1 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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: TUESDAY, JULY 6, 1993

20 (2:07 P.M. - 4:14 P.M.)

21 LOCATION: SECOND FLOOR MOOT COURT ROOM

LAW BUILDING

22 FLORIDA STATE UNIVERSITY

TALLAHASSEE, FLORIDA

REPORTED BY: SUE HABERSHAW JOHNSON

24 CERTIFIED COURT REPORTER

REGISTERED PROFESSIONAL REPORTER

25 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 Hopping, Boyd, Green & Sams

123 South Calhoun Street

6 P. O. Box 6526

Tallahassee, Florida 32314

7 (904-222-7500)

8 Representing Petitioners, Florida Sugar Cane

League, Inc., United States Sugar Corporation,

9 and New Hope South, Inc.:

10 JUDITH S. KAVANAUGH, ESQUIRE

RICK J. BURGESS, ESQUIRE

11 Peeples, Earl & Blank, P.A.

One Biscayne Tower, Suite 3636

12 Two South Biscayne Boulevard

Miami, Florida 33131

13 (305-358-3000)

-and-

14 WILLIAM L. HYDE, ESQUIRE

Peeples, Earl & Blank, P.A.

15 Suite 350

215 South Monroe Street

16 Tallahassee, Florida 32301

(904-681-1900)

Representing Petitioners, Florida Fruit and

18 Vegetable Association, Lewis Pope Farms,

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

19 Hundley Farms, Inc.:

20 KENNETH F. HOFFMAN, ESQUIRE

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

21 Suite C

2700 Blair Stone Road

22 Tallahassee, Florida 32301

(904-877-0099)

1 Representing Respondent, South Florida Water

Management District:

PAUL L. NETTLETON, ESQUIRE

3 Popham, Haik, Schnobrick & Kaufman, Ltd.

400 International Place

4 100 Southeast Second Street

Miami, Florida 33131

5 (305-539-7222)

6 Representing Intervenor, The United States

of America:

SUZAN HILL PONZOLI, ESQUIRE

8 THOMAS A. WATTS FITZGERALD, ESQUIRE

Assistant United States Attorneys

9 Southern District of Florida

Suite 627

10 155 South Miami Avenue

Miami, Florida 33130-1693

11 (305-536-4425)

12 Representing Intervenor, Florida Department of

Environmental Regulation:

LEE M. KILLINGER, ESQUIRE

14 Assistant General Counsel

Department of Environmental Regulation

15 Twin Towers Office Building

2600 Blair Stone Road

16 Tallahassee, Florida 32399-2400

(904-488-9730)

Representing Intervenor, Florida Wildlife

18 Federation:

19 KEN WRIGHT, ESQUIRE

111 South Martin Luther King, Jr., Blvd.

20 P.O. Box 1329

Tallahassee, Florida 32302

21 (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 ALSO PRESENT:

9 MONICA REIMER

10 * * * * *

11 INDEX _____

12 ITEM PAGE ____ ____

13 HEARING COMMENCED . . . . . . . . . . . . . . . . . . 5

14 HEARING CONCLUDED . . . . . . . . . . . . . . . . . . 100

15 CERTIFICATE OF REPORTER . . . . . . . . . . . . . . 101

16 * * * * *

1 PROCEEDINGS

2 (WHEREUPON, THE HEARING COMMENCED AT 2:07 P.M.)

3 HEARING OFFICER: Let's find out who is here,

4 beginning with the Cooperative.

5 MR. GREEN: Bill Green and Gary Perko for the

6 Cooperative.

7 HEARING OFFICER: Okay. For the League?

8 MS. KAVANAUGH: Judy Kavanaugh, Rick Burgess, and

9 Bill Hyde for the League.

10 HEARING OFFICER: Okay. For the Fruit and

11 Vegetable Association?

12 MR. HOFFMAN: Ken Hoffman, Your Honor.

13 HEARING OFFICER: For the District?

14 MR. NETTLETON: Paul Nettleton.

15 HEARING OFFICER: U. S. Government?

16 MS. PONZOLI: Suzan Hill Ponzoli. I have with me

17 Tom Watts Fitzgerald and Keith Saxe.

18 HEARING OFFICER: And DER?

19 MR. KILLINGER: Lee Killinger.

20 HEARING OFFICER: Okay, for the Indians?

21 MR. FITZGERALD: Unrepresented, Your Honor.

22 HEARING OFFICER: Okay. For the conservation

23 groups?

24 MR. WRIGHT: Ken Wright, Your Honor.

25 HEARING OFFICER: Did I miss anybody? All right.

1 Where are we? I have received a number of

2 motions, and we can take them up in order and dispose

3 of them if we need to, but I do not know if there have

4 been any developments in mediation that need to be

5 discussed of or...

6 MS. KAVANAUGH: Mr. Hearing Officer, about all I

7 can tell you is the mediation has been ongoing, and it

8 is continuing. There is a meeting scheduled this week

9 in Washington, and there is a chance that if they

10 progress forward that a further request for stay would

11 be presented, but at this time although progress is

12 being made, at this time we have to go forward with

13 the discovery towards hearing.

14 HEARING OFFICER: Okay. As I understood from the

15 last hearing that we had there was a Board meeting on

16 June 29th, is that right?

17 MS. PONZOLI: That's right.

18 MR. NETTLETON: There was one, there was one

19 scheduled, but it was canceled in light of the

20 mediation that did not get to the point...

21 HEARING OFFICER: Okay. So there were no

22 developments on that. I think that was discussed last

23 time.

24 Okay. So we need to take care of the discovery

25 depositions and work out a schedule? Is that it?

1 MS. KAVANAUGH: Yes, sir.

2 HEARING OFFICER: Okay. Let me say I have been

3 through the discovery motions I have received thus

4 far, and I will go through what I have received.

5 We are in the process of major renovations, so

6 mail and access to files is somewhat difficult now.

7 So it's possible that something hasn't made it to me

8 yet, because our office is in total chaos now.

9 I have received several motions that were filed

10 by the League, including a motion to compel deposition

11 testimony, motion to compel better answers to

12 interrogatories with respect to DER, the Water

13 Management District, and the federal government,

14 motion to extend discovery, motion to extend access

15 and entry, and a motion to compel attendance at

16 deposition or to strike testimony relating to Research

17 Work Order 32.

18 I have also received a response from the League

19 regarding a motion to compel production of documents

20 that the League filed before the first stay that we

21 entered for mediation purposes.

22 Are there any other motions that I haven't cited

23 that anybody filed?

24 MR. NETTLETON: I think the last one was our

25 motion.

1 HEARING OFFICER: The League filed response to

2 your motion to compel production of expert documents,

3 and it was filed back...

4 MR. NETTLETON: March 3.

5 HEARING OFFICER: And the response was filed

6 recently.

7 All right. Let's take the easy ones. Where are

8 we on the motion to extend discovery? The motion

9 represents the U. S. is in agreement to extend until

10 October 8. What about the other parties? District?

11 MR. NETTLETON: The District does not object,

12 Your Honor.

13 HEARING OFFICER: Conservation groups?

14 MR. WRIGHT: No objection, Your Honor.

15 HEARING OFFICER: DER?

16 COURT REPORTER: Excuse me. Could everyone speak

17 up? I am having a hard time hearing.

18 MS. KAVANAUGH: No objection.

19 HEARING OFFICER: All right. So I take it that

20 the other petitioners are in agreement to extend this

21 until October 8th?

22 MR. GREEN: Yes.

23 MR. HOFFMAN: Yes.

24 HEARING OFFICER: So we will extend the deadline

25 until October 8th.

1 We had discussed last time to do a revised

2 scheduling order, and it was my understanding the

3 parties were going to confer on that. What is the

4 status of efforts to come up with a new schedule on

5 it?

6 MS. KAVANAUGH: We circulated one, and I guess

7 the United States also circulated one, but it was

8 prior to the stay. I think we need to readdress that

9 now that we have another discovery date, and certainly

10 we will do it this week.

11 HEARING OFFICER: Okay. I would assume the new

12 discovery deadline would be incorporated into the

13 scheduling order.

14 As part of the scheduling order we have also

15 discussed I guess before the stay the need to deal

16 with the consolidation and the permitting cases, and I

17 would like to see if we can discuss that as part of

18 the scheduling order. If we need to talk about that

19 we can do it, so at the next status conference...

20 MS. KAVANAUGH: We have several proposals that

21 were put on the table during the stay, and I think we

22 could come back to you with any dispute next time.

23 HEARING OFFICER: Okay.

24 MS. PONZOLI: In regard to the revised order,

25 some of us are really out of pocket this week because

1 of the ongoing mediation. I would like a little

2 longer than this week.

3 I don't want us to have to finalize this week. I

4 think there are some real differences between the two

5 sides regarding that order, and it will take a little

6 time to work it out.

7 HEARING OFFICER: Okay.

8 MS. KAVANAUGH: I was representing I would try to

9 get a draft out this week. I am sure it will take

10 several weeks to negotiate it.

11 HEARING OFFICER: As long as the time period is

12 being used productively, in other words hopefully for

13 mediation and also in terms of discovery, I would

14 assume even before a final decision is made regarding

15 scheduling and a new order is presented, in the

16 interim the parties can reach agreements in terms of

17 schedules to be deposed and working out schedules, but

18 if you can't, let me know, and we will be sure that we

19 work on that.

20 Okay. Let's talk about the motion to compel

21 better answers to interrogatories.

22 Let me just say at the outset in reviewing the

23 motion and the, and this really goes to all of the

24 motions that have come in, if this case is going to go

25 to hearing in November there is a lot of work to be

1 done between now and then, and we don't need to spend

2 it on discovery motions, and we don't need to spend it

3 trading briefs back and forth on things that aren't

4 getting to the heart of the issues that we need to

5 resolve, so I am not going to be real patient with

6 discovery motions as a general rule.

7 I think that all of the parties understand what's

8 required in the discovery process, and I want to see

9 all the efforts go into discovery and not into the

10 motion practice.

11 Having said that, I think the thing that caught

12 my eye initially was with respect to the motion to

13 compel answers to interrogatories there did not seem

14 to be a reasonable attempt to try to work out an

15 agreement on those issues.

16 That was raised both in DER's response and the

17 response of the Water Management District, as I

18 recall.

19 Simply setting a deadline, I think the deadline

20 was set while all the parties were in Tallahassee for

21 a motion hearing, and that's just not tolerable.

22 I think these types of issues, I am just not

23 going to put up with it. I think everybody needs to

24 proceed in good faith in an attempt to resolve

25 discovery disputes before they get into an exchange of

1 motions and responses and this and that, and then we

2 have to come in and argue about them.

3 The motions have been filed now. We will take

4 care of those filed today in order to get the process

5 moving, but I wanted to make those comments up front,

6 so we can avoid in the future spending a lot of time

7 dealing with discovery motions. We just don't have

8 the time to do it.

9 I just want to see the efforts placed on the

10 merits of the case rather than the procedures.

11 Having said that, I have seen obviously the

12 Nearhoof report which was attached to the motion to

13 compel. I have not see the motion for summary

14 judgment which was referenced by the federal

15 government in its response. I do not have all of the

16 information before me that was provided in response to

17 interrogatories.

18 It seems to me that what we've got here is that

19 the interrogatory questions are trying to pinpoint

20 specific sites for water quality violations, and if I

21 am misunderstanding your response that is not what the

22 SWIM plan itself addresses, and I would expect

23 although it is not specifically spelled out in the

24 interrogatories that that's not the type of evidence

25 that will be offered at final hearing, is that

1 correct, from the District and the federal government?

2 MR. NETTLETON: For the District I believe it is

3 correct.

4 MR. FITZGERALD: I would agree from the United

5 States' perspective as well, Mr. Hearing Officer.

6 HEARING OFFICER: Okay. I think the key thing

7 here is that both the District, DER, and the federal

8 government, I am sorry, that's three, all three

9 parties have a responsibility for clearly advising the

10 petitioners as to exactly what evidence will be

11 offered in connection with the allegations or the

12 assumptions set forth in the SWIM plan of the water

13 quality violations.

14 If that is going to be the Nearhoof report or

15 studies that were cited in the motion for summary

16 judgment, then I think that provides sufficient

17 information for the petitioners to be able to

18 formulate their case and respond.

19 MR. HYDE: I think that might be okay if we had a

20 stipulation that that's what they will be presenting.

21 The problem we have is that the SWIM plan does

22 specifically assert that there are violations of

23 certain particular water quality standards, dissolved

24 oxygen, biological integrity, the narrative nutrient

25 rule, and the nuisance species rule, those are

1 foremost, and then sort of a secondary aspect dealing

2 with the antidegradation rule and the Outstanding

3 Florida Waters rule.

4 I guess what they are trying to say to you is

5 these are pervasive water quality violation issues, so

6 we can't address specific violations, the specific

7 instances of specific times, and I think that's really

8 an inadequate response unless they are willing to say

9 these documents in their motion for summary judgment

10 are the only ones that are really going to address it.

