonstrate why the plan

2 does not meet the statutory requirements or why it is

3 internally inconsistent and why the underlying

4 assumptions are not factually based, etcetera.

5 I don't think that there is any shifting on that.

6 I mean, exactly what they are going to do with respect

7 to how they apply the Florida water quality standards, I

8 don't know. I think that is an area for inquiry, and,

9 you know, I mean, I can't presume what will happen

10 necessarily.

11 MR. GREEN: Mr. Menton, if I could, number one, I

12 absolutely agree with what I think is your current

13 conclusion, that moderating provisions are relevant to

14 these proceedings. That is absolutely correct as far as

15 I am concerned.

16 HEARING OFFICER: We may be talking different

17 languages here.

18 MR. GREEN: Let's clarify it. Do you want me to go

19 ahead?

20 HEARING OFFICER: Go ahead.

21 MR. GREEN: The last filings, and I apologize for

22 some of them we didn't get until the last day, which

23 makes it difficult, but they are really amazing to me in

24 a couple of respects, and I hope that you have had a

25 chance to read them or that you've got them as well.

1 HEARING OFFICER: By who?

2 MR. GREEN: Well, by the respondents. The 8th

3 documents, on the 8th, we filed was responded to in

4 part, one of the documents that was filed yesterday and

5 the day before, and they were also responding to the

6 motions filed by the Sugar Cane League.

7 They said a couple of things that I think are very

8 important, and when I say they...

9 HEARING OFFICER: I am sorry. I am not sure I have

10 seen all of them, because I have been out of town until

11 last night, and I reviewed some of them today. Are you

12 talking about DER's?

13 MR. GREEN: Well, yes, sir, they have been filed,

14 to my knowledge. Mr. Guest, of course, filed a

15 document.

16 HEARING OFFICER: He has filed two.

17 MR. GUEST: Yes, that's right.

18 HEARING OFFICER: And the DER and the United States

19 filed a joint document, and the Water Management

20 District filed a document.

21 MR. GREEN: We just received that yesterday.

22 MR. NETTLETON: Our document was not in response to

23 the Coop's, because they raised an objection to our

24 motion for extension. We decided our position has been

25 briefed sufficiently, so it was more of a motion in

1 response to the League's response.

2 HEARING OFFICER: Agreed, but I think that you did

3 deal with the moderating provisions a little bit.

4 MR. NETTLETON: We made a couple of comments,

5 right.

6 MR. GREEN: There were some things that I think

7 were highly illuminating that I wanted to make sure that

8 you are aware of.

9 Mr. Guest and the United States and the Water

10 Management District said that the Environmental

11 Regulation Commission ruled, envisions public interest

12 balancing, and the availability of moderating provisions

13 was the mechanism for doing that. They have admitted

14 that finally, and it is true. Okay.

15 Just for argument's sake let's assume that that's

16 what they say on page 10. That's how I read it.

17 But then they are saying, "Well, but despite that

18 the Legislature has for purposes of this plan looked

19 away from that, ignored that, eviscerated that. It no

20 longer counts."

21 Well, that just didn't happen. I mean, if you look

22 at the Marjory Stoneman Douglas Act is says two things.

23 The permit application should recommend long-term

24 phosphorous concentrations and limitations designed to

25 achieve compliance with water quality standards, which

1 as we know includes moderating provisions.

2 So the Legislature envisioned that there would be

3 long-term limits set, fully implementing water quality

4 standards, and then it said, "Okay, you may need time to

5 get there, so we have an interim limit." The interim

6 limit is, "Get as far as you can, to the extent

7 practicable."

8 The way I read that is to say after you have

9 applied the moderating provisions, and let's say you

10 came out with the right result, that everybody agreed

11 they were properly applied, and it will be Plan "X".

12 Well, Plan "X" still takes time. Everybody knows

13 that.

14 The best management practices of the farmers have

15 gone into effect. If some STA combinations went in,

16 that would be in effect.

17 The Legislature said, "Okay, you can get an interim

18 permit to go as far as you can for compliance with water

19 quality standards, but the long-term standards are fully

20 implementing water quality standards."

21 Those standards these parties admit have a public

22 interest balancing provision. That has never been done.

23 I guess a conceptual problem, I am not debating the

24 remand, but the conceptual problem is this, that the

25 settlement agreement, without getting into coercion or

1 anything else, but it is a fact, demanded that these

2 agencies develop a SWIM plan on a very fast track. They

3 had to get the draft out in October, 1991, a few months

4 after the settlement agreement was signed, a year or

5 more after the Hazen and Sawyer report was done. No one

6 had done the cost-benefit study.

7 If anyone said that they did, I would sure love to

8 see it. There was no attempt to implement moderating

9 provisions.

10 But the settlement agreement establishes acre by

11 acre how much farm land has to be put into STAs, way

12 back in 1991.

13 What we are saying is those acreage would change if

14 the moderating provisions were implemented. They would

15 change a lot. But they haven't, it hasn't been looked

16 at.

17 And then not only that, the settlement agreement

18 requires both of the state agencies to defend the plan

19 that doesn't allow for mixing zones of anything else,

20 and in the appendix of the settlement agreement it makes

21 it clear that really no mixing zone or moderating

22 provision could be applied at least to the entire marsh

23 in the Loxahatchee. It says the numbers they are coming

24 up with apply to the entire marsh.

25 So what has happened is, and that is Appendix B-1.

1 If you turn to the settlement, I mean the SWIM plan, the

2 verbatim language on page 103 of the documents says it

3 applies to the entire marsh.

4 So what we have is already clear. Without going

5 through the hearing it is clear that the public interest

6 balancing was prohibited by the settlement agreement, it

7 wasn't done, and now we are going into the final hearing

8 where the agency has not gone through that evaluation,

9 and I guess I really don't, I guess I harken back to

10 what Mr. Hyde was questioning. Who has the burden of

11 proof here?