11 Otherwise we are floundering around a very, very

12 crucial, central issue to the proceeding.

13 The whole SWIM plan is predicated on these

14 allegations of water quality violations in the Water

15 Conservation Areas of the Park and the Refuge, and the

16 Stormwater Treatment Areas are positioned and sized to

17 deal with the alleged water quality violations.

18 We don't know if the Stormwater Treatment Areas

19 are situated to deal with or address violations that

20 may not be occurring in a given area.

21 Let me just give you a good example here. The

22 dissolved oxygen standard. I think the parties would

23 concede that the dissolved oxygen standard is being

24 violated throughout the Everglades Protection Area,

25 the Water Conservation Areas, the Refuge, and the

1 Park, and it is being violated in areas that are

2 so-called background or pristine areas.

3 So their witnesses will admit that, too. We need

4 to know, and I don't think it is too much to ask,

5 where these violations are occurring, and if so

6 whether we are at fault for the violations, and if

7 that's the case then are the Stormwater Treatment

8 Areas positioned and the size to rectify the violation

9 allegedly being caused by phosphorus runoff in the

10 EAA.

11 We are looking for specificity in the violations,

12 so that we know geographically where they are with

13 some degree of specificity.

14 HEARING OFFICER: But you just said on dissolved

15 oxygen it is pervasive.

16 MR. HYDE: Yes, but it is pervasive, it is a

17 naturally occurring phenomenon, naturally occurring in

18 wetlands throughout the country, so we need to know

19 which we are responsible for and which we are not.

20 If they are not willing to tell us in which areas

21 we are causing violations, then we are really at a

22 loss to figure out whether we are causing a violation,

23 what is the evidence that suggests we are causing that

24 violation, and what is the remedy that addresses it.

25 MS. KAVANAUGH: Could I add briefly the SWIM plan

1 is predicated on certain assumptions, that there are

2 water quality violations being caused as a result of

3 the upstream farming activities and the alleged

4 release of nutrients.

5 Unless we know geographically at least where

6 those are occurring, we have no way to rebut that

7 assumption, and we have no way to say, "Wait a minute,

8 those can't be EAA related water quality violations,

9 because they are in the middle of pristine marsh."

10 They may be related to the hydro period, which we have

11 no control over.

12 So as long as the plan is assuming the causal

13 relationship between the conditions that are allegedly

14 violative and the activities of the farmers, we are

15 entitled to understand how that relationship has been

16 established, and at this point all we have is the

17 Nearhoof report, which doesn't tell us the extent of

18 the violations, draw a line, the geographic area, or

19 the data on which they are making the finding that the

20 violations exist at all.

21 We are trying to narrow it down to where the

22 violations are. If they are throughout, then they

23 should so stipulate.

24 HEARING OFFICER: Well, the thing I want to avoid

25 is that this hearing is on the SWIM plan, the overall

1 planning document, not a hearing on specific points

2 where the violations have occurred and specific causes

3 for a point-by-point analysis of this pollution is

4 caused from this source, and this pollution is caused

5 from this source.

6 It is an impossible task that we just are not

7 going to be able to address within the scope of the

8 hearing.

9 I think it is impossible to take the whole

10 Everglades Protection Area and try to pinpoint every

11 violation in every square mile of this area. That's

12 what it seems you are asking them to do.

13 MR. HYDE: I don't think we are asking to that

14 degree of specificity, but I don't think it is too

15 much to ask for a geographic overlay or a map overlay

16 which indicates that in these areas, for example, the

17 narrative nutrient standard is being violated, and in

18 these areas the dissolved oxygen standard is being

19 violated, because it is not being violated everywhere

20 due to the EAA runoff.

21 That's simply not the case. Some of these

22 conditions in the case of the dissolved oxygen

23 standard, for example, are naturally occurring

24 conditions, and we should be able to be held to task

25 if at all just for the ones that we are causing and

1 not naturally occurring conditions, and this is true

2 also of the so-called cattail phenomenon.

3 There are areas throughout the Everglades

4 Protection Area, particularly in the southern part of

5 the Everglades Protection Area, but really the

6 WCA-3(a),-2(b), and -3(b) where there are lots of

7 cattails that are not attributable by anyone's stretch

8 of the imagination to phosphorus, but they are there

9 nonetheless. Are we being blamed for them, too? We

10 don't know.

11 I think it is not too much for them to say which

12 ones are we being blamed for. It could be something

13 as simple as an overlay.

14 HEARING OFFICER: I agree that you have a right

15 to know what evidence is going to be offered by the

16 District, and those who are supporting the plan, as to

17 the factual justification for the assumptions that are

18 contained in the plan. You have a right to know what

19 evidence is going to be offered at the final hearing,

20 and I would assume that the District and the federal

21 government and the other proponents of the plan will

22 make that information available, because if they

23 haven't I am not going to accept it into evidence at

24 the final hearing.

25 I think that both sides need to understand that.

1 If there are witnesses or if there are studies or if

2 there are test results that are going to be offered

3 into hearing, they damned sure had better have been

4 produced, or they will not come in. I have made that

5 clear throughout the course of this proceeding.

6 Now in terms of whether there are other

7 explanations for a particular phenomenon that are

8 occurring in the Everglades Protection Area, you know,

9 that's something that either their evidence is going

10 to support or your evidence is going to refute, and I

11 don't think they have to go through on a square mile

12 basis and say, "This cattail stand is the

13 responsibility of the farmers, but this cattail stand

14 isn't." I don't think we can afford to do that.

15 I think that's an impossible burden to put on,

16 especially in the context of a planning document which

17 is being challenged.

18 MR. HYDE: But I don't think it is too much to

19 ask for some reasonable specificity as to where the

20 violations are occurring, and it may be something as

21 simple as a map overlay, but we should not be held to

22 task to speculate that some areas that have cattails

23 may be something that we are blamed on, and some other

24 areas is something we are not held to task on.

25 I think they should tell us the areas that we are

1 causing it, an adverse effect, and that could be a

2 rather general description, but it has got to be more

3 than the Nearhoof report or motion for summary

4 judgment, because they talk in very generic terms, and

5 you can't figure it out what areas are involved.

6 MR. FITZGERALD: Mr. Hearing Officer, this

7 process has to be put in some perspective.

8 This is a motion to compel better answers to the

9 second set of interrogatories.

10 In the first set the United States provided a

11 partial summary judgment motion and also provided 10

12 pages of answers directed at the same questions that

13 appeared in the second set.

14 There has been some minor manipulation, but if

15 you lay them side by side the first set essentially

16 requested the same thing. There was no objection to

17 the first set.

18 We went on and specified by category and with

19 some generalities admittedly the type of violations

20 that were of concern.

21 The SWIM plan addressed it as does Mr. Nearhoof's

22 report at DER.

23 I think you are correct it would be absurd to

24 break it down to a mile-by-mile or even the desire for

25 a micro habitat evaluation that is sought by the

1 participating parties.

2 I think we need to harken back to what was said

3 not quite a month ago, the last session, that equally

4 general are the 100-odd allegations of disputed

5 material issues of fact and petitions, and it is

6 difficult for us to key answers to the challenges that

7 may exist, and when petitioners filed the amended,

8 cleaned up petitions you suggested last month and

9 evaluate the interrogatories in that light.

10 At this point we must be somewhat general, but we

11 have specified, as does the plan, the type and the

12 general locations of the violations we believe

13 occurred, and we will file something shortly to put

14 into the record for your perusal, our motion for

15 partial summary judgment in federal litigation. The

16 parties have a prior history in the discovery process.

17 I think coupled with other documents in the

18 record you will see ample direction has been given,

19 and there is no true dispute here.

20 The underlying facts, the data upon which all

21 parties defending the SWIM plan would rely has been

22 turned over many times to the extent that a particular

23 site, very specific, for some reason in the mind of

24 the petitioners needs greater elaboration, that's what

25 the discovery process is for. They can ask any

1 witnesses whom we will rely upon. The witnesses are

2 known to them, and some have been deposed, and others

3 are pending shortly. They will interpret the data and

4 suggest what it means.

5 But broad guess interrogatories are not the

6 appropriate way to do it.

7 MR. HYDE: Mr. Menton, so far as the answers to

8 interrogatories, we did send out a first one, the

9 first set, a long time ago, at the inception of the

10 case, and when you are dealing with the beginning you

11 can expect more general answers and be generally

12 satisfied with the more general answers, but as the

13 case develops we would like to have more specificity.

14 That's why we sent out a second set of

15 interrogatories, since the case is more developed, and

16 the parties have a better handle on the case and the

17 witnesses and the data.

18 I have to differ with you in one material aspect.

19 This SWIM plan is predicated in central Florida upon

20 allegations of water quality violations. I would

21 suggest if there are not water quality violations

22 occurring in the WCAs, the Park, and the Refuge, we

23 will be hard pressed to justify spending in excess of

24 400 million dollars to cure some other as yet

25 unidentified problem.

1 These things go to the heart of the case, and it

2 is very important to know where these violations are

3 occurring, and if these violations are occurring are

4 we the source of the violations.

5 I think some of their own witnesses have

6 suggested, just last Thursday one of their witnesses

7 suggested the hydro period was a cause, more of a

8 cause for paraphyte community impact than phosphorus.

9 We have other suggestions that the hydro period

10 may be adversely causing, be the causative agent for

11 the cattail problem down there.

12 So I think it isn't too much to ask for better

13 specificity as to where the areas are and what the

14 causes are.

15 HEARING OFFICER: Well, there are two issues you

16 talk about. One is location, and one is cause and

17 effect. What you are trying to get them to do is to

18 do, to tie those two issues together at each specific

19 site.

20 MR. HYDE: Well, in a sense they have to do that,

21 because, yes, you have to determine whether there is a

22 violation.

23 HEARING OFFICER: Whether they have to do that in

24 order to justify the plan or not is a legal issue that

25 we will have to deal with, but the question is whether

1 they have to do that within the scope of the discovery

2 process or not, and I think what you are trying, some

3 of these issues that you are getting to as to cause

4 and effect relationships between particular phenomena

5 that are occurring in the EPA, that is an overall

6 question that the entire evidence in this case will be

7 addressing.

8 MR. HYDE: It would be nice to know where the

9 violations are occurring, regardless of the cause.

10 MS. KAVANAUGH: Mr. Hearing Officer, the Marjory

11 Stoneman Douglas Act specifically ties the strategies

12 that are to be in the Everglades SWIM plan to

13 strategies that are necessary, were determined to be

14 necessary to achieve compliance with water quality

15 standards.

16 HEARING OFFICER: But it goes beyond that, too,

17 doesn't it?

18 MS. KAVANAUGH: It goes beyond it as far as

19 ultimately improving water quality in the Everglades,

20 except that it makes the threshold, brings facilities

21 into compliance with water quality standards,

22 unfortunately it doesn't provide us with guidance as

23 to what they mean by facilities, but to achieve a

24 compliance in the Everglades Protection Area with

25 water quality standards.

1 Because we don't know, I mean, are we to assume

2 the entire EPA is out of compliance? Because the

3 selection of the STA strategy as the way to bring it

4 into compliance with water quality standards is

5 obviously a crucial issue in this case. Regardless of

6 who's causing the problem, let's work it out. If we

7 don't know the problem, what it is, how can we say,

8 "We don't need STAs," or perhaps BMPs, perhaps BMPs

9 are solving the problem, because the violations only

10 occur on the fringe near the structure.

11 If we don't have some idea as to what they mean

12 by violations of water quality standards it will be

13 impossible to rebut it.

14 HEARING OFFICER: But the answer is identify four

15 of the water quality standards, that those that are

16 supporting the plan contend exist in a large number of

17 areas throughout the EPA.

18 MS. KAVANAUGH: It says they exist based on water

19 quality data.

20 I think what Mr. Hyde says is what we are saying,

21 is the middle of the Loxahatchee out of compliance?

22 Are the STAs being proposed to the tune of 450 million

23 dollars in order to improve water quality in the

24 middle of the Loxahatchee? We don't know.

25 We are trying to find out where the problem is so

1 we can address then whether considering the plan, and

2 there is a certain latitude, but whether or not it is

3 reasonable to propose a 450 million dollar STA program

4 to solve what, what if there are no water quality

5 standards, or what if they are only in a very narrow

6 area? That's why we need some elaboration.

7 HEARING OFFICER: I don't think that you can, I

8 think a lot of the issues you are raising really go to

9 the fundamental overview of the case as to whether or

10 not the strategies that are called for in the SWIM

11 plan are justified by the conditions that are in the

12 EPA, and that is really what the totality of the

13 evidence is going to show.

14 If the factual background and the assumptions

15 that are contained in the SWIM plan are, number one,

16 either non-correct, or, number two, do not justify the

17 strategies that are called for, then that's what the

18 hearing is all about.

19 That is not something that we can pin down

20 through a particular witness or particular

21 interrogatory questions.

22 MS. KAVANAUGH: We would like to know what the

23 conditions are and the factual basis. What I hear

24 them say is they have given us all of the numbers. I

25 was a little concerned when I heard Mr. Fitzgerald use

1 the words "at this point", but I recognize...

2 HEARING OFFICER: I think that was Mr. Nettleton.

3 MS. KAVANAUGH: One of them used that term.

4 Okay.

5 So what you are saying, so I understand it, is

6 they are giving us the information, and if they try to

7 use something at hearing that they have not given us

8 it will be excluded?

9 HEARING OFFICER: Right. What I am saying is

10 that any witnesses that are going to be offered by the

11 District or by any proponents of the plan to establish

12 water quality violations are occurring in the EPA had

13 better very clearly be identified and be made

14 available for deposition, and any studies that they

15 are relying upon to establish the existence of water

16 quality violations need to be produced and made

17 available, and if they are not made available they

18 will not be accepted at hearing.

19 As I am understanding the responses that are from

20 the District and from the federal government, they

21 have identified the witnesses and the studies that

22 they intend to offer to establish the existence of

23 water quality violations in the EPA.

24 MS. KAVANAUGH: Thank you.

25 HEARING OFFICER: And so I think that

1 sufficiently answered the interrogatories, and if the

2 witnesses or documents have not been produced you will

3 have to make that objection at the final hearing, and

4 we will take them up at that time. I will deny it.

5 So that motion I will deny. There are three

6 separate motions. I will deny the motion to compel.

7 Okay. The next issue has to deal with the motion

8 to compel deposition testimony regarding I guess the

9 three witnesses involved, and as I understand the

10 motion and the responses filed from the U.S. all of

11 those issues really go to the settlement negotiations

12 in the federal case.

13 We have talked about that in several prior

14 hearings. Obviously I do not have the benefit of

15 having read the depositions or being in attendance at

16 the depositions. I don't know the specific questions.

17 A few of them were cited in the motion to compel, but

18 I don't have the entire list.

19 I think there are a couple of points that I

20 wanted to discuss in connection with the motions.

21 First of all, there was a reference to the federal

22 court action regarding the Freedom of Information Act,

23 and that there was a decision pending in the federal

24 court as to which documents needed to be produced, and

25 that is obviously something I am not totally familiar

1 with.

2 There were a couple of questions that came to my

3 mind. Number one, what is the status of the lawsuit?

4 Maybe someone can fill me in on that.

5 Number two, is the federal decision solely

6 related to the Freedom of Information Act? If so,

7 will it necessarily be binding within the aspects of

8 an administrative proceeding? It seems to me there

9 are different issues that are involved there.

10 So since the League filed a motion to compel,

11 perhaps you can bring me up to speed on where the

12 federal lawsuit stands and whether it is pertinent.

13 MS. KAVANAUGH: There is a motion for summary

14 judgment pending filed by the League. The federal

15 government, this relates solely to the documents in

16 the custody of the federal government.

17 As you may be aware, Mr. Hearing Officer, with

18 regard to the documents, the federal government turned

19 over to the state agencies during the course of the

20 settlement negotiations, the Circuit Court here in

21 Leon County ruled those were public records, and we

22 have gotten those. This was filed by the District,

23 and in fact when they attempted to remove the whole

24 issue to Judge Hoeveler, the trial judge in the lower

25 case where the settlement negotiations occurred, he

1 specifically found that the documents had been

2 exchanged between adversaries in litigation, and

3 therefore he didn't think he had jurisdiction, it was

4 a state law matter, and he shifted it back to Judge

5 Davey, who ruled the documents should be produced.

6 The FOIA case has nothing to do with it. This

7 involved keeping those documents through the

8 deposition questions that were asked. The FOIA case

9 involved solely a list of documents which the federal

10 government has in its hands for which they are

11 claiming FOIA exemptions, matters pending before Judge

12 Hoeveler, the Magistrate ordered production of the

13 index, we have the index now, and now we are disputing

14 it should have an in-camera inspection.

15 For purposes of this situation, and perhaps the

16 depositions in toto would have helped, but we thought

17 this issue had been settled and that the Court had

18 ruled or you had ruled, sir, that we were entitled to

19 know the factual basis for those parts of the

20 settlement agreement that were incorporated into the

21 SWIM plan, and huge portions of the settlement

22 agreement are in fact incorporated verbatim into the

23 SWIM plan, and since that was developed in the

24 framework of the settlement negotiations, that's the

25 only place we can go to find out how 50 parts per

1 billion was arrived at.

2 Factually there was great argument made, we

3 should not be allowed to go into the political motives

4 and who shot John and why from a political standpoint

5 certain decisions were made.

6 We are not seeking that information. We are

7 trying to find out the facts of how these standards

8 and scientific conclusions that were incorporated from

9 the settlement agreement into the SWIM plan, how they

10 were developed, factually, technically, what data they

11 used.

12 As you I think said getting from point A to point

13 C, it is B that we are interested in. That's what we

14 were trying to do in our deposition questions.

15 But as was indicated, the witnesses were

16 generally told not to answer, and that's where we are.

17 The FOIA case said those documents have nothing

18 to do with it, they are not part of this proceeding,

19 and the Water Management District is now proposing a

20 plan that relies on the settlement agreement and

21 certain technical decisions related in the course of

22 the settlement, and therefore those aspects at least

23 we think are discoverable.

24 HEARING OFFICER: Well, the way that you just

25 described the earlier discussions that we had seems

1 consistent with the citation that the federal

2 government had in its response to the motion to compel

3 as to what was permissible.

4 I don't know if I can put my hands on it quickly,

5 but I thought that the federal...

6 MS. PONZOLI: We will agree to that.

7 HEARING OFFICER: Excuse me?

8 MS. PONZOLI: We would agree. We did in fact

9 give that in the deposition. We gave factual basis

10 for numbers as to each witness.

11 We have no problem with that part of it. Do you

12 need a copy of our response?

13 HEARING OFFICER: I have it here somewhere. I

14 think it was page three of your response that I had in

15 it that there seemed to be an accurate recitation of

16 what we had decided earlier, as is what Ms. Kavanaugh

17 said.

18 I think the way she just described the issues

19 that can be or should be discoverable is exactly what

20 I had in mind at the earlier hearing that we had.

21 MS. PONZOLI: And we have answered those. Those

22 are not questions which you see reflected in the

23 motion, and I guess I would say that we'll agree

24 Dr. Kadleck is going to be produced again for a week

25 or something. He is probably one of our foremost

1 experts. If they will ask better questions that go to

2 the factual basis for the data, we have no problem

3 with that.

4 If they want to sit there and drag through the

5 settlement negotiations and the work product privilege

6 of the United States and its thought process, that's

7 not what you said they could get to, but if they will

8 bring their questions and frame them more precisely to

9 the factual basis for the numbers, we have no problem

10 in answering them.

11 In regard to Mr. Scheidt, Mr. Scheidt is not our

12 witness. He is someone they chose in the settlement

13 negotiations. They designated him as a factual

14 witness as to I believe the coerciveness of the

15 federal litigation and the Water Management District's

16 decision not to challenge jurisdiction.

17 And then they began to ask who said this in the

18 negotiations and who said that, what was the United

19 States' position, and that's not, he's not our

20 witness. They have come in to take him for a totally

21 different purpose, and now we are dragging through the

22 settlement agreements.

23 Regarding Mr. Burt, who is a BMP expert, I think

24 there again you have a situation where the petitioners

25 have taken very inconsistent positions. First, the 25

1 per cent was too harsh. I believe Mr. Green

2 represented to you at the last hearing that 30 to 50

3 per cent is now being supposedly achieved through the

4 BMPs. Now they may say it is not enough, and you can

5 do with less STAs and more BMPs. Mr. Burt has nothing

6 to do with that nor does Mr. Scheidt. Dr. Kadleck is

7 available to them again. So I would say if it is a

8 factual basis for the numbers, we have no problem.

9 I would like to point out something in regard to

10 the settlement negotiations. That federal litigation,

11 Mr. Menton, is still ongoing. We are at the Eleventh

12 Circuit. We could in theory end up right back in

13 federal court litigating an enormous amount of it.

14 That is active litigation.

15 The settlement discussions are not a proper area

16 of discovery, what went on in the settlement

17 negotiations.

18 If in fact we were to find they were, our

19 settlement discussions that are presently going on,

20 are we going to start depositions on the fact that

21 petitioners have agreed to these various numbers are

22 design criteria? I mean, what are we going to do

23 here? This is getting crazier and crazier.

24 HEARING OFFICER: Well, I think I indicated

25 before I do not believe that the work product

1 privilege has been made obsolete in the context of

2 this proceeding, and I did not believe the settlement

3 negotiations, there is a prohibition about getting

4 into those, and I don't believe that has been waived,

5 either.

6 I do think that we have a unique circumstance

7 here where there have been some adoption of numbers

8 from the settlement agreement, and I think that those

9 are ripe for inquiry, as to how the SWIM plan came up

10 with the numbers that are in there.

11 That's what I said last time, and I think that's

12 what Ms. Kavanaugh just said today, and Ms. Ponzoli

13 just agreed they are going to answer the questions in

14 that regard. I think that is a ripe area for

15 discussion. Those questions should be answered.

16 In terms of the work product, I don't think those

17 privileges have been waived, nor have the protections

18 against settlement discussions been waived

19 necessarily.

20 I think it is a very narrow area, and I think the

21 questions should be limited to that narrow area.

22 Without having the depositions before me to put

23 it all in context I am not in a position to

24 specifically review them. In terms of Dr. Kadleck,

25 since he will be produced again, I would assume that

1 any question that there is some disagreement on, they

2 can be reasked, and we can clarify the record and

3 bring him up again, and I will specifically rule on

4 the questions with respect to him.

5 With respect to Mr. Burt and Mr. Scheidt, we need

6 to be given specific questions in the depositions to

7 put them in context. I am just not in a position to

8 evaluate those questions at this point.

9 MS. KAVANAUGH: I need some perhaps better

10 heading. We have given you specific questions, one

11 being, for example, why weren't the flow weighted mean

12 concentrations used in establishing the limits? He

13 was instructed not to answer.

14 That's a problem. We don't know how to couch the

15 questions in order to get a response, because it

16 appears to be somewhat arbitrary as to when the

17 witness, I mean, who, what, when, and where, maybe not

18 the why, but who, what, when, and where type

19 questions, and perhaps if I could give you the whole

20 depositions you could...

21 HEARING OFFICER: I thought there were a few of

22 the questions that fit within the scope of acceptable

23 questions, to be perfectly frank, and that was one

24 that I think I had specifically noted, as I did not

25 see the basis for the objection on that particular

1 question.

2 MS. KAVANAUGH: That's the kind of question.

3 MS. PONZOLI: He was noticed in an entirely

4 different area, Mr. Menton. You need to understand

5 that is not the area that they noticed him on. They

6 said he was a factual witness. He worked at the Park

7 and now works at the EPA. Does that mean we now have

8 to bring him back? This is the gentleman who stood us

9 up on his first deposition. I had a lawyer in Athens,

10 Georgia, and nobody told us it wasn't coming off.

11 We have produced him twice for deposition now.

12 Are we going to produce him a third time for a person

13 who isn't even our witness?

14 We have 126 depositions to do. There is a large

15 amount of discovery. Is this what we need from

16 Mr. Scheidt? Can't we get it from Dr. Kadleck or

17 someone that we are saying is a witness for trial?

18 MS. KAVANAUGH: Dr. Scheidt was the Case Manager

19 and was in charge.

20 MS. PONZOLI: I was talking about him.

21 MS. KAVANAUGH: That's why he was subpoenaed as a

22 fact witness, because he was a lead participant in the

23 settlement negotiations. He is now with EPA, but we

24 understand they are not calling him as an expert. He

25 is a fact witness, and we were trying to ask factual

1 questions about his knowledge of the settlement

2 agreement.

3 You know, maybe we can work something out with

4 Mr. Scheidt. I disagree with her characterization as

5 to the course of his deposition.

6 HEARING OFFICER: Well, I think the point she

7 raised is a legitimate one. Let's keep in context who

8 the witnesses are. That's one thing that I can't

9 state now without having looked at the depositions,

10 how he responded to specific questions and exactly

11 where he fits in the scheme of things and what

12 knowledge he has regarding the development of the

13 numbers that are in the SWIM plan, because those are

14 the issues that we are trying to get at here.

15 MR. BURGESS: Your Honor, if I could interject, I

16 was the attorney who attempted to depose Dr. Kadleck

17 in Michigan, and I was the author of the questions in

18 the motion before you.

19 The United States says he is going to be

20 redeposed, but they have only offered him during the

21 week of September 13 or 20, and I am afraid if we

22 don't get clarification early on with respect to these

23 areas of inquiry we will be back here at the eleventh

24 hour at the end of September, and perhaps there is a

25 way to either bring Dr. Kadleck up separately and in a

1 separate motion proceeding, or perhaps there is a way

2 we can tender to counsel these questions to written

3 interrogatories and attempt to get their position

4 before we go back in September.