12 The Marjory Stoneman Douglas Act incorporated the

13 earlier SWIM Act when it said, "You will meet water

14 quality standards and not be contrary to the public

15 interest."

16 Even if you buy the argument of Mr. Guest, which we

17 certainly don't, that there is no public interest test,

18 you still have the public interest balancing and the

19 moderating provisions. The Legislature kept that. That

20 has not been done.

21 Correct me if I am wrong. Has that been done, Mr.

22 Nettleton? Do you contend it has been done?

23 MR. NETTLETON: I thought you were talking about

24 the settlement agreement still. I'm sorry.

25 MR. GREEN: Well, I would not want Mr. Menton to be

1 incorrectly of the impression that the District is now

2 contending that it has supplied the moderating

3 provisions in this SWIM plan.

4 MR. NETTLETON: We have considered moderating

5 provisions in the SWIM plan.

6 MR. GREEN: You have considered it for other

7 parameters besides phosphorous?

8 MR. NETTLETON: That's not our position. That is

9 the environmental position. We may have some disputes

10 among ourselves on that.

11 MR. GREEN: Well, I don't want to take any more of

12 your time, Mr. menton, but I think our view would be

13 that if the case goes forward, certainly the agency

14 should defend this land. They should be required to

15 show that they balance the public interest through the

16 proper application of the water quality standards. I

17 think that is their burden of proof.

18 HEARING OFFICER: Well, it comes back to the 120.57

19 issue itself.

20 Again my role is not to serve in an appellate

21 capacity, to review the SWIM plan in terms of deciding

22 whether it meets the standards or not. My role is to

23 serve as a fact finder and help in the formulation of

24 final agency action.

25 As such I think the agency has proposed action, and

1 it is entitled to come in here and argue that that

2 proposed action meets its requirements under the law,

3 and it presents the case, and it is up to you to show me

4 that it doesn't, and then they will have an opportunity

5 to respond to what you have said. I think that is the

6 way we have to approach the case.

7 MS. KAVANAUGH: I'm struggling with this. I still

8 don't understand, because we have been told, and I

9 thought, maybe, I wasn't here last time, but I thought

10 it was the agency's position that they haven't assessed

11 these economic factors or socioeconomic factors at all,

12 and if they have it is not evident in the SWIM plan, but

13 if they have then, I mean, should we send

14 interrogatories asking them when and how they did it?

15 Should we ask how they determined those potential

16 undefined, unresolved, undelineated revenue sources, how

17 they determined these were available?

18 Are you saying that we should go forward with

19 discovery?

20 At this point everything that we have been hearing

21 is that they haven't done it yet. There is a

22 non-decision as to that particular issue, either the

23 application of the moderating provisions or whether the

24 potential funding sources are actually available. I

25 mean, that's what I am trying to understand. How do we

1 get at that?

2 We dispute that they have done it. Have they, or

3 haven't they?

4 HEARING OFFICER: Well, I don't think that they

5 deny that they haven't done it in the form that you

6 think they should have done it.

7 MS. KAVANAUGH: How have they done it at all?

8 That's what we are trying to get at. Is it a discovery

9 issue?

10 MR. NETTLETON: Mr. Hearing Officer, I don't know

11 if she is asking for advice on how to do her litigation.

12 MS. KAVANAUGH: No, I am not. I am trying to

13 understand what the prima facie case is that we have to

14 respond to. That's what I am trying to understand.

15 Maybe it has been a miscommunication, but I thought

16 it was represented to us that there have been no

17 assessments of regional socioeconomic effects. Maybe I

18 am wrong. That is what I understood.

19 HEARING OFFICER: Well, I think they will agree

20 that they haven't done it in the form that you would

21 have them do it or you suggest that they need to do it.

22 MS. KAVANAUGH: They haven't done it at all.

23 HEARING OFFICER: I don't know what their position

24 will be at hearing, but I think that is a discovery

25 item, and we will have to take it from there.

1 MS. KAVANAUGH: If they haven't done it at all,

2 sir, is that a factor in this at all, and they are not

3 going to do it at hearing?

4 MR. NETTLETON: Mr. Hearing Officer, the problem is

5 they like to define what we need to do and have you

6 accept that in order to make their arguments. They set

7 up all these straw men to knock them down, and they are

8 not relevant.

9 Mr. Green talked extensively about the settlement

10 agreement. I don't know that we are here challenging

11 the validity of the settlement agreement, regardless of

12 what it says or anything else. We are here to discuss

13 the SWIM plan.

14 We submit it is a valid SWIM plan and complies with

15 the act and everything that was necessary under the act,

16 and everything necessary has been done.

17 It is our position and it has been our position

18 since we first filed our first papers in this case I

19 think that the socioeconomic analysis that they are

20 claiming in these issues are not relevant to this

21 proceedings, that the Legislature has made a

22 determination that the Everglades needs to be cleaned

23 up.

24 On the other hand, we are not saying that economic

25 considerations are completely irrelevant in the entire

1 scheme of things, and they have been considered to some

2 extent.

3 They have not been considered in the sense of the

4 Hazen and Sawyer report, which was going about prior to

5 the adoption of the SWIM plan or approval of the SWIM

6 plan, because it was not completed at that time.

7 We submit that there is no requirement under the

8 act to determine the so-called socioeconomic impact

9 precisely the way they want to do it.

10 At the deposition, the only economist who has been

11 deposed so far is one of our economists, who was deposed

12 this week, and Dr. Woehlck indicated in his testimony,

13 in his economic impact analysis that he has done

14 regarding Hazen and Sawyer, it is not a necessary

15 component of the Board's decision on whether to

16 determine if it is a good plan or a bad plan, and we

17 should accept this plan, because that is on a grander

18 scheme and a policy nature.