5 I am afraid to give up this two or two and a half

6 months where we are in limbo as to whether or not the

7 witness is instructed not to answer, questions as to

8 what was the first settling rate you heard proposed

9 during the meetings. They instructed the witness not

10 to answer.

11 Did the rate that we discuss change during the

12 meeting? They instructed the witness not to answer.

13 Were various sizes of constructed wetlands

14 discussed during the meetings? The witness was

15 instructed not to answer.

16 We are trying to inquire into the basis for

17 everything in the SWIM plan and the witnesses said

18 those things were developed and discussed during the

19 settlement negotiations. We asked the question of

20 what was discussed in the settlement negotiations, and

21 they instructed him not to answer.

22 The platitudes of, "We will let them inquire into

23 the factual basis," it's not just that. We are

24 dealing with specific questions in black and white

25 that are here that witnesses are being instructed not

1 to answer.

2 I would like somehow if Your Honor can assist to

3 bring this particular issue at least with respect to

4 this deponent, who is one of the principal architects

5 of the thing, the settlement process, into this

6 limitation and levels and size of the STAs, to bring

7 this to a head before we go back to Michigan in late

8 September at the eleventh hour of discovery.

9 MR. FITZGERALD: Mr. Hearing Officer, it just so

10 happens in the full deposition of Dr. Kadleck where I

11 will probably be defending him, and I have been

12 through all the hearings in which this has been

13 discussed, and I have as fair an understanding of the

14 intent behind your ruling and scope of your ruling as

15 anyone does, and it will be amplified by what we hear

16 here today.

17 If counsel wishes to provide in writing the

18 questions he thinks are going to pose difficulties

19 with regard to the underlying settlement agreement

20 which they contend is in the SWIM plan, I will review

21 them and confer in advance on any that I feel cause

22 difficulties in such a way that we could resolve them

23 early.

24 I feel compelled to point out it is our position

25 as the defenders of the SWIM plan, I suspect they

1 would join this, that the SWIM plan incorporates

2 significant portions of the settlement agreement

3 merely because those are in the settlement agreement.

4 It has been the position of the defenders of the

5 SWIM plan that the plan while based on the same

6 science and the same analysis is an independent

7 document that stands or falls on the document which

8 exists to support it.

9 But I will at least grudgingly review

10 Mr. Burgess' questions that he feels may be a problem,

11 so that that may be worked out, and if need be we can

12 bring it back.

13 HEARING OFFICER: I don't want the existence of

14 work product privilege to serve as a means for hiding

15 the basis of the numbers that are in the SWIM plan.

16 That's what I tried to make clear before.

17 I recognize, and that's where we are walking a

18 fine line, where there is a work product privilege,

19 but there is also a SWIM plan that has some specific

20 findings and some factual assertions in there that

21 these parties have the right to understand the

22 evidence that supports those assertions.

23 MR. FITZGERALD: I do understand clearly that we

24 are concerned about work product? We have active

25 litigation.

1 On the other hand less than two weeks ago I let

2 the witness answer a question properly phrased, and

3 his response was, "My understanding as to how we got

4 to the number was by consensus of all the parties

5 discussing it and a give-and-take process. That's how

6 we got to 50."

7 That's the answer that you might get from

8 Dr. Kadleck. When properly framed, questions narrowed

9 to the issues, I think you could do it.

10 HEARING OFFICER: Some of the questions that

11 Mr. Burgess cited I think would appear to be

12 acceptable to me. I think they go to some of the

13 questions.

14 MR. FITZGERALD: I think what we may have

15 experienced in some situations and in looking through

16 the transcripts I believe it is true is that poorly

17 crafted questions are asked, which are clearly

18 objectionable, and they start a chain reaction, a very

19 natural phenomenon. It may not be the optimal

20 situation, but when an attorney says if it goes beyond

21 a legitimate inquiry it may be a natural occurrence.

22 HEARING OFFICER: Well, I understand that, but

23 the only thing I can say in response to that is that

24 the deposition had better establish that trend before

25 a witness is instructed not to answer, because if it

1 doesn't and the question comes back I will not be very

2 tolerant of instructions to a witness not to answer

3 questions that are not within the scope of privilege

4 that is recognized.

5 MS. KAVANAUGH: Mr. Hearing Officer, there is not

6 work product issue in this case. The United States

7 maintains that there is work product, but the federal

8 courts have not found a work product situation here,

9 nor has the federal court recognized a settlement

10 privilege.

11 The federal court found in the public records

12 case when the argument was made that the DER was

13 acting as the agent of the federal government and

14 therefore a work product and federal privilege

15 attached to the documents that DER was withholding,

16 the federal government found that they were

17 adversaries exchanging information within an

18 adversarial relationship.

19 Now the Court was speaking of whether it should

20 remand back and forth, but they found they were

21 adversaries. There can be no work product if this is

22 information exchanged between adversaries. The whole

23 point is to protect it from adversaries.

24 I submit that while the Department of Justice

25 continues to assert the work product privilege it has

1 not been found to exist per law by any federal judge

2 in the case. It may be ultimately, and I guess that

3 is what I am getting to, we may have to make that

4 determination, but this blanket assertion of a, quote,

5 work product privilege for information communicated

6 between two adversaries in settlement negotiations has

7 not been established.

8 Perhaps we can think of an appropriate motion. I

9 was concerned, because I felt perhaps you had been led

10 to believe or had somehow ruled without being able to

11 brief it that there is a work product privilege with

12 regard to those communications that are occurring

13 within the settlement negotiations between the state

14 agencies and the United States.

15 Judge Hoeveler has found...

16 HEARING OFFICER: Okay, I am talking in abstract

17 again. I am not talking about specific documents or

18 communications.

19 I would assume that there are situations where

20 witnesses for the federal government in that federal

21 litigation had discussions or exchanged letters or

22 correspondence with attorneys in the process, and

23 there could very well be some documents forming within

24 that.

25 MS. KAVANAUGH: Yes, those are the issues, that

1 set of documents.

2 HEARING OFFICER: That's what I was talking

3 about.

4 MR. GREEN: Mr. Menton, we joined in the motion

5 of the League, and it wasn't because of a theoretical

6 interest.

7 We have a deposition scheduled for the 19th of

8 this month, Dr. William Walker, for five days in

9 Massachusetts.

10 He is probably the second key witness of the

11 federal government in the derivation of numbers that

12 we are litigating.

13 I recall indirectly the admonition that you gave

14 counsel for both sides about calling in and asking for

15 rulings in the midst of depositions, and I understand

16 what you have said earlier today and in earlier case

17 management conferences about proper scope of inquiry

18 in these areas.

19 My only question would be would you permit us to

20 call you in that deposition if Mr. Fitzgerald is

21 unable to satisfy our concerns simply because of the

22 timing?

23 It is a critical deposition. If they take the

24 position that they took earlier we will have to call

25 you, and it will be too late not to. It is the 19th

1 of this month.

2 HEARING OFFICER: The 19th?

3 MR. GREEN: Yes, for a week, the week of July

4 19th.

5 MR. FITZGERALD: If they would like to, as we

6 said with Dr. Kadleck, I will review questions in

7 advance to see I would expect to object, and perhaps

8 we can work it out or do it telephonically in advance,

9 only as a courtesy to counsel, because I know how

10 disruptive it is to have to shut down a deposition in

11 the middle.

12 MR. GREEN: Your Honor, I don't believe we are

13 required to screen our questions with counsel ahead of

14 time, although I understand the context of Dr. Kadleck

15 that it might make sense.

16 HEARING OFFICER: You are not obligated. I think

17 he is offering it as an attempt to try to make the

18 process work smoother. If you don't want to tip off

19 your questions, that's fine.

20 You can try to track me down, and I can try to

21 resolve it. I don't want to keep everybody wasting

22 five days of time, so I will try to resolve them.

23 I think again, I don't know how Dr. Walker fits

24 into the whole scheme of things, but I would hope that

25 we have a pretty good understanding of the nature of

1 the inquiry that I think is acceptable, and I don't

2 know if you are looking to go beyond that or whether

3 you perceive that Dr. Walker has some information

4 beyond those areas that I have indicated that you want

5 to inquire into.

6 MR. GREEN: I perceive if he is allowed to answer

7 the questions that you told us is discoverable, that

8 would be fine, but I also perceive that the questions

9 will be objected to, and he will be instructed not to

10 answer.

11 I don't think we have resolved today that issue,

12 and that's why I am raising it. If I felt that we

13 had, then I would not have raised it.

14 I feel the questions that were objected to for

15 Dr. Kadleck were admissible and should have been

16 answered. It is inexcusable.

17 HEARING OFFICER: As I indicated earlier, without

18 having read the whole deposition, I do think some of

19 the questions were not objectionable and should have

20 been answered. That was my quick overview without

21 seeing it all.

22 I think I also indicated that I agreed with

23 Ms. Kavanaugh's summation of the areas, as well as I

24 agreed with Ms. Ponzoli, so if everybody is in

25 agreement, I don't understand why we still have

1 problems.

2 MS. PONZOLI: I think if Mr. Green would submit

3 his questions that he already knows he will have

4 trouble with, then we could resolve these problems

5 ahead of time.

6 I would like to ask a reciprocal courtesy though,

7 without commenting further on willingness to tip their

8 hand, that on the socioeconomic depositions which are

9 coming quite late that we have a reciprocal courtesy

10 of submitting problem questions, because we, too, have

11 had instructions not to answer, and it was early on,

12 but as everyone is acknowledging it is late on now,

13 and we really don't have time to correct some

14 problems.

15 I would like the same courtesy back from them.

16 MR. BURGESS: I don't know what type of monster I

17 created. I requested with Dr. Kadleck because the

18 questions are pending, and they are here, and we could

19 get rulings on them, and they are not willing to make

20 Dr. Kadleck available until very late in the process,

21 and I didn't want to wait two and a half months.

22 We could settle it now. Just for the record what

23 I plan to do is to send Mr. Fitzgerald the questions,

24 and maybe even additional ones from those that

25 appeared in the motion, and try and get a resolution

1 as to whether he will allow Dr. Kadleck to answer, and

2 if not we will present them in a motion in advance of

3 our rescheduled deposition of Dr. Kadleck.

4 MS. PONZOLI: Was that a yes?

5 HEARING OFFICER: I don't know who the

6 socioeconomic witnesses are. Which parties?

7 MS. PONZOLI: They both have witnesses,

8 Dr. Leistritz, Polopolous, Richard Lutz, a fair number

9 of witnesses that will testify.

10 MR. BURGESS: Keith Saxe is here. I don't

11 believe I have ever instructed them not to answer.

12 MS. PONZOLI: I don't remember which one,

13 Mr. Burgess, but are you saying no?

14 MR. BURGESS: With respect to pending questions?

15 MS. PONZOLI: If it is yes...

16 MR. BURGESS: Well...

17 MS. PONZOLI: But you are going to submit more.

18 MR. BURGESS: The ones from his deposition.

19 MS. PONZOLI: No additional questions?

20 MR. BURGESS: I am not going to make up

21 additional questions.

22 HEARING OFFICER: Well, in terms of the

23 socioeconomic witnesses, it is premature to get into

24 it, but I would assume that these are witnesses that

25 are designated to testify at hearing.

1 MR. FITZGERALD: Yes.

2 HEARING OFFICER: I would assume that you would

3 be granted full inquiry into the areas that they

4 intend to testify to, and that he has the underlying

5 that led to the formulation of the opinions, and so I

6 would perceive that there will be no problems in that

7 regard. If I am wrong, we will take it up.

8 I don't know that it is, you are saying that you

9 are going to ask questions that are objectionable?

10 MS. PONZOLI: That's what Mr. Green was saying as

11 I understand him. He knew they were objectionable

12 now.

13 No, I think we all know that there are thorny

14 areas that remain somewhat at issue, whether they are

15 part of this hearing or not and appropriately part of

16 this hearing, and I guess because we are running out

17 of time people are trying to close the gaps as soon as

18 possible.

19 HEARING OFFICER: Okay. Again it's premature to

20 get into the socioeconomic issues. As I recall from

21 our discussions before the one area that was at issue

22 was the macro versus micro, so to say.

23 I understood the witnesses would be testifying

24 from the macro standpoint rather than the micro, and I

25 would assume that that is what the inquiry will be on.

1 I question whether they would even have any

2 information in those other areas that we have

3 previously determined would not be offered at hearing

4 and therefore were not subject to the production of

5 documents and that sort of thing.

6 So maybe I am getting ahead of myself. I am

7 trying to cut off the problem before we get to the

8 problem, if possible. We will see.

9 MS. KAVANAUGH: Mr. Hearing Officer, on the

10 questions of Dr. Kadleck it is a different situation,

11 but Mr. Scheidt and Mr. Burt, particularly Mr.

12 Scheidt, who was the Case Manager involved in the

13 settlement negotiations at that time, how can we,

14 should we give you the whole deposition?

15 We don't want to file a whole lot of paper, but

16 how can we get this resolved?

17 They have indicated they do not want to produce

18 him again, and I guess we are trying, some of the

19 questions appear to fall within the answerable format,

20 how we can resolve these.

21 MS. PONZOLI: I would guess they need to show a

22 need to have Dr. Scheidt versus someone else who sat

23 in the room and participated.

24 MS. KAVANAUGH: But we had Mr. Scheidt.

25 MS. PONZOLI: You had him twice.

1 MS. KAVANAUGH: Had he answered it, we would not

2 have the problem. It seems unfair to have to show a

3 need when they instructed him not to answer.

4 MS. PONZOLI: What can they use it for? He will

5 not be testifying at trial.

6 HEARING OFFICER: At this point in time rather

7 than going back and trying to reproduce witnesses,

8 let's see if there is some way that we can get answers

9 that are necessary without having to reschedule

10 witnesses that have been deposed and are out of town.

11 I am trying to find your motion. I do not have

12 it readily available.

13 MS. KAVANAUGH: For example, we have an extra

14 copy. Could we give you one with the deposition

15 transcript?

16 HEARING OFFICER: Yes, I guess you will have to,

17 because I can't find mine.

18 MS. KAVANAUGH: Start at page four of the

19 exhibit. (Handing document to the Hearing Officer.)

20 Specifically, other than to go through them one by

21 one...

22 HEARING OFFICER: I did not want to do this, but

23 we have Kadleck who is going to be produced again...

24 MS. KAVANAUGH: I guess we could resubmit the

25 same questions in writing perhaps to Mr. Scheidt. To

1 us he is very crucial fact witness.

2 MS. PONZOLI: He is asking for our positions, the

3 United States, who did this.

4 MS. KAVANAUGH: It is on page five. We haven't

5 gotten to it.

6 MS. PONZOLI: Was that you, Mr. Burgess?

7 MR. BURGESS: No, ma'am.

8 MS. PONZOLI: I don't recall who took it. He is

9 asking for our position, the United States' position,

10 in regard to various things, and he is asking for what

11 the United States had in mind to be established for

12 the Everglades National Park for a factual witness

13 that they have said is to be there for the

14 coerciveness of the federal litigation and the Water

15 Management District's decision not to challenge

16 jurisdiction, so I would respectfully submit these are

17 inappropriate questions, Mr. Menton.

18 MS. KAVANAUGH: Mr. Hearing Officer, regardless

19 of how inarticularly they might have been worded, the

20 first question is, "Did you have specific phosphorus

21 concentration limits in mind?" The question was, "Was

22 the United States..."

23 HEARING OFFICER: But they are asking about

24 settlement discussions, not tied directly to the SWIM

25 plan or any number in the SWIM plan. That's what we

1 talked about before. So the first question, no.

2 MS. KAVANAUGH: Mr. Hearing Officer, the

3 conversations are in fact in settlement agreements and

4 the SWIM plan.

5 HEARING OFFICER: Well, then he should have

6 rephrased the question. The question as phrased does

7 not fit within the scope that we talked about.

8 MS. KAVANAUGH: Okay.

9 HEARING OFFICER: The second question arguably

10 calls for work product.

11 MS. KAVANAUGH: Work product? I respectfully

12 disagree with you.

13 HEARING OFFICER: The third question, I am not

14 clear from the third question, the context, whether he

15 is talking about in settlement negotiations, in the

16 SWIM plan, in the settlement agreement. I can't

17 evaluate the third question in isolation.

18 MS. KAVANAUGH: Okay.

19 HEARING OFFICER: The next question, "Can you

20 tell me the United States' position with regard to the

21 settling rate in the settlement discussion?"

22 MS. KAVANAUGH: The discussions to develop a

23 settling rate used in the equation to size as the STA.

24 HEARING OFFICER: If he phrases it that way then

25 he can answer the question.

1 MR. FITZGERALD: Mr. Hearing Officer, having done

2 an awful lot of these depositions, a lot of this

3 discussion is keyed to siting lists and exhibits that

4 are proffered by the petitioner's counsel that

5 identified people at different meetings.

6 It is not disputed that there were a whole series

7 of meetings back in April, May, June, and July, 1991,

8 related to settlement discussions.

9 Some of those were exclusively federal personnel

10 discussing among the attorneys and the scientists

11 various classic work product type things.

12 Others were negotiating sessions which might have

13 other privilege attached and may not, and some may

14 have been discussed.

15 It is fine for Ms. Kavanaugh to sit here now and

16 tell you what she thinks the question was designed to

17 elicit or what it really means, but without the full

18 transcript you can't tell if they were narrowly enough

19 drafted to be asking about, facially they appear to

20 be, whether they were asking it in the context of a

21 meeting. It has nothing to do with concealing

22 information but rather producing the pages that may

23 attach.

24 MS. KAVANAUGH: Mr. Hearing Officer, I think we

25 can work something out to resolve these specific

1 questions. I think we have a clear understanding as

2 to how each question should be couched and also what

3 we need to do to ensure we have an appropriate record

4 so that if we have to come back to you to seek an

5 answer you can better assess the situation, and so we

6 will do it.

7 We have some depositions coming up, and we will

8 be able to get it one way or come back to you.

9 HEARING OFFICER: Okay. Next is the motion to

10 extend access and entry.

11 MR. BURGESS: That's our motion, petitioner's

12 motion.

13 MR. SAXE: Mr. Hearing Officer, one brief comment

14 before we move off the last topic.

15 For the record the United States does not concur

16 in counsel for the League's characterization for the

17 federal court's ruling on the removal of the public

18 record suit, and if that does become an issue it will

19 need to be properly briefed, as opposed to be

20 determined on the basis of the representations of

21 counsel.

22 HEARING OFFICER: Okay. I hope it doesn't come

23 up.

24 MS. KAVANAUGH: Me, too.

25 MR. FITZGERALD: One more issue can't hurt.

1 MS. PONZOLI: There is a lot of litigation

2 surrounding this, Mr. Menton, and I have to say I

3 don't try to clarify every time, because it is too

4 hard.

5 Ms. Kavanaugh was mixing the federal lawsuit with

6 the FOIA lawsuit, but it is just too confusing to try

7 to sort it all out. There are 20 or 30 lawsuits in

8 the galaxy.

9 HEARING OFFICER: So I am not the only one having

10 fun?

11 MS. PONZOLI: Right, but your fun is limited.

12 MR. FITZGERALD: We have lots more fun.

13 HEARING OFFICER: Okay. Let me just in response

14 to what Mr. Saxe said, it raises another question. It

15 goes back to what I was talking about earlier in terms

16 of discovery.

17 I really want to avoid briefing every nuance of

18 this case and briefing every discovery motion and

19 briefing what's going on in all the other cases,

20 because it seems to me that what this proceeding is

21 all about is to resolve the disputed issues of fact

22 regarding the SWIM plan, and this is a very good

23 opportunity for all parties to get a better

24 understanding of the science that is involved

25 underlying the SWIM plan and the science that the

1 parties opposing the SWIM plan are coming up with.

2 So that's where I want to see the efforts in this

3 case focused on. I don't want to see it focused on

4 discovery motions or extraneous matters.

5 Obviously it has to happen to some degree, but I

6 am a lot happier when I think everybody is moving in

7 the right direction in terms of conducting discovery

8 regarding science and getting a better understanding

9 of the expert witnesses and what they have to say.

10 That's really the gist of what this case is all about.

11 That's what I would like to see focused on.

12 All right. The access and entry issue.

13 MR. BURGESS: Yes, Your Honor. With respect to

14 this motion, this is a motion where we seek to do

15 continued scientific discovery to in fact resolve the

16 disputed issues of fact involving the SWIM plan, and

17 frankly it is a motion that I think with one fell

18 swoop of the pen we can remove this entry and access

19 entry from the motion calendar on a month-to-month

20 basis and allow the discovery, science discovery to

21 continue until we get to hearing.

22 We have provisions for exchange of information

23 among all parties, and so all parties would have the

24 benefit of the continued science to bring it to bear

25 on the disputed issues of fact.

1 As Your Honor knows, the existing order allowed

2 entry and access through June 30th. That has now

3 expired. Before that expiration we filed this motion

4 to seek to allow us to gain entry only to the Refuge

5 and only to continue sampling at the 14 water quality

6 stations in the Refuge, which are going to be used

7 pursuant to the SWIM plan to set the regulations that

8 our clients are going to be bound by.

9 We have collected...

10 HEARING OFFICER: Mr. Burgess, let me just

11 interrupt for a second. If I grant you that access

12 will you agree to provide your experts to testify or

13 provide any test results they come up with on a timely

14 basis, so that the parties supporting the plan will

15 have an opportunity to know if your experts are going

16 to change their testimony or modify their testimony or

17 come to different conclusions than what they have

18 already come up with?

19 MR. BURGESS: Yes, Your Honor. Your December

20 order already provides with respect to the provision

21 of the information. We provided, in fact it provides

22 for exchange of information. The U. S. and us

23 exchanged information before the stay for several

24 months.

25 Last Wednesday in Dr. Dennis' documents, and he

1 was the scientist who came before you and sampled the

2 six transects in the Refuge, we provided his water

3 quality data, his transect sampling, his vegetation

4 analysis, his soils analysis.

5 HEARING OFFICER: There was some reference that

6 there had been, that timing for the production of the

7 sampling had taken longer than had been anticipated.

8 What was that?

9 MR. BURGESS: I am not aware of any problem in

10 that regard. There were no samples exchanged either

11 from them to us or from them to us during the period

12 of the stay.

13 Mr. Fitzgerald and I spoke on the 25th of June,

14 and he was telling me about when their information

15 that they got from the EAA would be exchanged, and I

16 similarly said I would check with Mr. Green, and we

17 would get back as to exchanging the information from

18 the Refuge and the Park.

19 There has never been any refusal to provide.

20 There was just a hiatus during the 60 days of the stay

21 when no information came from us to them or them to

22 us.

23 Mr. Killinger in fact called me for the first

24 time this morning and said, "Can we get your water

25 quality information?" I said, "Yes, just send me a

1 letter requesting it."

2 Pursuant to the order all of this is to be

3 provided back and forth. It has never not been

4 provided upon request as far as I know.

5 With respect to making people available, yes, and

6 that's why we asked to cease the testing, not on a

7 date certain, but 15 days before the expiration of

8 discovery, which right now would allow under the

9 existing discovery schedule the United States has two

10 weeks at the end of September to take depositions, and

11 pursuant to the order granted this morning an

12 additional three days in October to take depositions.

13 They are already scheduling followup depositions

14 of our witnesses for that period of time, and at that

15 period of time obviously all of the test results from

16 the September sampling would be in, if in fact things

17 go according to plan and the discovery were to cease

18 in September.

19 There has never been a problem with not providing

20 data or with refusing to make witnesses available who

21 are going to review the data.

22 I think clearly in view of the SWIM plan's

23 requirement for the 12-month rolling average we are a

24 long way there. We have been in since December on a

25 continual basis for a seven-month period. We have

1 been in in the middle of each month. I don't know if

2 you had a chance to see the graph appended to

3 Dr. Davis' affidavit which provides the average

4 monthly rainfall...

5 HEARING OFFICER: Okay. Mr. Burgess, let me hear

6 from Mr. Fitzgerald.

7 MR. FITZGERALD: I have a few problems with that.

8 First, in their written pleading as I point out they

9 tell us this data will not change anything. It is

10 going to be used to bolster, strengthen, amuse, or

11 educate all of us, but, "This additional sampling will

12 likely not change expert opinions and conclusions."

13 Secondly, Mr. Hearing Officer, I have yet to see

14 or hear of any soil status coming out of the

15 Loxahatchee Refuge testing program.

16 You will recall in testimony by Dr. Davis which

17 went on at great length, and which transcript is

18 appended to our pleading...

19 HEARING OFFICER: Why does that matter if they

20 chose not to do soils testing? What does that matter

21 if they want to continue?

22 MR. FITZGERALD: It's not they haven't done it.

23 They just haven't turned it over, the data.

24 MR. BURGESS: How do you know it was analyzed,

25 number one, thoroughly tested, number two, if it was

1 taken, and, number three, if it was taken in mid-May

2 it is not due until mid-July. Number four, last

3 Wednesday you got Dr. Dennis' soil data.

4 MS. PONZOLI: In what format?

5 MR. FITZGERALD: We got no boxes of documents.

6 MR. BURGESS: His data was nine boxes turned over

7 on last Wednesday.

8 MS. PONZOLI: Was it a cassette? We are having

9 difficulty locating it.

10 MR. FITZGERALD: If you prefer we focus on the

11 water quality data, Dr. Davis, and it was represented

12 by counsel at great length, his data was essential.

13 They have not abided by the program you authorized and

14 have taken less stations in less places.

15 Obviously this way that's great. The United

16 States doesn't like it, because they were too

17 intrusive. Isn't it wonderful.