19 You look at what we have done in the plan, which is

20 estimate the costs involved here, which are, I forget,

21 millions of dollars, and then we look at the

22 environmental concerns, and that's the balancing that

23 goes on, and that decision was made when they approved

24 the plan.

25 The socioeconomic impacts, regional, micro, macro,

1 whatever they want to do to avoid discovery on this,

2 those come into play when we start talking about the

3 different funding sources, which are not relevant to

4 this proceeding, because they haven't been decided yet,

5 and the act does not require that they be decided yet.

6 HEARING OFFICER: Well, I agree with you that the

7 actual funding aspects of it are not pertinent to this

8 case, but I don't think they are precluded from

9 presenting it as part of their challenge to the case,

10 that you haven't applied the moderating provisions in

11 the proper manner. Now whether that flies or not is a

12 different issue.

13 MR. NETTLETON: I understand that, Mr. Hearing

14 Officer, and I don't want to reargue that. I was

15 planning to come in and change your mind on that, but I

16 won't try to do that.

17 As I understand it, Mr. Green stated that you have

18 found that the moderating provisions are relevant. I

19 think what you actually said was that you found that the

20 Douglas Act has not precluded the moderating provisions

21 from consideration, not necessarily that they are

22 relevant or that whatever has been done here somehow

23 invalidates the SWIM plan that has been adopted or

24 approved.

25 HEARING OFFICER: I would agree with that

1 characterization.

2 MR. NETTLETON: If I might, Mr. Hearing Officer,

3 our position has always been that this whole question of

4 the economic impact is properly raised down the road

5 when the funding mechanisms themselves are implemented.

6 The SWIM act itself in Section 373.453(2)(g) recognizes

7 that part of the planning aspect will be to conduct

8 feasibility studies, and we submit this is likely to

9 fall under that provision as well.

10 Now the League at one time took the same position.

11 They have since backed out of it. At one point they

12 disagreed completely with the Coop, and now they have

13 adopted the Coop.

14 HEARING OFFICER: I don't think that's a fair

15 characterization, but go ahead.

16 MR. NETTLETON: I will be happy to read the two

17 lines side by side. At one point they say they

18 completely disagree with the Cooperative's position on

19 the moderating provisions and that the socioeconomic

20 impact should be considered in this proceeding, and in

21 fact they indicated that they would need to sever it.

22 HEARING OFFICER: It is not pertinent to get into

23 this. I don't think I ever understood their position to

24 say that they disagreed with the Coop. It was, I don't

25 want to get into this.

1 MR. NETTLETON: It is neither here nor there. The

2 position that they did take, which we do agree with, in

3 their papers filed on September 25, which was in a

4 motion for protective order, indicates that the STAs as

5 set out in the plan may either be finalized as it or

6 modified or perhaps even abandoned altogether, depending

7 on the final adjudication of the disputed facts on which

8 they are predicated.

9 The economic impact on the EAA or ultimate

10 implementation of the proposed agency action, the STA

11 program as set out in the plan currently disputed, is

12 not yet at issue and will not be until final action on

13 the plan at the conclusion of these proceedings.

14 Then they go through and discuss where the proper

15 mechanism to challenge this impact are. They discuss

16 the rule, when the permits are applied under 40-E-63.

17 They discuss stormwater utility fees and specifically

18 refer to the statute which says that the amount is

19 predetermined in the future, and that nothing in the

20 SWIM act or the Douglas Act contemplates the District's

21 decision to be based on a determination now of what the

22 District thinks the property owner can afford or should

23 be entitled to as a profit, nor does the plan itself

24 reflect such a determination.

25 Then they go on...

1 MS. KAVANAUGH: May I correct the record? As you

2 recall, that was a protective order, seeking to keep the

3 farm economic individual numbers from being discovered.

4 MR. NETTLETON: I am just saying...

5 MS. KAVANAUGH: We concurred in the regional issue

6 and still do.

7 MR. NETTLETON: Well, in any event the bottom line

8 is at that time they were taking the position to avoid

9 the discovery, which they thought might be forthcoming

10 otherwise, that these issues were properly left for a

11 later date, and the funding determinations when these

12 funding things were determined and implemented pursuant

13 to the plan.

14 Again this is just a planning document, and, Mr.

15 Hearing Officer, I would like to refer you to a case

16 that has recently been decided by the First District, I

17 don't think any of the parties has cited a case really

18 close to this, and this is the closest I have found, and

19 it is called Gregory vs. Indian River County, and it was

20 decided by the 1st District, a December 4th decision.

21 In this particular case, it is a permit case,

22 Indian River County applied for a dredge-and-fill

23 permit, and as part of that they had to show certain

24 litigation action, because they were affecting wetlands.

25 DER approved a permit application subject to a

1 plan, which was agreed to by the county, to mitigate by

2 building a certain treatment area of wetlands.

3 The property owners that were going to be subject

4 to having their property taken as a result of that

5 complained and filed an action for a 120.57 hearing,

6 saying that the mitigation that was agreed to between

7 DER and the County was excessive, that it wasn't

8 necessary, essentially the same types of arguments being

9 made here, in the sense that it is going to be economic,

10 that a less onerous alternative is available, which will

11 still mitigate whatever damage to the wetlands exists.

12 The issue presented in the case as stated by the

13 Court was to determine which matters should be resolved

14 through an administrative environmental permitting

15 proceeding and which matters should be resolved in a

16 circuit court eminent domain proceeding.

17 They go on to state in this administrative

18 proceeding the appellant sought to have the Hearing

19 Officer determine whether the mitigation plan agreed to

20 by the Department and the county was unreasonable, in

21 that a plan of mitigation could have been promulgated

22 which would have involved condemnation of less of

23 appellant's land.

24 They say the Department and the county assert that

25 this issue should be resolved in the circuit court as

1 part of the eminent domain proceedings. They agreed.

2 They go on to restate the issue as to whether an

3 administrative body has the power to review a

4 discretionary decision of the local elected body

5 concerning a reasonable necessity for lands to be

6 condemned. They say, "This question must be answered in

7 the negative. The Hearing Officer and the agency have

8 limited jurisdiction on what may be determined in the

9 wetlands permitting procedure."

10 And finally they hold, "Issues such as whether

11 there might be another mitigation plan involving less

12 land which is acceptable or whether the county may have

13 acted in bad faith by attempting to condemn more land

14 than is reasonably necessary are not properly determined

15 in the administrative process. Thus the Department did

16 not err by refusing to address the issue of whether the

17 mitigation proposed by DER and accepted by the county

18 was excessive."

19 We submit, it is not directly on point, Mr. Hearing

20 Officer, but essentially it is the same position that we

21 are taking, that these issues need to be resolved when

22 and if the specific funding mechanisms occur, because

23 the economic impact as testified to by Mr. Woehlck

24 earlier, Dr. Woehlck, earlier this week, those economic

25 impacts first of all are never going to be able to be

1 determined with any kind of protective manner until

2 those funding decisions are made.

3 The economic impact statement that is being

4 prepared by Hazen and Sawyer is meant to aid the

5 District in determining how to mix those various funding

6 sources, and so it will be an aid in that sense, but it

7 is not until that decision is made and is implemented

8 that these issues even become ripe for adjudication.

9 It is our position that all of these issues are not

10 ripe at this time and have nothing to do with the

11 validity of the SWIM plan itself, which is a planning

12 document, subject to change, as the act says.

13 HEARING OFFICER: Well, I think that your last

14 point, the fact that it is a planning document, I

15 recognize, and it makes the case a lot different than

16 the Gregory case.

17 I think as a consequence, you know, what we are

18 dealing with is whole range of issues. So I am not

19 quite sure how pertinent that case.

20 But I think that, I didn't know what all of the

21 parties intend to submit, you know, in connection with

22 their case, and certainly that very well may be the

23 District's position, and it may be one that I ultimately

24 adopt. I don't know at this point.

25 I think that there are aspects to the plan that

1 seem to at least as I flip through it and familiarize

2 myself with it, that seem to establish standards or

3 criteria, let me correct that, seems to establish

4 criteria within the context of the plan itself.

5 Now how those criteria have been established I

6 think, you know, I think they are subject to challenge,

7 whether they are appropriately set.

8 Now how they are going to do it or what the answer

9 is going to be, I don't know, but I think that's what we

10 are talking about here.

11 MR. NETTLETON: Mr. Hearing Officer, I don't

12 disagree with that particular challenge, essentially

13 because I think we are talking about the interim limits,

14 which are really merely interpretation. It is not an

15 interpretation...

16 HEARING OFFICER: Interim. What about the long-

17 term limits?

18 MR. NETTLETON: Those have not been developed yet,

19 because that research is still ongoing.

20 That is where I think, Mr. Hearing Officer, that if

21 anywhere the moderating provisions might come into play,

22 but you can't have a moderating provision to what is in

23 essence right now an interim level which itself is not

24 recognized as a standard.

25 So what they are asking for is to apply the

1 moderating provision, which is already a moderation of

2 something which we don't know what the final standard is

3 going to be.

4 That's what the research is which is going on on

5 both sides here is going into, determining what is

6 commonly referred to as the threshold limit.

7 It is to determine in this particular water body

8 what level of phosphorus will create this imbalance of

9 flora and fauna which is a relative standard under the

10 ERC.

11 The SWIM plan makes no attempt to set any standards

12 or criteria. It is only interpreting to some extent and

13 setting interim limits that we think are moving in that

14 direction.

15 HEARING OFFICER: Well, I think the petitioners

16 disagree with your interpretation of the effect, as I

17 have understood it.

18 MR. GREEN: Absolutely, Your Honor.

19 HEARING OFFICER: At this point, you know, I don't

20 know who is right. That's why we are having a hearing.

21 MR. GUEST: May I raise a housekeeping issue? We

22 would like to get the financial data from petitioners,

23 and I understood the Hearing Officer to indicate that he

24 would rule against us if we sought it and moved to

25 compel.

1 Could I clarify that for purposes of an appeal, so

2 we don't have to inflict any more additional paper on

3 the Hearing Officer?

4 HEARING OFFICER: Yeah. I don't know if I ever

5 ended up doing an order on that particular aspect or

6 not. I think there was an order entered previously on

7 that.

8 MR. GUEST: We, the intervenors, haven't actually

9 sought it ourselves. That's why I am raising it. The

10 environmental intervenors have not formally sought any

11 financial data.

12 HEARING OFFICER: Then I think probably what you

13 would have to do is seek it, they will seek a protective

14 order, and I will enter an order similar to what I did

15 before.

16 MR. GUEST: Can we stipulate that we don't have to

17 go through all of that?

18 MR. GREEN: No.

19 MR. GUEST: All right, I will inflict it on

20 everyone.

21 HEARING OFFICER: I just don't think the appellate

22 court would deem it right if you hadn't, you know?

23 MR. GUEST: All right.

24 MR. NETTLETON: Mr. Hearing Officer, as I recall

25 your ruling on the discovery issue, it was still open to

1 revisit if the economic issue remained in the case,

2 which I understand from what you are saying they are

3 still in here.