18 Another way is this whole effort is not geared to

19 producing data, an effort that they have been

20 discussing.

21 Dr. Davis says in his affidavit as well as his

22 earlier testimony that you've got to have a full year.

23 Now we don't think that is necessary and never did,

24 but by their own plan and their own schedule they

25 won't have a full year that Dr. Davis has told you

1 repeatedly and twice in this pleading that he has to

2 have to do a scientifically valid analysis.

3 Then they tell you it isn't going to change

4 anything, and what we are facing is this further

5 rolling over.

6 In those last two weeks we can depose they have

7 gotten at least half a dozen witnesses that are using

8 the data who have all said to the extent previously

9 deposed or as in Dr. Davis' case he caveated to it,

10 and we could address them at the very end...

11 HEARING OFFICER: You will have deposed all those

12 before that time, won't you?

13 MS. PONZOLI: Many of them, at the bitter end.

14 HEARING OFFICER: Well, if they come at the

15 bitter end they will either have to use that data, and

16 you will find that out during the deposition of their

17 conclusions, no problem, or if deposed them, if you

18 have already deposed them, I am suggesting I will put

19 the affirmative duty on him to let you know if there

20 are any modifications to either conclusions or

21 testimony of witnesses that have been deposed already.

22 MR. FITZGERALD: It is clear from Dr. Davis'

23 testimony he won't have final data until he sees the

24 last bit of data. He will not have it when we depose

25 him the week of September 7. He will say, "Come back

1 and see me."

2 HEARING OFFICER: Now that's a problem.

3 MR. FITZGERALD: Then it's too late.

4 HEARING OFFICER: I've got a problem with that.

5 I agree.

6 MR. BURGESS: He will have them.

7 HEARING OFFICER: What I don't want him to come

8 up at deposition and say on September 7th, "I haven't

9 finalized my opinions," because...

10 MR. BURGESS: He will not.

11 MR. FITZGERALD: Mr. Hearing Officer, 15 days

12 from the end of discovery, the entry and access order,

13 it says you don't have to have sampling done and have

14 the data ready and turned over, but what was it, 30 or

15 40 days, something like that, I could find it, and

16 then they won't be doing any soils, that's all done,

17 but that exchange is too late.

18 HEARING OFFICER: All right. I don't want the

19 extension of access to serve as a basis to postpone

20 finalization of opinions by experts.

21 MR. BURGESS: And it will not, Your Honor. The

22 water quality data that we are seeking on a monthly

23 basis, Dr. Davis has never made any bones about the

24 fact he felt one year was the minimum necessary, but

25 he has also said that we will take what we can get.

1 Ten months is better than nine, and nine is better

2 than seven, and we will take and use what we can get.

3 To the extent that you grant the additional

4 access through and including September, and typically

5 it leads to additional expense to ask for a quicker

6 lab result turnover, but we will get those lab results

7 in a week's time if we can and share it sufficiently

8 in advance of Dr. Davis' followup deposition to allow

9 them to consider.

10 But you also need to consider that they are out

11 there side by side sampling, and as they say in their

12 own motion the results that they have taken and

13 analyzed as samples and the results we have analyzed

14 vary, v-a-r-y, vary not much at all, if at all.

15 And so they already have access to those sampling

16 results with respect to water quality when they take

17 the samples at the same time that we do.

18 MR. FITZGERALD: That requires me to predict what

19 significance Dr. Davis may assign to it. The earliest

20 Dr. Davis was available was the first or second week

21 of September, September 7 through 10th. That's on the

22 heels on the end of discovery.

23 We gave 45 days in the prime order, the December

24 2 order, as amended, to get the water quality

25 standards. It would be wonderful, and maybe they can

1 crank them out quicker, but if they go to the middle

2 of October or even the end of September, there is a

3 time. There are other witnesses of more significance.

5 HEARING OFFICER: Mr. Burgess, you really haven't

6 addressed the concern that I voiced about the

7 finalization of the expert witnesses' opinions. What

8 I don't want to have happen is to grant the access for

9 an extended period of time and have that used as a

10 basis for experts saying, "I haven't finalized my

11 opinion, because I haven't gotten all the test

12 results."

13 MR. BURGESS: When the experts are deposed their

14 opinions are going to be as final as they can be.

15 That's at that point in time. If they chose to take

16 Dr. Davis next week and then sought to exclude his

17 testimony with respect to water quality sampling

18 because he is allowed to gather sampling until

19 September 15th when they have the right to take a

20 followup deposition at the end of September or the

21 beginning of October, that's not fair, either, to try

22 to exclude testimony based on that fact.

23 MR. FITZGERALD: The way it is proposed, 15 days

24 from the end of discovery with the rolling day goes to

25 September 23. That would leave us if they get tests

1 done over the weekend, we would have to do Davis

2 Monday, the week of the 27th.

3 HEARING OFFICER: Let's keep Davis as scheduled.

4 Davis' opinion will be formed at the time you take his

5 deposition.

6 MR. BURGESS: It will have to be subject to if he

7 were to get any further data...

8 HEARING OFFICER: I am putting the affirmative

9 burden on you that if he changes any opinion that he

10 voices in his deposition as a result of any last month

11 testing that you need to notify them and make him

12 available at their convenience to find out what

13 modifications have taken place.

14 MR. BURGESS: I will do it.

15 MR. FITZGERALD: Mr. Hearing Officer, I am sorry

16 if I have given you the impression that Dr. Davis was

17 the only one. It is an issue with Richardson and an

18 issue with Dennis and his firm. They are looking at

19 water quality data and caveating their opinions.

20 What I am asking you to do is please cut this off

21 by the end of August, let them have an extra two

22 months, cut if off then so they have got to get that

23 done by mid-September or get the water done quickly,

24 and by Tuesday, September 7th, or sometime during that

25 week Davis has got his final opinion.

1 Then they will do a Richardson followup in

2 September, and Dennis will have to have a followup,

3 because he is not available for the week we need him,

4 and there are others as well.

5 They have said, "This is not going to change

6 anything." Why should we run the risk of having to

7 juggle the discovery schedule in late September to

8 accommodate when they say there are four people who

9 are looking at that and the final data.

10 (WHEREUPON, MR. PERKO LEFT THE HEARING ROOM.)

11 Now you will need to get them done here and

12 there.

13 HEARING OFFICER: What's the problem with cutting

14 off in August?

15 MR. BURGESS: The same problem on the monthly

16 basis. If you take a look at Dr. Davis'

17 attachments...

18 HEARING OFFICER: But it gets you through most of

19 the wet season.

20 MR. BURGESS: The month of September is the, the

21 average monthly rainfall from 1970 to 1985, it is the

22 month of the highest monthly average rainfall.

23 So if we cut it off in September, the way I

24 phrased my motion, and you will recall we had the same

25 argument back in February, I have requested the cutoff

1 be tied into the end of discovery and not on a

2 specific month.

3 We are sitting here today where they would like

4 to pick August, and I am asking for 15, 20, 25, 30,

5 days before the cutoff of discovery, if we pick a date

6 certain that would allow, right now we have a November

7 15th hearing, but we will never have an opportunity to

8 gather water quality data from July or August or

9 September unless we do it pursuant to the continuing

10 order.

11 The parties are meeting again in Washington,

12 D.C., Thursday and Friday. It is no secret an

13 additional stay may be agreed to, and we may present

14 an additional stay at which time the hearing may not

15 be in November, and we would like the opportunity to

16 continue to gather water quality data on a monthly

17 basis for one day, one and a half days, if necessary,

18 in the middle of each month so that all parties have

19 that data to bring in on their final opinions.

20 I have said if you want to go through September

21 15th, when this was written it contemplated the close

22 of discovery on September 30 and sampling during,

23 September 10, 11, 12, in that area, to allow the data

24 to be turned around and those experts on the other

25 side would all have access to the data in advance of

1 the last two weeks of the deposition period, when they

2 are already scheduling the same people for followup

3 depositions right now.

4 HEARING OFFICER: Who are the experts that you

5 have that you will be providing the sampling data to?

6 MR. BURGESS: Well, certainly obviously Dr. Davis

7 and Dr. Lettenmeier, Dr. Richardson, and perhaps

8 Patrick that I can think of right now that would have

9 testimony that would be with respect to water quality

10 sampling and results.

11 HEARING OFFICER: All right. I want you to

12 provide to Mr. Fitzgerald a list of all the witnesses

13 that you will be giving that, those test results to.

14 I want the two of you to try to discuss what you will

15 need to do in terms of if Dr. Davis' deposition is set

16 for September 7th, even if that last test result isn't

17 in, his final opinions had better well be pretty well

18 put together by the time his deposition is taken.

19 If there are any changes in the testimony of any

20 of the experts as a result of the testing done after

21 the deposition, I am putting the affirmative duty on

22 you to convey that information to the proponents of

23 the plan.

24 MR. BURGESS: We will do it. I just ask since

25 they are sampling out here on the same site at the

1 same time, I would like a list of people they are give

2 the water quality data to also so we have the same

3 opportunity in discovery to take depositions during

4 the last two weeks, the last three days.

5 MR. FITZGERALD: We have never said anybody was

6 changing opinions. We have been double checking them.

7 That's why we are out there. Our experts have their

8 opinions and are prepared to express them. They

9 caveat, of course, that if some revelation comes in

10 they will have to give us another opinion.

11 MR. BURGESS: Well, obviously the monthly water

12 quality sampling results that we are getting at 14

13 days differ markedly from that in Appendix E. I

14 assume that their experts are looking at that. I

15 would like to have the opportunity to examine them on

16 that subject.

17 MR. FITZGERALD: That's rebuttal, if anything.

18 It is beside the point. In fact, we need the rest of

19 the petitioners' witnesses, just as you have directed,

20 because this information, it should go to all. The

21 League shares, and the Coop is in on this, as is the

22 Fruit and Vegetable Association, through the Florida

23 Sugar Cane League. We would need to have a list of

24 witnesses who shared and reviewed the data from all

25 petitioner parties.

1 HEARING OFFICER: Mr. Green or Mr. Hoffman?

2 MR. FITZGERALD: If any.

3 MR. HOFFMAN: No problem.

4 MR. GREEN: I apologize. I was writing a note.

5 HEARING OFFICER: Mr. Fitzgerald is asking for a

6 list from you as well as to the experts, since you are

7 sharing the data that has been collected, who are you

8 sharing it with, which experts, so that he will know

9 if any of their opinions have been modified or changed

10 as a consequence of the testing that goes beyond that.

11 MR. GREEN: Sure. We certainly would intend to

12 present data to McClave, Folman, and Steve Gherini.

13 MR. FITZGERALD: Steve Gherini we have been told

14 is not available until the last week of the

15 prescheduled discovery. The extensions of this are

16 literally eating us into an inability to be able to

17 depose. We are now talking about seven major

18 witnesses all in late September being made available.

19 They can say, "We will make them available."

20 When, where, and how long, but there are not enough

21 days and attorneys to do it. Just as a practical

22 matter...

23 HEARING OFFICER: Now we are getting beyond the

24 entry and access issues here, and if there is a

25 problem in that regard you need to file a motion,

1 because I am not sure what the schedule looks like and

2 where they are.

3 MR. FITZGERALD: Strictly related to the data

4 from the late testing there are seven major witnesses

5 who are reviewing, and perhaps offering opinions,

6 because we are faced with the prospect of having to

7 cope with that in the last 10 days.

8 HEARING OFFICER: Well, no, no. What I am saying

9 now is I want those witnesses to be scheduled in the

10 normal course of the discovery pattern, and I expect

11 that when they are set for deposition their opinions

12 will be largely finalized as to what their testimony

13 will be at the final hearing, and if there is one

14 testing day subsequent to the date of the deposition

15 or even if there are two that if there are any

16 modifications to their testimony as a result of the

17 testing that occurs subsequent to their deposition, I

18 am putting the affirmative duty of the parties that

19 are calling that witness to alert you and make that

20 witness available and let you know what the changes

21 are.

22 MR. GREEN: We agree. There is no problem.

23 MR. BURGESS: Your Honor, I would point out this

24 is not a one-way street. Dr. Ron Jones is set for

25 July 26th. The United States was in the EAA taking

1 soils and other samples I believe back in April, and

2 on June 25th they informed us that his, Ron Jones',

3 mercury data would be completed July 12th, and that

4 the fish tissue analysis would be available two weeks

5 later on July 22nd.

6 They are making data available on the day of the

7 deposition, a key witness.

8 We are having to struggle with the same thing.

9 We understand we will have to set Dr. Jones for a

10 subsequent followup if opinions change based on his

11 results.

12 MR. FITZGERALD: We are allowing over two months

13 for the followup.

14 HEARING OFFICER: I would point out we are

15 getting off the main issues here, which is the entry

16 and access.

17 MR. FITZGERALD: What date is now being set as

18 the terminus, Mr. Hearing Officer?