4 We would like the opportunity to address that

5 again. There has now started to become testimony in the

6 record now on a lot of the criticisms and the things the

7 League's experts have voiced publicly at various

8 meetings which have been addressed to some extent in the

9 deposition of Dr. Woehlck, and I am questioned by both

10 the Cooperative's counsel and the League's counsel

11 concerning those specific criticisms, which many of them

12 came down to, "Well, we didn't have the information,"

13 and they asked why not, "Because the industry would not

14 give it to us."

15 So a lot of their criticisms revolve around the

16 fact that we don't have the very data that they are

17 saying we don't need.

18 So we think at least we would like the opportunity

19 that it not be foreclosed, that we establish again, now

20 that apparently the economic issues are stayed, the

21 relevancy of these particular...

22 HEARING OFFICER: You know, you are right. I never

23 foreclosed you from seeking it, if and when it was

24 demonstrated to be relevant to the issues in this case,

25 and I don't think that anything that I have said today

1 has automatically made them relevant.

2 MR. NETTLETON: I understand that.

3 HEARING OFFICER: I think Mr. Green has already

4 indicated the nature of his socioeconomic case, and if

5 it is limited to that then I don't see yet where the

6 individual financial information is pertinent, but, you

7 know, you will have to lay it before me, and I will take

8 a look at it, and we will revisit it, if necessary.

9 MR. NETTLETON: That's fine.

10 MR. SAXE: Another housekeeping matter. I am not

11 sure whether counsel for the Coop, Ms. Stinson, her

12 question about the depositions that are set to go

13 forward Monday and Tuesday were fully disposed of,

14 although as I understand it we are agreed that if the

15 federal experts are only going to be testifying in a

16 rebuttal capacity regarding petitioners' allegations,

17 then it would be premature to seek their opinions at

18 this point before the discovery has identified what

19 allegations petitioners will be making that these

20 experts will be rebutting or responding to.

21 If that's the case it would seem that it would be

22 helpful to avoid a situation like what happened last

23 week, for us to agree that the order of discovery is

24 going to have to be revised on the economics, and that

25 the petitioners' economic expert witnesses are going to

1 have to, they are going to have to provide that

2 discovery before we can have discovery rebuttal to be

3 discovered.

4 HEARING OFFICER: I think they are entitled to

5 understand what the District and those proponents of the

6 plan are going to be submitting as part of their initial

7 prima facie case.

8 MR. SAXE: I understand. That would not, I don't

9 believe that is going to be at issue in the testimony,

10 or at least the present notion of the scope of expert

11 testimony in a rebuttal capacity of the expert

12 economists listed by the United States. So that is not

13 going to leave any material for discovery on Monday and

14 Tuesday.

15 MS. STINSON: Your Honor, first of all there is a

16 difference between saying he may not have all of his

17 opinions formulated, because in essence he will have

18 opinions on your guys' opinions, from saying I am not

19 going to let you ask for those opinions, what they are,

20 or what information he is looking at, or what he has

21 been retained to do, number one.

22 If I know that part of his opinion is going to be

23 comments on my witnesses' opinions, I may well choose to

24 wait, so I can get the full scope, but again that

25 doesn't require objections and instructions not to

1 answer.

2 HEARING OFFICER: I think what he is saying is that

3 it's all his testimony will be.

4 MS. STINSON: Well, that certainly is something we

5 can work out though, frankly, because, not this

6 particular witness for Monday, but other witnesses, like

7 Dr. Lacewell, who is the Texas A & M witness listed in

8 the area of economics, and he attended Dr. Woehlck's

9 deposition this week. Clearly he is already doing work

10 and has some information. He has met with people at the

11 District. He has critiqued the Hazen and Sawyer plan,

12 because I saw Dr. Woehlck's documents that indicated

13 that it had happened.

14 So at least for those people there seems to be a

15 fair amount of basis for taking a deposition, but I

16 don't want an instruction to the witness not to answer.

17 If I don't get, if he hasn't completely finished

18 his work, that's one thing that we all live with, but I

19 don't think that entitles him to say that we are not...

20 MR. SAXE: Mr. Hearing Officer, I think there is

21 confusion here, because activity is taking place in

22 multiple places, not just within this administrative

23 proceeding.

24 The United States is involved with the District in

25 the ongoing process, as are all the interested parties

1 of SWIM planning, as you have heard at this point, ad

2 nauseum.

3 What I am saying is that the individuals that the

4 United States listed as potential expert economic

5 witnesses in the case have not formulated opinions, nor

6 have they done work regarding the expert opinions of the

7 League and the Coop's economists who will be responding

8 through the discovery process, because we have gotten no

9 discovery.

10 MR. BURGESS: If I may, excuse me, that is

11 incorrect. I heard Dr. Jones, the United States'

12 federal witness, up here at the Governing Board stand up

13 and say, "We think the Grace Jones report is the best

14 thing since rye bread. She did everything correct and

15 to the letter, and we fully support it, 100 per cent."

16 MR. SAXE: I said concerning the League and the

17 Cooperative's case on economic impact through discovery.

18 I did not say that these people have had no involvement

19 with the District's process of economic impact

20 assessment.

21 But my understanding of the position here is that

22 unless we are in agreement that federal expert

23 economists or federal expert witnesses are going to be

24 used to present an affirmative case that discovery of

25 what those experts, what opinions they might have in

1 doing so is premature, because they don't exist, and we

2 need discovery first of what the affirmative case of the

3 petitioners is going to be before we can give rebuttal

4 discovery.

5 I am not saying that these people haven't worked

6 with the economic impact process outside the context of

7 the proceedings.

8 HEARING OFFICER: Well, this is a very unique

9 situation, in the sense that we have so much ongoing

10 extraneous activity that makes it difficult to assess

11 when an expert is working on this case or when he is

12 working on another case or what.

13 MR. HYDE: Just one final comment, really. You

14 have heard a great many representations in the last hour

15 or so about what was done and what was considered as

16 part of the adoption of the SWIM plan, and I want you to

17 keep those representations in mind, because I think you

18 will find the evidence will establish pretty clearly

19 that if anything was done it was passing lip service in

20 this case.

21 I think that is very important. I think there has

22 been some pretty substantial misrepresentation as to

23 what the District or its parties have done on these very

24 important economic issues. It just hasn't occurred.

25 I just make that final comment. I have to make

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1 that.

2 HEARING OFFICER: I think it is a question of their

3 interpretation as to what they had to do.

4 MR. HYDE: It is an evidentiary matter.

5 MS. KAVANAUGH: The thing is I am trying to

6 understand don't all the respondents have to do it at

7 once? I don't understand the characterization of the

8 witnesses as rebuttal. Maybe it wasn't crystallized

9 yet.

10 HEARING OFFICER: I think we need to get back to

11 that. What I was trying to do in my earlier discussion

12 on this matter was to indicate that, I am still trying

13 to keep all the witnesses within the context of this

14 proceeding, and if the federal witnesses that we are

15 talking about are going to be offered as part of the

16 case in chief, as establishing the basis for the SWIM

17 plan and how it was done and what it incorporates, then

18 I think they are ripe for discovery, but if he is

19 telling me that they are not going to offer these

20 witnesses at all for any purpose as part of the

21 establishment of their case in chief, and that instead

22 the witnesses will only be commenting upon what the

23 petitioners may be presenting in the case, then I think

24 probably it is premature if we haven't had an

25 opportunity to find out what the petitioners are going

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1 to say.

2 MR. SAXE: That is my position.

3 MS. STINSON: Let me just make this real quick. I

4 think it is different from the position that they took

5 at Dr. Boggess' deposition. At that deposition Mr. Saxe

6 said he would object to any questions that inquire into

7 the opinions held by Dr. Boggess in preparation for

8 these proceedings, in anticipation of litigation,

9 period, because he is not a testifying expert witness

10 subject to testify under the Rules of Civil Procedure.

11 I don't think that objection holds. Again...

12 MR. SAXE: I am not advocating that it does,

13 Counsel. I am trying to get clarification based on your

14 questions to the Hearing Officer.

15 MS. STINSON: Okay. I understand then today that

16 the United States has said that they will not use any of

17 the persons listed as economic experts, that is Dr.

18 Boggess, Dr. Gardner, Dr. Lacewell, Ozuna, Jones, and

19 Bromley, as part of the case in chief, but only as

20 rebuttal to information put on by petitioners.

21 MR. SAXE: That's too strong a statement to accept.

22 I indicated that the nature of their role in the process

23 and in the case would be a rebuttal nature, but I didn't

24 use the word case in chief, and I think there is

25 sufficient ambiguity right now about what, the manner in

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1 which these proceedings will unfold at trial, that I

2 don't want to limit that completely, the capacity in

3 which these...

4 HEARING OFFICER: If you don't want to limit it,

5 make them available for deposition. That's your choice.

6 Okay?

7 If you don't make them available for deposition at

8 this point, then you lose it.

9 MR. SAXE: What I was suggesting is not that they

10 not be made available, but I was suggesting since they

11 had been listed in the capacity that they have, on the

12 condition that issues were deemed relevant to the case,

13 and effectively I understand you have determined today

14 that you are not ruling out that issue, these issues may

15 be relevant to the case, but that they are going to be

16 injected primarily through the case, the challenge that

17 the petitioners are going to present at hearing, I would

18 suggest that the appropriate order of discovery...

19 HEARING OFFICER: Well, I think again you read

20 perhaps a little bit too much into what I said.

21 I am saying I don't know what you guys are going to

22 put on in your case. You may well choose to do that as

23 part of your case. You may not. That's your choice.

24 I don't know what you are going to do. But, you

25 know, so...

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1 MS. STINSON: In terms of order let me suggest also

2 that the positions of the Coop's economists and the

3 positions of the League's economists who have been

4 listed are well known to everybody, because they have

5 made presentations that have been responded to. It's

6 not like they don't have information to respond to.

7 Dr. Woehlck from the District has very particular

8 opinions with respect to the League's economists.

9 MR. SAXE: I intended Dr. Woehlck's deposition.

10 His testimony was effectively that no supporting

11 information had been provided by the League economists

12 outside the context of discovery, none had been provided

13 through discovery in this proceeding, and that's the

14 basis for my suggestion in the spirit of making

15 discovery an efficient process, but if Counsel wants to

16 go forward with depositions at this time before these

17 individuals, with the limited access that the federal,

18 federally retained expert economists have had thus far

19 to the material of the League and the Coop, I am not

20 going to object to it.

21 I am merely suggesting that it is going to be a

22 much less efficient matter of conducting discovery, and

23 I think that will become quite clear starting with

24 depositions tomorrow and Tuesday.

25 I make the suggestion that the appropriate sequence

104

1 for discovery be addressed, but if the Coop and the

2 League are not amenable to that, then I will leave

3 things as they are right now, and discovery can go

4 forward.

5 MS. STINSON: I will not respond.

6 HEARING OFFICER: We have a continual shifting of

7 opinions here as to whether the deposition should go

8 forward.

9 MS. KAVANAUGH: Let me ask a question.

10 MS. STINSON: It is one thing to say they are not

11 really going to be ready and it is my choice if I want

12 to take my time.

13 HEARING OFFICER: That's what they said.

14 MR. SAXE: Because they don't have much to rebut.

15 HEARING OFFICER: I think they will make them

16 available, and if you want to take them, fine, but they

17 don't have much to say, but that's your choice. Now it

18 is your call. The ball is in your court.