19 HEARING OFFICER: September 7th.

20 MR. FITZGERALD: Thank you.

21 MS. PONZOLI: A related issue...

22 MR. BURGESS: I'm sorry, Mr. Hearing Officer, we

23 have classically been going into the Refuge in the

24 middle of each month, so that we could get data

25 representative from the same time. We have been going

1 in between the 12th and the 16th.

2 (WHEREUPON, MR. PERKO ENTERED THE HEARING ROOM.)

3 If we are limited to September 7 as a close, I

4 just want to assure that we will be able in fact to

5 get in there at or near that time on the 7th with the

6 Refuge personnel so we don't get closed out of a

7 September sampling event.

8 MS. PONZOLI: We will do what we can do to

9 accommodate you.

10 MR. FITZGERALD: I will fly the helicopter.

11 MR. BURGESS: I will go behind him.

12 MR. FITZGERALD: He doesn't understand the safest

13 place would be with me.

14 MS. PONZOLI: I rode in a helicopter piloted by

15 one of Mr. Burgess' clients, so he should show the

16 same faith.

17 I have a related issue, however, that has been

18 raised by Mr. Burgess with regard to the mercury

19 information gathered by Dr. Jones.

20 Dr. Jones' deposition is supposed to start the

21 27th, I believe. That information, if you recall,

22 Mr. Hearing Officer, they also pulled mercury data

23 along beside us at some point, and there was to be a

24 reciprocal exchange.

25 However, the protections on that data have never

1 been resolved.

2 So I need guidance and I also need their data so

3 that Dr. Jones can look at their data. I want to

4 produce him one time, and I will expect this to be

5 done, and if he has no changes I want it finished. We

6 have a lot of depositions to do.

7 What I am asking for is a reciprocal exchange of

8 all mercury data that they pulled so that Dr. Jones

9 can look at it. I will turn over Jones'. Am I to

10 just simply disburse it among the parties? Is that

11 the pleasure of the Court?

12 HEARING OFFICER: Okay, there are two issues

13 here. One is the exchange of the data that was pulled

14 I guess simultaneously when Dr. Jones pulled his?

15 MS. PONZOLI: Yes.

16 MR. BURGESS: By Mr. Green's client.

17 MS. PONZOLI: Yes.

18 HEARING OFFICER: At this point the data has not

19 been exchanged?

20 MS. PONZOLI: We have been in there in a stay. I

21 am not fussing that there hasn't been. I am just

22 saying I want it done, and I would like it done before

23 Dr. Jones' depo.

24 MR. GREEN: We agree, Your Honor. In fact we

25 calculate it is due on July 21st, the mutual exchange.

1 If they take out 60 days for a stay, that's the

2 deadline. Do you agree?

3 MS. PONZOLI: I will have to see, but, yes, we

4 will agree on a mutual date prior to his deposition

5 and exchange it. That's fine. Am I to disburse it to

6 all parties?

7 HEARING OFFICER: This goes back to the

8 protective order issue?

9 MS. PONZOLI: Yes.

10 HEARING OFFICER: Okay. I have a draft that is

11 buried under all the files that are being renovated in

12 our office, so as soon as I can get access into my

13 office I will get it out. It probably is going to be

14 early next week before I get all my boxes and files

15 back, and I am scheduled out all next week. It

16 probably will be the week after before I can do it.

17 MR. GREEN: If memory serves me, I think that

18 your early order told us to turn the data in to you in

19 60 days, and that in the meantime you would issue an

20 order telling us how it would be protected, if at all.

21 MS. PONZOLI: I don't recall that.

22 MR. GREEN: I guess the question is what should

23 we do? We will wait for your order.

24 MS. KAVANAUGH: We reiterate the objection to the

25 mercury issue. It is not relevant. That's why we

1 want a protective order.

2 HEARING OFFICER: Okay. Well, we have argued

3 that back and forth.

4 MS. KAVANAUGH: Just so the record is clear.

5 HEARING OFFICER: Okay. What I need to do is go

6 back and check, as I recall or said was we entered an

7 order, and the protective order aspect was left out,

8 so, and I don't recall what the order was that was in

9 it, I don't have that here, and that again is buried

10 in a box under a paint cloth now.

11 I guess we will have to go back and take a look

12 at that and see what that calls for. If it is an

13 exchange between parties, then you can go ahead and do

14 that without me, but if it comes to me first then I

15 will have to...

16 MS. KAVANAUGH: That's what it was, and if a

17 party had an objection to use it at trial or anything

18 you would decide what degree of confidentiality it

19 would have.

20 MS. PONZOLI: I recall you dropped it to the

21 protective order. We dropped the whole issue. We

22 would drop the whole issue. We would hold it close...

23 MS. KAVANAUGH: No.

24 MS. PONZOLI: ...until such time that you issued

25 the second order. It was held closed until the second

1 order.

2 HEARING OFFICER: We will have to take a look.

3 The only problem is that I am out all next week.

4 MS. PONZOLI: Right.

5 HEARING OFFICER: So if it comes in next week I

6 am not going to see it until the following week, and I

7 am not sure what the dates look like.

8 MS. PONZOLI: Perhaps if we come to a wall can we

9 ask for at least an oral type of thing? I don't know

10 what to do. Maybe we can enter a stipulation. I

11 doubt it, but...

12 HEARING OFFICER: Okay. I am going to be, I can

13 be reached next week. I can leave word with my

14 secretary as to where you need to reach me. I will be

15 in North Carolina hopefully, so you can reach me

16 there, and we can talk about it.

17 In the meantime if someone could pull that order,

18 because I do not think I will be able to get to it

19 until next week...

20 MR. BURGESS: If you are going to be up in the

21 mountains, maybe we can have a hearing up there.

22 MR. FITZGERALD: Mr. Hearing Officer, the

23 mountains aside, I am a little more concerned that you

24 might be at an institution of acclaimed higher

25 learning that would be germane. You are not going to

1 Duke, are you?

2 HEARING OFFICER: Well, I spend a lot of time

3 there.

4 MR. FITZGERALD: It is not basketball season, is

5 it?

6 MS. PONZOLI: We will forward you the order. If

7 we have any agreement we can reach we will, because it

8 is possible.

9 HEARING OFFICER: Okay. Because I just don't

10 recall which way it went, and the protective order

11 issue I have resolved in my own mind and have a draft

12 of it that I need to get out.

13 All right. The motion to compel attendance at

14 deposition or to strike. The United States filed for

15 an extension of time to respond to that, which was

16 opposed. Let's see if I can resolve that here, so we

17 don't have to file written responses if necessary.

18 MS. PONZOLI: I would like to have an opportunity

19 to resolve it with them. I don't have control of the

20 data. You could order me to produce it, and I

21 couldn't do it. It us under their authority. There

22 is a court order where the Water Management District

23 tried to obtain it and was unsuccessful. That

24 university was successful in protecting it.

25 I would like you to give me an opportunity to try

1 to work with them on some of these people they could

2 depose, but not all of them.

3 MS. KAVANAUGH: Mr. Hearing Officer, if I may,

4 since it is our motion, what we are trying to get an

5 understanding on was originally the United States

6 represented they had no control over these folks,

7 notwithstanding its U. S. Fish and Wildlife role, and

8 we subpoenaed, and we are now seeking to enforce the

9 subpoena in Circuit Court, and it is pending for the

10 docket.

11 However, the witnesses in accordance with the

12 agreement of parties after the permit situation, we

13 added the witnesses before the stay, sent a letter

14 indicating we wanted to depose these individuals with

15 the understanding we would have to subpoena them. The

16 United States had already told us that.

17 We didn't receive a response before the stay, but

18 after the stay when there was a meeting of counsel to

19 schedule the deposition schedule we were told that the

20 same witnesses were now non-testifying experts, and we

21 would not be able, they would oppose any subpoena or

22 effort to depose them.

23 And we are left with an untenable situation,

24 because this information is crucial. It is at the

25 heart of the factual case and the assumptions

1 underlying the Everglades SWIM plan, and apparently as

2 it was generated through the settlement agreement it

3 is at the heart of the entire plan. We need to depose

4 these individuals.

5 We are told there is no control on the one hand.

6 On the other hand we are told they are non-testifying

7 experts.

8 Even if you assume they are non-testifying

9 experts we are entitled to depose them, we will

10 subpoena them.

11 If the University of Florida will fight our

12 subpoena it is a different situation, but we are

13 entitled to depose those experts whose information,

14 opinions, and conclusions are being used and are

15 cited, the Richardson report being one, the one you

16 are most familiar with, as factual support for the

17 SWIM plan.

18 I guess what we want to know is are they expert

19 witnesses for the United States, or aren't they? If

20 they aren't we are going to subpoena them and go

21 through that process.

22 HEARING OFFICER: Well, I think you need to

23 subpoena them, and what's your position? Are you

24 going to object to the subpoenas?

25 MS. PONZOLI: The subpoena of the documents I am

1 not going to object to. I think that's something that

2 has been done in the past. They fight with the

3 university over that.

4 I will tell you very honestly I have been in

5 mediation. We asked for more time to argue it, and I

6 would like more time to work it through.

7 HEARING OFFICER: Okay. I don't think it is ripe

8 anyway. If you need to subpoena the witnesses, they

9 need to file a motion.

10 MS. KAVANAUGH: That's what we wanted to find

11 out.

12 MR. BURGESS: Mr. Fitzgerald said they are

13 non-testifying witnesses. He said they would not

14 agree to us taking their depositions. If that has

15 changed or Is under review, then that's all they need

16 to tell us.

17 MS. PONZOLI: It is under review, and I would

18 like time which is really through tomorrow to try to

19 resolve this. I mean, they are not going to be

20 scheduled for a depo in the next month, because it is

21 filled.

22 HEARING OFFICER: What I suggest you do is you go

23 through the process of getting the subpoenas issued,

24 and if they don't file a motion to quash you can do

25 it, and if you can't work it out we can take it up at

1 the next hearing.

2 MS. KAVANAUGH: Yes, sir.

3 HEARING OFFICER: Okay. The motion to compel

4 production of the expert documents which was filed by

5 the Water Management District, this is a document that

6 is buried under files, so I have read the response,

7 but I have not had an opportunity to go back and take

8 a look at the actual motion itself.

9 So, Mr. Nettleton, perhaps you can bring me up to

10 speed.

11 MR. NETTLETON: Yes, sir. I argued this right

12 before the stay went into effect, but they wanted more

13 time to brief a response.

14 Our position was really simple. I got another

15 copy of the motion for you, but essentially what we

16 are talking about here are three categories of

17 documents, and there are, they are actually listed in

18 a whole laundry list of documents requested.

19 These were specifically identified as the

20 deposition of Dr. LeFohn and Krupa, and they fall into

21 the three general categories.

22 One is the reports prepared by experts in

23 exchange with counsel but not produced. There is also

24 information or documentation through information that

25 was supplied to the experts which they had reviewed

1 and have not decided whether they are going to rely on

2 it or not or have decided not to rely upon it, but

3 they did review it in the prospect of forming an

4 opinion in the case.

5 Finally, the third category is simply the

6 agreements, the expert witness agreements, how they

7 are being compensated for the testimony.

8 As far as I know there has been no objection or

9 response to the contractual stuff, and I am assuming

10 they may not be pursuing that any more. In their

11 letter which was attached to my motion they indicated

12 their only objection was that they had a dispute about

13 producing expert witnesses' compensation agreements.

14 I don't think that is a valid objection. Again it is

15 not addressed in their response.

16 As far as the other two categories of documents,

17 the reports under the Mims case are producible. There

18 is no work product privilege attached. They are

19 testifying experts.

20 The fact that they are called preliminary reports

21 makes no difference. Mims makes no difference.

22 There are two reports that were issued. You can

23 assume the first report was a preliminary report, and

24 if that had any relevance at all it would certainly

25 preclude production of the documents in the case.

1 Since you stick a "preliminary" on there, as we have

2 heard opinions in every deposition, so we feel it is

3 pretty much preliminary, we would be getting nothing

4 at all.

5 Certainly in the context as Your Honor has ruled

6 previously on collateral issues, how the opinions are

7 being formulated is relevant, and I submit that

8 preliminary reports which reflect preliminary analysis

9 and conclusions, what they have looked at, accepted,

10 judged, and changed their minds about, that is all

11 proper inquiry into determining how their final

12 opinions were formed and is proper discovery.

13 The same is true with regard to the information

14 they have been provided. As far as formulating

15 opinions and how if affects their opinions, whether

16 they have relied upon it or not is irrelevant. It is

17 the fact that they may have given information which

18 undercuts their entire theory of their opinion, and

19 they just say, "I will not rely on it," so they won't

20 turn it over, if that sanitizes the information we see

21 it eliminates an ability for close examination, and we

22 submit it also essentially, essentially all of those

23 cases cited in the brief, and I think they stated on

24 paragraph four of page three, they have it in quotes,

25 applies to consultants.

1 Well, we're not talking about consulting experts.

2 These are designated testifying experts. I think it

3 is clearly understood by all counsel when you turn

4 things over to a designated testifying expert it is

5 subject to discovery. That's the case in this

6 proceeding.

7 I would also from a generic fairness standpoint,

8 they have certainly been requesting all this

9 information, every preliminary report, every draft,

10 every scrap of paper, and they have been asking

11 questions about every scrap of paper in every

12 deposition, "Why did you change this?"

13 If they say, "This is irrelevant discovery," I

14 submit it should cut both ways, and all those

15 questions would be deemed inappropriate, and we could

16 only ask questions of what the final opinion is and

17 not any preliminary evaluation or anything else. You

18 heard earlier a discussion about how the numbers came

19 about.

20 Now they are saying that we can't discover it

21 from them, and it is improper, it is unfair, and it is

22 not very useful discovery. We request the documents

23 be turned over.

24 HEARING OFFICER: Let me make sure I understand.

25 There are three categories. The first is draft...

1 MR. NETTLETON: They claim they are draft reports

2 as opposed to final reports. I don't know what they

3 are.

4 HEARING OFFICER: Okay. The second is documents

5 that are provided to the experts that they claim they

6 are not relying on?

7 MR. NETTLETON: Well, it comes in two categories,

8 Mr. Hearing Officer. It is information in general.

9 Again the specific items that were set forth were

10 identified specifically in the depositions, and they

11 are listed in our motion.

12 Generically there is information that was

13 provided by counsel or others to the witnesses. It

14 might be from other experts given to them.

15 In one case I believe there is information

16 provided by a non-testifying expert who is not

17 retained by anybody, just a co-worker of one of the

18 experts, and he received information, and they are

19 claiming it is work product, yet he is using it to

20 develop opinions. He may or may not rely on it. He

21 has not decided.

22 I assume that sometime he will finalize those

23 opinions, and we can take his deposition again.

24 But it is either information that they have

25 looked at, reviewed, in formulating opinions and

1 decided, "I am relying on it," or information that

2 they haven't decided at the time I took the

3 depositions whether they would rely on it or not.

4 They are not turning it over until they determine if

5 they are relying on it, because they haven't finalized

6 their opinions yet.

7 HEARING OFFICER: And a third is a contractual

8 agreement?

9 MR. NETTLETON: Yes, sir.

10 MR. HYDE: As far as the contractual agreements

11 go we would like an understanding with all parties the

12 contractual agreements are to be produced, because

13 there has been some discord on that point.

14 As far as the other things go that they are

15 asking for privileged information, I think the case

16 law particularly in Florida is clearly supportive of

17 our view.

18 The District is arguing in addition to final

19 reports and the underlying data and documents they are

20 also entitled to preliminary reports, and as I read it

21 they are even entitled to communications between

22 counsel and the consulting expert or testifying

23 expert. That makes no difference.

24 They want any data whether relied upon or not.

25 Rule 1.280(d)(3) specifically speaks to this

1 issue and production of these documents unless

2 requesting basically documents needed and materials

3 and the inability to obtain them otherwise without due

4 hardship.

5 The same subsection of the Florida Rules of Civil

6 Procedure protects from discovery material

7 representations, conclusions, theories of the parties,

8 attorney-client communications, and I think the

9 Florida cases that affirm these are legion. We have

10 cited them in paragraphs eight, nine, and 11 of our

11 memo. They are before you. I will not reiterate them

12 here.

13 The District's memo cites only two cases, Mims

14 versus Casa Demont, which is a Third DCA case, and the

15 way I read that, and I looked at it before I came over

16 here, it stands for the proposition that, and I am

17 quoting here, "Reports prepared by experts expected to

18 testify at trial are not protected."

19 Mr. Nettleton seems to think that that means any

20 kind of report is not protected, but I don't think it

21 means that even draft reports or interim

22 communications and the like are producible, and given

23 the host of authority that we have cited to the

24 contrary in our memorandum, I don't see how one could

25 interpret the rather loosely worded language in the

1 Mims decision to reasonably imply that result.

2 The other case that is cited, Mr. Nettleton

3 didn't argue, probably for good reason, is a Federal

4 District Court case from Colorado, and I would suggest

5 to you that such a case is not very persuasive. It

6 doesn't even reflect the predominant federal view

7 as you see from the bottom of page seven of our memo,

8 and more importantly the Florida authorities that

9 we have cited to you throughout the opinion and to the

10 contrary.

11 So I guess what you are being asked to do is rely

12 on one anomalous federal decision from a Colorado

13 court and one loosely worded Third DCA, which I don't

14 think reasonably stands for the proposition for

15 which Mr. Nettleton is advancing, or the host of

16 federal and Florida cases that we have cited throughout

17 our memo, which clearly stand to the contrary.

18 We are talking about draft reports and

19 communications with counsel and information reviewed

20 but not relied upon.

21 And the Florida Rules of Civil Procedure speak

22 so clearly that I don't really see why it is a

23 debatable point. They are not producible at this

24 time.

25 If at some point this data that is reviewed but

1 not relied upon is somehow transformed into data that

2 would be relied upon in the final hearing, then in

3 accordance with your prior rulings and admonitions to

4 the parties we would certainly promptly notify opposing

5 counsel and provide an opportunity for a deposition,

6 if so desired.

7 That's not the case. You just don't have to

8 produce every bit of information that may come before

9 an expert's eyes during the course of complex

10 litigation like this.

11 I don't really see that we have even a debatable

12 point. The cases are in our court. The provisions

13 of the rules speak clearly to the issue as well. I

14 don't know what we are talking about.

15 HEARING OFFICER: Let's deal with the contractural

16 issue first, contractural agreements.

17 What is the problem on that? Have they not been

18 produced in other depositions?

19 MR. NETTLETON: Ours are whenever requested.

20 MS. KAVANAUGH: We have made similar production

21 requests from the United States, but they were declined.

22 MR. NETTLETON: It is not with us.

23 MS. KAVANAUGH: No, it hasn't been with you,

24 because they are public records. They have produced

25 them.

1 MS. PONZOLI: We will produce them. If they are

2 produced we will give them to you.

3 MR. HYDE: No problem. We will do it.

4 HEARING OFFICER: All right, in terms of the

5 other ones, I need to go back and look at Mr. Nettleton's

6 motion and read the cases. I haven't read them yet.

7 I will say it has always been my impression that

8 anything that was provided to an expert to review was

9 discoverable, even if he didn't rely upon it.

10 Now whether that has always, that's always been

11 what my impression of the law was. I'll go back and

12 check it and see.

13 And the issue of the draft reports for an expert, I

14 have never looked at that, and I will have to look at

15 the case law.

16 MR. NETTLETON: Could I make just a couple of

17 comments? First, I disagree with Mr. Hyde's prevailing

18 federal view. I don't think there is any need to line

19 up cases to see who can find more.

20 (WHEREUPON, MS. PONZOLI AND MR. SAXE LEFT THE

21 HEARING ROOM.)

22 The whole argument assumes this is work product

23 information. We discussed that. They have the burden

24 of establishing the existence of a work product

25 privilege, and we submit they have not done it with

1 regard to this situation.

2 This is information turned over to designated

3 testifying experts.

4 We are not talking about a consultant. Ninety-nine

5 per cent of the cases deal with consulting experts,

6 those who are not intended to testify at trial.

7 If that were the case, clearly we would not be

8 here discussing it. In fact, because they are

9 designated testifying experts, I would submit the only

10 cases they have cited which seems closely analogous

11 is the Wheels case where the Court indicated that

12 discovery cannot be held of a certain documents

13 that were outlined in the opinion, because the expert

14 did not rely upon them. That was from the Fifth

15 District, 456 So. 2d 1208.

16 That case is perfunctory in the sense it is a

17 single paragraph with no discussion of the facts and

18 no discussion of whether those particular documents

19 have anything to do with the experts' area of testimony

20 in the case, which is directly contrary to this

21 situation where all of these items are directly

22 relevant to the formulation of the opinions upon

23 which they will be testifying, and all specific items

24 are identified in the deposition and set forth in the

25 memos and the attachments.

1 HEARING OFFICER: I will look at the cases. I do

2 think there is a big difference between testifying and

3 non-testifying experts, but let me take a look at the

4 cases. I'm sorry I didn't have a chance to do it

5 before today.

6 I think that's all the motions we have before us

7 at this point. Is that right?

8 MR. FITZGERALD: Yes, sir.

9 MS. KAVANAUGH: Yes.

10 HEARING OFFICER: Let me get an idea as to what

11 we are looking at. We have another hearing scheduled

12 for August 6th, is that right? I would assume that as

13 we get closer to the hearing date we will have to set

14 aside a day, and we can do it by telephone if we need

15 to, to do these things to make sure matters are

16 running smoothly.

17 In the meantime there are still mediation efforts

18 ongoing? Is that right? I guess I don't need to know

19 or don't want to know about that. I will wait for

20 you to surprise me.

21 MS. KAVANAUGH: That's right.

22 MR. FITZGERALD: Mr. Hearing Officer, one area

23 we would like to inquire into, you suggested a notion

24 that by August sometime you were looking to see those

25 amended petitions. It seems to me that obviously the

1 earlier the better, because we may be able to

2 eliminate witnesses or certainly shorten the length

3 of some depositions and may need to realign our

4 depositions, but you in fact had not specified a

5 date on which you wanted to see those or by which

6 you were interested in seeing them.

7 HEARING OFFICER: That's a good point. Will the

8 next round of events exhaust your mediation efforts?

9 MS. KAVANAUGH: I don't think so. I think the

10 mediation, unless something dramatic happens, the

11 intent is to try to continue discussions but move

12 towards hearing at the same time.

13 MR. FITZGERALD: I would suggest if this week

14 does not see substantial advancement that very little

15 attention will go to formal mediation thereafter.

16 HEARING OFFICER: A little posturing?

17 MR. FITZGERALD: No, but I can't let something be

18 said with which we do not agree. I'm not saying the

19 courthouse steps are not there.

20 HEARING OFFICER: It is getting late in the game,

21 and everybody will need to direct attention to

22 preparation.

23 The only reason I inquired is because if it was

24 significant, a significant effort was going on and a

25 lot of parties were involved out of town, I was thinking

1 the date for filing the amended petitions should be

2 after that, so we could focus on that, and then if

3 that doesn't work we could get the amended petitions

4 together.

5 MR. HYDE: I think one thing you need to keep in

6 mind is we are hearing a lot about a modified District

7 plan, which scares the daylights out of us. There

8 could well be an amended petition in a very

9 significant fashion.

10 HEARING OFFICER: Okay. That's another ballgame.

11 I don't know what that portends to this case, but was

12 it this Thursday and Friday or next Thursday and

13 Friday?

14 MS. KAVANAUGH: In Washington this week, and

15 there's a District meeting next week, so we should

16 all have a better clue as to what's going to happen.

17 HEARING OFFICER: What I would like to do is see

18 if we can try to narrow the scope of the issues.

19 That's why I raised the amended petition in the past.

20 I think the appropriate way would be to have

21 petitioners go back through the petitions, and maybe

22 you will adopt all of it, or maybe you won't, but

23 there is a pending motion by the District to strike

24 that I had reserved judgment on, and at some point

25 before the hearing I would like to take that up and

1 see if there are, if we go through the petitions item

2 by item, see if there are some matters that we can

3 eliminate, either voluntarily or not voluntarily.

4 So I guess what I would like to suggest is for

5 the petitioners to take a look at, I know there have

6 been amended petitions filed by the League, two of

7 them, I believe, if I'm not mistaken, take a look at

8 the petitions you filed in light of the discovery in

9 this case, see if there are some issues that have been

10 resolved as a result of the discovery process, or how

11 many agreements have taken place, and see if we can

12 narrow, I think that's the beginning point, to try

13 to narrow some of these issues and file an amended

14 petition.

15 If it is simply to adopt your earlier petition,

16 that's okay, too.

17 File your amended petitions by the first week in

18 August, prior to the hearing date, if we can,

19 August 6th, and then we will see where it takes us.

20 Maybe we can narrow the scope somewhat.

21 MS. KAVANAUGH: What if we decide to add?

22 HEARING OFFICER: Well...

23 MR. NETTLETON: Don't add any witnesses.

24 HEARING OFFICER: ...we'll look at that on

25 August 6th. Any other matters we need to discuss?

100

1 MR. NETTLETON: Mr. Hearing Officer, if it would

2 assist you, I do have clean copy of my motion.

3 HEARING OFFICER: That would help. I don't have

4 that.

5 MR. NETTLETON: Okay. (Handing document to

6 Hearing Officer.)

7 HEARING OFFICER: I think I am out of my office

8 all week.

9 MR. NETTLETON: I think the only thing not

10 included are the cases we have cited.

11 MR. FITZGERALD: Could I be excused to try to

12 flee through the rush-hour traffic?

13 HEARING OFFICER: I think we are all done.

14 (WHEREUPON, THE HEARING WAS CONCLUDED AT

15 4:14 P.M.)

16 * * * * *