19 MS. STINSON: That's right. Okay.

20 MR. NETTLETON: Mr. Hearing Officer, I don't think

21 I can just let go of Mr. Hyde's comments, his

22 accusations of misrepresentations, which I hope are

23 stemming from a misunderstanding of our position on

24 exactly what the relevance and the pertinence of the

25 economic issues are, and maybe possibly our

105

1 misunderstanding of what their position is.

2 I think I understand the League's position, which

3 is slightly different than the Cooperative's position,

4 and if I am correct in what, Mr. Hearing Officer, you

5 have ruled on today, the League has taken the position

6 that since no economic consideration at all has been

7 given at all to the implementation of the SWIM plan,

8 then that renders the plan invalid.

9 We submit that assuming that these issues are

10 relevant, which we don't want to concede on the record,

11 because our words come back and are thrown all over in

12 various different forums, assuming that those are

13 relevant, I think that the issue as being developed by

14 the League here comes down to a policy question of

15 whether, depending on what the economic impact is, as

16 established by their experts, what they are going to say

17 the so-called devastating economic impact is, is so

18 overwhelming as to render the Board's decision to

19 approve this SWIM plan with the programs and strategies

20 set forth arbitrary and capricious as a matter of law,

21 and that's where I see this issue going at this point,

22 and it would be up to us essentially to respond with our

23 own analysis of what the economic impact would be, and

24 then that would create a factual question for the

25 Hearing Officer as to viewing whether this is such a

106

1 devastating effect as to render the decision of the

2 Board to approve the SWIM plan arbitrary and capricious.

3 Again I don't know whether the League agrees with

4 that kind of analysis or not, but I am kind of in the

5 same boat as Ms. Kavanaugh, trying to figure out exactly

6 where the issues are going, and that's the way I read

7 it, and I know the Coop's position is different on how

8 the economics play into the implementation of the

9 moderating provisions, and I quite frankly haven't

10 figured out exactly where they are going, but...

11 MR. GUEST: I guess we have to just for the record

12 object to that characterization. We think it would be

13 improper for the Hearing Officer to say that the plan,

14 the plan to protect the Everglades, is arbitrary and

15 capricious if it falls within the ambit of the numbers

16 contemplated by the Legislature as part of the Douglas

17 Act.

18 HEARING OFFICER: Okay. Maybe I am not following

19 where any of this is going right now. We have been just

20 talking about it too long maybe.

21 I am not sure what your point was, and what your

22 followup point was.

23 MR. GUEST: Well, maybe I should clarify what he

24 was saying. I was trying to figure out, well, I guess I

25 had better not. Why don't I just shut up.

107

1 MR. NETTLETON: Please clarify what I was thinking.

2 MS. KAVANAUGH: I will rely on what we filed. It

3 states our position. I think I understand your ruling,

4 and frankly I think as discovery plays out we are going

5 to see, be able to crystalize a little more on what our

6 respective use of the socioeconomic impacts are, but I

7 do want to say we have consistently and continue to

8 concur in the Coop's position. We disagree with the

9 interpretation of the Marjory Stoneman Douglas Act.

10 HEARING OFFICER: Mr. Nettleton, I didn't mean to

11 cut you off. I am just trying to figure out, I know

12 that they have made, you know, the argument before about

13 the unconstitutionality and so forth, and we have

14 discussed it to some degree.

15 I am not sure that's the point you are trying to

16 get to or...

17 MR. NETTLETON: That's kind of where I saw the

18 League's argument heading, that they were arguing in

19 effect that if there's a drastic economic impact that

20 the District has not even considered, or regardless of

21 it we will approve this plan, that it is to such an

22 extent that the decision itself becomes arbitrary and

23 capricious in violation of the provisions of delegating

24 authority or whatever the buzz language is that they

25 have used in the statutes, and I am interpreting what I

108

1 understand their position was. It may not be their

2 position.

3 I was trying to lay that in with what you had ruled

4 when we first started this thing, that they would have

5 to come forward and establish essentially what they are

6 challenging with regard to the economic issues, and we

7 would rebut that, and that's how I fit it into the

8 framework in my own mind. Again maybe the more I am

9 talking the more confusing it is getting.

10 MR. BURGESS: We will stipulate.

11 HEARING OFFICER: The bottom line I think comes

12 back to what I said before in terms of this being a

13 120.57 proceeding, in which I think what we are

14 attempting to do as part of the process is to formulate

15 what the final agency action is.

16 Now what challenges may come to that final agency

17 action at the conclusion of this proceeding, you know,

18 is another issue, and I am sure they may have legal

19 arguments going somewhere else, but that is the way that

20 I am trying to make sure that we stay within that

21 structure and try to present the case within that

22 format, is what I have been attempting to do today.

23 MR. NETTLETON: Just for the record, Mr. Hearing

24 Officer, everyone is struggling I think in exactly what

25 the issues are that are going to be litigated in the

109

1 final hearing here.

2 And I guess obviously we have listed Grace Jones as

3 an expert witness with Hazen and Sawyer, who is still

4 currently working on the economic impact analysis under

5 various scenarios of implementation, and assuming she

6 testifies at the final hearing in that regard it seems

7 to be their position that that doesn't matter, that we

8 are really looking back to what the District, regardless

9 of what her testimony is, the impact is X, Y, Z, they

10 are going to take the position that because this wasn't

11 done prior to the Board's approval that that somehow

12 invalidates the entire SWIM plan.

13 HEARING OFFICER: Okay. And this goes back to the

14 Upjohn case and those proceedings.

15 I don't think that's, notwithstanding the Upjohn

16 case, I don't think that the District is precluded from

17 doing that in this case, if that's what you choose to

18 do, because this is a de novo proceeding, and if the

19 District, you know, we are here to formulate final

20 agency action, and everybody has an opportunity to do

21 that, and again I am not quite sure how to reconcile

22 that, but I think that that can be distinguished,

23 because that is the way that I understand 120 to work.

24 You are welcome to do that as part of this

25 proceeding, whatever you think needs to be done to

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1 justify what the final agency action will be.

2 MS. KAVANAUGH: This is has been very helpful to

3 me, because I feel I understand now what we have.

4 HEARING OFFICER: Can you explain it to me?

5 MS. KAVANAUGH: Right. We agree this is a de novo

6 proceeding, and I guess what we were operating from was

7 we felt the District, that they were taking the position

8 that they would not take this into account, the

9 moderating provisions and the economic impacts, weren't

10 going to take it into account, and it wasn't going to be

11 an issue in this proceeding, and therefore it was a

12 nondecision, nothing for you to find facts about.

13 What I am hearing today is different, and so I

14 think we are going to be disputing the regional

15 economics, whatever they turn out to be, and I guess as

16 they go along in discovery we will probably be back

17 before you with many disputes, but it will start to boil

18 it down as to what they have done, whether we agree or

19 not, and what they haven't done, and what is in dispute.

20 I feel comfortable with that position.

21 HEARING OFFICER: I think this whole process, as

22 confusing as it sometimes is, helps to crystalize where,

23 you know, the various parties will go in the

24 presentation of their case.

25 I am sure they are still formulating strategy, as

111

1 are you, and that is what discovery is all about.

2 You know, I anticipate we will be back again with

3 further issues that we will have to take up.

4 But I think that this is a very cumbersome process,

5 but it is a very cumbersome case, and there is no way

6 around having to deal with it one issue at a time and

7 try to make progress. Hopefully we are doing that.

8 MR. NETTLETON: I am afraid to open my mouth again.

9 I mean, it seems to me where we are headed is

10 unless we want to roll the dice on our legal issue of

11 whether this is relevant in the first place, we are in a

12 position now that we have to essentially accept the

13 League's arguments that economic impact is relevant and

14 must be considered and present evidence concerning that

15 in order to formulate it in this de novo proceeding, the

16 additional information to support whatever it is they

17 are claiming we need to do.

18 HEARING OFFICER: You know, that's your litigation

19 call. I don't know whether you, I mean, I'm not sure,

20 that's not what I am saying at all.

21 I think you very succinctly summarized what I was

22 trying to say earlier when you said that my position is

23 that the mere deletion of the not in the public interest

24 language from the Marjory Stoneman Douglas Act does not

25 necessarily preclude or does not eliminate the

112

1 application of the moderating provisions from the water

2 quality standards.

3 Now how those apply, you know, it may be that, you

4 know, I mean, at this point I am not even going to

5 venture as to how they apply. I am sure everybody has a

6 different opinion and very well may change that opinion

7 during the course of these proceedings.

8 But ultimately, you know, as I sat down and looked

9 at the SWIM plan, the Marjory Stoneman Douglas Act, and

10 tried to apply all of these things within the context of

11 the rules, I don't see that there is a clear legislative

12 direction to me as the Hearing Officer in this 120.57

13 proceeding that I should ignore all of those moderating

14 provisions simply because the act was adopted.

15 Now I agree that the enactment of the Marjory

16 Stoneman Douglas Act sets forth some very clear

17 direction as to what the legislative intent is and the

18 desire to protect the Everglades. I think that's clear.

19 But how all of this comes together, you know, it is

20 just, I'm depending on you to prove it to me.

21 MR. GREEN: Mr. Menton, I think the McDonald case

22 is a fairly significant case, and we probably all would

23 go back, everybody on this side of the table would go

24 back and look at that, because I think the agency's

25 proposed action and policies and decisions are subject

113

1 to critique and scrutiny, and the agency can decide what

2 it is it thinks it needs to do to put on the policy in

3 the most favorable light.

4 HEARING OFFICER: I think that's a good point, and

5 I admit that I went back and read McDonald before coming

6 in here today.

7 Okay. Anything further we need to take care of

8 today?

9 MR. SAXE: One question. Will the United States

10 have an opportunity to respond to the Coop's proposed

11 submittal on the award of expenses?

12 HEARING OFFICER: I would expect the two of you can

13 sit down and work it out. I mean, I think you can,

14 yeah, I mean, yes, you can respond. I will give you an

15 opportunity to respond.

16 (WHEREUPON, THE HEARING WAS CONCLUDED AT 1:43 P.M.)

17 * * * * *

114

1 CERTIFICATE OF REPORTER _______________________

2 STATE OF FLORIDA )

3 COUNTY OF LEON )

4 I, SUE HABERSHAW JOHNSON, Certified Court Reporter,

5 Registered Professional Reporter, and Notary Public in and

6 for the State of Florida at Large:

7 DO HEREBY CERTIFY that the foregoing hearing was

8 taken before me at the time and place therein designated;

9 that my shorthand notes were thereafter reduced to

10 typewriting under my supervision; and the foregoing pages,

11 numbered page 1 through page 113, are a true and correct

12 record of the proceedings.

13 I FURTHER CERTIFY that I am not a relative,

14 employee, attorney, or counsel of any of the parties, nor

15 relative or employee of such attorney or counsel.

16 CERTIFIED THIS 1st DAY OF FEBRUARY, A.D. 1993, IN

17 THE CITY OF TALLAHASSEE, COUNTY OF LEON, STATE OF FLORIDA.

19 COUNTY OF LEON )

20 STATE OF FLORIDA )

21 The aforesaid instrument was acknowledged before me

22 this 1st day of February, 1993, by SUE HABERSHAW JOHNSON, who

23 is personally known to me.

24 CHRISTINE WHEELER

Notary #AA711091